Yashodhara, S/O Kunhikanna Chattyar v. The State of Kerala represented by the District Collector, Kasaragod

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 24[TH] DAY OF JUNE 2022 / 3RD ASHADHA, 1944** **RSA NO. 838 OF 2006** **AGAINST THE JUDGMENT IN OS 13/1999 OF PRINCIPAL MUNSIFF COURT,** ## **KASARAGOD** **AGAINST THE JUDGMENT IN AS 119/2002 OF SUB COURT, KASARAGOD** ## **APPELLANT/APPELLANT/PLAINTIFF:** YASHODHARA, S/O KUNHIKANNA CHATTIYAR, RESIDING AT PANCHATHOTTY, MANGALPADY VILLAGE AND P.O., KASARAGOD TALUK. BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN ## **RESPONDENT/RESPONDENT/DEFENDANT:** THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KASARAGOD. BY ADVS. SMT. REKHA.S (SR.G.P) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA No.838 of 2006 2 ## 'C.R' ## K.BABU, J. -------------------------------------- ## R.S.A No.838 of 2006 --------------------------------------Dated this the 24[th] day of June, 2022 ## JUDGMENT This Regular Second Appeal is directed against the judgment and decree dated 30.11.2005 passed by the Subordinate Judge’s Court, Kasaragod in A.S. No. 119 of 2002. The appeal suit arose from the judgment and decree passed by the Munsiff’s Court, Kasaragod in O.S. No.13 of 1999. 2. The plaintiff who lost the case in the Court below is the appellant. The plaintiff instituted the suit to restore the original order of assignment of land in respect of plaint 'A' schedule property in her favour and for consequential reliefs. 3. Plaint 'A' Schedule property originally belonged to Smt. Seethamma. Smt.Seethamma, the landlady, surrendered a larger extent of land, including plaint 'A' schedule property, to the Government as per the provisions of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the KLR Act'). The plaintiff applied RSA No.838 of 2006 3 for assigning the plaint 'A' Schedule property in her favour. As per order No.HI-2319/84, the District Collector, Kasaragod assigned the plaint 'A' schedule property in favour of the plaintiff exercising the powers of the Taluk Land Board as provided in the KLR Act. The plaintiff paid the purchase price of Rs.86/- and the land was assigned in her favour. She effected substantial improvements in the land by planting coconut trees, jack trees, mango trees etc. She also constructed a residential building in the plaint 'A' Schedule property. The Village Officer, Uppala requested her to hand over the assignment deed to the defendant representing that the same was required only for the purpose of verification. The plaintiff handed over the assignment deed to the Village Officer. On 07.03.1991, the District Collector passed Ext.X1(b) order, whereby the extent assigned to the plaintiff was reduced to 20 cents. The plaintiff was not served with prior notice before passing Ext.X1(b) order. No valid reasons have been assigned in the impugned order. The plaintiff has been in possession and enjoyment of 'A' schedule property. The plaintiff caused to issue a notice seeking cancellation of Ext.X1(b) order and restoration of the original order of assignment. 4. The State defended the suit contending that the plaintiff RSA No.838 of 2006 4 is not entitled to the land assigned as per the original assignment order. On enquiry, it has come out that the plaintiff, being a nonagricultural labourer, was ineligible for the assignment. The plaintiff was a weaver by profession. Notice was served on the plaintiff before proceeding to cancel the original assignment. An extent of 23.64 acres of surplus land in Mangalpady village was taken over by the Government from one Seethamma, which included the plaint 'A' schedule property. As per order No.HI2319/84 of the District Collector, forty-eight persons were offered assignment of land under Section 96 of the KLR Act. The plaintiff was one among them. Several complaints were received against the proposals. The issue was raised in the District Development Committee, and thereafter, a detailed enquiry was conducted in which it was found that out of the 48 proposals 19 cases were irregular and the persons to whom lands were assigned are ineligible. After due enquiry a revised order was issued to the plaintiff on 04.07.1997. The revised order was issued under Section 96 of the KLR Act, reducing the extent originally assigned to the plaintiff from 43 cents to 20 cents. 5. During the trial, PW1 was examined, and Exts.A1 to A6 RSA No.838 of 2006 5 were marked on the side of the plaintiff. DW1 was examined, and Ext.C1 was marked on the side of the defendant. Exhibits X1 series were marked as third-party Exhibits. 6. The Trial Court, after appreciating the rival contentions, dismissed the suit. 7. The plaintiff challenged the judgment and decree by filing A.S No.119 of 2002 before the Subordinate Judge’s Court, Kasaragod. The First Appellate Court confirmed the judgment and decree passed by the Trial Court. 