Immanuel vs The Special Deputy Collector, (Revenue Court), Tirunelveli, The Record Officer/ Tahsildar, Ambasamudram and Sami Servai

P. Sathasivam, J.—Against the order of interim stay granted by the Special Deputy Collector (Revenue Court), Tirunelveli/first respondent

herein, staying the orders of the Tahsildar, Ambasamudram/2nd respondent herein, in T.R.No.37/95 dated 18.6.1996, the petitioner has filed the

above Writ Petition. According to the petitioner, he is a cultivating tenant in respect of 4 acres and 30 cents of land in Survey No.806/10 of

Keelakadayam Village, Ambasamudram taluk. He filed a petition u/s 5(2) of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act,

1969 (Act 10 of 1969) read with Rule 11 of the Rules before the second respondent/Record Officer/Tahsildar, Ambasamudram. The third

respondent herein contested the matter. After enquiry; the second respondent by an order made in proceedings dated 18.6.96 declared the

petitioner as a cultivating tenant and directed his name to be recorded as a cultivating tenant in the approved Record of Tenancy in respect of 330

acres alone which was found to be in his possession. Aggrieved by the above said order of the second respondent, the third respondent has

preferred an appeal u/s 6of the said Act. The first respondent/Special Deputy Collector, Revenue Court, Tirunelveli has granted an order of ex

parte interim stay of the order of the 2nd respondent dated 7.8.1996. The said order of the first respondent granting stay is totally without

jurisdiction and hence illegal and liable to be quashed.

The first respondent has filed a counter affidavit stating that the stay order passed by him is within the provisions of the powers of the Appellate

Authority u/s 6 of the said Act. As an Appellate Authority, he is empowered to grant interim stay. Further, the appellate therein. Further, the

appellant therein represented that he has raised cotton and coconut in the lands and that they have to be protected till their harvest and requested

interim stay. The said aspect has been corroborated by the Village Administrative Officer. In such a circumstances, in order to protect the crops

raised by him, the stay of operation of the order of the Tenancy Officer is necessary.

The third respondent has also filed a counter affidavit stating that the Writ Petition filed against the interim order is not maintainable and if the

petitioner has any grievance, he is only to move the first respondent for vacation of the stay order. It is further stated that the Appellate Authority

has merely stayed the recording of entry to be made by the 2nd respondent in his books. The petitioner is not in possession of his (3rd

respondent''s) lands either as a cultivating tenant or otherwise. The first respondent is also competent authority and empowered to grant stay, till

the appeal is disposed of by him.

In the light of the above pleadings, I have heard the learned counsel for the petitioner as well as respondents.

The only question that is to be decided is whether the appellate authority under the Act has power to grant stay of the order impugned pending

disposal of the appeal.

In view of the limited question, it is unnecessary to refer the other factual aspects. There is no dispute that aggrieved by the order of the Second

Respondent Revenue Officer / Tahsildar, Ambasamudram dated 18.6.19% directing the name of the petitioner to be recorded as a cultivating

tenant in the approved Record of Tenancy, the third respondent herein filed an appeal before the first respondent and also prayed for stay of

operation of the order of the second respondent. The said appeal was filed u/s 6of the Act 10 of 1969. There is no dispute regarding

maintainability of the appeal before the first respondent. Learned counsel for the petitioner after taking me through the provisions of the Act and

Rules made thereunder, would contend that in the absence of any specific provision for grant of stay, the impugned order granting stay by the first

respondent cannot be sustained. On the other hand, learned Government Advocate as well as the contesting third respondent would contend that

even in the absence of any provision, grant of stay is an incidental power and the first respondent is well within his powers; accordingly the Writ

Petition is liable to be dismissed.

In order to appreciate the said contentions, now I shall refer the relevant provisions. Section 6of (Act 10 of 1969) Tamil Nadu Agricultural

Record of Tenancy Rights Act (herein referred as to ""the Act"") speaks about appeal:-.

Appeal:- Any person aggrieved by an order made under Sub-section (8) of Section 3, sub-section (3) of Section 4or Sub-section (3) of

Section 5may within such period as may be prescribed appeal to such authority as may be specified by the Government in this behalf (hereinafter

referred to as the appellate authority) and the decision of such authority, on such appeal shall, subject to the provisions of Section 7be final.

In exercise of the powers conferred by Section 18of the Act, the Governor of Tamil Nadu framed Rules called Tamil Nadu Agricultural Lands

Record of Tenancy Rights Rules, 1969 (hereinafter referred to as ""the Rules""). Rule 12 speaks about period of limitation for filing appeal and

empowers the appellate authority to admit appeal even after the expiry of the period mentioned in sub-rule (1), if the aggrieved person is sufficient

cause for not presenting it within the said period,. Rule 12 is as follows:-

Rule 12. Appeals against orders under Sections 3 (8), 4(3)or 5(3):-(1) Every appeal against an order of the Record Officer under Sub-Section (8)

of Section 3, Sub-section (3) of Section 4or Sub-section (3) of Section 5shall be preferred to the appellate authority within sixty days from the

date of receipt of the order.

(2) The appellate authority may admit an appeal presented after the expiration of the period mentioned in Sub-rule (i) if it is satisfied that the party

had just and sufficient cause for not preventing it within the said period.

Apart from this, there is no other provision regarding the disposal of the appeal by the Appellate Authority. No doubt, as per Section 10of the Act,

the Record Officer or the Appellate Authority or the District Collector or the officer referred to in Section 7shall, for the purpose of this Act, have

the same powers as are vested in a Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:-

(a) enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavit;

(d) issuing commissions for the examination of witnesses;

and any proceeding before the Record Officer or the Appellate Authority or the District Collector shall be deemed to be a judicial proceeding

within the meaning of Sections 193and 228, and for the purposes of Section 196of the Indian Penal Code.

It is clear that there is a provision for appeal against the order of the original authority, namely, Tahsildar/Record Officer. In so far as certain

aspects and for better disposal of the appeal, the said authorities are empowered to act as a Court as per the provisions of the Code of Civil

Procedure. It is equally true that though there is a provision for limitation for filing appeal before the Appellate Authority and for condonation of

delay on sufficient cause, there is no specific provision for stay either in the Act or in the Rules. No doubt, in similar enactments, while empowering

the Appellate Authority to dispose of the appeal, the legislature themselves provide power to the said authority to stay the operation of the original

authority. Since the Appellate Authority has every power to deal with the order in appeal and such appeal is being disposed of, it is but proper for

the Appellate Authority to protect and safeguard the interests of the persons who approach before it. If in the interregnum period, that is, till the

disposal of the appeal, by virtue of the order of the original authority some damage or loss is caused to the persons aggrieved who has filed the

appeal, it would be a futile exercise for the Appellate Authority and it will not be possible for any one including the Appellate Authority for

recouping compensation to the appellant before him. In such circumstances, grant of stay being an incidental to the power provided for dismissal of

the appeal, I am of the view that the first respondent is competent and has rightly granted stay. Though none of the counsel have cited any decision

with regard to the above aspect, it is useful to refer a decision of the Hon''ble Supreme Court of India in the case of income tax Officer v. M.K.

Mohammed Kunchi (Vol.71 (1969) ITR 815). In the case before the Supreme Court, the question was whether Appellate Tribunal u/s 254of the

income tax Act, 1961 has powers to grant stay in the absence of any specific provision in the Act. There is no specific provision to enable the

Appellate Tribunal to grant stay of the recovery proceedings. However, their Lordships of the Supreme Court, after considering the scope of

Section 254of the income tax Act and also the power to grant stay of recovery proceedings pending appeal, have held that power to grant stay of

recovery proceedings pending appeal is incidental and ancillary and stay will be granted in deserving and appropriate cases. Section 254of the

income tax Act speaks about orders of Appellate Tribunal and Section 255gives the procedure of the Appellate Tribunal. Sub-sections (5) and (6)

of Section 255speak about power of the Appellate Tribunal to regulate its own procedure and the procedure of facts in all matters arising out of

the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings. It is also stated that

the Appellate Tribunal for the purpose of discharging its functions, shall have all the powers which are vested in the income tax authorities referred

to in Section 131, and any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Section

193and 228and for the purpose of Section 196of the Indian Penal Code and the Appellate Tribunal shall be deemed to be a Civil Court for all the

purposes of Section 195and Chapter 35 of the Code of Criminal Procedure. 1898. Section 131of the income tax Act gives to the income tax

Officer, the Appellate Assistant Commissioner and the Commissioner the same powers as are vested in the court under the CPC when trying a suit

in respect of the matters specified in the section. Those powers relate to discovery and inspection, enforcing the attendance of witnesses,

compelling production of books of account, etc., issuing commissions and allied matters. Their Lordships have noted that there can be no manner

of doubt that by the provisions of the Act or the income tax Appellate Tribunal Rules, 1963, powers have not been expressly conferred upon the

Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from the assessee. An argument was advanced before their

Lordships that in the absence of any express provisions in Section 254and 255of the Act relating to stay of recovery during the pendency of an

appeal, it must be held that no such power can be exercised by the Tribunal, suffers from a fundamental infirmity in as much as it assumes the

proceeds of the premise that the statute confers such a power on the income tax Officer who can give the necessary relief to an assessee. In this

regard, the following observations of their Lordships are relevant:

....... The right of appeal is a substantive right and the question of fact and law are at large and are open to review by the Appellate Tribunal.

