State of
Kerala Vs. M.K. Kunhikannan Nambiar Manjerimanikoth,
Naduvil [1995] INSC 784 (4
December 1995)
Paripoornan,
K.S.(J) Paripoornan, K.S.(J) Ramaswamy, K. Paripoornan. J.
CITATION:
1996 AIR 906 1996 SCC (1) 435 JT 1995 (8) 533 1995 SCALE (6)734
ACT:
HEAD NOTE:
The
State of Kerala, having obtained leave of this Court in Special Leave Petition
(C) No. 13411 of 1987, appeals against the judgment of a learned single Judge
of the High Court of Kerala, rencered in C.R.P. No. 2538 of 1981 dated
1.7.1987. The matter arises under the Kerala Land Reforms Act in connection
with the proceedings relating to determination of ceiling area of the 1st
respondent, by the Taluk Land Board, Taliparamba (hereinafter referred to as
the Board) in T.L.B. 447 of 1977. The Board initiated proceedings, T.L.B. 447
of 1977 and issued notice to late respondent No. 1, head of the family, to
surrender an extent of 6.32 acres of land, which according to the Board is the
land, the family headed by the first respondent was holding in excess of the
ceiling area. Respondent No. 2 is the wife of the first respondent. In the said
proceedings, respondents No. 3 and 4 (sisters of the first respondent) sought impleament
under Section 85 (8) of the Land Reforms Act, to set aside the proceedings of
the order of Board dated 28.6.1977 and claimed tenancy rights over an extent of
property measuring 10 acres, in R.S. Nos. 201 and 208 of Naduvil village, Taliparamba.
The impleament petition was rejected by the Board on 7.10.1977. Respondents
No.1 and 2 filed C.R.P. No.3440 of 1977 before the High Court of Kerala, which
was disposed of on 2.11.1977. the relevant portion of which reads as follows:-
"The declarant in ceiling proceedings No.447777(TBA) on the file of the Taluk
Land Board, Taliparamba was directed by the Taluk Land Board by its order dated
28.6.1977 to surrender an extent of 6.32 acres of land held by his family in
excess of the ceiling limit.
This
two petitioners, who are the sisters of the declarant, filed an application
under section 85(8) of the Kerala Land Reforms Act for reopening the order
contending that they are cultivating tenants in respect of the property with
respect to an extent of 10 acres. The Taluk Land Board after having gone into
the evidence placed before it found that no proof regarding the alleged tanancy
was produced before the Taluk Land Board and that the cultivating tenancy
alleged was a collusive attempt between the brother and the sisters to defeat
the provisions of the Act. It cannot be said that the Taluk Land Board has
either decided erronedusly or failed to decide a question of law to attract
Section 103 of the Act. The revision is therefore dismissed without admitting
in the file." (Emphasis supplied)
2. The
first respondent also challenged the proceedings dated 28.6.1977. by which he
was directed to surrender 6.32 acres of land, in C.R.P. No. 3696 of 1977. The
Civil Revision Petition was allowed by order dated 14.3.1979 and the operative
portion of the order reads as follows:- "I do not think that I should go
into the merits of the objections raised by the petitioner in regard to the
fixation of the ceiling area in view of the fact that the impugned order is in
a suo moto Proceedings where the proceedings have been initiated not on
intimation given by the Land Board about the non-filing of the statement as
required by section 85(7) of the Kerala Land Reforms Act. However, the order
was sought to be supported by the learned Government pleader on the ground that
they have subsequently ratified the proceedings before the final order was
actually issued. In the nature of the provision in Section 85(7) that may not
validate the proceedings which would render such proceedings void in law cannot
be cured by ratification. No doubt, the disposal of the C.R.P. by quashing the
impugned order on this ground will not prevent the Taluk Land Board for
proceedings the matter afresh on due, intimation to the Land Board and in
accordance with Law." (Emphasis supplied)
3. In
pursuance to the later order of the High Court, the Board issued a revised
draft statement and issued notice to respondents No. 1 and 2 calling upon them
to file objections, if any. No objections were filed. However, respondents No.
3 and 4 filed a fresh petition for impleadment on 30.6.1980, which was allowed
by the majority members of the Board on 29.7.1980. The majority members of the
Board, by proceedings dated 9.1.1981, accepted the plea put forward by
respondents No. 3 and 4 regarding tenancy and further held that respondent No.
1 was holding lands only within the ceiling limit. There was no surplus land to
be surrendered. The aforesaid decision was assaifed by the State of Kerala before the High Court in C.R.P. No.
2538/81.
The
learned single Judge of the High Court of Kerala, by order dated 1.7.1987, held
thus:- "The order in C.R.P. 3696/77 has become final. It can be seen from
the said order that the S.M. proceedings initiated by the T.L.B. was declared
void and hence non est. That being the position, it is needless to say that the
proceedings from which C.R.P. 3440 of 1977 arose also is non est. It cannot
therefore be said that the rights of the parties to the said proceedings has
been determined by any authority constituted under the K.L.R. Act." On the
merits, the learned single Judge also held that it cannot be said that the
Board decided any question of law erroneously or failed to decide any question
of law to merit interference in exercise of the revisional powers vested under
Section 103 of the Kerala Land Reforms Act. It is from the aforesaid order of
the High Court, the State had filed the present appeal.
4. We
heard Mr.M.T. George, who appeared for the appellant and also Mr. A.S. Nambiar,
senior counsel, who appeared for the respondents. Counsel for the appellant
argued that the majority members of the Board committed a grave error in
ordering the impleadment of respondents No.3 and 4 by order dated 29.7.1980 and
in upholding the plea of tenancy urged by them. He further argued that the
learned single Judge of the High Court erred in law in holding that in view of
the order passed in C.R.P. No. 3696 of 1977, the S.M. proceedings initiated by
the Board was void and non est and that being the position, the proceedings
from which C.R.P. 3440 of 1977 (Revision filed by respondents No.3 and 4 )
arose, also is non est. The conclusion of the learned single Judge "that
it cannot be said that the rights of the parties to the said proceedings had
been determined by any authority constituted under the Kerala Land Reforms
Act" was assailed as illegal. On the other hand, counsel for the
respondents, Mr. A.S. Nambiar, argued that since the proceedings initiated by
the Board dated 28.6.1977 was found to be void in law, in C.R.P. 3696 of 1977,
it cannot be cured by ratification, and the order passed by the Board rejecting
the impleadment of respondents No. 3 and 4 dated 7.10.1977 and confirmed by the
High Court in C.R.P. No. 3440 of 1977, by order dated 2.11.1977 is non est and
in this perspective the fresh application for impleadment filed in pursuance to
the order passed by the High Court in C.R.P. No. 3696 of 1977 and the
consequential final decision of the Board dated 29.7.1980 are sustainable and
valid in law.
5. The
short question that arises for consideration is whether the order passed by the
Board in the first instance, rejecting the impleadment of respondents No. 3 and
4, and holding that the tenancy put forward is a "collusive" one,
which was affirmed by the High Court in C.R.P. No. 3440 of 1977 on 2.11.1977. can
be ignored in view of the order passed in C.R.P. No. 3696 of 1977 filed by the
first respondent ? As between the State and respondents No. 3 and 4 the order
passed by the Board as confirmed by the High Court in C.R.P. 3440 OF 1977 Dated
2.11.1977 has become final. It is a valid order. Will the observations made in
C.R.P. 3696 of 1977 to the effect "that the S.M. proceedings without
intimation by the Board under Section 85(7) of the Kerala Land Reforms Act
render such proceedings void", effect the legality or validity of the
proceedings which culminated in C.R.P. 3440 of 1977 ?
6. It
is not necessary for us to go into the merits of the case. We are of the view
that the order passed inter parties in C.R.P. 3440 of 1977 dated 2.11.1977, has
become final, and it concludes the matter. The observations made in the
proceedings. at the instance of the 1st respondent regarding the validity of
the order of the Board, in C.R.P. 3696 of 1977. will not, in any way, effect
the legality and validity of the proceedings declining to implead respondents
No. 3 and 4 or the order passed in Revision therefrom-C.R.P. 3440 of 1977. It
is true that the proceedings dated 28.6.1977 was observed to be void in law in
C.R.P. 3696 of 1977, filed by the first respondent. In our opinion, even a void
order or decision rendered between parties cannot be said to be non- existent
in all cases and in all situations. Ordinarily, such an order will, in fact be
effective inter parties until it is successfully avoided or challenged in
higher forum.
Mere
use of the word "void" is not daterminative of its legal impact. The
word "void" has a relative rather than an absolute meaning. It only
conveys the idea that the order is invalid or illegal. It can be avoided. There
are degrees of invalidity, depending upon the gravity of the infirmity, as to
whether it is, fundamental or otherwise and in this case, the only complaint
about the initiation of the suo moto proceedings by Board was, that it was not
initiated on intimation by the State Land Board about the non-filing of the
statement as required by Section 85(7) of the Kerala Land Reforms Act. In our
opinion, this is not a case where the infirmity is fundamental. It is
unnecessary to consider the matter further.
7. In Halsbury's
Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31,
it is stated, thus:- "If an act or decision, or an order or other
instrument is invalid, it should, in principle, be null and void for all
purposes: and it has been said that there are no degrees of nullity.
Even
though such an act is wrong and lacking in jurisdiction, however, it subsists
and remains fully effective unless and until it is set aside by a court of
competent jurisdiction. Until its validity is challenged, its legality is
preserved." In the Judicial Review of Administrative Action, De Smith.