8. The plaintiff is before this Court under Section 100 of the Code of Civil Procedure. After hearing both sides, this Court reformulated the substantial questions of law as follows: “ 1. Whether the approach of the First Appellate Court in adjudicating the first appeal by applying the provisions of the Kerala Land Assignment Act, 1960, when the subject matter of the suit is governed by the provisions of the Kerala Land Reforms Act, 1963, amounts to erroneous application of the relevant law to the facts of the case and consequent failure to exercise the duty and jurisdiction as a First Appellate Court. 2. Whether the failure of the First Appellate Court to examine the legality and correctness of the judgment passed by the Trial Court by applying the relevant law governing the subject matter has the effect of defeating the valuable right of the first appeal conferred on the party by the Code.” 9. Heard Sri. Sreekesh M.K, the learned counsel appearing RSA No.838 of 2006 6 for the appellant and Smt. Rekha S., the learned Senior Government Pleader appearing for the respondent-State. 10. The learned counsel appearing for the appellant contended that the erroneous application of Kerala Land Assignment Act 1960, when the subject matter of the suit was governed by the provisions of the Kerala Land Reforms Act, 1963, tantamount to failure of exercise of the jurisdiction vested in the First Appellate Court leading to deprivation of the valuable right of the appellant before the First Appellate Court, as provided under Section 96 of the CPC. The learned counsel further contended that the Trial Court miserably failed in applying its mind on the relevant provisions of the Statute to the facts of the case leading to the consequence that the trial itself was vitiated. The learned counsel further submitted that the principles of natural justice had been violated as no proper notice was served on the appellant before passing the impugned order by the District Collector concerned. 11. The learned Senior Government Pleader resisted the contentions and submitted that sufficient opportunity was given to the appellant to challenge the impugned order of cancellation of the assignment. The learned Senior Government Pleader contended RSA No.838 of 2006 7 that the plaintiff failed to set up sufficient pleadings to substantiate the challenge to the impugned order of assignment. The learned Senior Government Pleader also contended that the plaintiff had not raised any valid objections to the notice served on her before the competent authority. The learned Senior Government Pleader further contended that the concurrent findings recorded by the Courts below require no interference. 12. Smt.Seethamma, a landlady, surrendered 23.64 acres of land in Mangalpady Village to the Government as per Sec.85 of the KLR Act. The District Collector, Kasaragod, assigned 43 cents (the plaint schedule property) out of the excess land surrendered, to the plaintiff exercising jurisdiction of the Taluk Land Board under Sec.128A of the KLR Act. 13. The plaintiff thereby acquired title and possession over the plaint schedule property and continued to be in possession of the same. While so, the plaintiff was served with a notice dated 17.05.1990 informing that the District Collector decided to conduct an enquiry regarding the assignment of land. Thereafter, Ext.X1(b) order dated 07.03.1991 was passed by the District Collector, Kasaragode, whereby the extent originally assigned to the plaintiff RSA No.838 of 2006 8 was reduced to 20 cents. 14. The plaintiff challenges Ext.X1(b) order on the ground that it was not issued in accordance with the relevant statutory provisions. 15. The defendant-State admitted that the plaint schedule property was assigned to the plaintiff as per Sec.96 of the KLR Act. Section 95 of the KLR Act says that any person who does not possess any land or possesses only less than one acre of land in extent may apply to the Land Board for assignment on registry of lands to him. As per Sec.96, the Land Board shall assign on registry, subject to such conditions and restrictions as may be prescribed, the lands vested in the Government under Sec.86 or Sec.87, as specified in the section. Chapter IV of the Kerala Land Reforms (Ceiling) Rules, 1970, framed under Sec.129 of the KLR Act, deals with the assignment of lands vested in Government and the management of the Lands pending assignment. Rule 29 deals with the conditions and restrictions regarding the assignment. Sub-rule (8) of Rule 29 deals with the cancellation of assignments made under Sec.96 of the KLR Act. Sub-rule (8) of Rule 29 reads thus: “ 29. Conditions and restrictions regarding assignment::- RSA No.838 of 2006 9 1. xxx xxx xxx 2. xxx xxx xxx 3. xxx xxx xxx 4. xxx xxx xxx 5. xxx xxx xxx 6. xxx xxx xxx 7. xxx xxx xxx 8. The assignment of any land under Section 96 shall be liable to be cancelled for contravention of any of the conditions or restrictions laid down in this rule and the land assigned shall be liable to be resumed by or at the instance of the authority which assigned the land as if such land is a land belonging to Government and in the unauthorised occupation of the person then in possession or occupation, provided that no such cancellation shall be done without giving the party affected thereby a reasonable opportunity of being heard.” 