T. Nabeesu vs Lt. Governor Union Territory on Pondicherry

The petitioner prays for the issue of a writ of certiorari to call for the records of the order of the respondent dated 10.8.1989 passed in Ref: No:

14352/82/C-1 and quash the same.

This Court issued rule nisi on 26.4.1993. The matter was taken up with the consent of counsel for either side. The respondent had filed a

counter affidavit also. Though the petitioner had mistakenly impleaded her Excellency, the Lieutenant Governor of Union Territory of Pondicherry,

this Court taking into consideration of the passage of time of nine years since the date of filing the writ petition, deems it fit to dispose of the writ

petition on merits irrespective of the defect in the description of respondent in the cause title. So also the failure to imp lead the contesting parties. It

is not necessary to order notice to contesting parties at this point of time in the nature of order this court proposes to pass.

The facts leading to the filing of the writ petition could be summarised briefly. The petitioner submitted an application u/s 83 (3) of the Mahe

Land Reforms Act, 1968 seeking for acquisition of land to shift the Kudikidappu from her land in R.S.41 of Palloor Village of Mahe Commune to

an alternative site acquired by the Government. An enquiry was conducted by the Authorised Officer in terms of Rule 60 of the Mahe Land

Reforms Tenancy Rules, 1981. The writ petitioner failed to appear for the said enquiry and establish his plea that the land occupied by the

Kudikidappukaran is absolutely necessary to construct a residential house. Thereafter on 19.11.1985 a notice was issued by the Government

calling upon the petitioner to show cause as to why the application should riot be dismissed for non prosecution. To the said show cause notice

also the petitioner had kept silent and consequently by order dated 22.2.1988, the application filed u/s 83 (3) of the Act was dismissed.

Thereafter the writ petitioner took out an application to restore the application dismissed for non prosecution the same had been rejected by the

respondent on the view that there is no provision to restore the application which has been dismissed for non-prosecution by proceedings dated

10.8.1989. Challenging the same, the present writ petition has been filed.

According to the petitioner, the refusal to entertain a restoration application and rejection of the same is illegal as sufficient cause has been

shown by the petitioner for failure to appear. The petitioner further contended that section 83 as well as other provisions of The Mahe Land

Reforms Act confers all the incidental powers including the power to restore an application dismissed for non prosecution and such a power has to

be read in the very provisions of the Act. The impugned order, it is contended is violative of Art. 14 and Art. 19 of the Constitution. It is further

contended that without affording an opportunity, the application for restoration has been dismissed and this is in violation of principles of natural

justice. If an opportunity had been afforded, the petitioner would have pointed out the provision under which an application for restoration is

maintainable.

On behalf of the respondent, the joint Secretary of Revenue Department had filed a counter affidavit. In the counter affidavit the respondent had

detailed the proceedings before the Deputy Collector (Revenue), Mahe and the failure on the part of the petitioner to appear before the said

Authority to substantiate her case. According to the respondent the petitioner had failed to appear despite affording sufficient opportunity and

consequently the Authorised Officer had passed an order on 19.4.1993 holding that the application could not be considered as the petitioner had

failed to establish her bona fide need as claimed by her in the application. The petitioner applied to the respondent for acquisition and shift the

kudikidappukaran from her land. A notice was issued on 19.11.1985 to show cause as to why the application should not be dismissed. As no

objection was received or an explanation has been offered, after the expiry of the specified time, the application was dismissed. Thereafter an

application has been taken out to restore and to reopen the matter had been dismissed after considering the application.

It is further contended that there is no provision u/s 83 (3) of the Mahe Land Reforms Act to reopen the case which was dismissed by the

Authorised Officer on account of failure on the part of the petitioner to utilise the opportunity afforded to her. Further it is contended that there is a

delay in filing the writ petition. The delay is inordinate and the writ petition is liable to be dismissed for latches.

Heard Mr.A.C.Susheel Kumar, learned counsel for the petitioner and Mr.R.Syed Mustafa, learned counsel for Mr.T.Murugesan, Government

Pleader (Pondicherry).

The first objection that the writ petition is belated and that the writ petition has to be dismissed for latches cannot be sustained at this point of

time as rule nisi has been issued and the writ petition is pending for nearly seven long years. Hence this objection cannot be sustained.

The Mahe Land Reforms Act, 1968 is a comprehensive Legislation relating to land reforms in Mahe Region of the Union Territory of

Pondicherry. Section 2 (24) defines'' the expression ""Kudikidappukaran"". The expression ""Kudiyiruppu"" had been defined in section 2 (25) of the

Act. Chapter II of the Act relates to tenancies. Section 82 prohibits the creation of a new tenancy in respect any land. In respect of certain

categories of land owned by a minor, a widow, an unmarried woman, a divorced woman, a person incapable of cultivating the land by reason of

any physical or mental disability or a serving member of the Armed Forces or a Seaman, may create a temporary tenancy by an agreement in

writing and no such tenant shall be entitled to any right conferred on a tenant under the said Chapter.

Section 83 provides that no Kudikiduppukaran shall be liable to be evicted from his Kudikidappu except on the grounds enumerated in the

said Section. Sub- section (2) of section 83 provides notwithstanding anything contained in sub- section (1), the person in possession of the land

on which there is a homestead or hut in the occupation of a ""kudikidappukaran"" may, if he bona fide requires the land for building purposes for

himself or any member of his family and such other purposes as enumerated in clauses (a), (b), (c): Clause (c) requires the ""kudikidappukaran"", to

shift to a new site belonging to him, subject to the conditions set out therein. In the event of the conditions specified in sub section (2) arc complied

with the ""kudikidappukaran"" shall be bound to shift to the new site. In this case we are not concerned with the sub section (4) and (5) of Section

83, as it is not necessary to refer to the same at this point of time.

