Madras High Court
P.Parvathi vs Managing Trustee on 8 December, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) Nos.1171, 1173 to 1175 and 1465 to 1468 of 2021
and
C.M.P.(MD) Nos.6816, 6818, 6820, 6821, 8167, 8169, 8170 and 8172 of 2021
In C.R.P.(MD) No.1171 of 2021:-
P.Parvathi ... Petitioner
vs.
Managing Trustee,
Manmangalam Rajagopal Chettiar,
Dharma Chatram Endowment,
Manmangalam, Karur Taluk,
Karur District. ... Respondent
PRAYER:- This Petition is filed under Section 115 of the Code of Civil
Procedure, to call for the records relating to the order dated 04.02.2021 made in
Petition No.59/2019 (Kulithalai) in Miscellaneous Petition No.76/2019 on the
file of the Revenue Court, Special Deputy Collector, Tiruchirapalli and set aside
the same.
For Petitioner : Mr.M.P.Senthil
For Respondent : Mr.G.Mohankumar
COMMON ORDER
In all these Civil Revision Petitions, a legal defense has been taken by the
petitioners. The petitioners would contend that considering the fact that the
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respondent Trust is a Public Trust, it is only the provisions of Tamil Nadu Public
Trust (Regulation of Administration Agricultural Lands) Act, 1961 that would
apply and the Tamil Nadu Cultivating Tenants Protection (Amendment) Act,
1955 would not apply. Admittedly, the respondent Trust is a Public Trust.
Section 2 (25) of the Tamil Nadu Public Trust (Regulation of Administration
Agricultural Lands) Act, 1961, defines a Public Trust as follows:-
"2.(25) "public trust" means a trust for a public purpose of a
religious or charitable, or of an educational nature, and includes:-
i) any temple, math, mosque, church or other place by whatever
name known, which is dedicated to, or for the benefit of, or used as of
right by, any community or Section thereof as a place of public
religious worship;
ii) any charitable or educational institution of a public nature;"
2.Section 19 of the said Act further provides the circumstances and
grounds, on which a cultivating tenant may be evicted by a Public Trust. One of
the grounds as provided in Section 19 (1) (b) (ii) of the said Act is when a
cultivating tenant has altogether ceased to cultivate the land. Section 62 of the
Act further provides that on and from the date of commencement of this Act, the
Tamil Nadu Cultivating Tenants Protection Act, 1955 and the Tamil Nadu
Cultivating Tenants (Payment of Fair Rent) Act, 1956 stood repealed in their
application to a cultivating tenant under a Public Trust.
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3.The orders, which are the subject matter of revisions, have been passed
by the Special Tahsildar Trichy exercising rights under the Tamil Nadu
Cultivating Tenants Protection Act, 1955. In fact, the petition for eviction has
been filed invoking Section 3 (2) (b) of the Tamil Nadu Cultivating Tenants
Protection Act, 1955. Therefore, the very order is a nullity, since it is passed by
a Court, which does not have jurisdiction to entertain the petition.
4.In the instant cases, the petitioners are admittedly the cultivating tenants
of the respondent Trust and the respondent Trust, which is a Public Trust, seeks
to evict them from the property as the tenant has ceased to cultivate the lands
altogether. It is also brought to the notice of this Court that to date the lands
have not been cultivated. Be that as it may, since the order is passed by a Court
having no jurisdiction, the same has to fail.
5.The Hon'ble Apex Court as well as this Court had time and again held
that an order passed by a Court having no jurisdiction is a nullity and being an
invalid one, it cannot be enforced or relied upon. The Hon'ble Apex Court in the
case of Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule (dead)
through legal heirs and others reported in (2004) AIR (SC) 4377, had
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succinctly brought out the distinction between a decree that is void and a
decree, which is wrong, irregular and voidable. In the case of the former, the
defect is incurable and the validity can be questioned at any time. As regards
the latter, the order need not necessarily be null and void. The Hon'ble Supreme
Court has observed as follows with reference to a decree that is a nullity.
"9......... Where a Court lacks inherent jurisdiction in passing
a decree or making an order, a decree or order passed by such
Court would be without jurisdiction, non est and void ab initio. A
defect of jurisdiction of the Court goes to the root of the matter and
strikes at the very authority of the Court to pass a decree or make
an order. Such defect has always been treated as basic and
fundamental and a decree or order passed by a Court or an
authority having no jurisdiction is nullity. Validity of such decree or
order can be challenged at any stage, even in execution or
collateral proceedings."
6.The learned Judge had also relied upon the judgment of the Hon'ble
Supreme Court in the case of Rafique Bibi (dead) by legal heirs Vs. Sayed
Waliuddin (dead) by legal heirs and others and had quoted the following with
approval:-
"What is 'void' has to be clearly understood. A decree can be
said to be without jurisdiction, and hence a nullity, if the Court
passing the decree has usurped a jurisdiction which it did not have;
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a mere wrong exercise of jurisdiction does not result in nullity. The
lack of jurisdiction in the Court passing the decree must be patent
on its face in order to enable the executing Court to take
cognizance of such nullity based on want of jurisdiction; else the
normal rule that an executing Court cannot go behind the decree
must prevail.
Two things must be clearly borne in mind. Firstly, the Court
will invalidate an order only if the right remedy is sought by the
right person in the right proceedings and circumstances. The order
may be 'a nullity' and 'void' but these terms have no absolute sense;
their meaning is relative, depending upon the Court's willingness to
grant relief in any particular situation. If this principle of illegal
relativity is borne in mind, the law can be made to operate justly
and reasonably in cases where the doctrine of ultra vires, rigidly
applied, would produce unacceptable results. (Administrative Law,
8th Edition, 2000, Wade and Forsyth, p. 308). Secondly, there is a
distinction between mere administrative order and the decrees of
Courts, especially a superior Court. The order of a superior Court
such as the High Court, must always be obeyed no matter what
flaws it may be thought to contain. Thus a party who disobeys a
High Court injunction is punishable for contempt of Court even
though it was granted in proceedings deemed to have been
irrevocably abandoned owing to the expiry of a time limit. (Ibid, p.
312)
A distinction exists between a decree passed by a Court
having no jurisdiction and consequently being a nullity and not
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executable and a decree of the Court which is merely illegal or not
passed in accordance with the procedure laid down by law. A decree
suffering from illegality or irregularity of procedure, cannot be
termed inexecutable by the executing Court; the remedy of a person
aggrieved by such a decree is to have it set aside in a duly
constituted legal proceedings or by a superior Court failing which
he must obey the command of the decree. A decree passed by a
Court of competent jurisdiction cannot be denuded of its efficacy by
any collateral attack or in incidental proceedings."
7.Therefore, it is amply clear that by the operation of Tamil Nadu Public
Trust (Regulation of Administration Agricultural Lands) Act, 1961, the Tamil
Nadu Cultivating Tenants Protection Act, 1955 stood repealed and therefore,
any order passed by an authority constituted under the Act would be a nullity.
8.For the above said reasons, all the Civil Revision Petitions are allowed
and the respective orders challenged therein stand set aside. No costs.
Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 08.12.2021
Internet : Yes / No
mm
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To
The Special Deputy Collector,
Revenue Court,
Tiruchirapalli.
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P.T.ASHA, J.
mm
C.R.P.(MD) Nos.1171, 1173 to 1175 and 1465 to 1468 of 2021
08.12.2021
https://www.mhc.tn.gov.in/judis
