MADAMBI v. KUNHUKUTTY AMMA — 1974 DIGILAW 228 (KER)

Judgment :- 1. The petitioner claims himself to be a tenant in respect of an item of property which belongs to respondents 1 and 2 in co-ownership. The petitioner had filed O.S. No. 16 of 1971 on the file of the Munsiff, Wadakkancheri, for setting aside a document purported to be a rent deed, and for a declaration that he is the tenant in respect of the property. During the pendency of the suit, as there was a dispute regarding the status of the plaintiff on the question of tenancy, the matter was referred by the Munsiff to the Land Tribunal which happened to be a Land Tribunal manned by a Munsiff. Subsequently a suit, O.S. No. 43 of 1971, under S.77 of the Kerala Land Reforms Act (Act 1 of 1964) was filed by respondents 1 and 2 for shifting the petitioner to an alternate site offered by them. After the coming into force of Act 25 of 1971 the suit, O.S. No. 43 of 1971, was transferred to the very same Tribunal to which the tenancy question in O.S. No. 16 of 1971 was referred. Ultimately an order was passed by the Land Tribunal finding that the petitioner is a kudikidappukaran. O.S. No. 43 of 1971 which was transferred to the Tribunal was renumbered as O.A. No. 468 of 1971 and the reference of tenancy question was numbered as O.A. No. 472 of 1971. The two petitions were heard together and disposed of by a common order, copy of which is marked Ext. P1. 2. Sri 0. 0. Mathew, counsel for the petitioner, challenges the validity of Ext. P1 order on various grounds. It is argued that the Tribunal ought not to have disposed of the two petitions by a combined order, as it has resulted in great prejudice to the petitioner. It is also argued that the Munsiff Land Tribunal had no jurisdiction to pass the impugned order as the jurisdiction to consider the question of shifting the kudikidappu under S.77 of Act 1 of 1964 is conferred exclusively on the Special Tahsildars, Land Assignment. In this connection the provisions of S.99 of Act 1 of 1964 as amended by Act 35 of 1969, and the various notifications issued by the Government in pursuance of the said section are relevant. S.99, as it originally stood, reads as follows: "99. In this connection the provisions of S.99 of Act 1 of 1964 as amended by Act 35 of 1969, and the various notifications issued by the Government in pursuance of the said section are relevant. S.99, as it originally stood, reads as follows: "99. Constitution of Land Tribunal: The Government may, by notification in the gazette, constitute for any area or for any class of cases specified therein a Land Tribunal consisting of a sole member who shall be a judicial officer of the rank of a Munsiff, for the purpose of performing the functions of a Land Tribunal under this Act." Government notification SRO. 73/64 dated 25 31964 reads as follows: "In exercise of the powers conferred by S.99 Of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), the Government of Kerala hereby constitute the Land Tribunals specified in column (1) of the Schedule below, for the purpose of performing the functions of the Land Tribunal under the said Act for the areas specified against them in column (2) of the Schedule. The Land Tribunals shall hold their headquarters at the respective places specified against them in column (3) of the Schedule. This notification shall come into force with effect on and from the 1st April, 1964". It may be noted that all the Land Tribunals mentioned in the Schedule thereto were manned by Munsiffs. Later, Government issued a notification, S.R.O. No. 8/70 dated 1st January 1970 which reads as follows: "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964), the Government of Kerala hereby make the following further amendment to notification No. 11841/N/64/Rev. dated 25th March. 1964, published as S. R. O. No. 73 of 1964 in the Kerala Gazette Extraordinary dated the 25th March 1964, namely: Amendment. In the said notification, in the first paragraph, after the words 'functions of the Land Tribunal under the said Act', the brackets, words, figures and letters 'other than those under S.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive)' shall be inserted". By the above amendment a bifurcation of the functions was sought to be introduced by the Government. The jurisdiction of the Munsiff Land Tribunals was confined to matters other than those related to Ss.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive). By the above amendment a bifurcation of the functions was sought to be introduced by the Government. The jurisdiction of the Munsiff Land Tribunals was confined to matters other than those related to Ss.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive). It follows that the Munsiffs who had been exercising jurisdiction to deal with matters under S.77 of the Act retained that jurisdiction even after the amendment introduced by S.R.O. No. 8 of 1970, as the Munsiff's Court continued to have the jurisdiction to deal with S.77 matters till Act 25 of 1971 came into force and took away its jurisdiction and vested it in the Land Tribunals. Still later, S.R.O. No. 130 of 1970 dated 10th December 1970 was issued by the Government. The modification introduced by that notification is as follows: "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964), and in supersession of Notification No. 3604/N2/70/LRD dated the 16th May, 1970, published as S.R.O. No. 200/ 70 in the Kerala Gazette Extraordinary, dated the 19th May 1970, as subsequently amended, the Government of Kerala hereby constitute a Land Tribunal for each of the areas specified in column (2) of the Schedule hereto annexed, consisting of the officer noted against each area in column (3) of that Schedule, with headquarters at the place mentioned in the corresponding entry in column (4) thereof, for the purpose of performing the functions of the land Tribunal under the said Act other than those under S.31, 66, 72 to 72P (both inclusive) and 80A to 80G (both inclusive)". Even under this notification the Munsiff 's Courts continued to have jurisdiction to deal with S.77 applications. By a later notification, SRO. No. 353 of 1971, the following amendment was introduced: "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964) and in supersession of Notification No. 6861/70/LRD dated 13th February 1970 published as SRO. By a later notification, SRO. No. 353 of 1971, the following amendment was introduced: "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964) and in supersession of Notification No. 6861/70/LRD dated 13th February 1970 published as SRO. No. 67/70 in the Kerala Gazette Extraordinary No.61 of the same date as subsequently amended, the Government of Kerala hereby constitute a Land Tribunal or Land Tribunals, as the case may be, for each of the areas specified in column (2) of the Schedule hereto annexed, consisting of the Officer or Officers noted against each area in column (3) of that Schedule, with headquarters at the place or places mentioned in the corresponding entry in column (4) thereof, for the purpose of performing the functions of the Land Tribunal under S.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive) of the said Act, and sub-section (1) of S.108 of the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969). It may be noted that in the Schedule to the above notification the designation of the officers concerned is shown as Special Tahsildar (Land Reforms), Special Tahsildar (Land Assignment) and Block Development Officer. The Land Tribunal having jurisdiction over Wadakkancherry Panchayat was to be manned by Special Tahsildar (Land Assignment), Wadakkancherry. This notification is dated 20th September, 1971, and it was published in the Kerala Gazette Extraordinary No. 420 dated 25 9 1971, as a result of the coming into force of Act 25 of 1971 which came into force on 11-81971. 3. The first contention of the counsel for the petitioner is that as the Munsiff's Court alone had jurisdiction to set aside a document, the reference to the Land Tribunal was unwarranted. This stand does not appear to be correct on the facts and in the circumstances of the case. Even in a suit for setting aside a document it would become relevant under S.125 (3) of Act 1 of 1964 to refer the matter to the Land Tribunal if a dispute relating to tenancy, including kudikidappu right, is raised in the pleadings. Viewed in this light, it cannot be said that the Munsiff was wrong in referring this question to the Land Tribunal. Viewed in this light, it cannot be said that the Munsiff was wrong in referring this question to the Land Tribunal. The order of reference to the Land Tribunal was passed in the presence of the parties, and that was not challenged by them, at any stage earlier to this. Further the Land Tribunal did not exercise the jurisdiction to set aside the document impugned in that suit. All that the Tribunal has done is to declare that the petitioner was found to be a kudikidappukaran. There is also the observation that respondents 1 and 2 are found to be in possession of the property. These are matters within the competence of the Land Tribunal. I am therefore, of the opinion that the petitioner cannot seriously challenge the order of reference made by the Munsiff to the Land Tribunal or the exercise of jurisdiction by the Munsiff Land Tribunal to find out whether the petitioner was or was not a kudikidappukaran by virtue of the provisions of the Kerala Land Reforms Act. It may be that the finding of the Munsiff Land Tribunal is that the petitioner is a kudikidappukaran, whereas the relief sought by the petitioner before the Munsiff 's Court is a declaration that he is a tenant in respect of the property. That is entirely a matter relating to the facts of the case, not related to matters concerning jurisdiction with which we are primarily concerned with in the first instance. 4. The other points urged by the counsel for the Petitioner is that in any event O.S. No. 43.of 1971 ought not to have been transferred to the Munsiff Land Tribunal, as by virtue of the provisions embodied in S.R.O. No. 358/71 the jurisdiction is exclusively vested with the Land Tribunal manned by the Special Tahsildar (Land Assignment). no doubt, the notification in terms does not refer to the conferment of powers under S.77 on the Land Tribunals described in the Schedule to that notification. However, the argument of Sri Mathew ' is that inasmuch as the filing of the application's in terms of S.77(1) has to be in the court of a Land Tribunal having power to receive applications under S.80B, it has to be construed that the applications could be filed only before a Land Tribunal manned by Special Tahsildar (Land Assignment), not before a Munsiff Land Tribunal. It is argued by the counsel that in view of the notification the passing of Ext. P-1 order by the Land Tribunal not merely amounts to an irregularity in the exercise of jurisdiction, but to a total lack of inherent jurisdiction in the Tribunal, and therefore Ext. P-1 order, at least in so far as it relates to S.77 application, has to be quashed. Various decisions have been cited to press this point, and the two decisions so cited are: (1) K. R. Mathew v. Thottapuzhassery Panchayat (1969 KLT 224) which is a decision of a single judge of this Court, in, which it was observed as follows: "If an authority attempts to do an act which it has no jurisdiction