Woolf
and Jowell, 1995 edition. at pages 259-260 the law is stated, thus:- "The
erosion of the distinction between jurisdictional errors and non-
jurisdictional errors has, as we have seen, correspondingly eroded the
distinction between void and voidable decisions. The courts have become
increasingly impatient with the distinction, to the extent that the situation
today can be summarised as follows:
(1) All
official decisions are presumed to be valid until set aside or otherwise held
to be invalid by a court of competent Jurisdiction." Similarly, Wade and
Forsyth in Administrative Law, Seventh edition- 1994, have stated the law thus
at pages 341-342:- "every uniawful administrative act, however invalid, is
merely voidable. But this is no more than the truism that in most situations
the only way to resist unlawful action is by recourse to the law. In a
well-known passage Lord Raodliffe said:
An
order, even if not made in good faith, is still an act capable of legal
consequences. It bears no brand of invalidity upon its forehead. Uniess the
necessary proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders.
This
must be equally true even where the brand of invalidity is plainly visible:
for
there also the order can effectively be resisted in law only by obtaining the
decision of the court. The necessity of recourse to the court has been pointed
out repeatedly in the House of Lords and Privy Council without distinction
between patent and latent defects." The above statement of the law
supports our view that the order of the Board dated 28.6.1977, declining to implead
respondents No. 3 and 4 (which stood confirmed in Revision) concludes the
matter against respondents No. 3 and 4.
8. The
additional feature in this case, is that the decision of the Board declining to
implead respondents No. 3 and 4 was taken up in Revision - C.R.P. 3440 of 1977
wherein the order of the Board was affirmed and it was further observed that
the plea of tenancy was not proved and it was only a collusive attempt between
respondent No. 1 and respondents No. 3 and 4. Even assuming, for arguments sake
that the order of the Board was held to be void in C.R.P.3696 of 1977 (in the
proceeding at the instance of the 1st respondent). the order passed in Revision
between the parties herein, in C.R.P. 3440 of 1977 will be valid and cannot be
said to be without jurisdiction or invalid. In this context. the Constitution
Bench decision of this Court in Janardhan Reddy & others vs. State of
Hyderabad and others, (A.I.R. 1951 SC 217) is of great relevance. In that case,
the Court found that there is no specific order of the civil administrator
making over the case covered by charge- sheet No. 14 dated 20.7.1949 [charge
sheet No. 14 (2)] to the Tribunal. Therefore, the Court held that prima facie
there was room to hold that case No. 17. which was affected by the charge sheet
No. 14 (2) was never properly made over to the Tribunal and the trial of the
accused in that case was, therefore, without jurisdiction. But the matter was
carried in appeal before the High Court of Hyderabad and the convictions and
sentences were confirmed. It was urged before the Supreme Court that notwithstanding
the decision rendered by the High Court in appeal since the decision of the
Tribunal was without jurisdiction, the detention was invalid. In repelling this
piea, Fazl Ali, J. observed at page 225, thus:- "Evidently, the appellate Ct. in a case which properly comes before it on appeal,
is fully competent to decide whether the trial was with or without
jurisdiction, & it has jurisdiction to decide the matter rightly as well as
wrongly. If it affirms the conviction and thereby decides wrongly that the
trial Ct. had the jurisdiction to try and
convict it cannot be said to have acted without jurisdiction and its order
cannot be treated as a nullity." "It is well settled that if a Ct. acts
without jurisdiction, its decision can be challenged in the same way as it
would have been challenged if it had acted with jurisdiction, i.e., an appeal
would lie to the Ct. to which it would lie if its order
was with jurisdiction."
9. In
the light of the above position in law, whatever may have been the infirmity in
the proceedings of the Board dated 28.6.1977 (which was set aside in C.R.P.
3696 of 1977), since the said proceedings were affirmed in C.R.P.3440 of 1977
dated 2.11.1977, which is the final decision inter-parties, (State of Kerala
and respondents No. 3 and 4), it was not open to the Board to order impleadment
of respondents No. 3 and 4 in the revised draft statement proceedings by order
dated 29.7.1980 and in finally ordering the matter in favour of respondents No.
3 and 4, as it did, by order dated 9.1.1981. We are constrained to hold that
the learned single Judge of the High Court committed a grave error in holding
that the proceedings rendered inter parties between the State and respondents
No. 3 and 4, which finally stood confirmed by the order in C.R.P. 3440 of 1977,
is non est and can be ignored. We set aside the order passed by the High Court
in C.R.P. No. 2538 of 1981 dated 1.7.1987. In consequence, the revised orders
passed by the Board dated 29.7.1980 and 9.1.1981 will stand annulled. This
appeal is allowed with costs payable by respondents No. 3 and 4 herein. quantified
at Rs.5000/-.
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