Decided on March 27,1974

AMINA Appellant


- (1.) The kudikidappukaran seeks to set aside Ext. P7 order passed against him by the 1st respondent Land Tribunal whereby the 2nd respondent's application for shifting was allowed. The main contentions raised before me are that, (1) the 1st respondent Land Tribunal's decision is based on the evidence gathered by it on local inspection; (2) that the landlord, 2nd respondent, is not capable of complying with S.75(2)(iv) in that he is incapable of transferring ownership for the reason that he has got only kanam kuzhikanam right in respect of the alternate site; and (3) that the finding of the Land Tribunal regarding bona fides is not supported by legal evidence and that it has been arrived at without adverting to the legal evidence.
(2.) By Ext. P7 order the 1st respondent Tribunal on an appreciation of the evidence of Pws. 1 and 2 and on the basis of the Revenue Inspector's report, and also, after making a local inspection, found that the applicant (2nd respondent) bona fide requires the land for construction of a residential house for his son and that the alternate site is fit for residential purposes. The first point raised by the learned counsel for the petitioner is based on the decision of this Court in Ayisha v. Kunhathutty ( 1973 KLT 57 ) wherein my learned brother Viswanatha Iyer J. equating R.137 of the Kerala Land Reforms (Tenancy) Rules, 1970 to R.18 of O.18 in the Code of Civil Procedure, 1908, and applying the principles laid down with reference to the latter provision held that the decision of the Land Tribunal should not be one resting solely on the evidence gathered at the local inspection. In that decision the learned Judge relied on Ugamsingh & Mishrimal v. Kesrimal, 1970 (3) SCC 831 , wherein it is said: "The judgment in our view is not based solely on the result of personal inspection made by the Trial Judge, which inspection was for the purpose of understanding the evidence in the case and has been so used by the Trial Judge. We must therefore, reject the contention of the learned advocate for the appellants that the finding in respect of the idol is vitiated. In this view it is not necessary to deal with any of the decisions referred to before us." The decision in Ayisha's case was followed by the learned Chief Justice in Abdullakutty v. Land Tribunal ( 1974 KLT 4 ).
(3.) Mr. Sreedharan appearing on behalf of the 2nd respondent brought to my notice the decision reported in Mahin v. Collector of Customs ( 1967 KLT 539 ) wherein at page 544 Mathew J. had extracted a passage rendered by Diplock L. J. in Regina v. Deputy Industrial Injuries Commissioner, Ex parte Moore (1965 (2) WLR 89). The passage that was pointed out by Mr. Sreedharan is this: "These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer but he may take into account any material which as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his". It was argued on the basis of this passage and the decision as a whole that there is vast difference between rules of evidence governing proceedings before a tribunal and those applicable to proceedings in a court, and that one of the objects, if not the very object, of creation of administrative tribunals is to avoid the cumbersome rules of procedure and evidence. Mr. Sreedharan made particular reliance on fee following passage in Para.7 at page 543 in Mahin's case. "The burden of gathering evidence and presenting it rests on the parties, not on judges. But in many quasi judicial proceedings, on the other hand, the burden of finding the truth rests on administrative officers. ................. The rules of evidence to be applied in any proceeding before an administrative authority must be selected in part with regard to the degree of precision needed in the particular fact finding some inquiries requires maximum precision others only a rough approximation. Where precision is needed, rules of evidence must be more exacting. Where approximation suffices, less reliable information may be admitted." According to Mr. Sreedharan in view of the fact that the scheme of the Act so far as it concerns kudikidappukars is one of social welfare (viz., of providing residential quarters to those who were hitherto at the mercy of landlords and who could therefore be deprived of their homesteads arbitrarily) but taking into account also the landlord's needs and requirement of a particular plot of land for one or the other of the purposes enumerated in S.75(2), the enquiry as to how both the aims can be achieved, necessarily and naturally falls under the second group, i.e., an enquiry where 'a rough approximation' alone is possible and is sufficient. It is his further submission that in the above view, the enquiry is one where the burden of finding the truth rests on the tribunal, and that therefore the tribunal is entitled to base its decision on evidence gathered by itself by local inspection. The argument is certainly attractive, and not without force, and, I would have referred the question for an authoritative decision by a larger Bench but for the fact that even applying the principles laid down in the decisions in Ayisha v. Kunhathutty (1973 KLT 57) and Abdullakutty v. Land Tribunal (1974 KLT 4) it cannot be said that the Ist respondent rested his decision 'solely' on his local inspection. In the counter affidavit sworn to by the 2nd respondent it has been stated that the tribunal inspected the two sites at the instance of the writ petitioner and in view of the objections raised by him to the Revenue Inspector's report. It is further sworn to by the 2nd respondent that the Land Tribunal informed the parties about the time and date of inspection and that all the parties were present at the time when the Ist respondent inspected the sites. It is also evident from Ext. P7 order that the Ist respondent inspected the site only for assessing and verifying the evidence consisting of the depositions of Pws. 1 and 2 as well as the Revenue Inspector's report. Therefore, this is a case which squarely falls within the decision of the Supreme Court in Ugamsingh & Mishrimal v. Kesrimal, 1970 (3) SCC 831, referred to by Viswanatha Iyer J. in Ayisha's case. I therefore, overrule the first point.;

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