Mayil Swamy. N vs State Of Kerala
2021 Latest Caselaw 2 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

 MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                   W.P.(C)No.10462 OF 2020(G)

PETITIONERS:

               MAYIL SWAMY. N
               AGED 67 YEARS
               S/O. NACHIMUTHU THEVAR, BHOOTHIL VAZHI, AGALI,
               MANNARKKAD, PALAKKAD DISTRICT.

               BY ADV. SRI.K.MOHANAKANNAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
               DEPARTMENT, THIRUVANANTHAPURAM-695 001

      2        DISTRICT COLLECTOR,
               CIVIL STATION,PALAKKAD-678 001

      3        SUB COLLECTOR,
               OTTAPALAM, 679 101

      4        UNNIKRISHNAN,
               S/O. MARUTHAN, BHOOTHIVAZHI, AGALI, MANNARKKAD
               TALUK, PALAKKAD DISTRICT-678 582

      5        RANGASWAMI,
               S/O.MARUTHAN BHOOTHIVAZHI, AGALI, MANNARKKAD
               TALUK, PALAKKAD DISTRICT-678 582

               R1-3 BY GOVERNMENT PLEADER
               R4 BY ADV. SRI.M.M.VINOD KUMAR
               R4 BY ADV. SRI.P.K.RAKESH KUMAR
               R4 BY ADV. SRI.K.S.MIZVER
               R4 BY ADV. SRI.M.J.KIRANKUMAR
               R4-5 BY ADV. SRI.K.S.MADHUSOODANAN
               SMT A.C.VIDHYA - GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-
01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.10462 of 2020

                                     2

                               JUDGMENT

The petitioner, who is in possession and enjoyment of 4.40

Acres of land in Sy.No.648/2 of Agali Village, covered by Ext.P1

sale deed bearing No.1734/1974 dated 10.04.1974 of the Sub

Registrar Office, Mannarkkad, has filed this writ petition under

Article 226 of the Constitution of India, seeking a writ of

certiorari to quash Ext.P13 order dated 05.04.2019 of the 3 rd

respondent Sub Collector, Ottapalam and Ext.P15 order dated

13.02.2020 of the 2nd respondent District Collector, Palakkad.

2. According to the petitioner, the aforesaid property

originally belonged to Mannarkkad Moopil Sthanam, as borne out

from Ext.P2 document No.3133/1965 dated 21.10.1965; Ext.P3

document No.3108/1966 dated 23.09.1966; Ext.P4 document

No.1012/1967 dated 17.03.1967; Ext.P5 document No.209/1968

dated 18.01.1968; and Ext.P6 document No.531/1968 dated

09.02.1968 of the Sub Registrar Office, Mannarkkad. The

document marked as Ext.P7 is a possession certificate dated

26.01.1973 issued by the Land Tribunal, Agali in S.M.

Proceedings No.15/1973 and that marked as Ext.P8 is a W.P.(C)No.10462 of 2020

possession certificate dated 21.05.1974 issued by the Land

Tribunal, Agali, in S.M. Proceedings No.421/1974. In the year

1974, proceedings were initiated invoking the provisions under

the Kerala Restriction on Transfer by and Restoration of Lands to

Scheduled Tribes Act, 1975, against 4.40 Acres of land covered

by Ext.P1 sale deed, by the 3rd respondent Sub Collector, at the

instance of the predecessor-in-interest of the 3 rd respondent. By

the order dated 07.09.1987, the petitioner was directed to

surrender 4.40 Acres of land. The 1975 Act was repealed by the

Kerala Restriction on Transfer by and Restoration of Lands to

Scheduled Tribes Act, 1999, with effect from 24.01.1986.

Therefore, the 3rd respondent reconsidered the matter and issued

Ext.P9 proceedings dated 14.08.2013, whereby the petitioner

was directed to restore possession of 4.40 Acres of land. Ext.P9

order is one issued by the 3rd respondent in exercise of his

powers under sub-section (3) of Section 7 of the Act of 1999.

