Dr. M.O. Cherian vs Kerala State And Ors. on 5 January, 1959

Kerala High Court
Dr. M.O. Cherian vs Kerala State And Ors. on 5 January, 1959
Equivalent citations: AIR 1960 Ker 88
Author: N V Iyengar
Bench: N V Iyengar


N. Varadaraja Iyengar, J.

1. This is a petition, under Article 226 of the Constitution filed by Mr. M. O. Cheriaa, Assistant Medical Officer, Munnar and complaining against the premature termination in the first instance of his kuthakapattorn lease by the 1st Respondent State of Kerala and the order for eviction-ctc., under the Land Conservancy Act thereafter passed by the 2nd Respondent Tahsildar of Kun-nathunad, as if for unauthorised occupation.

2. The site in question was poramboke land situate just west of the Petitioner’s registered holding (containing residential quarters) in Perumbavur Pakuthy. It was part of a larger area of 1, 21 acres, in S. No. 304/10A. The northern portion of this area was being used as a fish market while the southern portion was lying vacant and was being used as a public defecation ground. There had been insistent complaints of this nuisance from the public, so much so, the Director of Public-Health recommended the shifting of the fish market to a vacant ground near the vegetable market. There, was then, a recommendation, from the Board of Revenue to assign the whole area in favour of the Petitioner under Rule 24(1) of the Kuthakapattom Rules, for the more beneficial enjoyment of his land. The Government (of Tiavancore-Cochin) accepted these recommendations and by order dated 23-3-1950, sanctioned the grant of a kuthakapattom lease to the Petitioner of the whole survey number and also his occupation immediately of the southern portion of 78 cents. Petitioner expressed that he would be content with this 78 cents and accordingly Ext. P-2 kuthakapattom lease was executed in respect thereof on 4-10-1950 by the 2nd respondent Tahsildar in favour of the petitioner with a term of 12 years but subject to earlier termination on certain contingency.

3. The shifting of the fish market was not effected owing to strong opposition from the public. The 3rd Respondent Perumbavur Municipality requested Government to transfer at least 50 cents from the original site S. No. 304/10A for locating the fish market. The Board of Revenue sent report that the lease just granted to Dr. Cherian may be determined and the Site transferred to the 3rd Respondent. Government thereupon wrote to the Secretary of the Board of Revenue to take immediate steps to issue notice to the petitioner and to make available the site for transference to the Municipal Council-vide Ext. P-4 proceedings dated 22-2-1957. On 4-4-1957 the 2nd Respondent Tahsildar issued Ext. P-3 notice to the Petitioner as follows; “Sir,

Sub: Fish Market, Municipal Council, Perumbavoor, shifting of, Sanction has been accorded by Government to determine the lease of 78 cents of land in S. No. 304/10A of Perum-babur Village, sanctioned to you.

You are therefore requested to vacate your occupation in the above land and give possession of the site to the Village Officer, Perumbavoor within 3 months from the date of this notice.”


Yours faithfully, 

 (Sd)     For     Tahsildar." 

Petitioner filed Ext. P-5 Petition before Government dated 7-6-1957 for reconsideration of their order terminating the lease but that Petition was rejected with the remarks that the Board of Revenue “will take immediate further steps to resume the land and transfer it to the Municipality” vide Ext. P-6 order dated 28-10-1957. Case No. 220 of 1957 was soon after on 27-11-1957 taken by the 2nd Respondent against the Petitioner “for unauthorised occupation of Government Poramboke” and on 30-12-f957 Petitioner was convicted and sentenced to fine and prohibitory assessment and Also ordered to be evicted : vide Ext. R-3 judgment. On 24-1-1958 this petition was filed.

4. The main ground relied on by the Petitioner in his affidavit in support of the Petition and pressed before me was that the express conditions in Clause 9 of Ext. P-2 Kuthakapattom lease for cancellation thereof, before expiry of its term had not been conformed to and therefore all the proceedings cither of the 1st respondent State or of the 2nd Respondent Tahsildar purporting first to cancel the lease and then to punish and evict the Petitioner under the Land Conservancy Act were totally wanting in jurisdiction. According to the Petitioner it was for the Tahsildar alone to cancel if at all and that after specific notice issued to and hearing him and again only to the extent of 50 cents needed for the fish market but none of these requisites had been fulfilled.

