Holding

A revision dismissed solely on delay does not merge the lower order, so the Board may exercise its power under Section 85(9) to reopen the case.

Summary

The respondents filed a statement under Section 85(A) of the Kerala Land Reforms Act claiming they held land within the ceiling limit, but the State Land Board later found they exceeded it and directed the Taluk Land Board to reopen the case under Section 85(9). The Board initially held the respondents were not liable to surrender land, a decision that was challenged by a revision petition which the High Court dismissed solely on the ground of delay, not on merits. The State then sought to reopen the case, and the respondents argued that the Board's earlier order had merged with the High Court's dismissal, stripping the Board of jurisdiction. The Supreme Court held that a dismissal on delay does not constitute an order of affirmance, so the doctrine of merger does not apply, and the Board retained the power to reopen the case under Section 85(9). Consequently, the High Court's judgment was set aside and the appeal was allowed, confirming the Board's authority to proceed afresh.

Issues considered

Whether a revision petition dismissed on the ground of delay results in the merger of the lower forum's order with the higher court's order.
Whether the Taluk Land Board retained jurisdiction to reopen the case under Section 85(9) of the Kerala Land Reforms Act after such a dismissal.

Legislation cited

Kerala Land Reforms Act, 1963s. 85(9)

Subjects

land reformsceiling limitdoctrine of mergerrevision petitiondelayjurisdictionSection 85(9)reopening of case

Judgment

[2008] 11 S.C.R. 957
,,
'
STATE OF KERALA & ANR. A
v.
KONDOTTYPARAMBANMOOSA & ORS.
(Civil Appeal No. 3331 of 2002)

AUGUST 5, 2008
B
[TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]

Kera/a Lan_d Reforms Act, 1963 - s. 85 (9) - Taluk Land
Board deciding that the land held by land-holder was not in ex-
cess of ceiling limft - Revision against the order dismissed by c
High Court on the ground of delay - Board thereafter decided
to reopen the case - Order directing reopening cha!Jenged -
High Court holding that the previous order of the Board having
merged with the order of High Court re-opening of case u/s 85
(9) not permissible - On appeal, held: The revision petition
D
having been rejected on the ground of delay, doctrine of merger
is not applicable - Hence the order in revision ·cannot take away
the jurisdiction of the Board to reopen the case -Doctrine of
merger. is applicable where the appeal/revision is entertained
by the higher forum on merits - Dismissal on the ground of
delay will· not attract applicability of the doctrine - Doctrine of E
merger- Kera/a Land Reforms (Ceiling) Rules - Rule.12 (i).
·1,n verification report, of the statement filed by respon-
dents u/s 85 (A) of Kerala Land Reforms Act, it was found
that the respondent was holding the land in excess of the F
ceiling limit. Taluk Land Board held that the respondent's
family was not holding the land in excess of the ceiling
limit. Revision petition against the order of the Board was
~
dismissed on the· ground of delay. ·
Thereafter on scrutiny of the order of the Taluk Board G
by State Land Board, it was found that the respondents
were holding the land in excess of the ceiling limit, and
'1(
directed to reopen the case. Taluk Board decided to re-
open the case u/s 85 (9) of the Act.
957 H
958 SUPREME COURT REPORTS [2008] 11 S.C.R.

A Respondents filed revision petition challenging the
reopening of the case. High Court allowed the petition
holding that the earlier order of Taluk Board ceased to
exist having merged with the order of High Court whereby
revision was dismissed. Hence Section 85 (9) could not
B have been invo~ed. Hence the present appeal.
Allowing the appeal, the Court
HELD: 1.1 Taluk Land Board u/s. 85(9) of Kerala Lan.d
Reforms Act, 1963 was entitled to reopen the case in com-
e pliance with Section 85(9) of the Act. The earlier order of
Taluk Board could not be merged with the order of the
High Court passed in revision case. 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.
0
Therefore, it must be held that since earlier revision appli-
cation was not rejected on merits, the said order reject-
ing the same on the ground of delay cannot be said to be.
the order of affirmance and that being the position, it is
held that since the earlier revision petition was not de-
E cided on merits, the doctrine of merger cannot be applied
to the facts and circumstances of the present case. [Paras
25 and 27] [966 F,G,H, 967-F]
1.2 The doctrine of merger would only apply in a case
F when a higher forum entertains an appeal or revision and
passes an order on merit and not when the appeal or revi-
sion is dismissed on the ground that delay in filing the
same is not condoned. Mere rejection of the revision peti-
tion on the ground of delay cannot be allowed to take away
G · the jurisdiction of the Board, whose order forms a stAbject
matter of petition and Section 85(9) of the Act confers pow- \,

ers on the Board to reopen the cas~ if such grounds for
reopening the case are shown to exist. [Para 26] [967-C,D]
Smt. S. Kalawati vs. Durga Prasad and Am: A!R 1975
H SC 1272; Shankar Ramchandra Abhyankar vs. Krishnaji
STATE OF KERALA & -ANR. v. KONDOTTYPARAM- 959
BANMOOSA & ORS.