Challenging Ext.P9 order, the petitioner preferred an appeal

before the 2nd respondent District Collector, under sub-section (5)

of Section 7 of the said Act. By Ext.P10 order dated 22.08.2017, W.P.(C)No.10462 of 2020

that appeal was allowed by remanding the matter to the 3 rd

respondent, to measure the property in terms of the documents

and thereafter, reconsider the matter. After the order of remand,

there was delay on the part of the 3 rd respondent in finalising the

matter. The petitioner had approached this Court in W.P.

(C)No.29572 of 2018, which was disposed of by Ext.P11

judgment dated 28.09.2018, by directing the 3 rd respondent to

finalise the proceedings after completing all due procedure within

a period of four months from the date of receipt of a copy of that

judgment. Alleging police harassment, the petitioner had

approached this Court in W.P.(C)No.9254 of 2019 and that writ

petition was disposed of by Ext.P12 judgment dated 11.04.2019,

taking note of Ext.P13 order dated 05.04.2019 of the 3 rd

respondent and also the submission made by the learned Senior

Government Pleader that the police was only eager to ensure the

law and order situation. By Ext.P13 order, the 3 rd respondent

upheld the claim of respondents 4 and 5 over the property having

an extent of 4.40 Acres covered by Ext.P1 sale deed. Feeling

aggrieved, the petitioner filed Ext.P14 appeal before the 2 nd W.P.(C)No.10462 of 2020

respondent District Collector, under sub-section (5) of Section 7

of the Act. The said appeal ended in dismissal by Ext.P15 order

dated 13.02.2020 of the 2nd respondent, which is under challenge

in this writ petition.

3. On 28.05.2020, when this writ petition came up for

admission, this Court admitted the matter on file. The learned

Government Pleader took notice for respondents 1 to 3 and the

petitioner was directed to take out notice for respondents 4 and

5, within one week. While ordering the matter to be listed after

one month for the counter affidavit of the respondents, this Court

granted an interim stay of operation and implementation of

Exts.P13 and P15, till then. The said interim order, which was

extended from time to time, is still in force.

4. A counter affidavit has been filed by the 4 th

respondent, opposing the relief sought for in this writ petition.

The petitioner has filed reply affidavit to the counter affidavit filed

by the 4th respondent.

5. The 3rd respondent has also filed counter affidavit,

opposing the relief sought for in this writ petition. The petitioner W.P.(C)No.10462 of 2020

has filed reply affidavit to the counter affidavit filed by the 3 rd

respondent.

6. Heard the learned counsel for the petitioner, the

learned Government pleader for respondents 1 to 3 and also the

learned counsel for respondents 4 and 5.

7. The issue that arises for consideration in this writ

petition is as to whether any interference is warranted on Ext.P13

order dated 05.04.2019 of the 3rd respondent and Ext.P15 order

dated 13.02.2020 of the 2nd respondent, whereby the property

having an extent of 4.40 Acres, covered by Ext.P1 sale deed is

ordered to be restored to respondents 4 and 5, under the

provisions of the Kerala Restriction on Transfer by and

Restoration of Lands to Scheduled Tribes Act, 1999.

8. The learned counsel for the petitioner would contend

that Ext.P13 order of the 3 rd respondent and Ext.P15 order of the

2nd respondent are issued absolutely without any authority of law.

Since the extent of land covered by Ext.P1 sale deed does not

exceed two hectares, the bar under the first proviso to sub-

section (1) of Section 5 of the Kerala Restriction on Transfer by W.P.(C)No.10462 of 2020

and Restoration of Lands to Scheduled Tribes Act, 1999 is

attracted. Since the land involved in Ext.P1 sale deed is used for

agricultural purposes, the petitioner is entitled to retain the said

land having an extent of less than two hectares, in view of the

provisions under the second proviso to sub-section (1) of Section

5. The learned counsel would also contend that the findings of

the original authority in Ext.P13 order and that of the appellate

authority in Ext.P15 order are based on assumptions and

presumptions. Moreover, the reasoning of the original authority

and that of the appellate authority in those orders are palpably

wrong. At any rate, the validity of Exts.P7 and P8 purchase

certificates issued under the provisions of the Kerala Land

Reforms Act, 1963 cannot be decided in a proceedings initiated

under Section 7 of the said Act.