Indeed, the Tribunal has been given very wide powers u/s 254(1), for it may pass such orders as it thinks fit after giving full hearing to both the

parties to the appeal. If the income tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very

large demands and if the Appellate Tribunals is entirely helpless in the matter of stay or recovery, the entire purpose of the appeal can be defeated

if ultimately the orders of the departmental authorities should have left the entire matter of the administrative authorities to make such orders as they

choose to pass in exercise of unfettered discretion. The assesses ,as has been pointed out before, has no right to even move an application when

an appeal is pending before the Appellate Tribunal u/s 220(6) and it is only at the earlier stage of appeal before the Appellate Assistant

Commissioner that the statute provides for such a matter being dealt with by the Income Tax Officer. It is a firmly established rule that an express

grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective

(Sutherland''s Statutory Construction, third edition, Articles 5401 and 5402). The powers which have been conferred by Section 254on the

Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to

make the exercise of those powers fully effective. In Domat''s Civil Law (Cushing''s edition), Volume 1, at page 88, it has been stated:

It is the duty of the judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a

just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from.

Maxwell on Interpretation of Statutes, eleventh edition, contains a statement at page 350 that ""where an Act confers a jurisdiction, it impliedly also

grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui Jurisdiction date est, ea quoque

concessa esse videntur, sine quibus jurisdiction explicari non potuit."" An instance is given based on Ex parte Martin (1879) 4 Q.B.D.212; on

appeal (1879) 4 Q.B.D.491 (C.A.) that ""where an inferior Court is empowered to grant an injunction, the power of punishing disobedience to it

by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced.

The decision of their Lordships of the Supreme Court referred to above in all force applies to the case in hand.

Apart from the above legal position, the third respondent herein-appellant before the first respondent has proved that he had raised coconut

trees, cotton plants in the disputed lands and there are under harvest and the lands are in his possession. It is further asserted that the respondents

therein/petitioner herein on the basis of the orders of the Tahsildar is trying to enter into the land by force and if he enters ,it will be a great loss to

him and hence prayed for interim stay against the order of Tahsildar. In the light of the categorical averments and the Appellate Authorities are

empowered to consider the merits of the order passed by the original authority, even in the absence of specific provision for stay as held by their

Lordships, I am of the view that the power to stay was necessary in order to safeguard the interests of the aggrieved person. Accordingly I hold

that the power to stay was a necessary corollary to the power to entertain an appeal or revision. A Full Bench decision in Dharmadas v. State

Transport Appellate Tribunal (1992) K.L.J. 1133) has held that the power to remand was incidental to and implicit in the appellate jurisdiction

created by Section 64of the Motor Vehicles Act. In Burhanpur Tapli Mills Ltd., v. Board of Revenue, Madhya pradesh (1995) 6 S.T.C. 670), it

was held that since the Board of Revenue had the power to adjudge the correctness of an order passed by the Commissioner u/s 22(B) reopening

an assessment, the Board had also the power to stay the fresh assessment proceedings started by the Assistant Commissioner in pursuance of that

order. In my opinion, the Appellate Authority, namely, the Special Deputy Collector (Revenue Court) must (sic)ld to have the power to grant stay

as incidental or ancillary to its appellate jurisdiction u/s 6of the Act. When the Statute confers appellate jurisdiction, it impliedly grants the power of

doing all such acts, or employing such means, as are essentially necessary to its execution and the statutory power carries with it the duty in proper

cases to make such orders for staying proceedings to save the appeal being disposed of as infructuous. It is needless to point out that the power of

stay by the Appellate Authority is not likely to be exercised in a routine way or as a matter of course. It will only be when a strong prima facie case

is made out that the Revenue Court will consider and grant stay of the order of the original authority till the disposal of the appeal. I have already

stated that the appellant therein, third respondent herein made out a case for staying the operation of the original orders of the Tahsildar. In the light

of what is stated above, I do not find any error or infirmity in the order impugned and accordingly the Writ Petition fails and same is dismissed. No

costs. Consequently, both the W.M.Ps., are dismissed.