to do, say, issues a notice, passes an order, starts a proceeding, etc., the party affected by the act need not raise his objection regarding the lack of jurisdiction of the authority before the authority itself, take a decision by it on the question and file an appeal against that to an appellate authority, if one exists, before it resorts to the High Court under Art.226 of the Constitution. This will involve unnecessary and avoidable delay; and it is also unnecessary in a case of complete lack of jurisdiction. The party can come to this Court and satisfy this Court that the notice, order, proceeding etc., the action taken by the authority, is without jurisdiction; and if this Court is satisfied that the authority has no jurisdiction, the action will be set at naught too."' The observation of the Supreme Court in the other decision cited by the counsel, U. C. Bank v. Their Workmen (AIR. 1951 S. C. 230), in Para.15 is as follows: "The final contention that the sittings in the interval constituted only an irregularity in the proceeding cannot again be accepted because, in the first place, an objection was raised about the sitting of the two members as the Tribunal. That objection, whether it was raised by the appellants or the other party, is immaterial. The objection having been overruled, no question of acquiescence or estoppel arises. Nor can consent give . a Court jurisdiction if a condition which goes to the root of the jurisdiction has not been formed or fulfilled. No appearance or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess. The objection having been overruled, no question of acquiescence or estoppel arises. Nor can consent give . a Court jurisdiction if a condition which goes to the root of the jurisdiction has not been formed or fulfilled. No appearance or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess. In our opinion, the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if proceedings are conducted and discussions on several general issues took place in the presence of only two, followed by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings. The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect. The distinction clearly is between the jurisdiction to decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same. In the second case, the question of acquiescence or irregularity may be considered and overlooked. When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarised above, no question of acquiescence or consent can affect the decision." Both the above decisions, I find, on facts, have no relevance to our purpose. 5. Sri. K. K. Ravindranath, counsel for respondents 1 and 2, contends that inasmuch as the joint hearing was the result of a request by the parties, after the decision was rendered the petitioner cannot be heard to say that he challenges the validity of that order. He draws my attention to certain passages in the counter-affidavit of respondents 1 and 2 which are as follows: "4. As the question to be decided in both the above cases was one and the same' parties agreed to have both (as requested by them) the suits before the Munsiff Land Tribunal, to try the suit jointly 10. The averments contained in the former part of para 7 are not disputed. As the question to be decided in both the above cases was one and the same' parties agreed to have both (as requested by them) the suits before the Munsiff Land Tribunal, to try the suit jointly 10. The averments contained in the former part of para 7 are not disputed. As a matter of fact, it was in pursuance of the amendment to S.77 of the Kerala Land Reforms Act whereby the jurisdiction of the Civil Court to try the suits for shifting the kudikidappu was taken away and the same conferred in the Land Tribunal, that.the Munsiff of Wadakkancherry referred the same to the 6th respondent, Munsiff Land Tribunal which was clothed with the power and jurisdiction of the Land Tribunal under the Act; 12. The averments contained in para 10 of the original petition are without any foundation. There is no question of entertaining suit for shifting and merging the same with tenancy question referred to in O.S. 16 of 1971 arising here 13 In this connection it is also relevant to note that even according to the petitioners, it is not as if the 6th respondent has assumed jurisdiction in a field where it has total absence or inherent lack of jurisdiction in which case; alone; even inspite of the consent of the parties to the case and their voluntary submission to the jurisdiction such assumption of jurisdiction and any decision rendered pursuant thereto will be rendered nugatory". The following passage in Janardhan Reddy v. State of Hyderabad (AIR 1951 S.C. 217) at page 220 is relied on by Sri. Raveendranath. "But, for the purpose of the present case it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial it does not follow that the trial court acted without jurisdiction. There is a basic difference between want of jurisdiction and an illegal or irregular exercise of jurisdiction, and our attention has not been drawn to any authority in which mere non-compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. In either case the defect, if any, can according to the procedure established by law be corrected only by a Court of appeal or revision. In either case the defect, if any, can according to the procedure established by law be corrected only by a Court of appeal or revision. Here, the appellate court which was competent to deal with the matter has pronounced its judgment against the petitioners and the matter having been finally decided is not one to be reopened in a proceeding under Art 32 of the Constitution." S. A. de Smith in his Judicial Review of Administrative Action, 1959 edition at page 314, has stated as follows: "An applicant who has waived his right to object to a jurisdictional defect may he refused relief. In cases on prohibition a distinction has been drawn between these latent defects which can be waived and those which cannot. No assent can cure a 'total' want of jurisdiction: a total want of jurisdiction exists where the tribunal is without competence by reason of the status of the parties or the nature of the subject-matter. 