9. Per contra, the learned Government Pleader for

respondents 1 to 3 and also the learned counsel for respondents

4 and 5 would support the reasoning of the original authority in

Ext.P13 order and that of the the appellate authority in Ext.P15

order. The learned counsel for respondents 4 and 5 would W.P.(C)No.10462 of 2020

contend that, since the transfer of property vide Ext.P1 sale deed

is vitiated by fraud, the original authority is justified in ordering

restoration of the land. The appellate authority in Ext.P15 order

affirmed the stand taken by the original authority in Ext.P13

order, stating valid reasons.

10. The Kerala Restriction on Transfer by and Restoration

of Lands to Scheduled Tribes Act, 1999 (for brevity, 'the Act of

1999') was enacted to provide for restricting the transfer of lands

by members of Scheduled Tribes in the State of Kerala and for

the restoration of possession of lands alienated by such members

and for matters connected therewith. As per sub-section (3) of

Section 1, the provisions of the Act of 1999 shall be deemed to

have come into force on 24.01.1986.

11. Clause (g) of Section 2 of the Act of 1999 define the

term 'transfer' to mean the transfer made by any person

belonging to the Scheduled Tribe of lands in his ownership and

possession to a person other than a member of the Scheduled

Tribe by way of sale, mortgage, lease, gift and includes

'vilapanayam' and 'unduruthy'. Section 4 of the Act deals with W.P.(C)No.10462 of 2020

restriction on transfer. Section 4, which starts with a non

obstante clause provides that, notwithstanding anything to the

contrary contained in any other law, or in any contract, custom or

usage or in any judgment, decree, or order of any court, any

transfer effected by a member of the Scheduled Tribe, of land

possessed, enjoyed or owned by him on or after the

commencement of this Act, to a person other than a member of a

Scheduled Tribe, without the previous consent in writing of the

competent authority, shall be invalid.

12. Section 5 of the Act deals with certain transfers to be

invalid. As per sub-section (1) of Section 5, which starts with a

non obstante clause provides that, notwithstanding anything to

the contrary contained in any other law for the time being in

force, or in any contract, custom or usage, or in any judgment,

decree or order of any court, any transfer of land possessed,

enjoyed or owned by a member of a Scheduled Tribe to a person

other than a member of a Scheduled Tribe, effected on or after

the 1st day of January, 1960, and before the commencement of

this Act shall be deemed to be invalid. As per the proviso to sub- W.P.(C)No.10462 of 2020

section (1) of Section 5, nothing in this section shall render

invalid any transfer of land possessed, enjoyed or owned by a

member of a Scheduled Tribe to a person other than a member

of Scheduled Tribe effected during the aforesaid period and the

extent of which does not exceed two hectares. As per sub-section

(2) of Section 5, notwithstanding anything contained in sub-

section (1) or in any judgment, decree or order of any court or

other authority, in cases where the land involved in such transfer

is used for agricultural purposes, the transferee thereof shall be

entitled to retain in his possession the said land up to an extend

of two hectares which shall be demarcated by the Revenue

Divisional Officer by order and in the manner as may be

prescribed.

13. Section 6 of the Act of 1999 deals with allotment of

lands. As per Section 6, notwithstanding anything contained in

Section 5 or in any judgment, decree or order of any court or

other authority, a member of a Scheduled Tribe who had effected

any transfer of land, possessed, enjoyed or owned by him, to a

person other than a member of a Scheduled Tribe, between the W.P.(C)No.10462 of 2020

1st day of January, 1960 and the 24 th day of January, 1986 and

where an application for restoration of right under Section 6 of

the Kerala Scheduled Tribes (Restriction of Transfer of Lands and

Restoration of Alienated Lands) Act, 1975 has been filed before

publication of this Act in the Gazette, but the possession or

enjoyment thereof, has not been restored to him and such

transfer has been validated by the proviso to sub-section (1) of

Section 5 or the transferee thereof has been made eligible for the

retention of said land under sub-section (2) of Section 5, shall be

entitled to restoration of equal extent of land by way of allotment

from the Government. As per the proviso to Section 6, where the

extent of the land so allotted in respect of which there is

eligibility for restoration of rights, is less than forty ares,

Government shall allot the rest of the land required to make the

total extent equal to forty ares (one acre).

14. Section 7 of the Act of 1999 deals with reconveyance

of land. As per sub-section (1) of Section 7, whereby reason of a

transfer of land, which is invalid under Section 4 or Section 5, a

member of a Scheduled Tribe has ceased or ceases to be in W.P.(C)No.10462 of 2020

possession or enjoyment thereof, he shall be entitled to the

restoration of possession or enjoyment, as the case may be, of

such land. As per sub-section (2) of Section 7, any person

entitled to be restored to the possession or enjoyment of any

land under sub-section (1) or any other person on his behalf may

make an application, either orally or in writing, to the Revenue

Divisional Officer within a period of one year from the date of

publication of this Act in the Gazette or such further period as

may be specified by Government by notification in the Gazette,

(a) for restoration of possession or enjoyment, as the case may

be, of such land if such transfer had been made before the date

of commencement of this Act; or (b) for restoration of possession

or enjoyment, as the case may be, of such land and for the

prosecution of the person who has procured such transfer, if such

transfer was made on or after the date of publication of this Act

in the Gazette.

15. As per sub-section (3) of Section 7 of the Act of 1999,

on receipt of an application under sub-section (2), the Revenue

Divisional Officer shall make or cause to be made, necessary W.P.(C)No.10462 of 2020

inquires in respect of such application and if he is satisfied that

the applicant or the person on whose behalf the application has

been made is entitled to restoration of possession or enjoyment,

as the case may be, of the land mentioned in the application, he

shall, by order, direct the person in possession or enjoyment of

such land to deliver possession thereof to the applicant or to the

person on whose behalf the application has been made or, as the

case may be, to allow him to enjoy such land. As per the proviso

to sub-section (3) of Section 7, no order, under this sub-section

shall be made unless the person in possession or enjoyment of

the land has been given a reasonable opportunity of being heard

in the matter. As per sub-section (4) of Section 7, every order

made under sub-section (3) shall be served on the person for

whom it is intended (a) by delivering or tendering it to that

person; or (b) if it cannot be delivered or tendered to that

person, by delivering or tendering it to any officer of such person

or any adult member of the family of such person or by affixing a

copy thereof on the outer door or some conspicuous part of the

premises in which that person is known to have last resided or W.P.(C)No.10462 of 2020

carried on business or personally worked for gain; or (c) failing

service by any of these means, by registered post.

16. As per sub-section (5) of Section 7 of the Act of 1999,

any person aggrieved by an order of the Revenue Divisional

Officer under sub-section (3) or sub-section (2) of Section 5 may,

within a period of thirty days from the date of service of the

order, prefer an appeal to the competent authority, and the

decision of the competent authority, on such appeal shall be final

and shall not be called in question in any court of law. As per

sub-section (6) of Section 7, where an order under sub-section

(3) has not been complied with; and (a) an appeal has not been

preferred within the time allowed for such appeal; or (b) an

appeal having been preferred has been dismissed; the Revenue

Divisional Officer shall cause the land to which the order relates

to be delivered to the transfer or by putting him in possession or

enjoyment of that land if need be, by evicting any person who

refuses to vacate the same.

16. Section 14 of the Act of 1999, which deals with bar on

proceedings against Scheduled Tribes under Chapter X of the W.P.(C)No.10462 of 2020

Code of Criminal Procedure, provides that where a person

claiming to be a member of a Scheduled Tribe on any other

person on his behalf applies to the Revenue Divisional Officer for

the restoration of possession or enjoyment of any land under the

provisions of this Act, then, notwithstanding anything contained

in any other law for the time being in force, no Magistrate shall

have jurisdiction under Chapter X of the Code of Criminal

Procedure in respect of any dispute between that person and any

other person claiming to be in possession or enjoyment of the

said land.

