TMI Blog1979 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the declaration, he mentioned 5 minor children besides his wife as the members of his family. The Tahsildar stated in his verification as per Rule 4 (4) of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules 1974, that the petitioner's family consists of seven members; and an issue, namely issue No. 7 was framed by the Tribunal to the effect , Whether declarant's family unit consists of seven members? It appears from the order of the Tribunal that in view of the Tahsildar, the authorised Officer did not dispute the petitioner's averment in this behalf. The petitioner also deposed on oath that his family unit consists of seven members. In view of the above, the Tribunal held, by its order dated 12-4-1976, that the petitioner's family unit consists of seven members and since he is entitled to an additional 2/5th holding on that account, his holding is within the permissible limit. The said order became final, not having been appealed against. About six months later, the petitioner was served with a notice dated 6-10-1976, impugned herein, intimating the petitioner that the case has been reopened at the instance of the authorised officer sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The circumstances which led to the aforesaid decision in brief, are that the petitioner, his father and his other two major brothers filed four declarations under Section 8 of the Act. In respect of the four declarations filed by the petitioner, his father and two brothers, the Verification Officer filed a report stating that none of them held any land in excess of the ceiling are. The Land Reforms Tribunal passed orders to that effect in all the four cases and obtained the signature of the petitioner's brother. The Land Reforms Tribunal, 1st respondent therein, found that each of them was holding only land equivalent to 0.7852 Standard Holding which is less than the ceiling area viz. One Standard Holding. The Writ Petition was filed, alleging that the 3rd respondent therein, being inimical towards the petitioner, got an application filed before himself by a third-party stating that the Land Reforms Tribunal and the Verification Officer were in league with the petitioner and when there was excess land, cases were wrongly closed as if there was no excess land. On the basis of that application, the 3rd respondent directed the Commissioner of Land Reforms 2nd respondent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evious order of granting patta to the petitioner, is clearly without jurisdiction and must be quashed 9. The learned Government Pleader, on the other hand cited the following decisions for the rival proposition. 10. In K. B. G. Tilak v. Spl. Tahsildar, ((1978) 2 APLJ (HC) 83), the facts are that the petitioners therein claimed that certain of the properties shown in the declaration were joint family properties and could not be included exclusively in the holding of the 2nd respondent. The Land Reforms Tribunal overruled the objection and computed the same in the holding of the 2nd respondent-declarant. The declarant preferred an appeal impleading his two brothers, petitioners in the case cited, as respondents 2 and 3. In the memorandum of appeal, he, inter alia, urged that certain of those lands were joint family properties in which his two brothers, respondents 2 and 3, had also a share. That appeal was posted for hearing on 20th April, 1977. On that day, neither the appellant nor his advocate was present; nor were the respondents 2 and 3 present either in person or through their Counsel. In the absence of the parties, the Land Reforms Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such manner as it deems fit. However, the Land Reforms Tribunal is enjoined by Section 8 to determine the holding of a declarant and decide whether he holds any land in excess of the ceiling are to which he is entitled under the Act and direct him to surrender such excess. A declarant having filed declaration of his holding cannot thwart the proceedings before the Tribunal by his absence. If in the absence of the declarant, the objector or other parties interested, the Tribunal is held to be precluded from proceeding to compute the total holding of the declarant and determine the excess, if any, held by him and from directing him to surrender the excess holding, the working of the Act would be left at the mercy of the declarants. The purpose of the enactment and the object of the legislature in constituting the Tribunals is obviously to create a machinery to determine the surplus holdings and take over the excess land for distribution in accordance with the provisions of the Act. That object of the enactment must be fulfilled and cannot be made to depend upon the presence or absence of the parties or their Counsel. If O. IX were to be held to apply in its entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal, therefore, was in error in rejecting the application on the assumption that it had no jurisdiction to entertain such an application. We hold that the petitioners have shown sufficient cause for their non-appearance on the date of hearing. The ex parte order therefore ought to have been set aside by the Appellate Tribunal. Sir Williams R. Anson, in Principles of the English Law of Contract (Twenty First Edition) at page 237 observed: ......... it is equity's duty to prevent abuse of confidence and to see that no person retains any benefits arising from his own fraud or wrongful Act. The next case relied on by the learned Government Pleader is Guddappa v. Balaji, AIR 1941 Bom 274AIR 1941 Bom 274 (FB) wherein a Full Bench of the Bombay High Court held: I. In all cases of unilateral or bilateral fraud which has not been successfully effected, either party can repudiate the fraudulent transaction and can recover or maintain his possession by proving his real title. II. In cases where fraud is accomplished............... (1) where only one party acts fraudulently, he cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So, the learned Counsel submits, the Rule cannot seek to enlarge the scope as contemplated by the Section, nor can it run counter to or in excess of what the Section itself lays down, and therefore, Rule 16 is ultra vires. It is further submitted that it is now well settled that the Rule cannot be repugnant to the provisions of the Section. For this, he relied on the decision of the Supreme Court in I-T. Commr., Madras v. S. Chenniappa, [1969]74ITR41(SC) wherein it is held:- Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of R. 24. It clearly comes into conflict with sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act. For the proposition that the case could not be reopened on the mere ground that either subsequent legislation or the decision of a Court changed the position, the learned Counsel for the petitioner relied on the decisions in Gy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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