OP(C) No. 1408 of 2020

OP(C) NO. 1408 OF 2020 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 OP(C) NO. 1408 OF 2020** **PURCHASE CERTIFICATE NOS.878/2019 & 897/2019 OF LAND TRIBUNAL, KOZHIKODE** ## **PETITIONER/S:** K.BABU AGED 73 YEARS S/O PALAKUNNATH KOLAYI GOVINDAN NAIR, CHELAVUR AMSOM, KOZHIKODE TALUK AND DISTRICT, PIN-673 008. BY ADVS. T.B.SIVAPRASAD SRI.A.KOMU K.R.VINOD NABIL KHADER(K/000169/2018) ## **RESPONDENT/S:** 1 LAND TRIBUNAL CIVIL STATION, KOZHIKODE, PIN-673 020. 2 VALE PROJECT PVT LTD (D-20) PUTHIYEDATH, 1ST FLOOR, MAIN OFFICE INDIRA GANDHI ROAD, KOZHIKODE, PIN-673 001. 3 CLIFFVALE PROJECT PRIVATE LTD MARKAZ COMMERCIAL COMPLEX, 1ST FLOOR, INDIRA, GANDHI ROAD, KASABA VILLAGE, KOZHIKODE, PIN-673 001. 4 UNAIS, AGED 49 YEARS S/O MUHAMMED (D-17) THEYYAMPATTIL, MUKKAM OP(C) NO. 1408 OF 2020 2 VILLAGE, KALLARAMANGALAMDESAM, TIRUR TALUK, PIN676 553. 5 SHEMEEN K.K. AGED 40 YEARS S/O MUTHUKOYA (D-18), KUNNAMKULAM, KALPENI VILLAGE, KALPANIDESAM P.O.KALPENI, PIN-682 557. KALPANI TALUK, ERNAKULAM DISTRICT BY ADVS. BIJU ABRAHAM B.G.BHASKAR(B-248) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1408 OF 2020 3 ## **JUDGMENT** The original petition is filed to quash the purchase certificates bearing Nos.878/2019 (Ext.P3) and 897/2019 (Ext.P5) issued by the Land Tribunal, Kozhikode. 2. The petitioner's case, shorn of exhaustive pleadings, is: he and nine other members of his family thavazhi are the plaintiffs in O.S.No.210/2013 of the Court of the Additional Subordinate Judge - III, Kozhikode. The suit is filed for recovery of possession of the plaint schedule property having an extent of 1040.26 acres comprised in various survey numbers in Thiruvambadi Amsam of Kozhikode Taluk. The Court below dismissed the suit on a preliminary issue, holding that the plaint schedule property was not ‘plantations’ on the date of the initial lease in the year 1904 and the contention of the plaintiffs that the property falls within the exemption under clause (viii) OP(C) NO. 1408 OF 2020 4 of Section 3(1) of the Kerala Land Reforms Act was untenable. Aggrieved by the decree, the petitioner and others had filed R.F.A.No.227/2016 before this Court. This Court, by Ext.P1 judgment, allowed the appeal by remand after setting aside the impugned decree. Thereafter, the Court below, by Ext.P2 judgment, referred the matter to the Land Tribunal (the 1[st] respondent) under Section 123 (3) of the Kerala Land Reforms Act (in short ‘Act’). The reference has been numbered as R.C No.7/2017, but the same has not been answered till date. Shockingly, the 1[st] respondent, in collusion with respondents 2 and 3, initiated suo motu proceedings and issued Exts.P3 and P5 purchase certificates in favour of the respondents 2 and 3, that too without considering the reference case and without notice to the petitioner. O.S.No.210/2013 was filed before the court below as early as on 19.03.2013. The 2[nd] respondent is a OP(C) NO. 1408 OF 2020 5 defendant in the suit. The respondents 3 and 4 are the predecessors in interest of the land covered by Ext.P5. They too are the defendants/respondents in the suit and reference case. The respondents were well aware that the properties covered by Exts.P3 and P5 purchase certificates are one and the same property involved in the suit. The proceedings leading to the issuance of Exts.P3 and P5 are without jurisdiction and manifest abuse of process of law. Exts.P3 and P5 are non-est and against the law laid down by this Court in Ext.P1 judgment and the decision in Venkitarama Iyer v. Vesu Amma and others [1995 (2) KLJ 656]. Hence, the original petition. 3. Heard; Sri.K.R.Vinod, the learned counsel appearing for the petitioner, the learned Government Pleader appearing for the 1[st] respondent and Sri.B.G.Bhaskar, the learned counsel appearing for OP(C) NO. 1408 OF 2020 6 the respondents 2 and 3. 