17. Section 15 of the Act of 1999 deals with powers of

competent authority and Revenue Divisional Officer. As per sub-

section (1) of Section 15, the competent authority and Revenue

Divisional Officer while making inquiries under this Act shall have

all the powers of a Civil Court while trying a suit under the Code

of Civil Procedure, 1908, in respect of the matters enumerated in

clauses (a) to (c), 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) any W.P.(C)No.10462 of 2020

other matter which may be prescribed. As per sub-section (2) of

Section 15, the decisions of the competent authority and the

Revenue Divisional Officer under this Act shall have the force of a

decree of a Civil Court and shall be executed through the Civil

Court having jurisdiction over the area in which the land is

situated.

18. Section 19 of the Act of 1999, which deals with saving

of other laws, provides that the provisions of this Act shall be in

addition to and not in derogation of any other law for the time

being in force regulating any of the matters dealt with in this Act,

except to the extent provided in this Act. As per Section 20 of the

Act, which deals with bar of jurisdiction of Civil Courts, no Civil

Court shall have jurisdiction to settle, decide or deal with any

question or to determine any matter which is, by or under this

Act, required to be settled, decided or dealt with or to be

determined by the competent authority or the Revenue Divisional

Officer.

19. The original authority [Revenue Divisional Officer] and

the appellate authority [competent authority] are quasi judicial W.P.(C)No.10462 of 2020

authorities created under the provisions of the Act of 1999. The

powers of the original authority and that of the appellate

authority are circumscribed by the provisions contained in the

said Act. The restriction on transfer contained in Section 4 of the

Act, which starts with a non obstante clause, is attracted on any

transfer effected by a member of the Scheduled Tribe, of land

possessed, enjoyed or owned by him on or after the

commencement of this Act, i.e., on or after 24.01.1986, to a

person other than a member of a Scheduled Tribe, without the

previous consent in writing of the competent authority. As per

Section 4, any such transfer of land without the previous consent

in writing of the competent authority shall be deemed to be

invalid. On the other hand, Section 5 of the Act deals with any

transfer of land possessed, enjoyed or owned by a member of a

Scheduled Tribe to a person other than a member of a Scheduled

Tribe, effected on or after the 1 st day of January, 1960, and

before the commencement of the said Act, i.e., before

24.01.1986. The restriction on transfer of land contained in sub-

section (1) of Section 5 of the Act, which starts with a non W.P.(C)No.10462 of 2020

obstante clause, is attracted on any transfer of land possessed,

enjoyed or owned by a member of a Scheduled Tribe to a person

other than a member of a Scheduled Tribe, effected on or after

the 1st day of January, 1960, and before the commencement of

the said Act, i.e., before 24.01.1986. As per sub-section (1) of

Section 5, any such transfer of land shall be deemed to be

invalid. However, as per the proviso to sub-section (1) of Section

5, nothing in Section 5 shall render invalid any such transfer of

land effected during the aforesaid period and the extent of which

does not exceed two hectares. In view of the provisions under

sub-section (2) of Section 5, in cases where the land involved in

such transfer is used for agricultural purposes, notwithstanding

anything contained in sub-section (1) or in any judgment, decree

or order of any court or other authority, the transferee thereof

shall be entitled to retain in his possession the said land up to an

extend of two hectares which shall be demarcated by the

Revenue Divisional Officer by order and in the manner as may be

prescribed. In view of the provisions under sub-section (1) of

Section 7, a member of a Scheduled Tribe who has ceased or W.P.(C)No.10462 of 2020

ceases to be in possession or enjoyment of land by reason of a

transfer of land, which is invalid under Section 4 or Section 5,

shall be entitled to restoration of possession or enjoyment, as the

case may be, of such land.

