METHALA BALARAMA VEETIL VANNATHAN VEETIL PATHOOTY UMMA PALLOR MAHE Vs. ADMINISTRATOR MAHE APPELLATE AUTHORITY UNDER MAHE LAND REFORMS ACT

JUDGEMENT

(1.) The writ petition and the civil revision petition are dealt with together as the petitioner and the main contesting respondents are the same and closely interconnected questions arise for decision. The circumstances giving rise to these proceedings may be briefly stated as under: The petitioner (for short in the writ petition as well as the civil revision petition) is the owner of Survey No.354/2 and Survey No.392/2 (corresponding to R.S.No.84/4) within the desam of Palloor Mahe. The third respondent in the writ petition (hereinafter referred to as the Kudikidappukari) (who is the same as the first respondent in the civil revision petition) was living in a portion of Survey No.392/2. She claimed rights as Kudikidappu to Survey No.354/2 and also offered to pay the expenses therefor. Though it appears that the Kudikidappukari orally agreed to do so, nevertheless, she filed an application for recognising her as Kudikidappukari and on 30.11.1973, an order was passed in Rc/A2/3284/71 under the provisions of Mahe Land Reforms Act, as they stood then, with reference to an extent of 3 cents of land in Survey No.392/2 inclusive of the structure put up by kudikidappukari. However, the right of purchase was not available to kudikidappukari as per the provisions of the Mahe Land Reforms Act, as they stood then. Subsequently, Mahe Land Reforms Act, 1968, was amended by The Mahe Land Reforms (Amendment! Act, 1980 (Act No.l of 1981) (hereinafter referred to as the Act) under the terms of which Kudikidappukari was also given the right to purchase the Kudikidappu. Thereupon, the Kudikidappukari filed Original Application No.7 of 1981-K under section 88-A of the Act for the purchase of the kudikidappu of an extent of five cents in accordance with the provisions of the Act. Though certain objections were raised by the petitioner, the Land Tribunal, Mahe, by its order dated 13.8.1982, on a purported consideration of the evidence, proceeded to over-rule the objections so raised by the petitioner and allowed the application filed by Kudikidappukari for the purpose of five cents of land in R.S.No.84/4 on deposit of Rs.328-25 which was arrived at as the share of price payable to the landowner. Against that order, the petitioner preferred an appeal before the Appellate Authority (Land Reforms), Mahe, in A.A.No.2 of 1983. Pending disposal of the appeal, in I.A.No.2 of 1982 in A.A.O.No.2 of 1982, the petitioner applied for and obtained stay of the order appealed against and the appellate authority granted stay on 12.10.1982 which was continued upto 5.9.1983. During the pendency of A.A.No.2 of 1982 before the Appellate Authority (Land Reforms, Mahe), the petitioner served notice on kudikidappukari on 22.2.1983 demanding her to shift her kudikidappu from Re-survey No.84/4 in order to enable the petitioner to put up a residential house for her son with a view to establish a family for him. Though the notice so sent by the petitioner was received by Kudikidappukari on 25.2.1983, she did not shift her kudikidappu. Thereupon, the petitioner filed on 4.4.1983 an application before the Land Tribunal, Mahe, under section 85(1) read with section 83(2)(a) of the Act. In that application, the petitioner, after referring to the passing of orders in O.A.No.7 of 1981 and the pendency of the appeal in A.A.No.2 of 1982 and the issue of a notice on 22.2.1983 and the refusal of the kudikidappukari to shift the kudikidappu, prayed that an order may be passed directing the Kudikidappukari to shift the kudikidappu to the B schedule property of an extent of five cents forming part of old Survey No.354. On that application, the Land Tribunal, Mahe, passed an order on 5.4.1983 to the following effect:

(2.) From the facts set out above, it is seen that the question that arises’ for consideration in the writ petition is whether the Land Tribunal, Mahe, was in order in having declined to entertain the petition filed by the petitioner under section 85(1) of the Act. There is no dispute that the petition filed by the petitioner was under the provisions of the Act. Section 83(2) provides for the eviction of the kudikidappukaran, if the person in possession of the land for constructing a building for his own residence or for the residence of any member of his family including major sons and daughters. Section 83(4) provides for the shifting of the Kudikidappukaran to another part of the land fit for locating the kudikidappu if the location of the kudikidappu is such as to cause inconvenience to a person in possession of land in which there is a kudikidappu. Under section 85(1), if the kudikidappukaran does not comply with the requisition made under sub-section (2) or sub-section (4) of section 83 by the person in possession of the land to shift to a new site, then, such person may apply to the Land Tribunal having jurisdiction to entertain an application under section 88-B in respect of the kudikidappu to be shifted, to enforce compliance with such requisition. The second proviso to section 85(1) is important and it runs as follows:

(3.) Earlier, it has been seen how in this case the order for purchase of the kudikidappu was passed on 13.8.1982 and how that order was stayed between 12.10.82 and 5.9.1983. The application for shifting was filed by the petitioner on 10.3.1983 when they stay order was in force. In other words, the present case would be one to which the second proviso to section 85(1) of the Act is not attracted, for, though the order for purchase was passed on 13.8.1982, on an application by the kudikidappukari in O.A.No.7 of 1981, the operation of that order was suspended between 12.10.1982 and 5.9.1983 during which period, the application for shifting was made by the petitioner under section 85(1) of the Act on 10.3.1983. In this case, therefore, though an order for purchase] of the kudikidappu had been passed on 13.8.1982, yet, such an order was not in force at the time when the application for shifting under section 85(1) of the Act was made by the petitioner. Therefore, the second proviso cannot be invoked to reject the application for shifting filet by the petitioner. Though it is pointed out by the Supreme Court in The State of Uttar Pradesh v. Mohamed Nooh, 1958 S.C.J.242: (1958) M.L.J. (Crl.) 197: 1958 S.C.R.595: A.I.R.1958 S.C.86 at page 95 that whatever may be the theory under other systems of law, under the Indian Law and procedure, an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where a decree on appeal is merely one of dismissal and that the filing of an appeal or revision may at best put the decree or order in jeopardy but till it is reversed or modified, it remains effective, on the facts of this case, it is found that by reason of orders of stay, which admittedly subsisted between 12.10.1982 and 5.9.1983 the orders passed by the Tribunal under section 88-B(3) of the Act was not in force at the time when the application under section 85(1) for shifting the kudikidappu was made by the petitioner. Under those circumstances, the Land Tribunal was in error in having declined to entertain the application for shifting filed by the petitioner under section 85(1) of the Act. That order of the Land Tribunal dated 5.4.1983 and the confirmation thereof by the appellate authority cannot, therefore, be sustained and deserve to be quashed.