E.C.E.K. Union High School, Kuthiathodu v. Chammanattu Devaswom Kuthiathodu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932** **CRP.NO. 401 OF 2010()** **--------------------------------AA.83/1997 OF APPELLATE AUTHORITY (LR), ALAPPUZHA** **....................** ## **REVN. PETITIONER(S): RESPONDENT:** **---------------------------------------------------------** **E.C.E.K.UNION HIGH SCHOOL, KUTHIATHODU, REPRESENTED BY ITS PRESENT MANAGER K.K.BHASKARAN PILLAI.** **BY ADV. SRI.K.K.RAMACHANDRAN PILLAI SMT.R.LEKSHMI** **RESPONDENT(S) - RESPONDENT:** **--------------------------------------------------** **CHAMMANATTU DEVASWOM KUTHIATHODU, REPRESENTED BY ITS MANAGER, ALAPPUZHA-682 606.** **ADV. SRI.R.AZAD BABU FOR R1** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== C.R.P. No.401 of 2010 ==================================== Dated this the 09[th] day of November, 2010** ## **O R D E R** This revision arises from the order of the Appellate Authority (LR), Alappuzha (for short, “the Appellate Authority”) reversing order passed by Land Tribunal-II, Alappuzha and holding that petitioner is not a cultivating tenant of the SM schedule property. Suo moto proceeding No.2319 of 1975 was initiated by the Land Tribunal and notice was given to the petitioner and allegedly to respondent on behalf of the Chammanattu Devaswom. The Land Tribunal held that petitioner is a cultivating tenant of SM schedule property and accordingly assigned landlord’s right in favour of petitioner. After about 15 years, to be more precise 15 years, 9 months and 8 days after the said order respondent filed A.A. No.3 of 1992 before the Appellate Authority with I.A. No.13 of 1992 to condone the delay. That application was allowed by the Appellate Authority vide order dated 31.10.2001. That order was challenged in this Court in CRP No.26 of 2002. This Court by Annexure-I order dated 08.10.2004 refused to interfere with the order at that stage ## **C.R.P. No.401 of 2010** ## -: 2 :- and permitted petitioner to raise correctness of the order regarding condonation of delay while challenging the ultimate order if it went against the petitioner. Thereafter Appellate Authority renumbered the appeal as A.A. No.83 of 1997 and after considering the materials on record came to the conclusion that petitioner is not a cultivating tenant and reversed the order of the Land Tribunal. That order of the Appellate Authority is under challenge in this petition. Learned counsel for petitioner contends that the view taken by the Appellate Authority is not correct. According to the learned counsel the registered document executed by the respondent in favour of petitioner nowhere contains any prohibition against effecting cultivation in the SM schedule property. It is also contended that a portion of the property was acquired by the State Government in connection with which L.A.R. No.49 of 1993 was registered and as per order dated July 25, 1998 the reference court has awarded compensation to the petitioner also as if he is a cultivating tenant and that portion of the amount due to the respondent was received by the respondent without a demur. Further contention is that the documents on record would show that petitioner is taking income from the SM schedule property. Learned counsel ## **C.R.P. No.401 of 2010** ## -: 3 :- also contended that it was without any justification that delay was condoned by the Appellate Authority. Learned counsel for respondent contends that as per the registered document admittedly executed between the parties SM schedule property was given to the petitioner not for cultivation but for running a school and if necessary to construct further buildings in the property for the said purpose. It is also contended by learned counsel that the document contains restrictions on the petitioner putting the SM schedule property for any purpose other than running the school. According to the learned counsel the document only creates a licence in favour of petitioner to run the school subject to the conditions stated in the agreement. Learned counsel contends that respondent did not get notice of the Land Tribunal proceedings and at the time proceedings were initiated by the Land Tribunal petitioner who is Manager of the school was also a member of the Devaswom and he managed to make some appearance on behalf of the Devaswom (respondent) before the Land Tribunal. 2. So far as the issue regarding condonation of delay is concerned I stated that it is almost 16 years. But it is not the ## **C.R.P. No.401 of 2010** ## -: 4 :- length of time this Court has to look into. While considering the question regarding condonation of delay this Court also must have a look at the merit of the case agitated by the respondent before the Appellate Authority. It is not disputed that a registered agreement was executed by petitioner and respondent, the terms of which are extracted by the Appellate Authority in page No.3 of its order. It is true that photocopy of proceeding of the Land Tribunal produced by petitioner in this revision would show that parties (meaning thereby, respondent also) were present before the Land Tribunal. But the Appellate Authority has after reference to the entire records stated that the Land Tribunal has not bothered to look into the issue regarding proper service of notice on respondent. Appellate Authority also observed that reasons stated for condonation of delay was found to be genuine. Certainly it is a case where the Appellate Authority on going through the records found that there was no proper service on the respondent. It is in the circumstances that delay was condoned. Having regard to the circumstances of the case and in the nature of the contention advanced by the respondent before the Appellate Authority I find no reason to think that the delay was willfully caused for, respondent did not stand to gain by **C.R.P. No.401 of 2010** ## -: 5 :- causing such delay. Hence I do not find reason to interfere with the order condoning the delay. 3. Then the next question is whether petitioner is a cultivating tenant of the SM schedule property entitled to purchase landlord’s right under Section 72B of the Kerala Land Reforms Act (for short, “the Act”). Going by the said provision as well as the definition of 'cultivating tenant' in Sec.2(8) of the Act there could be no dispute that only if a tenant is in actual possession and entitled to cultivate the land comprised in his holding that he could be described as a 'cultivating tenant' entitled to purchase landlord's right. Two questions arise for determination; whether petitioner is a 'tenant' and whether he is entitled to cultivate the land in question. 'Tenant' is defined in Sec.2(57) of the Act as a person who has or agreed to pay rent or other consideration for being allowed to possess and enjoy the land. Here, land is entrusted to the petitioner free of any consideration. Going by the registered Udampady executed between the parties it is not a case where the land was given to the petitioner for cultivation. Instead it is clear from the document the terms of which are extracted in page 3 of the order ## **C.R.P. No.401 of 2010** ## -: 6 :- of the Appellate Authority that land was handed over to the petitioner free of cost for running a school and if necessary to construct further buildings for the said purpose. The document permits respondent to make use of the land in the manner stated therein. If petitioner did not either run the school or alternative site is required by petitioner, the land is to be surrendered to the respondent. Clause 3 of the document states that petitioner was not to use the land for any purpose other than for running the school which means that except running the school petitioner could not put the land for any other use. In other words there is restriction against effecting cultivation in the land. If that be so petitioner cannot be said to be a tenant as defined in Sec.2(57) of the Act much less a cultivating tenant entitled to purchase landlord’s right. This Court in **Sankaran Nambisan v.** **Sarvothama Rao** (1972 KLT 891) has held that if land is given for constructing a shed to run a school it is only a licence with no licence to plant trees and the owner was to be in possession of the tress on the plot, the transaction is only a licence. In the facts and circumstances Appellate Authority is justified in holding that petitioner is not a cultivating tenant entitled to purchase landlord's right under 72B of the Act. I do ## **C.R.P. No.401 of 2010** -: 7 :- not find reason to interfere with the impugned order. Revision fails. It is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv