NAGARAJAN Vs. EXECUTIVE OFFICER SRI SWAMINATHASWAMY

JUDGEMENT

(1.) THE appellant, who lost before Mohan J. , in a writ petition filed by him for the issuance of a writ of certiorari and for quashing the order passed by the third respondent in the writ petition, who in turn confirmed the order of the second respondent, has filed this appeal. The facts have been summarised by Mohan, j. , and it is unnecessary for us to restate them. But for purposes of continuity we extract them:

(2.) MR. Peter Francis, learned counsel for the appellant, after taking in through the merits, would contend that there is no express provision in the Tamil Nadu public Trusts Act, 1961. which would authorise either the second or the third respondent to act in the manner they did and pasa an order which is challenged herein. According to him, if once the lands belonging to the trust are in the occupation of an interloper, then, such a person cannot be badged with the status of a tenant or a lessee and much less a cultivating tenant which has a special meaning in agrarian legislation. A fortiori, therefore, and on the facts found, the learned counsel says that if the petitioner is himself an interloper, then Subramaniam, who is actually found to be in occupation and cultivating the property, is certainly one who has no right, either contractual or otherwise, to be in possession of the property and cultivate the same. In effect, therefore, the argument is that the challenged order was passed by the statutory functionaries without jurisdiction. Mr. Raghavan, appearing for the trust, says that this aspect touching upon jurisdiction was not argued in the manner it is sought to be done, either before the statutory authorities or before the writ judge. He would, therefore, say that this contention is not open to the appellant even otherwise he would sustain the order of Mohan, J. , on the ground that section 14-A is one of the sections which could be invoked by the statutory authorities for purposes of dispossessing a person actually in possession of trust lands, though he cannot be a tenant, a lessee or a cultivating tenant.

(3.) ARGUMENTS regarding the question, of jurisdiction if it goes to the root of the matter and if it shakes its foundation can be addressed even at the appellate stage, if ultimately it is found that the order challenged under Article 226 of the constitution of India is one passed by an authority functioning under a statute or otherwise who did not have the necessary or requisite power to pass it, then, the form of it ought not to prevail but the substance of the contention is a feature which highlights the position. Once it is found, as was found by Mohan, j. , that the petitioner is not cultivating the lands and ho is in fact an interloper, as he characterised him, then, the question is whether the second or the third respondent could intervene and direct the person in occupation of the land belonging to the trust to restore the lands in favour of the trust. Admittedly there is no demise of the lands in favour of the writ petitioner The writ petitioner is only the brother of the original lessee. He came into occupation mainly because he rested his right presumably on filial relationship. But in the course of the investigation by the concerned officials it was found that he was not in actual possession but one Subramaniam was cultivating the property. It is alleged that Subramaniam is a relation. But so far as the trust is concerned, he is a stranger and he has, therefore, no locus stand! to cultivate the land or be in possession of the same If these are the admitted circumstances which halo the situation, the question is whether there are any provisions in the Tamil nadu Public Trusts Act, 1961, which would enable either the second or the third respondent to pass the challenged order as they did.