Beerammada Hamza v. Administrator, Union Territory of Lakshadweep & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934** ## **WP(C).No. 13864 of 2007 (A)** **---------------------------** **PETITIONER(S):** **-------------** **BEERAMMADA HAMZA, S/O.LATE ACHAMADA CHETTA ALIKUTTY, AMINI ISLAND, U.T OF LAKSHADWEEP.** **BY ADV. SRI.R.RAMADAS** **RESPONDENT(S):** **--------------** **1. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATHI ISLAND, PIN - 682 555.** **2. THE SETTLEMENT OFFICER, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP (COLLECTORATE), KAVARATHI.** **3. BALIYAMMECHETTA KIDAVE, S/O.PAPPADAM UDMAN, AMINI ISLAND,** **U.T. OF LAKSHADWEEP.** **4. BALIYAMMACHETTA SAINABA, AMINI ISLAND, U.T. OF LAKSHADWEEP.** **BY ADV.SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN ADV.SRI.T.H.ABDUL AZEEZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **WP(C).No. 13864 of 2007 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE 'PATTAYAM' IN RESPECT OF 130 SQ.M.IN SY.NO.318/18 AS PER THE PROCEEDINGS DATED 22.03.1999 IN R.P NO.1050 OF THE ASSISTANT SETTLEMENT OFFICER, AMINI ISLAND. EXT.P2: COPY OF THE ORDER DATED 06.03.2002 BY THE REVENUE COURT OF COLLECTOR, LAKSHADWEEP. EXT.P3: COPY OF THE NOTICE FROM THE TALUK LEGAL SERVICE COMMITTEE. EXT.P4: COPY OF THE JUDGMENT DATED 02.01.2006 OF THIS HON'BLE COURT IN W.P(C) NO. 34970/2005. EXT.P5: COPY OF THE ORDER DATED 06.05.2006 IN APPEAL CASE NO.3/2006. EXT.P6: COPY OF THE COUNTER AFFIDAVIT IN SECOND APPEAL CASE NO.1/2006-ADMR (AMN), REVENUE COURT OF THE HON'BLE ADMINISTRATOR, U.T.LAKSHADWEEP, KAVARATHI DATED 06.11.2006 WITHOUT EXHIBITS. EXT.P7: COPY OF THE ORDER IN SECOND APPEAL CASE NO.1/2006-ADMR (AMN), REVENUE COURT OF THE HON'BLE ADMINISTRATOR, U.T.LAKSHADWEEP, KAVARATHI DATED 09.01.2007.** **RESPONDENT'S EXHIBITS -** **NIL** **//TRUE COPY//** **P.A TO JUDGE** **DG** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= **==> picture [278 x 44] intentionally omitted <==** **==> picture [110 x 13] intentionally omitted <==** Proceedings were initiated before the Assistant Settlement Officer, Amini Island for issue of patta in respect of 130 sq. meters of land in survey no. 318/18 along with other properties numbered as R.P.No. 1050. In that proceedings, by Ext.P1 order dated 22.3.1999, a patta was issued to the petitioner in respect of that property. Long thereafter, in 2003, respondents 3 and 4 herein filed a revision petition against Ext.P1 order, under Regulation 80 of the Laccadive, Minicoy and Amindivi Islands Land Revenue and Tenancy Regulation, 1965. By Ext.P2 order dated 6.3.2003, that revision petition was dismissed as not maintainable. The 3[rd] respondent approached the Taluk Legal Services Authority, Amini, in respect of the dispute between him and the petitioner, in 2004. The Taluk Legal Services Authority did not proceed with the same. Respondents 3 and 4 approached this Court by filing W.P(C) No. 34970 of 2005 seeking police protection for plucking coconut from the property. By Ext.P4 judgment, a Division Bench of this Court relegated respondents 3 and 4 to other remedies insofar as disputed questions of facts, which cannot be decided in a petition under Article 226 of the Constitution of India, are involved. Thereafter, respondents 3 and 4 filed an appeal under Regulation 78(1)(a) of the above said Regulations, which was dismissed by Ext.P5 order dated 6.5.2006 as barred by limitation. Respondents 3 and 4 filed a second appeal under Regulation 78(1)()b). The 1[st] respondent- W.P(C) No. 13864 of 2007 -: 2 :- administrator passed Ext.P7 order, in which he purported to condone the delay in filing the first appeal and remanded the matter to the 2[nd] respondent for fresh disposal, after hearing both parties. Ext.P7 order is under challenge in this writ petition. 2. The petitioner submits that the 1[st] respondent has no power to condone the delay in filing the first appeal by respondents 3 and 4, that too, without an application for condonation of delay. He further points out that in Regulation 79 of the Regulations, a period of 30 days is prescribed for filing appeal and there is no provision for condoning delay in filing the appeal. It is submitted that for the purpose of calculating limitation, only the time required to obtain the copies of the order appealed against, can be excluded. It is also submitted that under Regulation 120 of the Regulations, the monsoon period meaning the period beginning on the 1[st] of May and 15[th] of September can also be excluded. Ext.P1 order is dated 22.3.1999 and the appeal was filed only in 2005, seven years after Ext.P1 order. Therefore, the appeal was hopelessly barred by limitation, is the contention raised. It is submitted that the administrator being a creature of the statute and his powers of appeal emanates from the Regulations, he cannot travel beyond the Regulations in exercising powers of appeal conferred on him by the Regulations themselves. The administrator does not have any suo motu power to condone delay in filing appeal. It is also submitted that it is settled law that for such appeals, the Limitation Act cannot be W.P(C) No. 13864 of 2007 -: 3 :- invoked for condoning delay also. The petitioner relies on the decisions of **Kerala Motor Transport Workers Welfare Fund Board v. Government of Kerala** , 2001(1) KLT 608, **Assistant Commissioner of Central Excise v. Krishna Poduval** , 2005(4) KLT 947, **District Executive Officer v. Abel** , 2006(2) KLT 758 and **Thomas Thomas v. Kottayam Municipality** , 2008(3) KLT 964 in support of his contentions. The petitioner seeks the following relief: “Set aside the order dated 09.01.2007 of the 1[st] respondent in Appeal Case N. 1/2006 - ADMR (AMN) and to restore the order dated 06.05.2006 of the 2[nd] respondent in Appeal Case No. 3/2006 - SO (AMN).” 3. The 1[st] respondent has filed a counter affidavit seeking to support the impugned order. Respondents 3 and 4 have not chosen to file any counter affidavit, but counsel appearing for them vehemently opposes the writ petition. The learned counsel submits that Ext.P1 was obtained by the petitioner by playing fraud. The property in question was obtained by respondents 3 and 4 by a decree in a suit in C.S. No. 1963 before the Munsiff's court, Amini. It is settled law that fraud vitiates everything and therefore limitation does not apply. Therefore, according to respondents 3 and 4, the 1[st] respondent-administrator was perfectly justified in condoning the delay and remanding the matter to the settlement officer for fresh consideration. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that Ext.P1 patta was W.P(C) No. 13864 of 2007 -: 4 :- issued under the Laccadive, Minicoy and Amindivi Islands Land Revenue and Tenancy Regulation, 1965. Ext.P1 order has been passed by the Assistant Settlement Officer. Regulation 78 of the Regulations provides thus: “78. (1) Save as otherwise expressly provided, an appeal shall lie from every original order passed under this Regulation,- (a) if such an order is passed by an Assistant Settlement Officer, to the settlement officer or to a revenue officer notified by the Administrator in the Official Gazette to be the appellate authority; (b) if such an order is passed by a Settlement Officer, to the Administrator; (c) subject to the provisions of clauses (a) and (b), if such an order is passed by an officer subordinate to the Collector, to the Collector; and (d) if such an order is passed by the Collector, to the Administrator. (2) A second appeal shall lie to the Administrator against any order passed in first appeal under clause (a) or clause (c) of sub-section (1). Regulation 79 provides for limitation for filing appeals, which reads thus: “79. (1) No appeal shall lie,- (a) in the case of a first appeal, after the expiry of thirty days from the date of the order appealed against; and (b) in the case of a second appeal, after the expiry of sixty days from the date of the order appealed against. (2) In computing the above periods, the time required to obtain copies of the order appealed against shall be excluded.” -: 5 :- W.P(C) No. 13864 of 2007 There is no provision in the Regulation for condoning delay in filing appeals. If that be so, unless there is some law applicable for condoning delay, the 1[st] respondent could not have condoned the delay in filing the appeal before the 2[nd] respondent. This proposition is well settled by various decisions of this Court, which are cited by the petitioner (supra). Those decisions would also lay down that in respect of appeals passed by the Tribunal created as per statute, the Limitation Act is not applicable insofar as the Limitation Act applies only to courts. 6. In this case, Ext.P1 patta was issued on 22.3.1999. The fact that respondents 3 and 4 were aware of Ext.P1 is clear from the fact that they filed a revision before the Revenue Court of Collector in 2003 and suffered Ext.P2 order dated 6.3.2003 of dismissal of the revision petition. Ext.P3 shows that respondents 3 and 4 had approached the Legal Services Authority, Amini in 2004. Again, they approached this Court in 2006 for police protection for plucking coconut and suffered Ext.P4 judgment dated 2.1.2006. It is thereafter that respondents 3 and 4 filed appeal before the 2[nd] respondent, who dismissed the same by Ext.P5 order dated 10.5.2006 as barred by limitation. Ext.P7 order of the 1[st] respondent condoning delay does not reveal that an application was filed by respondents 3 and 4 seeking condonation of delay explaining the reasons for the delay. Ext.P7 also does not contain any reasons for which the 1[st] respondent condoned the delay also. Even assuming W.P(C) No. 13864 of 2007 -: 6 :- that the 1[st] respondent has in fact a power to condone delay, that can only be for sufficient and valid grounds. Ext.P7 order does not reveal any such grounds. Even apart from that, the delay of 7 years in filing the appeal when respondents 3 and 4 were aware of Ext.P1 order all along, could not have been condoned on merits also. For all the above reasons, I am fully satisfied that Ext.P7 order is totally unsustainable. Accordingly, Ext.P7 order is quashed. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/