K EASWARA WARRIER Vs. REVENUE DIVISIONAL OFFICER OTTAPALAM

JUDGEMENT

(1.) By these petitions, two orders passed by the Revenue Divisional Officer' the first respondent to each of these petitions, which have been marked as Ext. P3. in each of these cases are sought to be set aside. By Ext. P3 order in O. P. No. 3802 of 1969 it has been directed that a record of rights in respect of 1 acre 15 cents of land in Agali Village as detailed in form V attached to that order and by Ext. P3 in O. P. No. 3803 it has been directed that in respect of 10.94 acres of lands in the same amsom as detailed in form V attached to that order, will be prepared. These orders have been passed after proceedings were commenced by the third respondent in O. P. No. 3802 and by respondents 3 and 4 in O. P. No. 3803, under S.29 of the Kerala Land Reforms Act, 1963. The main complaint of the petitioner is that there has been no application of the mind by the Revenue Divisional Officer to the questions arising for determination in passing the order Ext. P3 in each of these cases and that sufficient opportunity had not been afforded to the petitioner to state or prove the petitioner's case and that the authorities acted on no material whatever in reaching the conclusion that the record of rights as in form V appended to the two orders should be prepared with respect to the lands mentioned already.

(2.) On a consideration of the contentions that have been raised and on a perusal of the orders, Ext. P3 in each of these cases, I feel no doubt, that there has been no application of the mind to the questions arising for determination and that there was no material before the authority in coming to the conclusion that it did and that there has been failure of the principles of natural justice. I would therefore have simply set aside the two orders and remitted the case to the proper authority who will now be the Tahsildar, Mannarghat in view of the amendment to S.29 effected by Act 35 of 1969, without saying anything more in the case. But this is hot the first time that I get orders similar to Ext. P3 in each of these cases. In fact a number of cases had come up before me which indicated that the matter had been disposed of without proper application of the mind to the questions arising for determination, and I am constrained to say, in a casual and perfunctory manner. I must therefore say a few words about the nature of these enquiries and what is expected of these authorities on whom powers have been conferred to create record of rights. After the amendment to S.29 the record of rights prepared under that section will be evidence in any proceeding and the burden of disproving the correctness of what is contained in the record of rights will be on the person challenging the entries in the record. This is provided by S.29(8) which reads as follows:

(3.) The provisions in S.29 have obviously been enacted with a view to protect the interests of cultivating tenants and persons who have interest in land. Many of these persons are in a more disadvantageous position than the landlords under whom they have such tenancy rights or other interests in property. It is conceivable that these rights or interests may be put an end to by landlords either by coercion or by persuasion or by other means and the section is intended to enable such persons to approach the statutory authority with a view to have a record established of their rights which cannot then be very easily brushed aside or terminated. It cannot however be ruled out that the provisions in the section are sometimes may often used deliberately, to create tenancy rights or other alleged interest in property belonging exclusively to others. This being so, it is essential that there should be a fair and a reasonably thorough enquiry in an impartial manner with a sense of detachment whenever a claim is made that a person is a cultivating tenant or has other interest in property. The statute itself not only contemplates but specifically provides for such an enquiry. S.29, as it stood in sub-s.(4) thereof provided that the records should be prepared in such manner as may be prescribed. The Kerala Land Reforms (Tenancy) R.1964 made provision for it in R.16 and 17. These rules were amended on the 19th December, 1966 and it is R.16 and 17 substituted by that amendment that were applicable at the time the matter was decided by the Revenue Divisional Officer, the first respondent to each of these petitions. The provisions in these rules clearly provide for notice, an opportunity being given to the parties and an enquiry being held to the claims and objections if any received. R.17 specifically so provides. This is in the nature of a quasi judicial enquiry. It will be too much to attribute to the Revenue Divisional Officer, or the Tahsildar who is now to deal with this question, the attributes of a court in the normal sense in which a court is understood. Nor perhaps would there be justification for applying the strict rules of procedure or the strict rules of evidence. Nevertheless natural justice demands that there must be an adherence to certain principles and certain fundamental aspects of evidence before determination is reached on controversial questions. I cannot do better regarding this aspect than quote from a recent judgment of the Supreme Court which has been brought to my notice by counsel appearing for the petitioner which I consider is most apt, as far as the question arising for decision in these cases is concerned. In M/s. Brareilly Electricity Supply Co. Ltd. v. The workmen and others ( 1971 (2) SCC 617 ) the Supreme Court observed as follows: