SANKARAN Vs. K R K NAIR

JUDGEMENT

(1.) THE petitioner filed an application before the tahsildar, 3rd respondent in this proceedings for preparation of a record of rights under S. 29 (1) of the Kerala Land Reforms Act (hereinafter called the act) in respect of some property. After a preliminary enquiry a draft record of rights was prepared by the Tahsildar. THE 2nd respondent filed objections in the matter. Evidence was taken and recorded. THE Tahsildar heard the matter on 6 3 72 and the case was posted for orders to 26 3 72. It appears that the 2nd respondent had applied for the summoning of the village cultivation accounts in respect of the property for the years 1967 68, 68-69 and 69-70. THEy were, however,. not marked probably as they may not have been received at the time, when the evidence was taken. On 26 3 72 orders were not passed. THE Tahsildar who had recorded the evidence and heard the argument did not pass orders. A new officer took charge of the post and without further hearing he passed order ex-P1, dismissing the petitioner's application. It would appear from Ex-P1 that besides the documents marked in evidence, the third respondent relies upon some village accounts in support of the second respondent's contention. Ex-P1 is attacked in this writ petition as violative of the principles of natural justice and hence void.

(2.) BEFORE considering the contentions of the parties it would be useful to extract the relevant statutory provision, namely S. 29 of the act and R. 26 of the Kerala Land Reforms (Tenancy) Rules which prescribes the procedure before the Tahsildar in respect of an application under S. 29. S. 29 reads: "preparation of record of rights: (1) Any person interested in any land may at any time within ten years from the commencement of this Act or such further period as the government may, from time to time, by notification in the gazette, specify in this behalf, apply to the Tahsildar of the taluk in which that land is situate for the preparation of a record of rights in respect of that land: Provided that no such application shall lie in cases where the land is situate in an area notified by the government under S. 3 of the Kerala Record of Rights Act, 1968. (2) On receipt of an application under sub-s. (1) for the preparation of the record of rights in respect of any land, the Tahsildar shall prepare the record of rights in respect of that land in such manner as may be prescribed. (3) The record of rights shall contain (a) the description and extent of the land; (b) the name and address of the owner; (c) the names and addresses of the intermediaries, if any, in respect of the land and the nature of the interest of each of such intermediaries; (d) the names and addresses of the cultivating tenants and kudikidappukars, if any, in respect of the land and the nature of the interest of each of them; (e) the names and addresses of other persons, if any, having interest in the land and the nature of the interest of each such person; and (f) such other particulars as may be prescribed; (4) any person aggrieved by any entry in the record of rights prepared by the Tahsildar under sub-section (2) may, within such period as may be prescribed, appeal to the revenue divisional officer having jurisdiction over the area in which the land is situate. (5) An appeal under sub-s. (4) shall be in such form and shall contain such particulars as may be prescribed. (6) On receipt of an appeal under sub-s. (4) the Revenue divisional Officer, shall after giving an opportunity to all persons interested in the land to which the record of rights relates, dispose of the appeal in such manner as may be prescribed. (7) The Tahsildar and the Revenue Divisional Officer shall for the purposes of the the proceedings under this section have all the powers of a civil court while trying a suit under the Code of Civil Procedure 1908, in respect of the following matters, namely (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavit; (d) issuing commission for the examination of witnesses or for local investigation; and (e) any other matter which may be prescribed. (8) The record of rights prepared under this section shall be admissible in evidence before any court or tribunal and every entry in any record of rights which has become final shall until the contrary is proved be presumed to be correct. (9) Where an application for the preparation of a record of rights in respect of a land is admitted, no application under S. 31 for determination of the fair rent in respect of that land shall be disposed of till the record of rights is prepared under this section. (10) Where the proceedings for the preparation of a record of rights are pending before the Tahsildar or an appeal under this section is pending before the revenue divisional officer at the time when the area in which the land to which the record of rights relates is situate is notified by the government under S. 3 of the Kerala Record of Rights Act, 1968 the Tahsildar or the Revenue Divisional Officer, as the case may be, shall transfer such proceedings or appeal, to the prescribed officer under the said act for the preparation of the record of rights in accordance with the provisions of that Act. " Rule 26 reads: "preparation and form of record of rights: (1) The tahsildar shall after the expiry of the period fixed for the filing of claims and objections, fix a day and time for the hearing of the claims and objections and give notice to the persons who have filed such claims and objections and also to the persons whose interests are likely to be affected, informing them that an opportunity of being heard will be given to them at the time and place mentioned in such notice. (2) On the date fixed for the hearing or on such other date to which the hearing may be adjourned the Tahsildar shall hear the persons who appear before him, duly enquire into the claims and objections and shall pass an order in writing recording his reasons therefor. (3) If in the course of the enquiry, any party to the proceeding applies to Tahsildar for a survey of the land or part thereof and deposits the costs thereof, the Tahsildar shall if he is satisfied that a survey thereof is necessary for the purpose of preparation of the record of rights arrange for such survey being, made expeditiously, and the record of rights in survey cases shall be prepared only after a report of the survey is received by the Tahsildar. (4) The Tahsildar, shall after the hearing and enquiry provided in the foregoing provisions of this rule prepare the final record of rights. (5) The draft record of rights and the final record of rights shall be in form No. 10. (6) A true copy signed by the Tahsildar of the final record of rights shall be served on all persons who have filed claims and objections to the draft record of rights and also to those persons who have not filed claims and objections but whose names appear in the final record of rights. (7) The final record of rights shall also be published in the office of the Tahsildar and in the village office of the village in which the land is situate. (8) The expenses of the publication and service of notice under this rule and R. 25 shall be collected in advance from the applicant: Provided that no such expenses shall be collected from an applicant who is a member of any scheduled caste or scheduled tribe. "

(3.) MR. Nambiar also put forth the plea that the petitioner has an alternative effective remedy by way of appeal and therefore this court should not entertain his application under Art. 226 of the Constitution. In the first instance, I have grave doubts whether an appeal is maintainable from the impugned order. Under S. 29 (4) of the Act, appeal is provided for only to a person aggrieved by an entry in the records of rights. Here the order is a case of refusal to make the entry. Secondly, even if there is alternative remedy by way of appeal, alternative remedy is not an absolute bar. In proper cases, existence of such remedy will not stand in the way of this court exercising its jurisdiction under Art. 226, for example in cases where there is a breach of fundamental justice. Thirdly, a decision rendered in violation of the principles of natural justice is a nullity. If that be so there was nothing upon which an appellate authority could proceed see the observations of speight, J. , in Denton v. Auckland City (1969 N. Z. L. R. 256) quoted in Leary v. National Union of Vehicle Builders (1970-3 WLR. 434 ). In the latter English decision, Megarry, J. , said that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. The learned judge observed: "coupled with the other authorities cited to me, this case leaves me in little doubt that if there is a defect of natural justice, the proper course is for the body to which the jurisdiction is confided to rehear the matter de novo, rather than treat any further hearing as an appeal or, a fortiori, let the matter be consigned to some appellate tribunal or other body. The sheet should be made as clean as possible; but I think it should be the same sheet and not a different one. What is required is a venirs de novo and not the process of appeal, whereby the person aggrieved may be treated as bearing the burden of. displacing an adverse decision which, for lack of natural justice, ought never to have been reached. "