Moosakunhi vs Asmabi and Others

Bhaskaran Nambiar, J.—The Appellant claiming to be a tenant under the first Respondent moved the Land Tribunal for taking suo motu action u/s 72C of the Kerala Land Reforms Act for assignment of the right title and interest of the holding in his favour. The authority by its order dated 26th June 1979 held that this is not a fit case for initiating suo motu proceedings. An appeal was, therefore, filed purporting to be u/s 102 of the Land Reforms Act. The appellate authority set aside the order of the Land Tribunal on the ground that the Tribunal did not consider the merits of the case regarding the tenancy claimed by the Appellant. The matter was thus remitted to the Land Tribunal for fresh consideration. This order was challenged by the first Respondent in a writ petition under Article 226 of the constitution. A learned Judge of this Court has held that no appeal would lie against the order passed by the Land Tribunal and, therefore, quashed the order of the appellate authority. Against this judgment, this appeal is filed.

It has to be borne in mind that a person claiming to be a tenant can file an application u/s 72B(3) of the Land Reforms Act for assignment of the right, title and interest in respect of a holding within two years from the date of vesting of such fight, title and interest in the Government u/s 72, or such further time as may be allowed by the Government in this behalf. It is admitted before us that the time for filing an application u/s 72B(3) expired in 1976. The Appellant did not file any such application within the time so prescribed. But in 1978, he moved the Land Tribunal for initiating suo motu action as contemplated u/s 72G of the Act, which reads thus:

72 C: Assignment where application is not made by cultivating tenant.- Notwithstanding anything contained in Sub-section (3) of Section 72B (or Section 72BB) the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government u/s 72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment.

Section 72F provides for the procedure and the determination of the compensation and purchase price in respect of the holding to be assigned. The appeal is provided u/s 102 of the Act. One of us (Radhakrishna Menon, J.) has held in Bhaskaran v. Aisabi 1987 (2) KLT 213 that even when suo motu proceedings are taken u/s 72C and an order is passed therein, it is an order passed u/s 72F and, therefore, an appeal lies u/s 102. The Counsel for the first Respondent submitted that the said decision has no application to the facts and circumstances of this case, for, there is no decision on the merits by the Land Tribunal, as to whether the Appellant is a tenant or not and the Land Tribunal merely refused to exercise its suo motu jurisdiction. The refusal to exercise suo motu jurisdiction, according to Counsel is not an order passed u/s 72F and therefore, no appeal will lie u/s 102.

This takes us to the question about the content of the jurisdiction u/s 72C. Under the Act, which provides several benefits to cultivating tenants, kudikidappukars, etc., the landlord''s rights became vested in the Government with effect from 1st January 1970. Persons claiming to be cultivating tenants were entitled to file applications for purchase of the right, title and interest in respect of the holding within a prescribed period. But the Act itself makes it clear that, notwithstanding the expiry of the period, the Land Tribunal could take suo motu action u/s 72B for assignment of such right, title and interest to the cultivating tenants.

Even though Section 72G does not refer to any application and mentions only the jurisdiction of the Land Tribunal to initiate suo motu action, it seems to us to be clear that any person, who has information about any tenancy in respect of any holding including a person who has not filed an application u/s 72B(3) can also move the Land Tribunal to take suo motu proceedings.

