MARIA ELIZABETH GOMEZ Vs. STATE OF KERALA

JUDGEMENT

(1.) WE think that the impugned order(Ex.P8 dated;1861968)made by the 1st respondent State Government has to be quashed on the short ground that it was made without jurisdiction.

(2.) BY Ex.P5 dated 2221965,the 4th respondent Tahsildar(who,it is the common case,is the prescribed authority within the meaning of S.3 of the Kerala Government Land Assignment Act,1960)ordered the assignment of the 13 cents of land in dispute to the petitioner.This order of assignment made by the Tahsildar was affirmed by the Revenue Divisional officer by Ex.P6 dated 411966 on appeal taken by the 5th respondent,a rival claimant,under subrule(i)of R.2l of the Kerala Land Assignment Rules made under S.7 of the Act.And it was reaffirmed by the Board of Revenue by Ex.P7 dated 17101966 on a revision moved before it by the 5th respondent under subrule(8)of the rule.As the rules then stood this order of the Board of Revenue was final so far as those proceedings were concerned,there being no further appeal or revision,and the fact that the Board could have reviewed its order under S.7 of the Kerala Board of Revenue Act,or that its order was open to collateral attack under R.8(3)by a superior authoritythere was none at that time within the meaning of the rules,the power of revision over the order of the Board being conferred on Government only later by subrule(9)of R.21 made on 30121967 or by way of suit or writ petition,or otherwise,does not alter the position.On 2641967,the 5th respondent petitioned to the Government against the Board's order.Eight months later,on 30121967,the Government took power to revise such orders of the Board subrule(9)of R.21 was introduced for the purpose.It had taken care not to dispose of the 5th respondent's petition mean whilethat was done only another six months later by means of the impugned order,and the disposal was in the 5th respondent's favour.The short question is whether this power of revision conferred in the following terms can be exercised in respect of an order made by the Board before the power was conferred: "The Government may at any time revise cancel or alter on their own motion or otherwise any decision made or order passed by the Tahsildar,Revenue Divisional Officer,District Collector or the Board of Revenue under these rules:Provided that no such decision or order shall be revised,cancelled or altered under the subrule without giving the party affected thereby a reasonable opportunity of being heard."

(3.) IT is argued that,by reason of the conferment of revisional power by the subrule,the Government become a superior authority in relation to the Board within the meaning of R.8(3)and that therefore the impugned order could be sustained as referable to the exercise of the power under that latter rule.But the power under R.8(3)can be exercised only if certain conditions are satisfied,and neither the impugned order nor the affidavits filed in the case as much as attempt to make out that those conditions were satisfied.