K. ISWARA WARRIYAR v. STATE OF KERALA — 1966 DIGILAW 136 (KER)

Judgment :- 1. This writ petition concerns the preparation of record of rights under S.29 of the Kerala Land Reforms Act, Act 1 of 1964, hereinafter referred to as the Act, in respect of the properties known as Attappadi Malavaram situate in Perinthalmanna Taluk comprising private forest lands belonging to the Mannarghat Moopil Sthanam. The said Attappadi Malavaram properties lie contiguously in the three villages in Perinthalmanna taluk, namely Agali, Sholayur and Pudur. The last of the Moopil Sthanees died in 1960. A suit for partition of the sthanam properties was instituted before his death and the petitioner was appointed as receiver in that suit. All the members of the Sthanee's family are parties to the suit. 2. The petitioner was served with notices by the 2nd respondent purporting to be in Form No. 7 under S.29 of the Act and R.16 of the Rules framed thereunder, intimating him that an enquiry would be held on 26-5-1965 and 19-6-1965 by the 2nd respondent for preparation of record of rights in respect of certain portions of the Attappadi Malavaram. Of the 125 notices served on the petitioner 63 notices relate to properties in Agali village while 62 in Sholayur Village. All these notices are of the same pattern. The petitioner has produced two of them, one relating to Agali and the other to Sholayur, and marked them as Exts. P-1 and P-2 respectively. Pursuant to these notices petitioner submitted objections evidenced by Exts. P-3 and P-4. Subsequently additional objections were filed by him and they are marked as Exts. P-5 and P-6. Thereafter draft record of rights was prepared by the 2nd respondent of the holdings of respondents 4 to 128. The petitioner filed his objections to the same evidenced by Exts. P-7 and P-8. These objections were over-ruled and final record of rights has been prepared after passing the necessary orders. The petitioner contends that the record of rights was not prepared in accordance with the provisions of S.29 and the rules thereunder, and therefore prays that the notices, the draft and the final record of rights be quashed by issuing the appropriate writ. 3. The petitioner contends that the record of rights was not prepared in accordance with the provisions of S.29 and the rules thereunder, and therefore prays that the notices, the draft and the final record of rights be quashed by issuing the appropriate writ. 3. The main submission of the petitioner's counsel are the that the lands in respect of which the record of rights has been prepared are private forest lands, that these lands do not come within the purview of the Act, that there are no holdings as defined in the Act in the forest, and so no record could be prepared in respect of them, that the forest has not been surveyed and therefore it is not possible to identify the properties specified in the notices issued to him, that no enquiry as contemplated by the rules has been made, that he was not allowed to let in his evidence, that there is no record to show that a final order recording reasons for the entries in the record as contemplated in R.17(6) has been passed, and that the proceedings have been conducted in violation of the principles of natural justice. 4. The learned Advocate General, appearing for the 2nd respondent submitted that the proceedings for the preparation of the record of rights and the final record as prepared are not liable to be quashed in this proceeding for the reason that they are administrative in character. It was submitted by him that record of rights is only a piece of evidence admissible in a Court or Tribunal when any of the matters specified therein becomes controversial and that it does not proprio vigore determine any of the rights of the parties. He argued that unless there is a determination of the right of parties by the record of rights, the proceedings for preparation of the record are not amenable to be quashed by a writ or order in the nature of certiorari. In support of this contention he relied upon the rulings reported in Jacob v. Dist. Collector 1960 KLT. 302 and Padmanabhan v. Appu 1966 KLT. 260. The ruling in 1960 KLT. 302 related to the granting to a memorandum under R.3 of the Kerala Agriculturists Debt Relief Rules, 1958. In support of this contention he relied upon the rulings reported in Jacob v. Dist. Collector 1960 KLT. 302 and Padmanabhan v. Appu 1966 KLT. 260. The ruling in 1960 KLT. 302 related to the granting to a memorandum under R.3 of the Kerala Agriculturists Debt Relief Rules, 1958. Raman Nayar J., said that the Collector simply collects information from several authorities and compiles this information in the form of a memorandum, that the rule only says that the memorandum shall be receivable as evidence, that other evidence is not excluded, and so no certiorari will lie. 1966 KLT. 260 concerns the issue of a certificate