THANKAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is a kudikidappukari in respect of a building in Sy. Nos. 8/1 and 8/2 of Elamkulam Village in the possession of the 3rd respondent. On a petition filed by the 3rd respondent for shifting the kudikidappu to a land to be acquired, under S. 75 (3) of Kerala Land Reforms act, 1963, the Revenue Divisional Officer, Fort Cochin, 2nd respondent herein, passed an order for shifting and directed alternate land to be acquired for accommodating the kudikidappukari. The petitioner came to this court by way of o. P. No. 5225 of 1975 which was dismissed by this court. It appears, Land acquisition Proceedings were being pursued slowly. The 3rd respondent, therefore, had to come to this court by way of O. P. No. 4404 of 1980 which ended with a direction by this court to the Sub Collector, Fort Cochin to complete the Land Acquisition Proceedings within eight months. The time was subsequently extended by orders passed in C. M. PS. The Land Acquisition proceedings were ultimately completed and the 3rd respondent deposited before the Land Acquisition Officer 87% of the cost of acquisition as also the cost of shifting in March, 1982. Meanwhile, on the allegation that the petitioner was reconstructing the kudikidappu building, the 3rd respondent filed a suit, O. S. No. 704 of 1981 for injunction and obtained a temporary injunction, the correctness of which is now challenged before the appellate court. In March, 1982 the Revenue Divisional Officer, Fort Cochin, passed the consequential order for evicting the petitioner and issued Ext. PI notice to her. The notice was admittedly served by affixture. There is dispute regarding the exact date on which the petitioner came to know about the notice, whether it is 20th or 25th of March, 1982. Whatever that be, on 5-4-1982 the petitioner filed the present petition under Art. 226 of the Constitution of India to quash Ext. P1 notice issued by the R. D. O. and to direct him not to take any steps to evict the petitioner from her kudikidappu. The O. P. was preceded by a Caveat O P. filed by the 3rd respondent.

(2.) LEARNED counsel for the petitioner pointed out that the Full Bench of this Court in the decision in George v. State of Kerala (1981 k. L. T. 224) has held that it is the Government who is the statutory authority contemplated under S. 75 (3) of the Kerala Land Reforms Act, 1963. the Government had no right to delegate its authority to the Revenue Divisional Officer, that there was no such delegation either and therefore the Revenue Divisional officer had no jurisdiction at all to deal with the matter under S. 75 (3) of the Act. This decision has set at rest the controversy regarding the Revenue divisional Officer's jurisdiction to deal with matters under S. 75 (3) of the kerala Land Reforms Act. Viewed in this light it is clear that the order for shifting passed by the Revenue Divisional Officer and which was unsuccessfully challenged in O. P. No 5225 of 1975 was an order without jurisdiction and illegal. There can be no doubt that an order which suffers from inherent lack of jurisdiction is void in law. If that be so, in the normal course, it must follow that the order of shifting passed by the Revenue Divisional Officer under S. 75 (3) could not be pursued by him to any extent.

(3.) THE Revenue Divisional Officer had no statutory authority to take a decision on a question arising under S. 75 (3) of the Kerala land Reforms Act. This court held so in George's case, overruling the contrary view taken in Suthi Bai Kamath's case (1977 K. L. T 644 ). Naturally it follows that the Revenue Divisional Officer had even initially no jurisdiction at all to deal with this matter. In dealing with a matter arising under S. 75 (3) of the kerala Land Reforms Act, he had only such role to play as any other officer of the Kerala Government functioning in any other department could play. In other words, he could play no role at all THE order of shifting passed by the Revenue divisional Officer which is now sought to be implemented by means of Ext. P1 notice is an order totally without jurisdiction even initially. I do not think the principles referred to in Raghavan Nair's case can be applied to a case where the earlier order was an order vitiated by inherent lack of jurisdiction. Such a case will be governed by the dictum in Sunder Dass's case. I am, therefore, unable to agree with the objection raised by the 3rd respondent thai the petitioner is precluded from raising the plea of nullity of the order passed by the Revenue Divisional Officer either on principle of res judicata or on the principle underlying Order II, R. 2 CPC. 5. It is not correct to say that want of jurisdiction on the part of the Revenue Divisional Officer had been raised before this court in o. P. No. 5225 of 1975. It is no doubt true that in the order passed by vadakkel, J. there is an observation to the following effect: "in view of what is stated above and in so far as it is admitted that the third respondent has only land less than an acre in extent on which there is kudikidappu of the petitioner, I am not prepared to say that ext. P1 order is in any manner vitiated by errors of law on the face of the record nor that it is in excess of the authorised officer's jurisdiction or that the authorised officer has failed to exercise any jurisdiction vested in him. " Nothing stated in this passage would go to show that the inherent lack of jurisdiction on the part of the Revenue Divisional Officer had been raised before this court or had been adjudicated upon by this court. What this court observed in the above order was that the order of the Revenue Divisional officer was not in excess of his jurisdiction. In other words, it was assumed that the Revenue Divisional Officer had jurisdiction to pass an order under s. 75 (3) of the Kerala Land Reforms Act and the court felt that that jurisdiction had not been exceeded by him During the course of the hearing in this O. P. , the records in O. P. No. 5225 of 1975 were brought over. On verification I find that the lack of jurisdiction on the part of the Revenue divisional Officer was not raised as a ground of attack in that O. P. It cannot, therefore, be said that this ground had been urged earlier before this court and negatived by this court. This ground was not urged before this court and therefore this court bad no occasion to decide upon it. It is argued that since the plea was not raised in the earlier O. P, it cannot be raised now. I do not think a plea of inherent lack of jurisdiction could be so shut out. That is because, the order, being without jurisdiction, is a nullity and as pointed out by the Supreme Court in Sunder Dass's case, the plea of nullity could be raised whenever and wherever the order is sought to be enforced. I am, therefore, not is agreement with the contention raised by the 3rd respondent that this plea cannot be raised or accepted in this O. P