The competence of the Land Tribunal to make an assignment under S.72C and the procedure for determining fair rent are central legal points established in the judgment.

1. The petitioners challenge Ext. P2 order of the 2nd respondent, the Appellate Authority (Land Reforms), Ernakulam, confirming the finding of the 3rd respondent, the Land Tribunal in Ext. P1 to the effect that the 4th respondent is a cultivating tenant. The 2nd respondent, however, remanded the questions regarding fair rent and purchase price for fresh consideration by the Tribunal.

2. By Ext. P1 the Tribunal had found in O.A. No. 144 of 1975 that the 4th respondent was a cultivating tenant. That was a finding which was rendered by the Tribunal subsequent to Ext. P5 order of remand made by the 2nd respondent. In Ext. P5 the 2nd respondent had found that due opportunity was not given to the parties before the Tribunal came to a finding as to the status of the 4th respondent. Upon remand the Tribunal referred to the evidence of pws.1 to 3 and came to the conclusion that the 4th respondent was a cultivating tenant under one Raphael whose legal representatives are the petitioners. This finding was confirmed by the impugned order.

3. Two questions are urged before me by the petitioners' counsel. Counsel submits that in so far as the application on the basis of which an enquiry was conducted by the Tribunal was an application for fixation of fair rent in terms of S.31 of the Kerala Land Reforms Act, 1963 (the "Act"), the Tribunal exceeded its jurisdiction in coming to a finding that the 4th respondent was entitled to be assigned land in terms of S.72C. Counsel further submits that neither the Tribunal nor the Appellate Authority had applied its mind to the points in issue with reference to the evidence placed by the parties.

4. S.72C enables the Land Tribunal to make a suo mote order assigning land in favour of a cultivating tenant. It reads:

72C. Assignment where application is not made by cultivating tenant. Notwithstanding anything contained in sub-section (3) of S.72B, or S.72BB the Land Tribunal may, subject to such rules as may be made by the Government in this behalf, at any time after the vesting of the right, title and interest of the landowners and intermediaries in the Government under S.72, assign such right, title and interest to the cultivating tenants entitled thereto, and the cultivating tenants shall be bound to accept such assignment."

Rule 5 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 ("Vesting and Assignment Rules") lays down the procedure in respect of suo mote proceedings. It reads:

"5. Land Tribunal to initiate suo motu proceedings. (1) Where a Land Tribunal receives information under R.6 or otherwise that the right, title and interest of the landowner and intermediaries in respect of a holding or part of a holding situate within its jurisdiction have vested in the Government under S.72, it shall, notwithstanding that an application referred to in R.4 has not been received in respect of that holding or part, as the case may be, of its own motion assign such right, title and interest to the cultivating tenants entitled thereto in the manner hereinafter provided.

(2) The Land Tribunal shall initiate separate proceedings under sub-rule (1) in respect of each holding or part of a holding, as the case may be.

Counsel lays emphasis on sub-rule (2) which refers to separate proceedings and submits that no separate proceeding had been initiated by the Tribunal in terms of S.72 and R.5 before the decision was taken to make an assignment on the basis of an application made in terms of S.31. R.9 of the Vesting and Assignment Rules reads:

"9. Dispute about tenancy or vesting. (1) Where after the publication of the public notice under sub-section (1) of S.72F and the service of the individual notice under subsection (2) of that section in respect of a holding, any of the parties to the proceedings pleads that the land comprised in such holding is not held by any cultivating tenant or that the right, title and interest of the landowner and the intermediaries in respect of such holding have not vested