4. The point is whether Exts.P3 and P5 purchase certificates issued by the 1[st] respondent, without answering the reference as directed in Exts.P1 and P2, are sustainable in law. ## 5. This Court has in Ext.P1 judgment categorically held as follows: “A jurisdictional error has been committed by the court below in considering the question of tenancy without reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1963. The statutory provision is to the following effect: "125. Bar of jurisdiction of civil Courts: (1) xxxxx (2) xxxx (3) If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only." The cardinal issue to be decided in the suit is as to whether the defendants are entitled to fixity of tenure in the suit for recovery of possession on title and for damages for use and OP(C) NO. 1408 OF 2020 7 occupation. The plaintiffs assert that the plaint schedule property was a plantation on the date of lease and hence exempted under Section 3 of the Kerala Land Reforms Act. The defendants on the other hand maintain that the property are hill tracts and paddy fields and therefore not a plantation falling within the exempted category. The plaintiffs claim to be the legal heirs of the original lessor whereas the defendants claim to be the assignees from tenants entitled to fixity of tenure. 2. This is not a case where the defendants have merely 'raised a plea of tenancy but a question of tenancy really arises for consideration warranting reference to the Land Tribunal. The Land Tribunal alone can decide the nature of the land at the inception of lease and as to whether the defendants are ‘tenants' under the Kerala Land Reforms Act. The matter requires evidence and the nature of the land cannot be deciphered on the basis of the mere description of the property in the anterior documents. We find that none of the documents produced by the parties have also been marked by the court below before proceeding to render the final judgment which is impugned. The parties have even not been afforded an opportunity to lead oral evidence in support of their respective plea in a suit of this nature involving high stakes. 3. What is more disturbing is the fact that the court below has not rendered a decision on all the issues framed in the suit as required under Order XX Rule 5 of the Code of Civil Procedure, 1908. The court need not pronounce a decision on all the issues only if the case falls under Order XIV Rule 2 of the Code of Civil Procedure, 1908 which is not OP(C) NO. 1408 OF 2020 8 so here. The suit in the nature of the contentions cannot be disposed of on an issue of law alone and the court below was bound to have a full-fledged trial of the case. We notice that the merits of the amended claim have been dealt with even without allowing the application for amendment of the plaint. The court below could not have granted an order of injunction in the suit overlooking the statutory embargo contained in Section 125(7) of the Kerala Land Reforms Act, 1963. **All the canons of procedural law have been thrown to the winds in the court below disposing of the suit in a slip-shod manner which is to be deprecated.** We have no option except to remand the suit to the court below for fresh disposal and the court fee paid on the memorandum of appeal shall be refunded to the appellants. 4. The Regular First Appeal is disposed of subject to the following directions: i) The impugned judgment and decree is set aside allowing the Regular First Appeal with costs. ii) The suit is remanded to the court below for disposal in view of the observations above. iii) The parties shall appear in the court below on 5.12.2016 and take necessary steps. iv) Amendment of the plaint is allowed with liberty to file additional written statement. v) The court below shall refer the question of tenancy to the Land Tribunal for a finding. vi) The suit shall be disposed of incorporating the finding of the Land Tribunal on tenancy. vii) The order of injunction if any in the suit will not operate till a finding is obtained. viii) The court below shall endeavour to dispose of the suit as early as possible. The Regular First Appeal is allowed. No costs”. ## 6. Consequent to Ext.P1 judgment, the court 9 OP(C) NO. 1408 OF 2020 below by Ext.P2 judgment dated 26.08.2017 has referred the matter to the 1[st] respondent under Section 125 (3) of the Act and the same has been numbered as R.C No.7/2017. Undisputedly, it is without answering the reference, the 1[st] respondent has initiated suo motu proceedings and issued Exts.P3 and P5 purchase certificates dated 24.06.2019 and 17.06.2019, respectively, in favour of respondents 2 and 3, without adverting to any matter in R.C.No.7/2017 and without notice to the petitioners. 