SISTER MARY ALOSIOUS Vs. MADHAVAN PILLIA KUMARA PILLIA

JUDGEMENT

(1.) THIS is a petition under Art. 226 and 227 of the constitution for quashing an order of the State Government and the proceedings pursuant thereto and other allied reliefs. The petitioners are Sister Mary aloysious D. M. , Superior of the Convent of the Daughters of Mary, at Adoor in kunnathur Taluk, and Sister Mary Fancesca D. M. , Superior of the Convent of the daughters of Mary, at Anchel in Pathanapuram Taluk.

(2.) FOR arrears of tax due to the Government, 32 acres of land comprised in S. No. 1398/14a-16/1 of Kaliyil Pakuthy, Vilavancode Taluk, was sold in auction under the Travancore Revenue Recovery Act, I of 1068, by the Tahsildar of Vilavancode on 24. 4. 1109 M. E. (9. 12. 1933 A. D.) and one sivaswamy Nadar purchased the same at the revenue auction. In 1112 Sivaswamy nadar sold the said land to Rev. Fr. Joseph Kuzhignalil, hereinafter referred to as Fr. Joseph, who is the founder of the two Convents of which the petitioners are the Superiors. According to the Petitioners after purchasing the property from Sivaswamy Nadar, Fr. Joseph effected improvements in it and the total value of the improvements effected by him would be Rs. 16,000 at present. More than thirteen years after the revenue auction sale counter-petitioner 1, Madhavan Pillai Kumara Pillai, who is a son of the original pattadar, filed a petition, referred to here-in-after as the first revision petition, on 17. 6. 1122 M. E. (30. 1. 1947 A. D.) before the Dewan of travancore under S. 50 of the Travancore Revenue Recovery Act for setting aside the said sale. After the integration of the States of Travancore and Cochin and the constitution of the Travancore-Cochin Board of Revenue the revision petition was heard by the Travancore-Cochin Board of Revenue under S. 6 of the travancore-Cochin Board of Revenue Ordinance II of 1950, and was dismissed by the Board on 17. 2. 1950 on the ground that it was barred by limitation. Ext. A is a copy of the order of the Board. Shortly after this order Fr. Joseph executed a deed of settlement on 24. 3. 1950 conveying the property to the petitioners, to be held by them for and on behalf of their respective Convents. On 7. 9. 1950 counter-petitioner 1 filed another revision petition, referred to hereinafter as the second revision petition, before the State Government against the order, Ext. A, of the Board of Revenue dated 17. 2. 1950. Although the petitioners had obtained the property long before the second revision petition was filed, and neither Sivaswamy Nadar nor Fr. Joseph had any interest in it on the date of that revision petition the petitioners were not impleaded therein and only Sivaswamy Nadar and Fr. Joseph were made counter-petitioners in it. The prayer in the second revision petition was that "the order R. Dis. 6886/49 dated 17. 2. 1950 of the Board of Revenue rejecting the revision petition (i. e. , the first revision petition) on a technical ground of delay may be set aside and the petition may be ordered to be heard on its merits". Subsequently on 16. 2. 1951 the revision petitioner's counsel filed another petition before the Government praying that the second revision petition might be amended so as to include a prayer for setting aside the auction sale itself. Without issuing notice about the amendment petition to Sivaswamy Nadar and Fr. Joseph, and also without issuing notice about the revision petition and the amendment petition to the petitioners who had obtained the property from Fr. Joseph even so early as 24. 3. 1950 and without hearing them, the Government passed an order on the second revision petition on 23. 10. 1952 allowing the same and setting aside not only the order, Ext. A, of the Board of Revenue, but also the revenue auction sale. Ext. B is the copy of the order of the Government dated 23. 10. 1952. In that order Government held that the delay in filing the first revision petition had been condoned by Government itself before that revision petition was transferred to the Board of Revenue, that the Board was therefore wrong in dismissing the revision petition as barred by limitation, and that the revenue sale also was void ab initio. After obtaining this order counter-petitioner 1 moved for redelivery of the property to him and the district Collector of Trivandrum ordered the property to be delivered to him on 10. 2. 1953. According to counter petitioner 1 and the State, which is counter-petitioner 3, the property was also delivered over to counter-petitioner 1 on 27. 2. 1953 in pursuance of the Collector's order dated 10. 2. 1953, and Ext. C is the copy of the delivery record. According to the petitioners, the property has not been actually delivered over from them, they are even now in possession of it, and there was no real delivery on the spot as stated in Ext. C. In the present petition, CMP No. 43 of 1954, the petitioners seek to quash the order of the Government dated 23. 10. 1952, i. e. , the original of Ext. B, and the subsequent proceedings taken by the revenue authorities in pursuance of that order culminating with the alleged delivery, Ext. C, dated 27. 2. 1953. They also seek for an order prohibiting interference with their possession of the property and also other appropriate orders and directions which this Court may deem fit to issue in the matter. They contend that the government's order of 23. 10. 1952, Ext. B, was passed without jurisdiction and is contrary to the express provisions of law as well as the principles of natural justice and that therefore the said order and the proceedings pursuant to it are illegal and liable to be set aside. C. M. P. No. 43 of 1954 was originally filed under Art. 227 of the Constitution, but the petitioners have subsequently applied to treat the petition as one filed under Art. 226 also and that has been allowed.

(3.) THE learned Government Pleader also very rightly conceded that Government had no jurisdiction to pass the order of 23. 10. 1952 under the Revenue Recovery Act. But he as well as the learned Counsel for counter-petitioner 1 contended that the said order was passed by Government under S. 9 of the Travancore-Cochin Board of Revenue Act, XI of 1950 which has replaced the Travancore-Cochin Board of Revenue Ordinance, II of 1950. S. 9 of the Travancore-Cochin Board of Revenue Act is in the same terms as S. 9 of the travancore-Cochin Board of Revenue Ordinance, and reads as follows: "government may at any time call for and examine the record of any case pending before, or disposed of by the Board and may pass such order in reference thereto as Government think fit: Provided that no order shall be passed under this section without notice to the party who may be affected by the order. " Ext. B. however, expressly purports to be an order passed under the Revenue Recovery Act. Neither in the second revision petition nor in the amendment petition of 16. 2. 1951 counter petitioner 1 had mentioned the provision of law under which he had filed the petition, and it is clear from ext. B that Government had treated the second revision petition as one filed under the Revenue Act, and not as one filed under the Board of Revenue and has assumed jurisdiction only under the Revenue Recovery Act and not under the Board of revenue Act. According to the learned counsel for the petitioner, Sri Paikeday, s. 9 of the Board of Revenue Act does not apply at all to cases in which the board has disposed of revision petitions filed under S. 50 of the Travancore revenue Recovery Act by virtue of the powers conferred on them by S. 6 of the two Board of Revenue Ordinances and S. 6 of the Board of Revenue Act, and S. 9 of the Board of Revenue Act would apply only to orders passed by the Board other than those passed under S. 6. Since Government itself has not treated the second revision petition as one passed under S. 9 of the Board of Revenue Act nor passed the order, Ext. B, under that section, it is not proper for us to express any opinion on this controversy at the present stage. In view of counter petitioner 1's contention that, although he had not mentioned in the second revision petition the provision of law under which he had filed it, he had really filed that petition under S. 9 of the Board of Revenue Act, and in view of the fact that Government had treated the said revision petition as only one filed under the Revenue Recovery Act, the proper course for us would be to leave it to Government to consider whether it can entertain the second revision petition under S. 9 of the Board of Revenue Act, leaving it free to the petitioners also to raise the contention before Government that S. 9 of the board of Revenue Act would not apply to this case.