Sreemath Muttam Thirumala Devaswom vs Land Tribunal and another

Sreedharan, J.—This Original Petition has come before us on a reference made by a learned Single Judge. Issue raised herein is whether Land Tribunal can issue orders of injunction under Rule 92 of the Kerala Land Reforms (Tenancy) Rules, hereinafter referred to as "the Rules," if a matter referred to it by Civil Court under Section. 125 (3) of the Kerala Land Reforms Act, hereinafter referred to as "the Act"The short facts necessary for the disposal of this Original Petition are as follows;- Writ petitioner is the owner of 7 Acres and 34 Cents consisting of garden land and paddy field in various survey numbers mentioned in the schedule to the plaint in O. S. 589/1985 on the file of the Munsiff''s Court, Cherthala, 22 Cents of property is in the possession of second respondent under a leasehold arrangement. Another 771/2 Cents of property is in the possession of second respondent''s wife under a similar arrangement. These areas, according to the petitioner, are not included in the schedule to the plaint. Second respondent was a caretaker of the plaint schedule items. Since the caretaker ship was not to the satisfaction of the petitioner that arrangement was terminated. Thereupon, second respondent, it is alleged, attempted to trespass on the plaint schedule properties. Thereupon petitioner instituted the above mentioned suit for the relief of permanent injunction against trespass. Along with the suit, he filed I. A. 2626/1985 for a temporary injunction. Trial Court granted the prayer. Instead of questioning that order before the trial Court, second respondent challenged the same in C. M. Appeal 41 of 1985 before the Sub Court, Cherthala. That Court set aside the order of interim injunction. Later the trial Court considered I. A. 2626/1985 and granted the prayer of injunction. Second respondent challenged that order before the Subordinate Judge''s Court. Cherthala in C. M. A 32 of 1987 without success. By this time, the trial Court referred the question raised by the second respondent regarding the claim of tenancy for decision of the Land Tribunal u/s 125(3) of the Act. On account of the said reference, the challenge made by second respondent of the order of injunction before this Court in C.R.P.589/1988 was allowed as provided by Section 125(7) of the Act. As per that clause, no civil court shall have power to grant injunction in any suit or other proceeding referred to a Land Tribunal u/s 125(3) of the Act restraining any person from entering into or occupying any property in respect of which the question was referred. It also provides that any injunction granted before the said reference shall stand cancelled.

As stated earlier, claim of tenancy raised by the second respondent was referred to the Land Tribunal for its decision u/s 125(3) of the Act. The reference was so made early in 1987. It is still pending before the Tribunal. It appears that there was no dispute regarding the possession of the property till the latter half of 1992. On 27-8 1992, second respondent filed I.A. 13/1992 before the Land Tribunal praying for an order of temporary injunction restraining the writ petitioner from trespassing into the properties scheduled to the plaint and from preventing the second respondent from enjoying the same. On 3011-1992, Land Tribunal granted an order restraining the writ petitioner from trespassing into the properties. The validity of this order of injunction is under challenge.

Rule 92(1) of Chapter III of the Rules, which deals with the power of Land Tribunal to grant injunction, etc is in the following terms:

For the purposes of implementing the provisions of the Act and these rules, the Land Tribunal shall have power to issue commissions, grant injunctions, appoint receivers and make during the pendency of the proceedings such other interlocutory orders as may appear to the Tribunal to be just and necessary to meet the ends of justice.

The scope of this Rule came up for consideration before this Court in many cases. O. P. 3094/1965 was the first case where this issue was dealt with. There the facts were as follows.- Tenant approached the Land Tribunal for determination of fair rent u/s 31 of the Act. He alleged before the Tribunal that the landlord was threatening to trespass into the property. Land Tribunal granted an order of injunction restraining the landlord from entering into the property. That order was challenged before this Court. P. T. Raman Nayar, J, (as he then was) took the view that there is no provision in the Act which makes the Land Tribunal the protector of the right of fixity of tenure and it appears that the civil court continues to be the protector of that right. The proceeding in which the order or injunction was granted was not one for the protection of the claim for fixity either. Accordingly the order was quashed holding that it was not one issued for implementing the provisions of the Act of the Rules In Gopalakrishnan Nair v. Land Tribunal, Chengannur (1967 KLT 184), the issue was again considered by K. K. Mathew, J. in that case also, the order of injunction passed by the Land Tribunal in a proceeding for fixation of fair rent, was under challenge. That order of injunction was held to be not one in any way conduce to the implementation of the provisions of the Act or the Rules. The function of the Land Tribunal was only to decide the question before it, namely whether the petitioner was entitled to have the fair rent fixed and if so, the amount which is to be fixed in that decision. It was observed:

The decision on the question of the relationship is only incidental to the decision of the issue for fixation of fair rent. I do not think that for implementing the provisions of the Act or the rules, it was necessary for the Tribunal to have passed the order in question.