'Contingent' defects of jurisdiction, on the other hand, can be waived; the relevant decisions concern the omission of preliminary procedural requirement and have been explained on the ground that the existence of jurisdiction depended upon whether objection to the omissions was taken at the pepper time. The distinction drawn between these two classes is illogical and obscure. If in the second class of case waiver cures the defect, the defect should be regarded hot as a matter of jurisdiction, which renders proceedings void, but as an error, which renders proceedings voidable. A true jurisdictional defect is incapable of being cured by waiver. In the first class of case it is obviously correct to say that the want of jurisdiction cannot be cured by waiver; but this does not involve the further proposition that the court is obliged to grant an application for prohibition or certiorari made by a party who has approbated the defective proceedings. Whether the tribunal lacked jurisdiction is one question; whether the court, having regard to the applicant's conduct, ought in its discretion to set aside the proceedings is another. The confused state of the present law is due largely to a failure to recognise that these are two separate questions. It is improbable however that the distinction drawn between the effects of total and contingent want of jurisdiction would be adhered to in an extreme case. The confused state of the present law is due largely to a failure to recognise that these are two separate questions. It is improbable however that the distinction drawn between the effects of total and contingent want of jurisdiction would be adhered to in an extreme case. If a party who had himself initiated proceedings before a tribunal which was without any jurisdiction over the subject-matter were subsequently to apply to the courts to have the proceedings set aside, it is hardly conceivable that he would be awarded a remedy, yet his conduct in invoking a non-existent jurisdiction would have done nothing to confer jurisdiction on the tribunal." Sub-section (3) of S.108 of Act 35 of 1969, as amended by Act 25 of 1971 reads as follows: "If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court tribunal, officer or other authority, any person claims any benefit or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by The argument of Sri. Mathew, is that all the applications including applications under S.77 of the Act pending at the time of the commencement of Act 35 of 1969 and instituted thereafter also have to be disposed of according to the provisions under the amended Act, that is to say, as amended by Act 25 of 1971. In this connection Sri. Raveendranath draws my attention to the transitory provisions in S.23 and 24 of Act 25 of 1971 which "makes special provisions regarding the manner in which matters pending at the time of the commencement of Act 25 of 1971 are to be disposed of. In this connection Sri. Raveendranath draws my attention to the transitory provisions in S.23 and 24 of Act 25 of 1971 which "makes special provisions regarding the manner in which matters pending at the time of the commencement of Act 25 of 1971 are to be disposed of. S.23(1) reads as follows: "Any suit instituted against a kudikidappukaran under S.77 of the principal Act and pending before any court at the commencement of this Section shall be transferred to the Land Tribunal having jurisdiction, and such Land Tribunal shall dispose of such suit as if it is an application under S.77 of the principal Act as amended by this Act." It has to be noted that a distinction certainly has been sought to be made by the legislature between the applications that were pending at the time of the commencement of Act 25 of 1971 on the one hand and applications which were filed afterwards. The obvious inference is that the transitory provisions contained in S.108 of Act 35 of 1969 were intended to govern those matters for which special provisions were not incorporated either in the principal Act, (Act 1 of 1964) or in Act 25 of 1971. In this view, I accept the contention of the counsel for respondents 1 and 2 that the petitions which were pending at the time of commencement of Act 25 of 1971 could be transferred to any of the Land Tribunals without restricting it to the Land Tribunal manned by Special Tahsildar (Land Assignment), as is contended by the counsel for the petitioner. I am also in agreement with the contention of Sri. Raveendranath that in as much as the petitioner had consented himself for the joint trial and had participated in the proceedings willingly and taken his chance, it is not open to him to ask for the issue of a writ of certiorari which is a discretionary matter. I make it clear that when the matter goes back to the Munsiff's Court for further proceedings in connection with the prayer for setting aside the document, questions not covered by the order under dispute shall be looked into and decided by that court. The petitioner as well as Respondents 1 and 2 will be at liberty to adduce evidence in support of their respective contentions. The writ petition is disposed of as above. There will be no order as to costs.