by the Collector under S.14 of the Act, and Raman Nayar J. held that the proceedings are administrative in character as no rights of the parties are decided by the certificate, and that the question whether the property is required for the extension of a place of public worship has to be decided by the Land Tribunal after taking evidence before it. There is some force in the submission of the learned Advocate General that a proceeding like the one in question, which does not purport to decide the rights of parties but is only concerned with the recording of the conclusion of an officer not clothed with authority to determine their rights, and which serves only as a piece of evidence when the rights are adjudicated upon by a Tribunal or Court cannot be quashed by issue of a writ of certiorari. 5. Mr. Suryanarayana Iyer, appearing for the petitioner, submitted that the proceedings for the preparation of record of rights are quasi-judicial in character, and in support of it he relied upon R.14 to 17 of the Rules framed under the Act. R.14(2) provides that when an application for preparation of record of rights is filed, the Land Tribunal may hold such enquiry as may be deemed necessary to satisfy itself prima facie that the application is bona fide. R.16(1) directs the Revenue Divisional Officer who is to prepare the record of rights to give public notice in Form No. 6 specifying the time and date of the enquiry into the application and invite claims and objections in regard to it. R.16(1) directs the Revenue Divisional Officer who is to prepare the record of rights to give public notice in Form No. 6 specifying the time and date of the enquiry into the application and invite claims and objections in regard to it. R.16(2) provides that the notice shall be published on the notice boards of the Revenue Divisional Officer, and the Land Tribunal before which the application for the preparation of the record of rights is made, and also on the notice boards of the Village Office of the Village, and the office of the Panchayat in which the land is situate. Sub-Rule (3) of R.16 provides that individual notice shall be given to the applicant, to the landowner, intermediary and all other persons interested in the holding. R.17 states that the Revenue Divisional Officer shall hold an enquiry into the application at the time and date specified in the public notice and hear the persons appearing before him. Sub-rule (2) of R.17 says that it is open to any party to apply to the Revenue Divisional Officer for survey of land if the land has not already been surveyed. Sub-rule (3) provides that the Revenue Divisional Officer shall prepare a draft record. Sub-rule (4) says that the draft record of rights shall be published in the same manner as the public notice. Sub-rule (5) says that as soon as the draft record is published objections shall be called for and all persons who are interested in filing objections should file the same, and that thereafter the Revenue Divisional Officer shall pass an order declaring the record of rights to be final. Sub-rule (6) directs that the Revenue Divisional Officer, while preparing the record of rights shall pass an order recording his reasons and findings in respect of the entries in the record. 6. Counsel argued that these rules would show that the proceedings for the preparation of record of rights partake of the character of quasi-judicial proceedings and are liable to be quashed by this court if there is violation of the principles of natural justice or error of law apparent on the face of the record. 7. The authority preparing the record of rights is bound to issue notice to the parties interested, hear their objections, allow them to adduce their evidence, and record reasons for its conclusions. 7. The authority preparing the record of rights is bound to issue notice to the parties interested, hear their objections, allow them to adduce their evidence, and record reasons for its conclusions. But the proceedings do not determine any of the rights of the parties. The object of preparing record of rights is to furnish evidence as to the nature and extent of the holdings, the rent payable thereon, who are the tenants, and other matters specified in the rules and the Form. The record does not embody any final decision as regards the rights of the parties in respect of any of the matters specified therein, and when any of the matters specified becomes controversial in a court or tribunal it will be open to the landlord or the tenant to adduce evidence in support of his contention. In other words, the record of rights when prepared will be an item of evidence in respect of the several matters required by the Act and the rules to be specified therein. Though the record of rights is only a piece of evidence, its evidential value will be great with passage of time and might be practically conclusive in respect of the rights of the parties. 