REPORTABLE      

  IN THE SUPREME COURT OF INDIA     CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO. 3331 of 2002

State of Kerala & Anr.               …Appellant(s)

Versus

Kondottyparambanmoosa & Ors.           …Respondent(s)

J U D G M E N T

TARUN CHATTERJEE, J.

1. The present appeal is filed at the instance of the State of

Kerala & Another against the impugned judgment dated

1st of June, 2001 passed by the High Court of Kerala at

Ernakulam in C.R.P. No. 1365 of 1992 whereby the High

Court  had  allowed  a  Revision  Petition  filed  by  the

respondents and set aside the order of the Taluk Land

Board   (hereinafter  referred  to  as  the  ‘Board’)  and

directing that the Board may proceed afresh under sub-

section (9) of Section 85 of the Kerala Land Reforms Act,

1963 (in short ‘the Act’).

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2. The brief facts leading to the filing of this appeal may be

narrated as under :

The Respondents had filed a statement under Section

85(A)  of  the  Act  relating  to  lands  held  by  their  family.

According  to  the  verification  report,  the  family  of  the

respondent  consisted  of  five  members  including  the

respondent, his wife and three minor children. According to

the said verification report the total extent of land held by the

family was equivalent to 25.40 standard acres. Out of this

0.85 acre of land was eligible for exemption under Section

81 of the Act. After allowing the family of the respondent to

retain  standard  acres  equivalent  to  18.72  acres,  it  was

provisionally concluded that the family held 36.88 acres of

land in excess of the ceiling limit.

3. Accordingly, a draft statement with a notice under Rule

12(i) of the Kerala Land Reform (Ceiling) Rules was issued

to the respondents to file objections, if any, against the draft

statement and also to appear for hearing before the Board.

Accordingly,  the  objection  statement  was  filed  by  the

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respondents  and  the  same  was  verified  through  the

Authorised Officer.

4. The Board at its sitting on 13th of June,1985 held that

the  respondents  were  in  possession  of  10.63  standard

acres,  out  of  which  0.85  acres  had  fallen  under  the

exempted category. The net extent accountable was 18.47

acres.  The  respondent’s  family  was  entitled  to  retain  11

standard  acres.  The  respondents  were  thus  not  liable  to

surrender any land.

5. Against  the  above  judgment  of  the  Board,  the

appellants  had  preferred  a  Revision  along  with  an

application  for  condonation  of  delay.  However  the  High

Court dismissed the application for condonation of delay and

accordingly the Revision was also dismissed as belated.  It

is  evident  from the order of  the High Court  passed in the

aforesaid Revision Case that the High Court had not at all

dealt with the merits of the Revision Case as the Revision

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case was rejected only on the ground that the delay could

not be condoned.   

6. However on scrutiny of the order of the Board by the

State Land Board, it  was found that the respondents were

entitled to retain only 10 standard acres of land as against

11 standard acres worked out by the Board. In view of this,

the  State  Land  Board  directed  the  Board  to  re-open  the

case.

7. Accordingly, the case was reopened and notice was

issued  to  the  respondents  stating  that  as  per  the enquiry

report  dated  7th of  January,1976,  the  family  of  the

respondent  consisted  of  only  5  members  as  on  1st of

January,1970, and that the family was holding 11 standard

acres instead of the prescribed limit of 10 standard acres for

a  family  consisting  of  5  members.  The respondents  were

called  upon  to  file  their  objections,  if  any,  by  10th of

June,1992.

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8. The  respondents  filed  their  objection,  the  main

objection of the respondent was that in the draft statement

issued by the Board, it was shown that the family consisted

of 6 members as on 1st of January,1970 and that his family

was entitled to hold 11 standard acres.  It was also objected

that  since  the  order  of  the  Board  had  become  final,  the

cause of rejection of earlier Revision Case by the High Court

on  the  ground  of  delay,  the  matter  was  not  liable  to  be

reopened.   

9. The  Board  by  its  order  dated  10th of  June,1992

decided to reopen the case under Section 85(9) of the Act

as amended by Act 16 of 1989 and to proceed afresh after

issuing a revised draft statement.

10. Being  dissatisfied  by  the  aforesaid  order,  the

respondents  filed  Revision  Petition  dated  6th of  July,1992

before the High Court,  challenging the order of  the Board

reopening the case. The main ground for challenge was that

the earlier order of the Board dated 13th of June,1985 was

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merged  with  the  revisional  order  of  the  High  Court  and,

therefore, the case could not be reopened under Section 85

(9) of the Act.

11. The High Court by the impugned judgment dated 1st of

June,  2001  allowed  the  Revision  Petition  filed  by  the

respondents on a finding that the order dated 13th of June,

1985 ceased to exist as it was merged with the order of the

High Court  dismissing the revision and that  there  was no

scope for invoking Section 85(9) of the Act.  

12. Being  aggrieved  and  dissatisfied  with  the  aforesaid

judgment  of  the  High  Court,  the  appellant  has  filed  this

Special Leave Petition in this Court which, on grant of leave,

was  heard  by  us  in  presence  of  learned  counsel  for  the

parties.   

