http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

STATE OF KERALA

Vs.

RESPONDENT:

M.K. KUNHIKANNAN NAMBIAR MANJERIMANIKOTH, NADUVIL (DEAD) AND

DATE OF JUDGMENT04/12/1995

BENCH:

PARIPOORNAN, K.S.(J)

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:

J U D G M E N T

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

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",

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

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/-.