Research › Browse › Judgment

Kerala High Court · body

1991 DIGILAW 1 (KER)

Pushpamani v. State of Kerala

1991-01-01

PAREED PILLAY

body1991
Judgment :- Petitioner" filed LA. H of 1989 in S.M.P. 63 of 1988 before the Land Tribunal, Quilon to consider the maintainability of the suo mote proceedings as a preliminary point. Land Tribunal by Ext. P-10 order dated 26-4-1989 dismissed the petition holding that the case can be decided on merits after taking evidence of both parties. 2. Petitioner contended that S.M.P. 63 of 1988 is not maintainable in view of the earlier decision of the Land Tribunal dropping the suo motu proceedings. Another contention is that the Land Tribunal lacked jurisdiction in initiating suo mote proceedings at the behest of the Land Board as it cannot legally issue any direction to the Land Tribunal. 3. Petitioner contended that the respondents 4 to 6 could not have directly approached the Land Board for assignment of the rights of the landlord and the Land Board lacked jurisdiction to issue direction to the Land Tribunal to initiate suo mote proceedings. Ext.P-2 petition dated 21-7-1986 was filed by respondents 4 to 6 before the Land Board praying that the land be assigned in their favour. A similar petition (Ext.P-5) dated 27-12-1986 was filed where it was alleged that Ext.P-2 petition was sent for further action from the Land Board to the Land Tribunal, that the Land Tribunal deputed the Revenue Inspector to enquire into the matter and as a result of the influence of the petitioner no proper enquiry was held by him. Allegation of corruption also finds a place in the petition. 4. Petitioner contended that the suo mote proceedings initiated on the basis of Ext.P-2 petition was properly enquired into by deputing an authorised officer that he made a report (Ext.P-6) stating that respondents 4 to 6 have no right under the Act, that relying on Ext.P6 the Land Tribunal dropped the suo mote proceedings by Ext.P-9 order and as that order has become final it operates as resjudicata. Counsel for the respondents pointed out that in Ext.P9 there was no adjudication and as it was merely a communication there cannot be any res judicata. There is no merit in the above contention as Ext.P-9 shows that due enquiries were made under the Act and the proceedings were dropped finding that no action can be taken on the basis of the petition. There is no merit in the above contention as Ext.P-9 shows that due enquiries were made under the Act and the proceedings were dropped finding that no action can be taken on the basis of the petition. The contention that Ext.P-9 is not an order but only a communication cannot be sustained as it can be discerned from Ext.P-9 that the proceeding initiated was dropped by the Land Tribunal and it amounts to an order. Ext.P-9 really operates as res judicata. 5. Another contention of the petitioner is that the Land Board's order giving direction to the Land Tribunal to initiate suo mote proceedings is without jurisdiction and illegal. The Act or Rules do not empower the Land Board to give any direction to the Land Tribunal to initiate suo mote proceedings for assignment of the right, title and interest of the land owner and the intermediaries. From the scheme of the Act the indubitable position is that the Land Tribunal alone is vested with jurisdiction to assign the right, title and interest of the landowner and intermediaries in respect of a holding to the cultivating tenant. R.4 of the Kerala Land Reforms (Vesting and assignment) Rules, 1970 provides that an application for assignment of the right, title and interest of landlords vested in the Government under S.72 shall be in Form A. When the Rule says that it shall be in Form A it has to be strictly complied with. R.5 enables the Land Tribunal to initiate suo motu proceedings on getting information that the right, title and interest of the landowner and intermediaries in respect of a holding or part of a holding situate within its jurisdiction have vested in the Government under S.72. Whether an application has been made or not under R.4, it is open to the Land Tribunal to initiate action under R.S. 6. The powers of the Land Board and the Land Tribunal are enumerated under. S.101 of the Kerala Land Reforms Act. S.101(2) provides that the Land board shall have superintendence over all the Land Tribunals, appellate authorities and the Taluk Land Boards. Under Sub-rule (2) the Land board may call for returns from the Land Tribunals, appellate authorities and the Taluk Land Boards. The Land Board may make and issue general rules and prescribe forms for regulating the practice and proceedings of the Land Tribunals, appellate authorities and the Taluk Land Boards. Under Sub-rule (2) the Land board may call for returns from the Land Tribunals, appellate authorities and the Taluk Land Boards. The Land Board may make and issue general rules and prescribe forms for regulating the practice and proceedings of the Land Tribunals, appellate authorities and the Taluk Land Boards. In the absence of any specific power vested with the Land Board to give any direction to the Land Tribunal to initiate suo mote proceedings Land Board cannot usurp such power. In this context it is useful to refer to S.66 which empowers the Land Board to give direction to the Land Tribunals. S.66 provides for the procedure for vesting of rights of religious, charitable or educational institutions in Government and for determination of annuity. Only in such cases, as provided under S.66(3) the Land Board can give direction to the Land Tribunals within whose jurisdiction the holdings specified in the application are situated, to determine the annuity payable to the institution. With regard to taking action under R.5 the Land Tribunal alone is vested with the power. Though S.101 (2) gives the powers of superintendence over all the Land Tribunals, appellate authorities and the Taluk Land Boards to the Land Board and it can also call for returns from the Land Tribunals and make and issue general rules and prescribe forms for regulating the practice and proceedings of the Land Tribunal, the Land Board cannot give any direction to the Land Tribunal, to initiate suo mote proceedings. 7. The Land Tribunal carried out the direction by the Land Board and registered suo mote case. Though Land Tribunal on the basis of any information can initiate suo motu proceedings as enjoined under R.5 it cannot be dictated to do so by the Land Board and so initiating the suo mote case by the Land Tribunal is without jurisdiction, improper and illegal. 8. The Land Tribunal erred in passing the impugned order (Ext.P-10) in utter disregard of Rule 9. 8. The Land Tribunal erred in passing the impugned order (Ext.P-10) in utter disregard of Rule 9. Rule 9 enables the Land Tribunal in a case where any of the parties to the proceedings pleads that the land comprised in such holding is not held by any cultivating tenant or that the right, title and interest of the landowner and the intermediaries in respect of such holding have not vested in the Government, to decide such question as a preliminary point and pass an order thereon with reasons for such order. When Rule 9 specifically envisages the Land Tribunal to decide the preliminary question by a reasoned order it cannot just ignore it and shelve the entire matter for evidence. Whenever a question of maintainability of the proceedings r-agitated either on the ground of res judicata or any other legal ground the Land Tribunal has to follow the mandate of R.9 and pronounce a considered order. The Land Tribunal went wrong in passing the impugned order without considering the preliminary questions regarding the very maintainability of the suo mote proceedings. 9. Ext.P-10 order is not sustainable and hence' it is quashed. As the Land Tribunal cannot be commanded by the Land Board to initiate suo motu proceedings on Ext.P-5 application filed by respondents 4 to 6 before if the Land Tribunal went wrong in acting upon it. The Land Tribunal is directed to drop all proceedings in S.M.P. 63 of 1988 and dismiss Ext.P-5 application. The Original Petition is allowed.