Sub- section (2) and (3) of Section 83 which are relevant reads thus:-

(2) Notwithstanding anything contained in sub- section (1), the person in possession of the land on which there is a homestead or hut (hereinafter

in this sub- section referred to as the landholder) in the occupation of a kudikidappukaran, may, if he bona fide requires the land--

(a) for building purposes for himself or any member of his family including major sons and daughters; or

(b) for purposes in connection with a town planning scheme approved by the competent authority; or

(c) for any industrial purpose,'' require the Kudikidappukaran, to shift to a new site belonging to him, subject to the following conditions, namely;--

(i) the landholder shall pay to the Kudikidappukaran the price of the homestead, if any, erected by the kudikidappukaran;

(ii) the new site shall be fit for erecting a homestead and shall be within a distance of one mile from the existing kudikidappu;

(iii) the extent of the new site shall be the extent of the existing kudikidappu, subject to a minimum of three cents and a maximum of ten cents;

(iv) the landholder shall transfer ownership and possession of the new site to the kudikidappukaran and shall pay to him the reasonable cost of

shifting the kudikidappu to the new site.

(3) Where the conditions specified in sub- section (2) are complied with, the kudikidappukaran shall be bound to shift to the new site."" .

Rules have been framed u/s 38 of the Act. Section 134 bars the jurisdiction of civil courts. Section 137 confers a power on the Government to

remove the difficulties.

In terms of Rule 80 of the Mahe Land Reforms Tenancy Rule 1981, the Deputy Collector (Revenue), Mahe is conferred to hold an enquiry to

consider the application filed u/s 83 (3) of the Act. As acquisition has to be made to acquire land and shift the kudikidappukaran from the land, an

application has been taken out before the respondent. It is true, a show cause notice has been issued calling upon the petitioner to show cause as

to why the application should not be dismissed for non prosecution. It is equally true that the respondent after affording the said opportunity had

dismissed the application. The petitioner had assigned reasons, but without considering the merits of such reasons assigned, the respondent had

dismissed the application as not maintainable by the impugned proceedings.

It is by now well settled that an authority constituted to decide or adjudicate a dispute or consider an application for restoration or eviction or

acquisition or shifting of kudikidappu has all the incidental powers including the power to restore an application which has been dismissed for non-

prosecution. Any other view would defeat the very object of the enactment.

While exercising the statutory provisions of the Mane Land Reforms Act and the Rules framed thereunder, the Authorised Officer and the

Deputy Collector (Revenue) exercise quasi Judicial powers conferred by the statute and rights of the parties are decided by them by virtue of the

powers conferred under the provisions of the Act. Where the Statute does not require a particular method to be followed by an administrative

functionary or agency or authority, such agency or authority or functionary may adopt any reasonable method to carry out its functions. This

position has been well settled by the decision of the Apex Court in Dhani Devi Vs. Sant Bihari and Others, . A Tribunal has got the power to set

aside an ex parte order as are vested in a Civil court when disposing of an application or. an appeal. In Grindlays Bank v. Central Government.

Industrial Tribunal, AIR 1981 SC 609, the Apex Court held thus:-

We are of the opinion that the Tribunal had the power to pass the impugned order, if it though fit in the interest of justice. It is true that there is

no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory

construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its

functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be

considered as invested with such incidental or ancillary powers unless there is any indiction in the statute to the contrary. We do not find any such

statutory prohibition. On the other hand, there are indications to the contrary.

This decision squarely applies to the facts of the present case. It is not necessary to refer to any other pronouncement.

In I.T. Officer v. Md.Kunhi, AIR 1969 SC 430 it has been held that an express grant of statutory power carries with it by necessary

implication the authority to exercise all reasonable means to make such gran: or conferment of power effective and the jurisdiction or authority

conferred would also include the power of doing of such acts or employing such means as are essential and necessary to its execution. The

conferment of a statutory power carries with it a duty in proper cases to make such orders as may be necessary, less the implementation of '' the

statutory provision will be rendered nugatory. The object of the Act has to be achieved and a Tribunal or a quasi judicial authority even if there is

no specific provision to restore an application dismissed for non prosecution or default, and it has to exercise all'' the powers conferred on it. The

said authority, a quasi judicial functionary has all the incidental powers including the power to restore an application or a petition dismissed for non

prosecution, if sufficient cause is shown.

Further in exercise of power of acquisition of land as provided for is also a sovereign function which is regulated by statutory provisions of the

Act. This could be exercised and such a discretion or exercise of power could be exercised, or reconsidered as the facts of the case may warrant.

In the present case it is the statutory provisions which have to be given effect and the authority conferred has got all the incidental powers including

the power, to restore an application dismissed for default. ""The rejection of the application as the respondent has no authority to restore the

application rejected for non-prosecution cannot be sustained.

In the circumstances, the impugned proceeding is quashed and the matter is remitted back to the respondent for fresh consideration on merits.

If the respondent is convinced of the reasons assigned and if the respondent is satisfied that the petitioner was prevented by sufficient cause the

respondent could consider the application on merits and pass orders according to law.

The writ petition is allowed to the extent indicated above and the matter is remitted back to the respondent for de novo consideration of the

restoration application after affording necessary opportunity. It is needless to state that the writ petitioner has to implead the contesting parties

before the respondent herein, less the further proceedings will suffer for failure to implead the necessary parties. No costs.