Dattatraya Bapat 1969 (2) SCC 74; Kunhayammed and Ors.· A
vs. State of Kera/a and Anr 2000(6)SCC 359; Chandi Prasad
and Ors. vs. Jagdish Prasad and Ors. 2004 (8) SCC 724 -
relied·on.
Case Law Reference
B
AIR 1975 SC 1272 Relied on Para 22
1969 (2) sec 74 Relied on Para 23
2000(6) sec 359 Relied on Para 24
2004 (8) sec 124 Relied on Para 25 c
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3331
of 2002
From the final Judgment dated 1/6/2001 of the High Court
of Kerala at Ernakulam in CRP No. 1365 of 1992 D
G. Prakash for the Appellants.
Subramonium Prasad, Jay Kishore Singh and Vivek Gupta
for the Respondents.
E
· The Judgment of the Court was delivered by
TARUN CHATTERJEE, J. 1. The present appeal is filed
at the instance of the State of Kera la & Another against the im-
pugned judgment dated 1s1 of June, 2001 passed by the High
Court of Kerala at Ernakulam in C.R.P. No. 1365 of 1992 F
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 not proceed afresh under sub-section (9) of Sec-

- tion 85 of the Kerala Land Reforms Act, 1963 (in short 'the Act').
2. The brief facts leading to the filing of this appeal may be
narrated as under :
G

The Respondents had filed a statement under Section
85(A) of the Act relating to lands held by their family. According H
960 SUPREME COURT REPORTS [2008] 11 S . C.R.
"(

A. 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 stan-
dard acres. Out of this 0.85 acre of land was eligible for exemp-
B tion under Section 81 of the Act. After allowing the family of the
respon.dent 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 celling limit.
3. Accordingly, a dra'ft statement with a notice under Rule
c 12(i) of the Kerala Land Reform (Ceiling) Rules was issued to
the respondents to file objections, if any, against the draft state-
ment and also to appear for hearing before the Board. Accord-
ingly, the objection statement was fil~d by the respondents and
the same was verified through the Authorised Officer..
D
4. The Board at its sitting oh 13th of June, 1985 held that
' '

the respondents were fn 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
E were thus not liable to surrender any land.
5. Against the above judgment of the Board, the appel-
lants had pr,eferred a Revision along with an application for con-
donation of delay. However the High Court dismissed the appli-
F cation for condonation of delay and accordingly the Revision
was also-dismissed
' . '
as belated. It is evident from the order of
the High ~ourt 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 case was rejected only on the ground
G
that·the delay could not be condoned.. ·
6. However on scrutiny of the order of the Board by the
State Land BO'ard, it was found that the respondents were en-
titled to retain only 1Ostandard acres of land as against 11 stan-
dard acres worked out by the Board. In view of this, the State
)'
-
H ·Land Board directed the Board to re-open the case.
STATE OF KERALA & ANR. v. KONDOTTYPARAM- 961
BANMOOSA & ORS. [TARUN CHATTERJEE, J.]

7. Accordingly, the case was reopened and notice was A
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 B
respondents were called upon to file their objections, if any, by
10th of June, 1992.
8. The respondents filed their objection, the main objec-
tion of the respondent was that in the draft statement issued by
the Board, it was shown that the family consisted of 6 members C
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. o
9. The Board by its order dated 1Qth 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 ~rder, the respon- ' E :.
dents filed Revision Petition dated 5th 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 merged with the
revisional order of the High Court and, therefore, the case could F
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 respon-
dents on a finding that the order dated 13th of June, 1985 ceased G
to exist as it was merged with the order of the High Court dis-
missing 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 H
962 SUPREME COURT REPORTS [2008] 11 S.C.R.