Suo motu jurisdiction conferred under several statutes does not expressly provide, invariably, that the exercise of such power can only be on the basis of an application. While the source of power is under the statute, the materials to be gathered for the exercise of that power can be contained from any quarter and thus an application altering the authority to exercise this jurisdiction and persuading it to initiate the necessary action is also contemplated. The suo motu powers u/s 72C can, therefore, be exercised on the application filed by a person claiming to be a cultivating tenant. When once the Land Tribunal is moved u/s 72G of the Act to initiate suo motu action, he cannot act arbitrarily and refuse to exercise his jurisdiction without furnishing any reason. If there is cultivating tenancy the jurisdiction to assign the right, title and interest of the holding has to be exercised, because, the landlord''s rights have already vested in the Government, and there can no longer be any tenancy. If on the other hand, there is no cultivating tenant, no question of suo motu jurisdiction arises. The exercise of the jurisdiction u/s 72C is, therefore, the decision whether there is a cultivating tenant entitled to purchase the right, title and interest, if this is the content of the jurisdiction u/s 72C, it seems to follow that the order of the Land Tribunal can only be treated as one u/s 72F either accepting the claim of the tenant and directing the purchase of the right, title and interest or rejecting the claim refusing to purchase. In this view, any order passed by the Land Tribunal u/s 72G is an appealable order u/s 102.

Thus the decision by the Land Tribunal that the suo motu jurisdiction will not be exercised u/s 72C is itself a rejection of the claim of tenancy and the prayer for purchase and thus, in effect an order u/s 72F which is made appealable u/s 102.

There is yet another reasoning to reach the same conclusion. Exercising suo motu power u/s 72C, if the Land Tribunal decides that a cultivating tenant is entitled to purchase, the compensation has to be, fixed and the procedure u/s 72F has to be followed. It cannot be said that in some instances, the order passed u/s 72G will be appealable, and in other instances there can be no appeal. It cannot also be said that a part of the order is appealable and another part can be appealed against.

In the decision reported in Bhaskaran v. Aisabi 1987 (2) KLT 243 it was held thus:

The right, title and interest of the landowners and intermediaries in respect of a holding vested in the Government u/s 72 will thus be assigned to the cultivating tenant whether the assignment is as a result of an order passed in a proceeding initiated u/s 72B, 72BB or 72G. In short the object in initiating proceedings u/s 72C is identical with the object with which proceedings u/s 72B and 72BB are initiated. The ultimate order that will be. passed in these proceedings is the same, namely the order directing assignment of the right, title and interest of the landowner vested in the Government in respect of the holdings, to the cultivating tenant on his paying the compensation as determined by the Land Tribunal. Having understood the position thus, let us consider the scope of Section 102 which provides for an appeal against certain orders. This section states that the Government or any person aggrieved by any order of the Land Tribunal (leaving out unnecessary parts of the section) u/s 72F, may appeal against such order within such time as may be prescribed, to the appellate authority. The order of the Land Tribunal falling u/s 72F thus is an appealable order.

We are in entire agreement with this reasoning and conclusion and we think that no distinction can be made on the ground that the Land Tribunal has not recorded any finding on the merits and has merely refused to exercise its suo motu powers.

We are, thus, with respect not in agreement with the learned Judge, who took the view that the appeal against the order of the Land Tribunal is not maintainable and that Ext. P-2 is liable to be quashed. We hold that the appellate authority was right in entertaining the appeal.

When the order passed by the appellate authority is eminently just and directs only a consideration of the claim of cultivating tenancy on the merits, there is, in fact, no ground to interfere under Article 226 of the constitution. The setting aside of the order of the appellate authority will only revive a wrong order of the Land Tribunal, which without finding any reasons and without any application of the mind, refused to exercise its jurisdiction u/s 72C. The discretionary jurisdiction under Article 226 is not to be exercised in such cases to perpetuate injustice.

The appellate authority has only stated that the Land Tribunal has not given any reason for rejecting the claim of the Appellant. That is evident from the order of the Land Tribunal itself. The appellate authority has, therefore, remanded the matter for fresh consideration by the Land Tribunal on the merits. Any fresh order passed by the Land Tribunal can be taken in appeal u/s 102 by either party.

We have no doubt that when the matter goes back to the Land Tribunal, it will pass orders only after giving notice to the first Respondent and all affected persons and in accordance with law.

In the result, the judgment of the learned Single Judge is set aside, and the writ appeal is allowed and the original petition is dismissed, but in the circumstances of the case, no costs.