13. We have heard the learned counsel for the parties and

examined the judgment of the High Court and the Board and

other materials on record.

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14. The questions that need to be decided in this appeal

are as under:

First,  whether  the  dismissal  of  a  Revision Petition  on the

ground of delay would result in the merger of the order of the

lower court with that of the High Court.

And, whether the High Court  was right in holding that the

order of the Board ceased to exist when the Revision was

dismissed  by  the  High  Court  and  as  such  there  was  no

scope to invoke Section 85(9) of the Act.

15. Before  we  answer  these  questions,  it  would  be

expedient  at  this  stage  to  record the findings  of  the  High

Court  while  allowing  the  Revision  Petition  filed  by  the

Respondents  and  thereby  setting  aside  the  order  of  the

Board. Accordingly, we reproduce those findings as under :-

“The  Land  Board  has  conducted  an investigation and passed orders. The result is the  order  dated  13th of  June,1985  do  not exist. But that order had ceased to exist when the  Revision  was  dismissed  by  the  High Court. As such, there was no scope to invoke Section  85(9).  The  present  situation  will amount to an issue which can be contrary to the  order  dated  13th of  June,1985  that  the Taluk Land Board cannot do as the said order has been affirmed in Revision by this Court.

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As such I  hold that  the Land Board has no jurisdiction under Section 85(9) of the Act to reopen  its  earlier  order  and  to  initiate proceedings under Section 85(9) of the Act.”

16. Let  us now consider  the submissions of  the learned

counsel  for  the  parties.  The  learned  counsel  for  the

appellants argued before us that the impugned judgment of

the High Court dated 1st of June, 2001 was incorrect as the

same was not in agreement with the judgment of this Court

in  Kunhayammed  &  Others  Vs.  State  of  Kerala  &  Anr.

[(2000) 6 SCC 359].

17. It  was  also  submitted  that  the  principle  of  merger

would be applicable only if  the revisional  judgment  of  the

High Court could be said to be a judgment on merits and the

same principle would not be applicable to the facts of the

present case since in this case the revision was dismissed

by the High Court only on the ground of delay and not on

merits.  The learned counsel  for the appellants accordingly

submitted that  the dismissal  of the revision petition by the

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High  Court  on  the  ground  of  delay  did  not  amount  to

confirmation  of  the  order  of  the  Board  dated  13th of

June,1985.

18. These  submissions  of  the  learned  counsel  for  the

appellants were contested by the learned counsel appearing

on behalf of the respondents. The learned counsel for the

respondents contended that according to the order passed

by the Board dated 16th of June,1985, the respondent was

not liable to surrender any land and once the order of the

Board had been affirmed by the High Court of Kerala, the

Board could not reopen the case because the order of the

Board had  completely  merged  with  the  order  of  the  High

Court passed in revision.  

19. It was finally argued that the appellants have not given

any reason to reopen the case and that the State cannot be

permitted to reopen the assessments which have attained

finality unless it  could show special  reasons for doing the

same.

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20. Having heard the learned counsel for the parties and

after carefully examining the aforementioned orders, we are

unable to agree with the finding of the High Court that the

order  passed  by  the  Board  dated  13th of  June,1985  had

ceased  to  exist  when the  Revision was dismissed  by the

High Court only on condonation of delay but not on merits

and that the Board had no jurisdiction under Section 85(9) of

the Act to reopen its earlier order.

Section 85 of the Act deals with surrender of excess

lands. It runs as under :-

(1) Where a person owns or holds land in excess of the ceiling area on

the  date  notified  under  Section  83,  such  excess  land  shall  be

surrendered as hereinafter.  

Provided  that  where  any  person  bona  fide  believes

that the ownership or possession of any land owned or

to be resumed by the land owner or the intermediary

under the provisions of this Act, the extent of the land

so liable to be purchased or to be resumed shall not

be taken into account in calculating the extent the land

to be surrendered under this sub-section.

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(9) The Taluk Land Board  may,  at  any time,  set

aside  its  order  under  sub-section  (5)  or  sub-

section (7), as the case may be, and proceed

afresh  under  that  sub-section  if  it  is  satisfied

that –

(a) the  extent  of  lands  surrendered  by,  or  assumed  from,  a  person

under section 86 is less than the extent of lands which he was liable

to surrender under the provisions of this Act, or

(b) the  lands  surrendered  by,  or  assumed  from,  a  person  are  not

lawfully owned or held by him; or  

(c) in a case where a person is, according to such order, not liable to

surrender any land, such person owns or holds lands in excess of

the ceiling area;     

Provided that  the  Taluk  Land Board  shall  not

set aside any order under this sub-section without

giving the persons affected thereby an opportunity

of being heard;

Provided further that the Taluk Land Board shall

not initiate any proceedings under this sub-section

[after the expiry of seven years] from the date on

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which the order sought to be set aside has become

final.    

A  plain  reading  of  Section  85(9)  of  the  Act  would

clearly show that the Board is conferred with the power to

set aside its order under sub-section (5) or sub-section (7)

and  proceed  afresh  under  that  sub-section  if  grounds

mentioned in Section 85(9) are satisfied. It is also clear from

the  proviso  to  Section  85(9)  that  such  power  can  be

exercised only when 7 years had not expired from the date

on which the order sought to be set aside had become final.