8. The learned Advocate General said that the Revenue Divisional Officer is not the authority competent to make a decision affecting the rights of the parties before him, and that the proceedings will not acquire the character of quasi-judicial proceedings merely because he is bound to hear the parties affected, or record reasons for his conclusions. In the leading case Rex v. Electricity Commissioners, Ex parte London-Electricity Joint Committee Co. 1924-1 K. B. 171, 205 it is observed: "Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs". A gloss on the passage was put by Lord Heward C. J., in Rex v. Legislative Committee of the Church Assembly, Ex Parte Haynes Smith 1928-1 K. B 411 where he said that the person must have legal authority to determine questions affecting the rights of subjects and also the duty to act judicially. In respect of this gloss Lord Reid said in Ridge v. Baldwin 1964 AC. In respect of this gloss Lord Reid said in Ridge v. Baldwin 1964 AC. 40 at page 75 "If Lord Reward meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities. I could not reconcile it with what Lord Denman C. J. said in Reg. v. Smith -5 Q. B. 615 or what Lord Campbell C. J. said in Exparte Ramshay-18 Q. B. 173. or what Lord Mather ley L. C. said in Osgood v. Nelson-L. R.5 H. L. 636 or what was decided in Cooper v. Wandsworth Board of Works-14 C. B. N. S.180 or Hopkins v. Smethwick Local Board-24 Q. B. D. 712 or what Lord Parmoor said in De Verteuil v. Knaggs-1918 A. C. 557 or what Kelley C. B., said, with the subsequent approval of Lord Macnaghten, in Wood v. Wood- L. R.9 Ex. 190, or what Jessel M. R. said in Fisher v. Keane-11 Ch. D 353, or what Lord Birkenhead L. C. said in Weinbarger v. Inglis-1919 A. C. 606, and that is only a selection of the earlier authorities. And. as 1 shall try to show, it cannot be what Atkin L. J. meant". And then he said that the judicial element must be inferred from the nature of the power. But, what if the person bound by the statute or rules to hear parties, take evidence, and give reasons for his conclusion, cannot by his decision determine or affect the rights of the parties before him? Will the proceedings be quasi-judicial simply because he has a duty to give notice, hear the parties and record his reasons for the conclusion. I think not. The duty to act judicially flows from the nature of the power exercised. But you cannot always infer the nature of the power from the duty to act judicially. If a person although bound to act judicially cannot make an adjudication affecting the rights of the parties, then it is not possible to say that the proceedings are quasi-judicial in character amenable to be quashed by a writ of certiorari. But you cannot always infer the nature of the power from the duty to act judicially. If a person although bound to act judicially cannot make an adjudication affecting the rights of the parties, then it is not possible to say that the proceedings are quasi-judicial in character amenable to be quashed by a writ of certiorari. Therefore the question for consideration is, does the Revenue Divisional Officer in preparing record of rights determine any question affecting the rights of parties? The recognition of rights in a party by a court or tribunal depends upon the evidence let in before it in support of the rights. With passage of time record of rights might form the entire available evidence as regards the rights of the parties and that would affect them in respect of their title or possession of the property concerned, and therefore it stands to reason to say that record of rights will affect the rights of the parties or at any rate it will be attended with civil consequences to the parties. Kelley C. B. in Wood v. Wood, L. R.9 Ex. 190 said of audi alteram partem: "This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals." I think, the contention of Mr. Suryanarayana Iyer that the proceedings are quasi-judicial in character and amenable to be quashed in certiorari has to be upheld. 9. Coming to the merits of the petition, it was contended on behalf of the petitioner that there was no survey of the forest in question and that before survey it was not possible to identify the properties in respect of which the applications have been made for the preparation of the record of rights. The notices issued to the petitioner specified the survey numbers and in the counter-affidavit on behalf of the 2nd respondent it is stated that there has been a preliminary survey of the forest, that survey numbers have been tentatively given to the various holdings, and the survey numbers given in the notices to the petitioner were sufficient for the purpose of identifying the holdings. It seems to me that there is no substance in the contention of the petitioner that there was no survey of the lands. It seems to me that there is no substance in the contention of the