PETITIONER:
STATE OF KERALA
Vs.
RESPONDENT:
M.K. KUNHIKANNAN NAMBIAR MANJERIMANIKOTH, NADUVIL (DEAD) AND
DATE OF JUDGMENT04/12/1995
BENCH:
PARIPOORNAN, K.S.(J)
RAMASWAMY, K.
CITATION:
1996 AIR 906 1996 SCC (1) 435
JT 1995 (8) 533 1995 SCALE (6)734
ACT
HEADNOTE
JUDGMENT
JUDGMENT PARIPOORNAN. J.
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 nonexistent 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 chargesheet 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/-.