Joseph Kunju vs Poly Mendez and Others

P. Krishnamoorthy, J.—The Original petition is to quash Ext. P13 proceedings of the District Collector, Ernakulam, dated 26-5-1990. The facts necessary for the disposal of the Original Petition are the following:- Petitioner is the owner of a land in Sy. No. 199/4, 199/8 end 200/1..There were five kudikidappukars in the property. Petitioner required the land for construction of a building tor his own residence and so lie filed five applications before the Land Tribunal, Palluruthy as O. A Nos. 307 to 311 of 1975 for shifting of the kudikidappus under Sec. 75(2) of the Kerala Land Reforms Act, The applications were later transferred to the Vypeen Land Tribunal. The contention of the kudikidappukars in these applications was that there is no bona fides in the applications and that the distance of the alternate sites offered is more than one mile and accordingly the condition mentioned in Sec. 75(2) is not satisfied. There were two reports by two Revenue Inspectors regarding the distance of the alternate site from the kudikidappu site, one report saying that it is beyond one mile and the second report saying that it is within one mile. The second report was by one Jameela who was a Revenue inspector at '' that time and who later became the Land Tribunal. Overruling the objections of the kudikidappukars, these applications were allowed by separate orders dated 27-2-78 which are produced as Ext. P1 series in this O. P. Against the above orders, 5 appeals were preferred by the kudikidappukars as L R. A. S. Nos. 500 to 504 of 1978 before the Appellate Authoriiy, Ernakulam. During the pendency of the appeals the kudikidappukars died and their lpgal representatives were impleaded. By Ext. P2 series orders dated 6-6-1981 the appeals were dismissed by the Appellate Authority and the shifting orders passed by the Land Tribunal were confirmed. Against the orders two kudikidappukars in O A Nos. 310 and 311 of 1975 filed C. R. P. Nos. 1307 and 1311 of 1982 before this Court under Sec. 103 of the Act. By Ext. P3 orders dated 23-7-86 this Court also confirmed the orders of shifting charges were increased from that awarded by the Land Tribunal and the Appellate Authority. Thus the orders of the Land Tribunal allowing shifting of kudikidappus became final in respect of these five kudikidappukars. The trouble of the land owner started after that. He executed the necessary documents regarding the alternate site and filed applications for execution of the orders. On 15-4-1986 notice was issued to the kudikidappukars to shift from the kudikidappus to the alternate site on or before 23-4-1986. On 21-4-1986, the legal representatives filed Objections to execution in O. A. Nos. 307 to 309 of 1975. On 25-4-86, O. P. No. 2912 of 1986 was filed by persons claiming to be kudikidappukais in the aforesaid O. As.for a mandamus restraining the Land. Tribunal from executing the orders and the shifting was stayed by this Court. Ultimately by Ext. P4 dated 27-6-1988 the Original Petition was dismissed. Later, they moved the Land Board under Sec. 101 (2) (d) of the Kerala Land Reforms Act for transfer of the cases from the Land Tribunal to another Land Tribunal. It seems Smt. Jameela the Revenue Inspector who filed the report in the case had become the Land Tribunal by that time and she was the Land Tribunal Vypeen who had to execute the orders. By Ext. P5 order dated 27-2-89 the Land Board dismissed the applications against which C.R.P. 850 of 1989 was filed before this Court. By Ext. P6 order dated 7-4-89 that CR.P was dismissed. In the meanwhile, on 13-12-88, 5 persons claiming to be the legal representatives of the kudikidappukars in certain cases filed applications to gat themselves impleaded and challenged the orders of the Land Tribunal allowing shifting. On 14-12-88 those applications were dismissed by the Land Tribunal against which five appeals were filed before the Appellate Authority and the execution of the orders of shifting was stayed. After the dismissal of the five appeals C. R. P. Nos. 2143 to 2147 of 1989 were filed before this Court and by Ext. P8 order dated 22-12-89 those revisions were allowed and they were directed to de impleaded and their objections heard. The kudikidappukars also had filed a suit before the vacation court as O. S. No. 565/89 and an application for temporary injunction was also moved for restraining the landowner from executing the order for shifting. Though a temporary injunction was originally panted, after'' vacation the matter was hoard and the temporary injunction was vacated. The kudikidappakars again moved the Land Board for transfer of the cases from the Land Tribunal and obtained a stay of further proceedings in the matter. Smt. Jameela who was the Land Tribunal at that time in her comments to the transfer applications bad also stated that the cases may be transferred from her file But, inspite of that, by Ext. P9 order dated 12-2-90 the Land Board dismissed the applications for transfer. The land owner-petitioner then filed O. P. No. 4949 of 1989 to direct the Land Tribunal to proceed with execution. By Ext. P10 judgment dated 7-7-89, this Court allowed the Original Petition and directed the Land Tribunal to proceed with the matter. The kudikidappukars filed W. A. No. 599 of 1989 which was also dismissed under Ext. Pll judgment dated 20-10-89 subjected to the result of C. R. P. Nos. 2143 to 2147 of 1989. Later, persons claiming to be kudikidappukars filed a petition dated 25-12-89 before the Revenue Minister, Kerala alleging malpractices on the personnel of the Land Tribunal. In that petition they challenged even the original order for shifting, contending that it is not bona fide and that the alternate site is beyond one mile from the kudikidappu site and that the shifting order cannot be executed as it is illegal. It was also alleged in the petition that the then Land Tribunal was taking a partisan attitude towards the land owner and accordingly they prayed that the cases may be transferred from the file of the Land Tribunal where Jameela is the presiding officer and also prayed for appropriate orders in the matter. No orders were passed on that petition and so the kudikidappukars filed O. P. No. 3993 of 1990 before this Court for a mandamus directing Government to dispose of the complaint petition and pass appropriate orders. At the admission stage itself, without notice to any of the other parties, that Original Petition was disposed of by a learned Single Judge of this Court by Ext. P12 judgment dated 24-4-90. In Ext. P12 judgment this Court directed the petitioners to make available before the District Collector a copy of the representation filed before the Minister mentioned above and dated 25-12-89. This Court further directed as follows:

The District Collector will look into these grievances and take appropriate action in the matter. Before a final decision is taken, an opportunity of being heard will be given to the petitioners.

In pursuance to the order of this Court in Ext.P12 the petitionee presented a copy of their petition dated 25-12-89 before the Collector. The Collector enquired into the matter and ultimately held by his order dated 26-5-90 as follows:

The petition of Sri Joseph Kunju the land owner for shifting of the kudikidappu is mala fide and is liable to be rejected. The hutment dwellers need not be shifted from their present occupation. Title deeds should be given to them as per the Land Reforms Act.

By the very same order he further found that Smt. Jameela, Land Tribunal, Vypeen "acted with mala fide intention and misused her official position, misappropriated and committed official irregularity" and that she acted with ulterior motives and also that the allegation of the kudikidappukars that she received bribe from the land owner cannot be ruled out. It was further found by the Collector that she " caused harassment, misuse of authority, mental agony and monetary loss to the kudikidappukars". The Collector further ordered:

The kudikidappukars are entitled to get the cost of litigations and other expenses hi this case and adequate compensation for the harassment and mental agony suffered by them and their legal predecessors from Smt. Jameela the present Land Tribunal, the Land1 Tribunal of Pall unit by in 1974 and the landowner, all of whom colluded in passing the orders against the kudikidappukars

The above order is produced as Ext. P13 in this O. P. and ft is bring challenged by the petitioner on the ground that the Collector has absolutely no jurisdiction to set aside the orders passed by the Land Tribunal and Confirmed in appeal and in revision (by this Court)

Counsel for the respondents - kudikidappukars supported Ext.P13 on the ground that the Collector passed the some after verification of fads anti that he had jurisdiction to pass the order by virtue of Ext. P12 judgment in O. P. No. 3993 of 1990 wherein this Court authorised the Collector to look into the matter and pass appropriate orders.