In M Alavi v. Appellate Authority, Land Reforms & another (1972 K. L.T. 648), M. U. Isaac, J. followed the view taken in the above mentioned cases in the said case, petitioner before the Land Tribunal initiated proceedings u/s 72-B of the Act for purchase of the landlord''s rights over the property, claiming himself to be a cultivating tenant. His possession was disputed by the land owner. The Tribunal issued an order of injunction restraining the land owner from entering on the land holding that the tenant appeared to be in possession of the property. That order was challenged before the appellate authority, who passed an interlocutory order appointing an advocate as receiver. That order was challenged before this court. It was contended that the order of the Land Tribunal is not appealable to the Appellate Authority and that the Tribunal could not have passed an order of injunction and so the order of the appellate authority should also be declared invalid. Learned Judge took the view that in such an application. u/s 72-B, no order of injunction can be issued by the Land Tribunal because it cannot in any manner be for implementation of the provisions of the Act or the Rules. Since the Land Tribunal''s order granting injunction was one without jurisdiction, the same infirmity attaches to the order of the appellate authority appointing a receiver to the property. Consequently, both orders were quashed A Division Bench of this Court dealt with the same issue in Parameswaran Pillai v. Krishna Filial (1973 K. L. T. 53). There the tenant approached the Land Tribunal for assignment of the landholder''s right in his favour u/s 72-B of the Act. He applied for an order of temporary injunction to restrain the landowners from entering upon the property. The Land Tribunal granted the prayer. That order was under challenge before the Division Bench. The Bench approved the decisions in 1967 KLT 184 and 1972 KLT 648. It was contended before the Bench that for a proper implementation of the provisions of the Act and the Rules, it is absolutely necessary that possession of the property continues with the tenant and for that purpose if the Land Tribunal issues an order of in junction, it will be within its power under Rule 92 of the Rules. This detention was negatived, and observed:

So every time an interlocutory order is passed, the Land Tribunal should address itself to the question whether the order is one for implementation of the provisions of the Act and the Rules. An order that does not satisfy this requirement will be one passed without jurisdiction.

Later the same issue came up before this Count is Varkey v. Kuriako (1977 K. L. T. 727). That was also a case where in an application u/s 72 B of the Act. Tribunal passed an order appointing a receiver pending disposal of that application. Subramonian Poti, J. (as he then was) took the view that during the pendency of an application for purchase of the landlord''s right any order of appointment of a receiver cannot be for the purpose of implementing the provisions of the Act add the Rules and therefore any such order would be extraneous to Rule 92 (1) of the Rules. Consequently, the order appointing receiver was lot aside. From these decisions, it is clear that right from 1965, this Court was consistently taking the view that Land Tribunal has no jurisdiction to issue an order of injunction in proceedings for fixation of fair rent or for purchase of landlord''s rights. In the instant case, the issue referred to the Tribunal was whether the claim of tenancy put forward by the second respondent is valid or not. In such a proceeding if an order of injunction is issued, it can never be considered as one for the purpose of implementing the provisions of the Act and the Rules. It, therefore, necessarily follows that the order of injunction granted by the Tribunal was one without jurisdiction.

Learned Single Judge, while referring the Original petition for decision by a Bench, doubted the correctness of the view taken by this Court in the decisions referred to earlier. According to us, the view expressed by this Court in the decisions referred to earlier has stood the test of time. The above view was consistently taken from 1965 till date. That view should be presumed to have been settled and it is not proper to depart from the settled position and it should be followed vide B. Lakshmi Pathi Naidu v. Distt. Educational Officer- 1992 4 S. S. C. 8.