16. As per Sub-rule (8) of Rule 29 of the KLR (Ceiling) Rules, the assignment shall be cancelled for contravention of any of the conditions or restrictions laid down in the above rules. Sub-rule (8) further says that no cancellation shall be done without giving the party affected, thereby a reasonable opportunity of being heard. 17. The Trial Court relied on grounds not provided in the KLR (Ceiling) Rules to hold that cancellation of assignment is lawful. The Trial Court found that the plaintiff was issued with a notice. In paragraph 11 of the Trial Court judgment, on the entitlement of the plaintiff, the Court concluded thus: “In addition to that he or his father was not an agricultural labourer purely sticking on their life in agriculture etc. The defendant claims that the plaintiff was a man by profession of RSA No.838 of 2006 10 weaving. So actually he was not entitled for land from the government but fortunately or unfortunately some land was assigned to the plaintiff.” (Quoted verbatim from the judgment of the Trial Court) The Trial Court has not referred to any of the statutory provisions applicable to the facts of the case. 18. The reasoning applied by the First Appellate Court, while confirming the Trial Court judgment, is contained in paragraphs 11 and 12 of the impugned judgment. Paragraphs 11 and 12 of the judgment read as follows: “11. Page No.447 in Ext.X1 is the notice issued to the plaintiff and it is also a show cause notice for further enquiry with respect to the land already assigned in their favour. The plaintiff also received the said notice before issuance of Ext.A4 notice to the defendants. So it is clear from the records that before proceeding to cancel the assignment, the defendants have issued notice and show cause to the plaintiff even after that the plaintiff did not file any objection, but straight away came before this Court. The cancellation was necessitated for a public purpose since the assignment in favour of plaintiff and others was found to be irregular. 12. In cross examination of PW1 he had no case that he was an Agricultural Labour. The District Collector has power under Rule 8(3) of Kerala Land Assignment Rules to cancel the register if it is found that it was grossly inequitable or was made under a mistake of fact or owing to misrepresentation of facts etc., or that there was a irregularity in the procedure. It is specifically stated in the above Rule that the party or parties affected thereby shall be given a reasonable opportunity of being heard. In the present case from Ext.X1 record it is seen that sufficient notice was given to the plaintiff and there was no violation of principles of natural justice. So I hold that the cancellation of the assignment by the defendant is purely in accordance with the provisions contained under Rule 8 of the Kerala Land Assignment Rules. Hence I do not find any irregularity in the decision rendered by the lower court. I hold RSA No.838 of 2006 11 that the plaintiff is not entitled for the relief claimed by him. This point is found against the appellant.” (Quoted verbatim from the judgment of the First Appellate Court) 19. It appears from the judgment of the First Appellate Court that it analysed the facts of the case applying the provisions of the Kerala Land Assignment Rules. The First Appellate Court also held that sufficient notice was given to the plaintiff, and there was no violation of the principles of natural justice. 20. Admittedly, the subject matter of the suit is governed by the provisions of the KLR Act, which is a self-contained code providing provisions for assignment, and the Rule framed under Sec.129 further provides the grounds for cancellation of the assignments. It is seen that the First Appellate Court examined the facts of the case and the legality and correctness of the judgment of the Trial Court, erroneously applying a Statute totally irrelevant to the subject matter. 21. On the exercise of the jurisdiction by the First Appellate Court, in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179], the Apex Court held that the first appeal is a valuable right of the parties and, unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. Therefore, the RSA No.838 of 2006 12 judgment of the appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate Court. The principles enunciated in Santosh Hazari's case (supra) was followed by the Apex Court in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530]. 