I heard counsel for the petitioner, Counsel for the respondents kudikidappukars as also the Government pleader. There cannot be any doubt that the order of the Collector setting aside the orders of the Land Tribunal confirmed in revision by this court is absolutely without jurisdiction and void. Under Sec. 125 of the Kerala Land Reforms Act exclusive jurisdiction is vested in the Land Tribunal to decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. Sec. 75(2) provides the conditions under Which a kudikidappu can be shifted end Sec. 77 of the Act provides that an application for shifting has to be made before the concerned Land Tribunal. From the aforesaid provisions it is absolutely clear that exclusive jurisdiction is vested in the Land Tribunal to deal with an application for shifting of a kudikidappu under Sec. 75(2)of the Act and pass appropriate orders in the matter. The Act also provides an appeal to the Appellate Authority from the orders of the Land Tribunal under Sec. 102. Under Sec. 103 of the Land Reforms Act a revision is provided before this Court against the final order passed by the Appellate Authority. Thus it can be seen that the Kerala Land Reforms Act is a complete Code in itself and exclusive jurisdiction to decide a matter under Sec. 75(2) is vested in the Land Tribunal, the Appellate Authority and this Court exercising revisional power under See. 103 of the Act. In the case on hand the issue before the Land Tribunal was whether the applications filed by the land owner were bona fide and whether the other conditions mentioned in Sec. 75(2) are satisfied which will enable that authority to pass an order for shifting. The Land Tribunal, the exclusive authority to decide that question, held that the land owner is entitled to shift the kudikidappukars. The Appellate Authority confirmed those orders, These applications and the appeals were disposed of jointly and three kudikidappukars out of five filed revision before this Court and the order for shifting was confirmed. The question as to whether the conditions under Sec. 75(2) were satisfied was considered by all the three authorities competent to consider the same under the Land Reforms Act and they were unanimous in coming to the conclusion that the land owner has satisfied the conditions mentioned in the said Section and is entitled to an order for shifting. The orders have become final. No provision of law was shown to me by which the Collector is entitled to set aside an order passed by the statutory authorities under the Act, including this Court. In that view of the matter, I have no hesitation to hold that the Collector acted without any jurisdiction and Ext. P13 order is a nullity and is liable to be set aside.

Counsel for the respondents supported the order of the Collector relying on the decision of this Court in Ext. P12. It is no doubt true that this Court in that O. P. passed an order at the admission stage directing the Collector to look into the grievance of the petitioners therein and pass appropriate orders. It is well-settled that by a decision of court an authority cannot get jurisdiction which it otherwise does not possess. It is also well-settled that the decision on a question of jurisdiction will not operate as res judicata in any subsequent proceedings. The Supreme Court has emphasised that a question of jurisdiction will not be res judicata in a subsequent proceedings, in the decision reported in Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, . This was reiterated in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., . This was again reiterated in the latest decision of the Supreme Court dated 9-10-90 reported in Smt Isabella Johnson v. M. S. Susai, JT 1990 (4) S. C. 406. In that decision their Lordships observed as follows:

In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.

In the light of the above decision it is absolutely clear that the Collector cannot assume jurisdiction by virtue of the judgment of this Court Ext. P12 if he does not possess the jurisdiction otherwise. No provision of law was shown to me by which the Collector has jurisdiction to pass an order of the kind we see in Ext. P13. In that view of the matter, it cannot be said that the Collector will get jurisdiction to set aside an order passed by a statutory authority under the Kerala Land Reforms Act by virtue of Ext. P12 judgment. Petitioner is certainly entitled to contend that the Collector has no competence or jurisdiction to interfere with the order of a statutory authority constituted under the Kerala Land Reforms Act. Even otherwise, in Ext. P12 this Court only directed the Collector to pass appropriate orders which will include the question of jurisdiction also. He should have considered the question as to whether he has jurisdiction to. pats an order as the one which he has made under Ext. P13. For the aforesaid reasons, it is not possible to accept the contention of counsel for the respondents that the Collector will get jurisdiction by virtue of Ext. P12.

Counsel for the respondents also relied on a decision of this Court reported in Velappan v. Thomas (1979 KLT 412) wherein it was held that a civil court can go into the validity of an order of the'' Land Tribunal if it is vitiated by fraud. That proposition cannot be disputed. But a Collector will not get jurisdiction to go into the correctness of the orders of a Land Tribunal. The decision of the. Supreme Court in Asif Hameed and others Vs. State of Jammu and Kashmir and Others, has no application to the facts of this case.

Even otherwise, I am satisfied that the order of the Collector is Illegal. First of all, it has to be stated that the prayer in the petition dated 25-12-89 was only for an order that the case pending before the Land Tribunal shall not be proceeded with by Smt. Jameela, the Land Tribunal. In other words the prayer was only for. a transfer of the case to some other Land Tribunal. No doubt, the Collector has so jurisdiction to do that, for, under Sec 101(2)(d) the State Land Board alone has power to do that. The collector, it is seen from the order, posted the matter for bearing on 23-5-1990 after obtaining the records from the Land Tribunal. The Collector decided to issue notice to the land owner also. It is also said in the order that as Smt. Jameela was retiring on the 31st of May, the order has to be passed before that and the case was again posted to 25-5-90 by serving notice on the Jenmi also. It is seen that notice was served through the taluk office on the jenmi. It is not humanly possible to file any objection within 24 hours, for, the matter was posted on 23-5-1990 and adjourned to 25-5-1990 and In the meanwhile notice was served on the land owner. It is further seen that on 25-4-1990 counsel for the land owner requested for time, but that was not allowed on the ground that Jameela was retiring on the 31st. Though in the first portion of the order the Collector has said that the land owner also must be heard, that right was taken away by him by not granting time on the 25th - It is clear that the principles of natural justice were violated in not giving an opportunity to the land owner to place his case before the Collector. The reason that Smt. Jameela was retring by 31st, is no ground for denying time to the land owner when the Collector has ultimately deprived the land owner of a valuable right which he obtained after fighting in three courts,