20. A conjoint reading of the provisions under Sections 4,

5 and 7 makes it explicitly clear that the Revenue Divisional

Officer has no jurisdiction to entertain an application under sub-

section (2) of Section 7, either orally or in writing, in respect of

any transfer of land possessed, enjoyed or owned by a member

of a Scheduled Tribe to a person other than a member of a

Scheduled Tribe, the extent of which does not exceed two

hectares, effected on or after the 1st day of January, 1960 and

before the commencement of the said Act, i.e., before

24.01.1986, in view of the proviso to sub-section (1) of Section 5

of the said Act. In the instant case, the extent of property in

Ext.P1 sale deed bearing No.1734/1974 of the Sub Registrar

Office, Mannarkkad dated 10.04.1974 is only 4.40 Acres

(1.78062 hectare), which does not exceed two hectares.

21. The learned counsel for respondents 3 and 4 would W.P.(C)No.10462 of 2020

contend that, even in a case in which the proviso to sub-section

(1) of Section 5 of the said Act is attracted, i.e., any transfer of

land possessed, enjoyed or owned by a member of a Scheduled

Tribe to a person other than a member of a Scheduled Tribe,

effected on or after the 1st day of January, 1960, and before the

commencement of the said Act, i.e., before 24.01.1986, and the

extent of which does not exceed two hectares, the Revenue

Divisional Officer can consider the question as to whether the

document of transfer is fraudulently created in order to defeat

the lawful rights of a member of a Scheduled Tribe. The learned

counsel would also point out that, neither before the Revenue

Divisional Officer nor before the appellate authority the petitioner

herein raised a contention relying on the proviso to sub-section

(1) of Section 5 of the Act.

22. In Elyappadam Sivarajan and another v.

Prabhakaran [2016 (1) KHC 671] this Court noticed that,

sub-section (1) of Section 5 of the Act of 1999 also invalidates

the transfers effected on or after 01.01.1960 by the persons

belonging to Scheduled Tribes to others who do not belong to any W.P.(C)No.10462 of 2020

Scheduled Tribe. But the proviso to sub-section (1) of Section 5

of the said Act, however, clarifies that sub-section (1) of Section

5 shall not apply to transfers effected in respect of properties, the

extent of which do not exceed two hectares.

23. In Kunjiraman Nambiar and others v. State of

Kerala and others [2018 (4) KHC 257] this Court noticed

that, as per sub-section (1) of Section 5 of the Act of 1999, any

transfer effected by a member of a Scheduled Tribe to a person

who is not such a member on or after 01.01.1960 is invalid and

void. This is, of course, subject to the caveat inbuilt into the

proviso that even such a transfer effected by a member of the

Scheduled Tribe during the period of time shown in sub-section

(1) of Section 5 would not be invalid, provided the extent of the

property so transferred does not exceed two hectares. When a

land comprised of an area over the extent shown in the proviso

to sub-section (1) of Section 5 of the Act is in possession of

another person under a transfer of the kind specified in the said

Section, the member of a Scheduled Tribe can apply under sub-

section (2) of Section 7 of the Act for its restoration. W.P.(C)No.10462 of 2020

24. In Jose B.J. v. Sub Registrar [2019 (1) KLT 663]

this Court noticed that the proviso to sub-section (1) of Section 5

of the Act of 1999 has clearly mandated that nothing in sub-

section (1) of Section 5 shall render invalid any transfer of land

possessed, enjoyed or owned by any member of a Scheduled

Tribe to a person other than a member of a Scheduled Tribe

effected during the period from 1st January, 1960 to 24th January,

1986 and the extent of which does not exceed two hectares.

Therefore, even it is assumed that the Scheduled Tribe person

had actually transferred the property during his life time and

during the above said period covered by Section 5, such transfer

of property will certainly be immune to the prohibition because of

the beneficial stipulation in the proviso to sub-section (1) of

Section 5 as aforestated.

