BALAKRISHNA MENON Vs. APPELLATE AUTHORITY L R KOZHIKODE
LAWS(KER)-1974-12-7
HIGH COURT OF KERALA
Decided on December 16,1974

BALAKRISHNA MENON Appellant
VERSUS
APPELLATE AUTHORITY (L. R.), KOZHIKODE Respondents

JUDGEMENT

- (1.) The petitioner and the 3rd respondent in this writ petition are the land owners in respect of the property of which, according to respondents 4 to 6 they are tenants. Respondents 4 to 6 filed an application under S.72B of the Kerala Land Reforms Act, Act 1 of 1964, as amended by Act 35 of 1969, before the second respondent, the Land Tribunal, Vengara, Tirur Taluk, for purchasing jenmam right from the petitioner alleging themselves to be cultivating tenants and that the jenmam right has been vested in the Government. The Tribunal by Ext. P3 order dated 29-11-1971 disposed of the matter as follows: "Tenants's authorised agent and respondent's Advocate appeared The documents and records show that the Land owner had given the right of taking improvements of the coconut trees to the tenant. There can be such an entrustment but he is enjoying the benefit as if he is a tenant. The Special Revenue Inspector's report also confirmed this. The account books relate only to the year 1970 as after the commencement of the Act. No previous book is produced. So tenancy is allowed. Issue P. F. Posted to 14-12-1971."
(2.) Sri. T. R. Govinda Variyar, the counsel for the petitioner, submits that Ext. P3 preliminary finding under R.10(2) and Ext. P4 notice in Form H prescribed under R.10(3) of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970, are not passed or issued in due compliance with the relevant provisions of the said Rules. R.9 of the Rules reads as follows: "9 Dispute about tenancy or vesting:- (1) Where after the publication of the public notice under sub-s.(1) of S.72F and the service of the individual notice under sub-section (2) of that section in respect of a holding, any of the parties of the proceedings pleads that the land comprised in such holding is not held by any cultivating tenant or that the right, tide and interest of the landowner and the intermediaries in respect of such holding have not vested in the Government, the Land Tribunal shall decide such question as a preliminary point and record its decision thereon with reasons for such decision. (2) Where the decision under sub-r.(1) is that such land is not held by any cultivating tenant or that such right, title and interest have not vested in the Government, the Land Tribunal shall forthwith reject the application referred to in R.4 or discontinue the proceedings referred to in R.5 and such order for rejection or discontinuance, as the case may be, shall be deemed to be an order under S..72F for all purposes of the Act."
(3.) Sri. A.P. Chandrasekharan, counsel for respondents 4 to 6, submits that the enquiry as contemplated under R.9 (1) of the Rules is only for the prima facie satisfaction of the Land Tribunal, and therefore the impugned preliminary order and notice are not vitiated by any error apparent on the face of the record. It is pointed out by the counsel that, at any rate, under R.10(2) of the Rules, another enquiry, which is of a full fledged nature, giving notice to all parties concerned, has to be held and therefore two detailed enquires are not really contemplated by the provisions of the Rules. Having considered the scheme of the Rules, I am of the view that the preliminary point in regard to the status of the applicant before the Tribunal to apply for purchase of landlord's right has to be decided after due enquiry allowing the parties to adduce evidence and adverting to all relevant aspects of the matter. It has to be so, particularly for the reason that the Tribunal has to record its decision on the disputed question of tenancy as a preliminary point, giving reasons for coming to such a decision. What R.10(1) contemplates is a different situation. There may be cases where in proceedings for the assignment of right, title and interest of the land owner, there is no dispute of the nature referred to in sub-r.(1) of R.9; or there may be cases in such proceedings where the Tribunal has decided that the holding is held by a cultivating tenant, or that the right, title and interest of the landlord are vested in the Government, as the case may be. It is in either of these contingencies that the Tribunal is required to, after perusal of the application referred to in R.4, the information referred to in R.5, the written statement, if any, filed by the parties, other documentary evidence, if any, produced, and the report, if any, of the officer appointed under S.105A, and after such further inquires as it may deem necessary, prepare before it passes an order under sub-s. (5) of S.72F preliminary findings in Form G without recording the reasons for such findings. Thereafter, if the enquiry is to proceed further, the Tribunal has to issue notice of the preliminary finding to the land owner, intermediaries, cultivating tenants, and persons entitled to maintenance or alimony, and holders of encumbrances, and to all other persons interested or claiming to be interested in the land and whose names and addresses are known to the Tribunal, calling upon them to file objections, if any, to the preliminary findings before the Land Tribunal on a date specified in the notice. The proviso to sub-r.(4) of R.10 lays down that the decision on a dispute referred to in sub-r.(1) of R.9 of the Rules shall not be reviewed by the Land Tribunal, That would indicate that the order passed by the Land Tribunal under R.9(1) becomes final so far as the Land Tribunal is concerned; and therefore that is all the more reasonable to hold that before passing orders on the preliminary point in regard to the status of the cultivating tenant, the party should be allowed to adduce sufficient evidence to support their respective contention. In this case Exts. P3 and P4 preliminary order and notice have been passed and issued evidently without complying with the requirements of the rules. I, therefore, quash Ext. P3 preliminary order passed and Ext. P4 notice issued by the second respondent, Land Tribunal, Vengara, on 29-11-1971 and 8-12-1971 respectively, and direct it (the Land Tribunal) to go into the matter afresh after giving the parties sufficient opportunity to adduce evidence on the preliminary point in regard to the disputed status of cultivating tenant of the applicant before it that has been raised by the petitioner. I make it clear that I have not considered the matter on merit and it is entirely for the Tribunal to decide on material placed before it the preliminary point, whether or not respondents 4 to 6 are cultivating tenants in respect of the property with respect to which landlord's interest is sought to be purchased by them. The writ petition is allowed as above. There will be no order as to costs.;


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