petitioner that there was no survey of the lands. The fact that the survey has not become final does not materially affect the position. It was open to the petitioner to identify the properties by looking into the demarcation sketch and Land Registers prepared by the survey staff. The contention that there has been no survey is not correct. In para 11 of the counter-affidavit it is stated: "The Cadastral survey operations in Attappady valley were started towards the end of the year 1963 under the Madras Survey and Boundaries Act then in force in the area, after publishing the requisite statutory notifications. The notification under S.5 of the Madras Survey and Boundaries Act was approved in G. O. MS. 810/63/Rev. dated 5101963 and published in the Kerala Gazette dated 1510 1963. Further the notification under S.6 (1) was published in the two successive issues of the Palghat District Gazette dated 26 21964 and 25 31964; besides publication of the notification in the village offices. On enquiry it has been ascertained that the Receiver on behalf of the Mannarghat Moopil Sthanam has put in petitions to the Superintendent of Survey and thus it is quite clear that he was aware of the survey operations going on in the area. The survey numbers used in the notices are preliminary and not final". 10. It was next submitted that there is no evidence to identify the tenants who are alleged to be cultivating the holdings. It may be remembered that one main contention raised by the petitioner in Exts. P-2 and P-4 objections was that there were no holdings in the forest. The petitioner submitted that only fugitive cultivations were being carried on by Adivasis in the forest, but that they were not'tenants', and therefore, the provisions in the Act as regards the prepartion of record of rights would not apply. The 2nd respondent, after conducting the enquiry, found that the Adivasis were cultivating tenants in respect of several holdings although they have no record to evidence their tenancies. 11. The 2nd respondent, after conducting the enquiry, found that the Adivasis were cultivating tenants in respect of several holdings although they have no record to evidence their tenancies. 11. Petitioner's counsel also contended that the proceedings for the preparation of the record of rights were started as if applications have been made by tenants under S.29 (1) for that purpose, but that it is clear that the proceedings have been started on the basis of a directive by Government under S.29 (2), that no applications have been made by any cultivating tenant for that purpose and that there, fore the proceedings are illegal. 12. The Government in G. O. MS. 482/64/Rev. dated 27 71964 directed the Land Tribunal, Ottappalam, to prepare record of rights in respect of the properties in question and other holdings. The Land Tribunal by its letter dated 181964 directed the Revenue Divisional Officer, the 2nd respondent to prepare the record of rights. There were no applications by the cultivating tenants. The learned Advocate General on the basis of these facts submitted that the preparation of the record of rights was initiated not at the instance of tenants but at the instance of Government under S.29 (2), but that a mistake has been committed in the procedure followed by the Revenue Divisional Officer in that the notices to the petitioner stated that applications have been filed by tenants, and that the mistake occurred because of the blind imitation of Forms 6 and 7 prescribed by the rules, but that that would not in any way invalidate the proceedings. The absence of applications from cultivating tenants is no bar to the exercise of the jurisdiction under S.29 (2) nor does the fact that the proceedings were started on the basis of the alleged applications by the tenants vitiate them. The notices issued to the petitioner specified the holdings and tenants in occupation of the same and the petitioner was asked to file his objections. The petitioner cannot in the circumstances be said to have been prejudiced by the procedure adopted. 13. Viewing the proceeding as one initiated by the Government, I think, the procedure prescribed by the Act and the rules has been followed. Petitioner complained that he was not given any opportunity to adduce evidence in spite of his request for the same and that there was in fact no enquiry. 