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2018 DIGILAW 53 (KER)

Sivasubramaniyadas v. Raji

2018-01-15

ALEXANDER THOMAS

body2018
ORDER : Heard Sri. John Joseph (Roy), learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 7 to 9. 2. The main prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India is to set aside the impugned Exhibit P10 order dated 10.10.1995 passed by the seventh respondent Revenue Divisional Officer, Ottappalam, and Exhibit P11 appellate order dated 12.4.2017 rendered by the eighth respondent District Collector, Palakkad, on proceedings under the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (Act 12 of 1999). 3. The Registry has noted a defect that the petition under Article 227 may not lie as against the abovesaid impugned orders passed by the R.D.O. and the District Collector and that ordinarily the remedy of the petitioner is to file a Writ Petition (Civil) under Article 226 of the Constitution of India. 4. The abovesaid Act has been enacted by the State Legislature to provide for restricting the transfer of lands by members of the Scheduled Tribes in the State of Kerala and for restoration of possession of lands alienated by such members and for matters connected therewith. S.7 deals with the re-conveyance of land and sub-s.(2) of S.7 stipulates that any person entitled to be restored to the possession or enjoyment of any land under sub-s.(1) of S.7 or any other person on his behalf may make an application, either orally or in writing, to the Revenue Divisional Officer (R.D.O.), etc. for restoration of possession or enjoyment. The methodology of the manner and method of conducting of enquiries in that regard by the R.D.O. are dealt within sub-s.(3) thereof. Sub-s.(5) of S.7 further stipulates that any person aggrieved by an order of the R.D.O. under sub-s.(3) or sub-s.(2) of S.5 may, within a period of 30 days from the date of service of the order, prefer an appeal to the competent authority, etc. The competent authority has been defined in S.2(a) thereof, with reference to any land means the District Collector of the District in which the land is situate or any other officer appointed by the Government to be the competent authority for the purpose of this Act, for the areas in which the land is situate. The competent authority has been defined in S.2(a) thereof, with reference to any land means the District Collector of the District in which the land is situate or any other officer appointed by the Government to be the competent authority for the purpose of this Act, for the areas in which the land is situate. S.20 deals with bar of jurisdiction of the civil courts, which reads as follows : “No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is, by or under this Act, required to be settled, decided or dealt with or to be determined by the competent authority or the Revenue Divisional Officer.” The impugned orders at Exhibits-P10 and P11 are stated to have been rendered by the original authority concerned (R.D.O.) and by the appellate authority concerned (District Collector). It is these orders that are under challenge in this Original Petition (Civil). 5. The petitioner’s counsel points out that S.15 confers powers on the civil court to the R.D.O., S.15 reads as follows : 15. Powers of competent authority and Revenue Divisional Officer: (1) The competent authority and Revenue Divisional Officer while making inquiries under this Act shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely :- (a) Summoning and enforcing the attendance of any person and examining him on oath; (b) Requiring the discovery and production of any document; (c) Any other matter which may be prescribed. (2)) The decision of the competent authority and the Revenue Divisional Officer under this Act shall have the force of a decree of a civil court and shall be executed through the civil court having jurisdiction over the area in which the land is situate.” The petitioner would contend that in view of S.15, the Revenue Divisional Officer who is exercising powers under the Act should be construed as a civil court in as much as the said authority has been conferred with all the powers of the civil court in terms of S.15 of the Act. Merely because the powers of the civil court have been conferred on the RDO and merely due to the ouster of clause of civil court’s jurisdiction, it cannot be held that the original authority under the above Act, viz., R.D.O., should be construed as a civil court or Tribunal, within the meaning of Article 227 of the Constitution of India. Therefore, the present petition under Article 227 of the Constitution of India, will not lie as against the said authority. But certainly, the original authority (RDO) and the Appellate Authority (District Collector) are quasi judicial authorities in as much as they are exercising and discharging quasi judicial functions, as per the Act. Since that is the position, it is certainly open to the petitioner to challenge the abovesaid orders by filing an appropriate Writ Petition (Civil) under Article 226 of the Constitution of India. In the light of these aspects, Sri. John Joseph (Roy) learned counsel appearing for the petitioner, would submit that this Court may then direct the Registry to return back the case papers in order to enable the petitioner to re-present the present petition as a Writ Petition (Civil). The said request made by the learned counsel appearing for the petitioner appears to be fair and reasonable. Accordingly, it is ordered that the defect noted by the Registry is sustained. Further it is ordered that the Registry will return back the entire case file in this matter to the learned counsel appearing for the petitioner in order to enable him to cure the defects and to re-present the same as a Writ Petition (Civil).