In the instant case, petitioner instituted O.S. 589/1985 on the file of the Munsiff''s Court, Cherthala for a decree of permanent injunction. From the date of filling that suit, petitioner had the benefit of an order of temporary injunction restraining the second respondent herein from trespassing into the plaint schedule properties. That order was reversed by this Court in C.R.P. 589 / 1988 on 27-9-1988 on account of the provisions contained in Section 125(7) of the Act. It means that the order of injunction was vacated not on account of the fact that petitioner was not found to be in possession of the property, but because of the statutory provision. That situation continued till 1992. On 27-8 1992, second respondent filed I.A.13/1992 praying for a temporary injunction restraining the petitioner from trespassing into the property. That application was allowed on 30-11-1992. Land Tribunal had no jurisdiction to grant that order of injunction. In the above circumstances, neither the civil court nor the Land Tribunal is possessed of jurisdiction to grant an order of injunction. Can a Society governed by rule of law be faced with such a situation? If no authority is having jurisdiction to protect the possession, then it will lead to chaos. Parties may resort to force to settle the disputes. The principle "might is right" may reign. Such a situation is to be prevented at all costs.

Can the High Court exercise power under Article 227 of the Constitution to tide over the situation? The High Court of Madras considered the scope of Article 227 in G. Patlisam. In re (AIR 1954 Madras 573). That Court held that Article 227 confers a general power of superintendence on the High Court over Tribunals and such superintendence is not confined to administrative matters only. That Article, according to that Court, enables a person aggrieved by an order of such a Tribunal to invoke the revisional powers of the High Court under Article 227 of the Constitution. Rajamannar, Chief Justice delivering the judgment of the Court observed:

But it is not difficult to conceive of cases to which Article 226 may not be applicable, but Article 227 might be applied. Take the case for instance, where the High Court feels that in the interest of justice and to avoid multiplicity of proceedings there should be a stay of a proceedings pending before a tribunal till the disposal of a suit pending in a Civil Court. Article 226, according to the Supreme Court cannot be invoked for the sole purpose of obtaining an interlocutory order. Vide The The State of Orissa Vs. Madan Gopal Rungta, . But under Article 227, in exercise of the power of superintendence the High Court may well direct such a stay. Even assuming there is overlapping to a large extent we cannot from that circumstances alone refuse to adopt a construction of the Article which was adopted in respect of a similar provision before the Government of India Act of 1935.

Thus the High Court of Madras took the view that the High Court can, under Article 227 of the Constitution, in exercise of the power of superintendence, is the interest of justice pass interlocutory orders. When the District Court and the Subordinate Judge''s Court are adjourned during mid-summer vacation, as per the Hyderabad Civil Courts Act, the High Court had no power to receive appeals to be filed before those Courts and to pass interim orders. In such a situation, a question, arose as to whether the High Court had power to receive an appeal which lay to the District Court and to pass interim orders and transmit the same to the District Court when that Court resumes work after vacation. A Division Bench of the High Court of Andhra Pradesh in P. Bhoomaiah v. Nawab Kutubuddin Khan (1968 1 Andhra Weekly Reporter 23) took the view that petitioner can invoke the jurisdiction of the High court under Article 227 of the Constitution and seek orders to maintain the status-quo. Their Lordships observed:

In these cases before us, the appellate Court and the appellate authority were closed for summer vacation and for that reason, the petitioners may invoke the jurisdiction of the High Court under Article 227 of the Constitution seeking orders to maintain the status-quo till the petitioners can present their appeals in the appellate Court or before the appellate authority and seek interim orders pending disposal of the appeals. The power of the High Court to pass such orders or give such directions is included in the general power of superintendence conferred on it by Article 227 of the Constitution.

We are in respectful agreement with this view. This is the only means to tide over the situation highlighted by us earlier in this judgment. Parties to this Original petition can move this Court invoking the provisions under Article 227 of the Constitution and get the appropriate relief. To enable them to move this Court, in the interest of justice, we direct the parties to maintain the status-quo.

First respondent, Land Tribunal, is directed to pass final order on the issue regarding the claim of tenancy put forward by the second respondent, which was referred to it from O. S. 589/1935 on the file of the Munsiff''s Court, Cherthala, as expeditiously as possible. Petitioner and the second respondent are directed to maintain the status-quo as on today for a period of two weeks.

The Original petition is disposed of in the above terms. Issue photo copy of the judgment to the parties urgently.