22. The erroneous application of law in the present facts of the case is tantamount to failure to exercise the jurisdiction vested with the First Appellate Court leading to deprivation of the valuable right of the appellant/plaintiff. The application of a Statute irrelevant to the facts renders the findings invalid. 23. The learned counsel for the appellant further contended that no sufficient notice was given to the appellant/plaintiff as provided in sub-rule (8) of Rule 29 of the KLR (Ceiling) Rules, 1970 by the competent authority. The learned counsel contended that sufficient notice is the first limb of the principle of natural justice. The learned counsel relied on Uma Nath Pandey v. State of U.P [(2009) 12 SCC 40] to substantiate his contentions. In Uma Nath's case (supra) the Apex Court held thus: RSA No.838 of 2006 13 “The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ‘Magna Carta’. The classic exposition of Sir Edward Coke of natural justice requires to ‘vocate, interrogate and adjudicate’. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414] the principle was thus stated: ‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam” (says God), “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?” 24. The learned counsel has taken me to the notice served to the appellant by the District Collector. The notice dated 17.05.1990 served on the appellant/plaintiff only says that an enquiry was required regarding the assignment of the land, including the plaint schedule property. The learned counsel contended that a notice RSA No.838 of 2006 14 should be clear and precise so as to give the opposite party adequate information of the case he has to meet and make an effective defence. The learned counsel further contended that insufficient notice would cause a quasi-judicial decision to be vitiated. The learned counsel relied on Biecco Lawrie Ltd. v. State of West Bengal [(2009) 10 SCC 32] in support of his contentions. In Biecco Lawrie's case (supra) the Apex Court held thus: “It is fundamental to fair procedure that both sides should be heard—audi alteram partem i.e. hear the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice i.e., a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated. The adequacy of notice is a relative term and must be decided with reference to each case. But generally a notice to be adequate must contain the following: (a) time, place and nature of hearing; (b) legal authority under which the hearing is to be held; (c) statement of specific charges which a person has to meet. However, in the State of Karnataka v. Mangalore University Non-Teaching Employees' Assn. [(2002) 3 SCC 302] the requirement of notice will not be insisted upon as a mere technical formality when the party concerned clearly knows the case against him and is not thereby prejudiced in any manner in putting up an effective defence, then violation of the principle of natural justice cannot be insisted upon. In the present case, the materials on record show that the respondent had been furnished with proper notices intimating him the date, time and place of hearing well before time and the respondent has also received notices as is indicated from the postal acknowledgements made RSA No.838 of 2006 15 by him in his own letters addressed to the management. 25. The First Appellate Court has not bestowed on these legal principles while confirming the finding of the Trial Court that there was sufficient notice to the appellant/plaintiff. 26. In the present case, the First Appellate Court has lost sight of the principle that the whole case was open for rehearing both on questions of fact and law. So, the decision of the First Appellate Court lacks conscious application of mind. The First Appellate Court has failed to discharge the duty expected of it, leading to the situation that the plaintiff lost her valuable right. There had not been effectual adjudication of the proceedings in the First Appellate Court. The appellant has suffered material prejudice on that account. The only course open to this Court is to remit the matter to the First Appellate Court for consideration afresh. The substantial questions of law are answered, accordingly, in favour of the appellant. 27. The Regular Second Appeal is allowed. The judgment and decree dated 30.11.2005 passed by the Subordinate Judge's Court in A.S.No.119/2002 are set aside. The matter is remanded to the First Appellate Court for adjudication afresh. The parties are directed to RSA No.838 of 2006 16 appear before the First Appellate Court on 22.08.2022. The parties are directed to bear their respective costs. Pending Interlocutory Applications, if any, stand closed. The Registry shall transmit the lower court records forthwith. Sd/K.BABU, JUDGE LU+KAS