Government by counter-affidavit categorically affirmed that Ext. P-2 lease had been validly and effectively terminated and the proceedings under the Land Conservancy Act were in consequence unassailable. According to them the conditions of Clause 9 of Ext. P-2 have been substantially fulfilled and there was accordingly no question of jurisdiction involved. They denied that the Petitioner was entitled to be heard in connection with the termination of the lease. The 3rd Respondent Municipal Council have appeared to oppose the petition along with the Government.

5. Now Clause 9 of Ext. P-2 referred to by both parties runs as follows :

“9. That it shall be competent to the Tahsildar or other officer or authority who granted the lease to cancel the lease cither on the termination of the lease without notice or at any other time after three months’ notice if the land or tree is required for Government or public purposes.”

This rule, it is clear, postulates at least three essentials: (i) that the cancellation of the lease must be by the Tahsildar; (ii) that the land must be required for Government or public purposes; and (iii) that the cancellation must be at some time after a three months’ notice. Learned counsel for the Petitioner says and I am inclined to agree with him that a further essential, viz., that the lessee must he heard before final order against him terminating the lease is passed, must also be implied. For the Tahsildar has no free discretion in the matter and hearing would really serve a controlling purpose inasmuch as the lessee can in particular case urge cither that there is no Government or public purpose calling for the termination or that any balance of property left after such purpose is satisfied may he-preserved for him. Indeed even when no notice or
hearing is provided for in cases of this type one chief consideration for implying them is,
“the importance to the private party involved of the repercussions of a particular administrative activity and the immediacy of the effect, Where private property of a particular person is singled-out for specific action notice and hearing are ordinarily deemed appropriate. More particularly is this the case where the property interest involved is of a substantial value.”

See Cooper on Administrative Agencies and the Courts, page 89. But whether a hearing is also an essential or not, there can be no doubt that the three other essentials mentioned above have not, as contended for by the Petitioner, been satisfied in the case. Learned Government Pleader is willing to-concede that the 2nd respondent has not in terms purported at any stage to exercise his power of cancellation under Clause 9. But he contends that that power must in all the circumstances be held to have been exercised substantially and he relied on Ext.-R3 judgment of the 2nd Respondent himself in the Land Conservancy Case. It is no doubt true that Ext. R-3 contains a reference to the issue of a notice apparently meaning Ext. P-3 extracted above, as under the Clause 9 herein and also to a Revision apparently referring to Ext. P-5 Petition, thereafter unsuccessfully taken by the Petitioner before the Government. But in spite of the utmost toleration extended in construing it, Ext. P-3 can never subserve the purpose because it failed to give the three months notice under the clause and such defect, it is not claimed, was to any extent waived. Further as observed by Bose J. in delivering the judgment of the Supreme Court in Commr, of Police Bombay v. Gordhandas Bhanji, AIR 1952 S.C. 16.

“public orders, publicly made, in exercise of a statutory authority cannot he construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

5a. Nor can the fact that Petitioner was later heard by Government as Revising authority, any way mend the matter. For the illegality touching jurisdiction committed by the Tahsildar, tribunal of first instance, cannot be obliterated or cured on’ appeal much less revision.

“If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court’s sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was-a nullity for reasons aforementioned. Per Das C. J. in State of Uttar Pradesh v. Mohammad Noon, 1958 SCR 595: (AIR 1958 SC 86).

6. It is not contended for the Government that the non-compliance with Clause 9 still leaves intact their cancellation of Ext. P-2 lease. Even otherwise, this is not a case of parties voluntarily waiving compliance with full knowledge of the situation, nor is the disregard of only minutiae of procedure so as to reach a just result. This is rather a case where
“it fairly appears that some prejudice might likely to have resulted from such disregard of established rules, or that the departure caused great inconvenience to the parties or took them unfairly by surprise.”

In such circumstances I readily set aside the administrative determination by the 1st Respondent of Ext. P-2 lease and also the adjudication in the Land Conservancy Act proceedings by the 2nd Respondent, as against the Petitioner.

7. The Petition is accordingly allowed. There will however be no order for costs.

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