In the order it is also said that from 1974 it is a long story of legal battle between the jenmi and the kudikidappukars. He further says that an examination of the records shows that the facts presented before the Land Tribunal in 1974 itself were sufficient to dismiss the petition. I have already held that it is not the business on the Collector to sit in judgment over the decision of the statutory authorities under the Kerala Land Reforms Act including this Court,

The Collector has also found that the finding by the Land Tribunal is incorrect and that the distance between the kudikidappu sits and the alternate site is beyond one mile. Apart from the fact that he has no authority to set aside a finding of a statutory authority, for coming to that conclusion he relied on a certificate issued by the Deputy Collector, Ernakulam, dated 20-2-1990 wherein the Deputy Collector has said that the distance between the kudikidappu and the site proposed for shifting is about 2 KMs. by direct line and about 2.5 KMs. by road. No notice was given to any of the parties before the Deputy Collector gave this report. It is not clear as to whether the Deputy Collector gave any notice to the land owner before giving this report. It is pertinent to note in this connection that the Collector'' issued notice to Jameela also to be present on 23-5-1990 for taking part in the enquiry. On receipt of the notice, she submitted a petition before the Collector, as seen from the files; that she has been a liked to appear for an enquiry on 23-5-90 and that unless she was informed of the matter about which the enquiry was to be conducted, her presence will be of no use. From the files it is seen that none of the details regarding the case or the allegations made against her were supplied to her. I am unable to understand how any person will be able to defend himself at such an enquiry without knowing the allegation made against that person. It is also stated by the Collector that Smt. Jameela who was also present for hearing admitted that she had not measured the distance between the two sites. I do not find any statement recorded by the Collector from her to that effect. Thus, it can be seen that the order of the Collector is passed in gross violation of the principles of natural justice, without giving sufficient and reasonable opportunity to any of the concerned persons, namely Smt. Jameela or the land owner. The finding of the Collector that the statement in the report of Jameela that she visited the site cannot be believed is without any basis or evidence. The further finding that she must have done this with ulterior motive only to help the land owner against the interest of the kudikidappukars is also without any basis. The other finding that the Land Tribunal was also a party to this malafide - act along with the Revenue Inspector is also a finding based on no legal evidence, espscially when his orders have been con tinned by the statutory authorities under the Kerala Land Reforms Act,

The Collector also finds fault with the Land Tribunal, Smt. Jameela, that in tor judgment dated 8-3-90 she conveniently omitted any mention about the certificate regarding the distance between the kudikidappu site and the alternate site. It is fundamental that a matter Concluded by the order on the trial side cannot be reagitated in execution. Smt. Jameela as Land Tribunal was only executing the order and she had no - jurisdiction to reopen the order passed by the Land Tribunal and confirmed by the Appellate Authority and, this Court in revision. On the whole I am satisfied that the Collector was hasty in parsing the order and has passed the same in gross violation of the principles of natural justice and without sufficient materials for the conclusions which he has reached.

I have mentioned these matters only to show the manner in which the Collector has dealt with the matter. I have already held that the Collector had absolutely no jurisdiction to set aside an order for shifting passed by the Land Tribunal which was confirmed by. the Appellate Authority and by this Court in revision. The other irregularities are pointed out only to show the haste in which the matter has been determined by the Collector which is patent from this order itself. The order itself mentions that it is being passed in a hastens Smt. Jameela was retiring on the 31st. The 6th Respondent-Collector failed to remember that the right of the land owner as also the career of Smt. Jameela is affected and they should have been given a reasonable opportunity to place their case before passing the impugned order. Over and above all these, the order is absolutely lacking in jurisdiction. In the result, I allow this Original Petition and quash Ext. P13 order of the District Collector,. Ernakulam, dated 26-5-1990. Though this is a fit case where costs should have been awarded to the petitioner, I am not doing that for the reason that the Collector, though wrongly, bona fide thought that he can interfere in the matter by virtue of Ext. P12 judgment of this Court.