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TMI Blog2008 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 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 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletely 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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