..
A 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.
B
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
C 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 dis-
missed by the High Court and as such there was no scope to
invoke Section 85(9) of the Act.
D
15. Before we answer these questions, it would be expe-
dient 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
E 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.
F 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. As such I hold that the
G 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." )' I

16. Let us now consider the submissions of the learned
counsel- for the parties. The learned counsel for the appellants
H argued before u's that the impugned judgment of the High Court
STATE OF KERALA & ANR. v. KONDOTTYPARAM- 963
BANMOOSA & ORS. [TARUN CHATTERJEE, J.]

dated 1st of June, 2001 was incorrect as the same was not in A
·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 prin- B
ciple woulc;I 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 coun-
sel for the appellants accordingly submitted that the dismissal
of the revision petition by the High Court on the ground of delay c
did not amount to confirmation of the order of the Board dated
131h of June, 1985.
18. These submissions of the learned counsel for the ap-
pellants were contested by the learned counsel appearing on
behalf of the respondents. The learned counsel for the respon- D
"1-
dents contended that according to the order passed by the Board
dated 161h of June, 1985, the respondent was not liable to sur-
render any land and once the order of the Board had been at-
firmed by the High Court of Kera la, the Board could not reopen
the case because the order of the Board had completely merged E
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 fi-
nality unless it could show special reasons for doing the same. F
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 131h of June,1985 had ceased to
exist when the Revision was dismissed by the High Court only G
\ on the Ground of delay but not on merits and that the Board had
-I
'"(
no jurisdiction under Section 85(9) of the Act to reopen its ear-
lier order.
Section 85 of the Act deals with surrender of excess lands.
It runs as under:- H
964 SUPREME COURT REPORTS [2008] 11 S.C.R.

A (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.
Provi~ed that. where any person bona f\de believes that
the.ownership or possession of any land owned()~ to be
B res.urned by the land owner or the intermediary under the
· ·.provisions of this Act, the extent .of the land so li~ble 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.
c
(9) .. Th~ Taluk Land Board may,. at any time, set aside its
order under sub-section (5) or sub':~ection (7), as
the case may ,be, and proceed afresh under that
.· sub-section if it is satisfied :that -
D {a). the extent oflan.ds surrendered.by, or assurned
from, a person.under section 86 is less,than the
extent of lands which he was liable to surr~nder
under the provisions of this Act, or
. (b) the lands surrendered by, ·or assumed from, a
E person are not lawfully owned or held by him; or
(c) in a case wh~re a person is, according to such
.order, not liable to surrender ,any land, such
person owns or holds lands in excess of tlie
F 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 opportu.nity of being heard;
Provided further that the Taluk Land Board shall not initiate
G
any proceedings under this sub-section [after the-expiry of
s~ven years] from the date on which the order sought to
be set aside has become final. ' ·

A plain reading of Section 85(9) of the Act would clearly
H: show·that the Board is conferred with the power to set aside ~ts
STATE OF KERALA & ANR. v. KONDOTTYPARAM- 965
BANMOOSA & ORS. [TARUN CHATTERJEE, J.]

order under sub-section (5) or sub-section (7) and proceed A
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 B
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 revi-
sion petition of the High Court on the ground of delay would
take away the right of the Board to proceed afresh under Sec- C
tion 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 surren-
der any land. However.it cannot- be said that the aforesaid or-
der has merged with the order of the High Court dismissing the D
Revision petition of the appellant State as the same was dis-
missed on the ground of rejection of the application for condo-
nation 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 E
1272] may be strongly retied 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 F
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 G
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 laid
down the pre-conditions attracting applicability of doctrine of
merger in the following manner : H
966 SUPREME COURT REPORTS [2008] 11 S.C.R.
';(

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

~
\"-

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

B (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 Kera/a & Anr. [2000(6)SCC I-
?

359), has observed as follows:-
c
"Once the superior court has disposed of the /is 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
D
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 '
;--

E
have been laid shall have to be kept in view."
(Emphasis supplied)
25. Keeping these principles as enunciated by this Court
in the aforesaid three decisions in mind and applying the said
F 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
G earlier revision application was not rejected on merits, the said
r
·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 de-
cided on merits, the doctrine of merger cannot be applied to
H the facts and circumstances of the present case. ln this connec-
STATE OF KERALA & ANR. v. KONDOTTYPARAM- 967
BANMOOSA & ORS. [TARUN CHATTERJEE, J.]
)I
tion an observation made by this Court in the case of Chandi A
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" B
).
(Emphasis supplied.)

26. In this view of the matter, we are, therefore, of the opin-
ion that the doctrine of merger would only apply in a case when
a higher forum entertains an appeal or revision and passes an c
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, whose order forms a subject matter of petition and Sec- D
tion 85(9) of the Act confers powers on the Board to reopen the
j.
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 E
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 that the Board under F
Section 85(9) of the Act was entitled to reopen the case in com-
~
pliance 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 G
aside. The appeal is thus allowed. There will be no order as to
costs.

K.K.T. Appeal allowed.

H