25. Clause (g) of Section 2 of the Act define 'transfer' to

mean the transfer made by any person belonging to the

Scheduled Tribe of lands in his ownership and possession to a

person other than a member of the Scheduled Tribe by way of

sale, mortgage, lease, gift and includes 'vilapanayam' and W.P.(C)No.10462 of 2020

'unduruthy'. In view of the proviso to sub-section (1) of Section 5

of the Act of 1999, any transfer of land possessed, enjoyed or

owned by a member of a Scheduled Tribe to a person other than

a member of a Scheduled Tribe, effected on or after the 1st day of

January, 1960, and before the commencement of the said Act,

i.e., before 24.01.1986, and the extent of which does not exceed

two hectares, is beyond the scope of sub-section (1) of Section 7

of the Act, in respect of which no application can be entertained

by the Revenue Divisional Officer, under sub-section (2) of

Section 7, for restoration of possession or enjoyment. The

transfer of land effected during the aforesaid period, the extent of

which does not exceed two hectares, as specified in the proviso

to sub-section (1) of Section 5, cannot be said to be one which is

invalid under Section 4 or Section 5, in order to seek restoration

of possession or enjoyment, by approaching by the Revenue

Divisional Officer under sub-section (2) of Section 7. Therefore,

the Revenue Divisional Officer has absolutely no jurisdiction to

entertain an application under sub-section (2) of Section 7, in

respect of such transfer of land, in order to consider the question W.P.(C)No.10462 of 2020

as to whether the document of transfer is fraudulently created in

order to defeat the lawful rights of a member of a Scheduled

Tribe.

26. It is trite law that, any order passed by an authority

without jurisdiction is void and non est in the eye of law. In

Union of India v. Association of Unified Telecom Service

Providers of India [(2011) 10 SCC 543] the Apex Court

reiterated that, an order passed without jurisdiction would be a

nullity. It will be a coram non judice and non est in the eye of the

law. Principle of res judicata would not apply to such cases.

Para.60 of the said decision reads thus;

"60. In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir [(2009) 2 SCC 315] this Court relying on Chief Justice of A. P. v. L.V.A. Dixitulu [(1979) 2 SCC 34], Union of India v. Pramod Gupta [(2005) 12 SCC 1] and National Institute of Technology v. Niraj Kumar Singh [(2007) 2 SCC 481] has held:

".. an order passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to such cases."

27. In Zuari Cement Ltd. v. Employees' State W.P.(C)No.10462 of 2020

Insurance Corporation [(2015) 7 SCC 690] the Apex Court

held that, where there is want of jurisdiction, the order passed by

the Court/Tribunal is a nullity or non est. What is relevant is

whether the Court had the power to grant the relief asked for.

28. Relying on the principles laid down by the Apex Court

in Zuari Cement, a Division Bench of this Court in Manager, St.

Dominic's College, Kanjirappally v. Joseph Chacko and

others [2016 (4) KHC 69] held that, in the absence of power

conferred by the Statute, the parties cannot confer jurisdiction by

consent. Objection as to want of jurisdiction can be raised at any

stage and the fact that the parties had earlier acquiesced and

submitted to the proceedings before an authority or court which

has no jurisdiction is of no consequence and that an order passed

by such an authority or court is non est for want of jurisdiction.

Para.14 of the said judgment reads thus;

"14. Principles laid down by the Apex Court makes it clear that, in the absence of power conferred by the Statute, the parties cannot confer jurisdiction by consent and that the High Court also cannot confer jurisdiction on such an authority. It is also evident that, objection as to want of jurisdiction can be raised at any stage and the fact that the W.P.(C)No.10462 of 2020

parties had earlier acquiesced and submitted to the proceedings before the Court which has no jurisdiction is of no consequence and that an order passed by such an authority or Court is non est for want of jurisdiction."

29. In view of the proviso to sub-section (1) of Section 5

of the Act of 1999, any application before the Revenue Divisional

Officer, under sub-section (2) of Section 7 of the said Act, for

restoration of possession and enjoyment of the property having

an extent of only 4.40 Acres (1.78062 hectare) covered by Ext.P1

sale deed bearing No.1734/1974 of the Sub Registrar Office,

Mannarkkad dated 10.04.1974, is not maintainable for want of

jurisdiction. Where there is want of jurisdiction, the order passed

by the Revenue Divisional Officer is a nullity. The fact that the

petitioner had earlier acquiesced and subjected to the

proceedings before the Revenue Divisional Officer or the

appellate authority who have no jurisdiction, is of no

consequence. Therefore, Ext.P13 order of the 3 rd respondent

Revenue Divisional Officer and Ext.P15 order of the 2nd

respondent appellate authority are non est, for want of

jurisdiction.