13. Viewing the proceeding as one initiated by the Government, I think, the procedure prescribed by the Act and the rules has been followed. Petitioner complained that he was not given any opportunity to adduce evidence in spite of his request for the same and that there was in fact no enquiry. Para.19 of the counter-affidavit filed on behalf of the 2nd respondent answers the complaint of the petitioner in this regard. "With regard to the averments in para 14 of the petitioner's affidavit, it is submitted that orders for the preparation of the draft records in respect of the" cases enquired into on 26-5-1965 were passed on 16-6-1965. Orders for the preparation of draft records in respect of the cases enquired into on 19.6.1965 were passed on 2-7-1965. The additional objections of the petitioner were received on 5 71965 and these additional objections related to both the enquiries. In the orders passed on 2 81965 the Sub Collector has dealt with in detail the additional objections also. At the first enquiry held on 26 51965 the petitioner had appeared and he was heard. He wanted time to file objections. This was accordingly granted and objections were filed on 7 61965.On 19 61965 the petitioner authorised Sri. K. V. Balakrishnan Nair, the Estate Manager to represent him. Objections were however, filed by the petitioner. The Estate Manager was heard on 19-6 -1965 on behalf of the petitioner. Neither the petitioner nor his representative had indicated either. In writing or in person that they had to produce further evidence. There was also no mention about this in the objection petitions dated 7 6 65 and 18 61965. The additional objections were filed only after the preliminary enquiries were concluded and orders passed and were bound to be summarily rejected on this ground alone. However, these objections were also considered and orders passed. Moreover the petitioner was again given an opportunity to put forward his objections within 30 days, of the publication of the draft records. The Rules contemplate affording an opportunity to put forward objections at 2 stages first, at the time of the preliminary enquiry mentioned in R.17 (1) and secondly, during the 30 days period after the preparation of the draft record of rights as stipulated in R.17 (4). The Rules contemplate affording an opportunity to put forward objections at 2 stages first, at the time of the preliminary enquiry mentioned in R.17 (1) and secondly, during the 30 days period after the preparation of the draft record of rights as stipulated in R.17 (4). In addition to this, it has to be pointed out that in respect of the enquiry held on 26 51965 orders for the preparation of draft record were actually passed on 16 61965 and in respect of the enquiry held on 29 61965 the orders were passed only on 2 71965. These facts very clearly show that the petitioner at all stages of the enquiry was given ample opportunity to put forward any evidence, whether oral or documentary, regarding his objections. Thus the petitioner's contention that he was not afforded 'an opportunity is entirely baseless. The petitioner had enough information about the materials on which the Revenue Divisional Officer came to the conclusions regarding the extent of lands, the nature of the tenancy, the quantum of rent, etc. This information was gathered from the survey records prepared by the survey party after local inspections and enquiries, as well as from the reports prepared by the Revenue Staff under the Special Thasilder after local inspection and enquiries. There was also evidence such as rent receipts produced by the respondents 4 to 128 on which the Revenue Divisional Officer relied on in coming to the conclusions." 14. It was next submitted by counsel that there are no orders recording the reason for the entries made in the record of rights. I think that orders have been passed by the 2nd respondent over-ruling the objections. But those orders incorporated the earlier orders passed by the 2nd respondent over-ruling the objections of the petitioner before the draft records was prepared. As the objections to the draft records did not contain any new grounds, I do not think that the orders recording the reasons are vitiated merely because they incorporated the conclusions arrived at by the 2nd respondent on the earlier objections filed by the petitioner. Therefore there is not much substance in the contention that reasons have not been given for the entries made in the record of rights. 15. Therefore there is not much substance in the contention that reasons have not been given for the entries made in the record of rights. 15. Then the only other contention of the petitioner's counsel was that the properties involved are lands comprised in "private forests" as defined in S.2 (47) of the Act, and that they are not holdings within the definition of the word 'holding', and therefore no record of rights could be prepared in respect of them. It is averred in Para.23 of the counter-affidavit that areas in the private forests held by tribals would fall under S.2 (47) (iv) as those areas are cultivated with food crops, that tribals are in occupation of the same as cultivating tenants, that they are holdings coming within the purview of the Act, and that it is only in respect of those holdings that the record of rights has been prepared. I cannot in this proceeding go into disputed questions of fact. I dismiss the writ petition with costs. Dismissed.