Before we proceed further,  we may keep it  on record that

question of expiry of 7 years in the facts and circumstances

of the case does not arise at all. Therefore, let us proceed

on the question whether the rejection of the revision petition

of the High Court on the ground of delay would take away

the right of the Board to proceed afresh under Section 85(9)

of the Act.      

21. It  is clear that the Board vide its  order dated 13th of

June,1985  held  that  the  respondents  were  not  liable  to

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surrender  any  land.  However  it  cannot  be  said  that  the

aforesaid order has merged with the order of the High Court

dismissing the Revision petition of the appellant State as the

same  was  dismissed  on  the  ground  of  rejection  of  the

application for condonation of delay and not on merits.

22. In  this  connection,  the  decision  of  this  Court  in  the

case of  Smt. S. Kalawati vs. Durga Prasad & Anr. [AIR

1975 SC 1272] may be strongly relied upon.  In paragraph 7

of the said decision, this Court observed as follows:    

“The  principle  behind  the  majority  of  the decisions is thus to the effect that where an appeal is dismissed on the preliminary ground that  it  was  not  competent  or  for  non- prosecution  or  for  any  other  reason  the appeal is not entertained, the decision cannot be  said  to  be  a  decision  on  appeal  nor  of affirmance.  It  is  only  where  the  appeal  is heard and the judgment delivered thereafter the judgment can be said to be a judgment of affirmance.”   

23. Again  in  Shankar  Ramchandra  Abhyankar  vs.

Krishnaji Dattatraya Bapat [(1969) 2 SCC 74], this Court

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laid  down  the  pre-conditions  attracting  applicability  of

doctrine of merger in the following manner :

(i) the  jurisdiction  exercised  should  be  appellate  or revisional jurisdiction;

(ii) the jurisdiction should have been exercised after issue of notice; and,

(iii) after a full hearing in presence of both the parties.”

24. Approving  the  principles  laid  down  in  Shankar

Ramchandra Abhyankar’s case (supra), this Court again in

Kunhayammed   & Ors. Vs. State of Kerala & Anr. [2000

(6)SCC 359], has observed as follows :-

“Once the superior court has disposed of the lis before it either way – whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of  the  superior  court,  tribunal  or  authority which  is  the  final,  binding  and  operative decree or  order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of  universal  or  unlimited  application. The nature  of  jurisdiction  exercised  by  the superior  forum  and  the  content  or  subject- matter of challenge laid or which could have been  laid  shall  have  to  be  kept  in  view.” (Emphasis supplied)

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25. Keeping these principles as enunciated by this Court

in  the aforesaid three decisions  in  mind and applying the

said  principles  in  the  facts  of  this  case,  we  have  no

hesitation in our mind to conclude that the High Court in the

impugned  order  did  not  at  all  consider  that  in  the  earlier

revision order of the High Court, revisional application was

rejected  not  on  merits  but  only  on  the  ground  of  delay.

Therefore,  it  must  be  held  that  since  earlier  revision

application  was  not  rejected  on  merits,  the  said  order

rejecting the same on the ground of delay cannot be said to

be the order of affirmance and that being the position, we

must  hold  that  since  the  earlier  revision  petition  was  not

decided on merits, the doctrine of merger cannot be applied

to the facts and circumstances of the present case. In this

connection an observation made by this Court in the case of

Chandi Prasad and Others Vs. Jagdish Prasad and Ors.

(2004)  8  SCC 724, needs  to  be  reproduced  which  is  as

under:-

“  When an appeal is dismissed on the ground   that delay in filing the same is not condoned, the  doctrine  of  merger  shall  not apply.”(Emphasis supplied.)

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26. In  this  view of  the  matter,  we are,  therefore,  of  the

opinion  that  the doctrine  of  merger would only apply in  a

case when a higher forum entertains an appeal or revision

and passes an order on merit and not when the appeal or

revision is dismissed on the ground that delay in filing the

same is not  condoned.  In  our view, mere rejection of  the

revision petition on the ground of delay cannot be allowed to

take away the jurisdiction of the Board,  from whose order

forms a subject matter of petition and Section 85(9) of the

Act confers powers on the Board to reopen the case if such

grounds for reopening the case are shown to exist.

27. For the reasons aforesaid, we are unable to accept the

view expressed by the High Court to the effect that the order

passed by the Board dated 13th of  June,  1985 ceased to

exist when the revision petition against the said order was

rejected on the ground of delay only. Therefore, we are of

the view that the order of the Board dated 13th of June, 1985

could not be merged with the order of the High Court passed

in revision case.  Such being the position, it  must be held

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that the Board under Section 85(9) of the Act was entitled to

reopen the case in compliance with Section 85(9) of the Act.

28. For the reasons aforesaid, the impugned judgment of

the High Court is liable to be set aside and it is accordingly

set aside. The appeal is thus allowed. There will be no order

as to costs.

…….…………..…J.    [Tarun Chatterjee]

New Delhi; ……………………J. August 05, 2008           [Harjit Singh Bedi]

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