7. On an evaluation of the pleadings and materials on record, this Court is constrained to hold that the entire proceedings leading to Exts.P3 and P5 purchase certificates are smacked with malafides and arbitrariness, and in total disregard to Exts. P 1 and P2 judgments. OP(C) NO. 1408 OF 2020 10 ## 8. In _**Syed Yakoob v. K.S. Radhakrishnan**_ **, [AIR 1964 SC** ## **4771], the Honourable Supreme Court has held thus:** **“7.** The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court, and the true legal position in that behalf is no longer in doubt. **A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court.** This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or OP(C) NO. 1408 OF 2020 11 had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide _Hari Vishnu Kamath_ v. _Syed Ahmad Ishaque_ [(1955) 1 SCR 1104] _Nagandra Nath Bora_ v. _Commissioner of Hills Division and Appeals Assam_ [(1958) SCR 1240] and _Kaushalya Devi_ v. _Bachittar Singh_ [AIR 1960 SC 1168] ## 9. In _**Syed Yakoob Iswarlal Mohanlal Thakkar v. Paschim Gujarat Vij Co. Ltd.**_ **, [(2014) 6 SCC 434] the Honourable Supreme Court held thus:** **“15.** We find the judgment and award of the Labour Court well reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the Labour Court in its award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an OP(C) NO. 1408 OF 2020 12 appellate court or reappreciate evidence and record its findings on the contentious points. **Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court.** The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the award of the Labour Court was based on sound and cogent reasoning, which has served the ends of justice”. 10. In the light of the above factual and legal matrix, especially the marked laxity on the part of the 1[st] respondent in not considering the reference pursuant to Ext.P2 judgment passed on 26.08.2017 and showing over-enthusiasm to initiate suo motu proceedings and grant Exts.P3 and P5 purchase certificates, this Court has no hesitation to hold that Exts.P3 and P5 are ex facie illegal and an abuse of process of law. The 1[st] respondent has violated the rudimentary principles of natural justice and has indulged in contemptuous conduct, by disregarding the directions of this Court and the court below. This Court deprecates the action of the 1[st] respondent in OP(C) NO. 1408 OF 2020 13 the strongest terms and, with reluctance, refrains from ordering an enquiry by the competent authority to ascertain whether such action/inaction falls within the purview of the Prevention of Corruption Act, 1988. As the action of the 1[st] respondent is patently excessive, in exercise of the supervisory powers of this Court as enshrined under Article 227 of the Constitution of India, I quash and set aside Exts.P3 and P5 purchase certificates and direct the 1[st] respondent to consider R.C.No.7/2017, in accordance with law, after affording all parties an opportunity of being heard, as expeditiously as possible, at any rate within three months from the date of receipt of a certified copy of this judgment. Sd/- ## **C.S.DIAS, JUDGE** rkc/05.08.22 OP(C) NO. 1408 OF 2020 14 ## **APPENDIX OF OP(C) 1408/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 4.11.2016 IN RFA 227 OF 2016 BY THE HIGH COURT OF KERALA, ERNAKULAM - EXHIBIT P2 TRUE COPY OF THE REFERENCE MADE BY TRIAL COURT OT LAND TRIBUNAL, KOZHIKODE FOR DETERMINATION OF QUESTION OF TENANCY ON 26TH AUGUT, 2017 U/S 125(3) OF KLR ACT - EXHIBIT P3 TRUE COPY OF THE PURCHASE CERTIFICATE NO 878 OF 2019 DATED 24.6.2019 ISSUED BY THE LAND TRIBUNAL, KOZHIKODE TO THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE REGISTERED DEED NO 348 OF 2013 IN FAVOUR OF RESPONDENT NO.2 COMPANY EXHIBIT P5 TRUE COPY OF THE PURCHASE CERTIFICATE NO 897 OF 2019 DATED 17.6.2019 ISSUED BY THE LAND TRIBUNAL, KOZHIKODE TO THE 3RD RESPONDENT EXHIBIT P6 TRUE COPY OF DOCUMENT NO.284 OF 2013 EXECUTED IN FAVOUR OF RESPONDENT NO 3 COMPANY