Allowed

Bishop of Kollam Catholic Diocese v. Magi Fernandez

Kerala HC16 Dec 2008RP/62/2008

Case brief

AI extract

What is this about?

Review petitioner sought review of a revision order dismissing their claim for landlord rights. The petitioner argued the Lower Courts erred by ignoring objections to Revenue Inspector's report due to the witness's absence. The Single Judge, noting the order was passed without open-bench consideration of these contentions, allowed the review and directed further hearing.

What did the court decide?

Review application allowed; the case remanded for hearing by forming a larger bench.

Bishop of Kollam Catholic Diocese Vs Magi Fernandez — Landlord and Tenant | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN

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TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930

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RP.No.62 of 2008 (G)

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------------------------AGAINST THE ORDER IN CRP.1234/2000 Dated 24/01/2007

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REVIEW PETITIONER: REVN. PETITIONER

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-------------------------------------------------

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BISHOP OF KOLLAM CATHOLIC DIOCESE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER REV. FR. JAMES PUTHENPURA, BISHOPS HOUSE, KOLLAM.

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BY ADV. SRI.BECHU KURIAN THOMAS

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RESPONDENTS: RESPONDENTS

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------------------------------------

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1. MAGI FERNANDEZ, ST.MARTIN PARAMBU, TANGASSERI, KOLLAM.

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2. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LAND REVENUE, THIRUVANANTHAPURAM.

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ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT. R. BINDU, GOVT. PLEADER

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.P.BALACHANDRAN, J.

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R. P. No.62 of 2008 in C. R. P. No.1234 of 2000

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Dated this the 16^th day of December, 2008

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ORDER

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The petitioner in C.R.P.1234/2000 on the

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file of this Court is the review petitioner and he seeks for a review of the order dt.24/01/07 in C.R.P.1234/00 as according to him this Court passed the order in the revision without considering the facts or the law applicable to the case.

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It is consequent on an application

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filed before the Land Tribunal, Kollam by the respondent that suo motu proceedings 16/94 was

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initiated with the petitioner as the respondent. The petitioner resisted the application which was filed under Section 72 (c) of the K.L.R Act contending that the respondent is entitled only to “kudikidappu” right and not any leasehold right over the

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R. P. No.62 of 2008

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properties as claimed. The Land Tribunal got down report of Revenue Inspector and that was made the basis for the order passed by the Land Tribunal allowing purchase of landlord's right as a cultivating tenant.

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It is contended by the counsel for the petitioner that the Revenue Inspector's report was assailed by the petitioner filing detailed objections and the Revenue Inspector was summoned, but he did not attend the court because he had retired from service and the report was that he has gone abroad, but that the Land Tribunal refused to obtain any further report deputing another Revenue Inspector; that in appeal the Appellate Authority without perusing even the order of the Land Tribunal, dismissed the appeal holding that the Revenue Inspector's report stands unchallenged and he is not examined though objections to the report is filed by

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R. P. No.62 of 2008

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the petitioner/appellant and that when the revision was argued before this Court these aspects were highlighted, but the court which heard arguments on 10/01/07 dismissed the revision vide judgment dt.24/01/07 without considering either the question of law involved or the facts which required to be evaluated for appreciating the case on merits and that thus, there is error apparent on the face of the record.

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passed by this Court that the counsel for the petitioner had advanced contentions to the following effect:-

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applicant before the Land Tribunal cannot claim the status of a cultivating tenant.

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(2) that Ext.A1 of the year 1916 and Ext.A2 gift deed of 1933 shows that a homestead was constructed by the respondent's

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R. P. No.62 of 2008

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predecessor and was residing therein making payment of ground rent only on permission and that there was no lease of any properties so as to claim benefits under Section 72(c) of the Act.

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(3) That the Tribunal and the Appellate Authority have not properly appreciated the nature of transaction evidenced by Exts.A1 and A2 and committed an error in holding that the applicant is a cultivating tenant.

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(4) that detailed objections filed to the

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Revenue Inspector's report was not properly considered by the authorities below and the report could not have been accepted in view of the objection as the Revenue Inspector who submitted the report and who was cited as a witness by the petitioner for being examined assailing his report was not available to be examined for no fault of the petitioner.

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and (5) that an application for

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R. P. No.62 of 2008

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assignment of land under Section 72(c) of the K.L.R Act is not maintainable in respect of a lessee of a building and no property was given to him for cultivation.

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It is seen that the above specific points urged before this Court was not considered by this Court while disposing of this revision observing that it is an undisputed fact that the property in question was in the possession of the predecessor in interest of the respondent for over 150 years; that the fact that the applicant was in possession was evident from the report of the Revenue Inspector as well as other documentary evidence adduced in the case and the facts so found by the Tribunal and the Appellate Authority is not liable to be disturbed in exercise of this Court's revisional

jurisdiction.

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R. P. No.62 of 2008

It is vehemently contended by the

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learned counsel for the petitioner that the revisional jurisdiction vested in the court under the Land Reforms Act is a jurisdiction which has to be exercised considering the manner of disposal of the application by the Land Tribunal and the manner in which it has been appreciated by the Appellate Authority and that if the court is convinced that the authorities below have gone wrong in appreciating the facts and the law applicable to the case, then it was a fit case for intervention by this Court in revision and that non-consideration of the facts and law involved in the case by the order impugned warrants interference in review.

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Having considered the arguments and

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appreciated the manner in which the authorities below have disposed of the matter and the manner in which this Court has affixed

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R. P. No.62 of 2008 -7-

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stamp of approval to the orders of the authorities below, I am of the view that the order passed by this Court deserves to be reviewed especially when it is not an order passed in open bench which the counsel could take note of at the appropriate time and bring it to the notice of the court. Hence, I allow this review application. Post this C.R.P for hearing getting down the L.C.R as well.

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K.P.BALACHANDRAN, JUDGE

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kns/-

Bishop of Kollam Catholic Diocese v. Magi Fernandez

Case brief

What is this about?

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Bishop of Kollam Catholic Diocese v. Magi Fernandez

Case brief

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What did the court decide?

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