W.P.(C)No.10462 of 2020

30. In the result, this writ petition is disposed of by setting

aside Ext.P13 order dated 05.04.2019 of the 3 rd respondent and

Ext.P15 order dated 13.02.2020 of the 2 nd respondent, for the

aforesaid reasons.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE yd W.P.(C)No.10462 of 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE DOC. NO. 1734/1974 SRO MANNARKKAD DATED 10.4.1974.

EXHIBIT P2 TRUE COPY OF THE DOC. NO.3133/1965 SRO MANNARKKAD DATED 21.10.1965

EXHIBIT P3 TRUE COPY OF THE DOC. NO. 3108/1966 SRO MANNARKKAD DATED 29.9.1966.

EXHIBIT P4 TRUE COPY OF DOC. NO. 1012/1967 SRO MANNARKKAD DATED 17.3.1967.

EXHIBIT P5 TRUE COPY OF THE DOC. NO. 209/1968 SRO MANNARKKAD DATED 18.1.1968.

EXHIBIT P6 TRUE COPY OF THE DOC. NO. 531/68 SRO MANNARKKAD DATED 9.2.1968.

EXHIBIT P7 TRUE COPY OF POSSESSION CERTIFICATE DATED 26.1.1973.

EXHIBIT P8 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 21.5.1974.

EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER DATED 14.8.2013.

EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT NO. LRG/6/2013/62339/9 DATED 22.8.2017.

EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO. 29572/2018 DATED 28.09.2018.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO. 9254/2019 DATED 11.4.2019.

W.P.(C)No.10462 of 2020

EXHIBIT P13 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 5.4.2019

EXHIBIT P14 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER DATED 22.4.2019 SUBMITTED BEFORE THE DISTRICT COLLECTOR

EXHIBIT P15 TRUE COPY OF THE ORDER FILE NO.

DCPKD/5212/2018-LRG6 DATED 13.2.2020 PASSED BY THE DISTRICT COLLECTOR.

EXHIBIT P16 TRUE COPY OF THE KERALA RESTRICTION ON TRANSFER BY AND RESTORATION OF LANDS TO THE SCHEDULED TRIBE ACT, 1999.

4TH RESPONDENT'S EXHIBITS:

EXHIBIT R4(A) PHOTOCOPY OF THE TAX RECEIPT DATED 04.11.1970.

EXHIBIT R4(B) PHOTOCOPY OF THE TAX RECEIPT DATED 16.08.2019.

EXHIBIT R4(C) PHOTOCOPY OF THE NOTICE IN RESPECT OF LAND IN SY.NO.648/2, ISSUED UNDER MADRAS SURVEY AND BOUNDARIES ACT.

EXHIBIT R4(D) PHOTOCOPY OF THE PURCHASE CERTIFICATE NO.985/1973 DATED 20.10.1974.

EXHIBIT R4(E) PHOTOCOPY OF THE RELEVANT PAGES OF A&B REGISTER KEPT AT THE VILLAGE OFFICE IN RESPECT OF THE PROPERTY IN SY.NO.648/2 DATED 11.08.1998.

EXHIBIT R4(F) PHOTOCOPY OF THE ENCUMBRANCE CERTIFICATE DATED 18.01.2019 SHOWS THAT 5 ACRES OF PROPERTY IN SY.NO.648/2 HAS NOT BEEN TRANSFERRED IN BETWEEN 01.01.1965 TO 26.12.1986.

EXHIBIT R4(G) PHOTOCOPY OF THE ORDER NO.TLA7/87 DATED 07.09.1987 OF SUB COLLECTOR, OTTAPPALAM.