Subramonian Poti, Ag. C.J.
1. The petitioner in O. P. 1073 of 1976 is a kudikidappukaran in Sy. No. 44/1 and 3 of the Ernakulam Village, in land said to be of an extent of 12 1/2 cents. The 3rd respondent in the petition had purchased the land in court-auction. He then moved an application under Section 75 (3) of the Kerala Land ReformsAct (in short, the Act) to acquire other land for shifting the petitioner's kudi-kidappu so that the 3rd respondent may get possession of land in which the kudikidappu was situate. The petitioner in O. P. 2981 of 1977 is a kudikidappu-karan of land belonging to the first respondent and the first respondent has similarly moved an application under Section 75 (3) of the Act for shifting the kudikidappu to land to be acquired by the Government. Section 75 (3) of the Act enables a person holding land less than 1 acre in extent to apply to Government for acquisition of land to which the kudikidappu in his land may be shifted if he requires the land occupied by such kudikidappu for constructing a building for his residence. The petitioners in both the cases claimed, in the application to the Government that they had land less than 1 acre in extent and that they require land occupied by the kudikidappukars for constructing building for their respective residence. Ext. P2 order in O. F. 1073 of 1976 is one passed by the Revenue Divisional Officer, Fort Cochin holding that since the applicant possessed only 12 1/2 cents of land, that the kudikidappu is situate in the centre of the property there is no convenience to build a house without shifting the kudikidappu and that hence he was allowing the application under Section 75 (3) of the Act. This is the order challenged in the petition. In the other case similar order Ext. P1 passed by the Revenue Divisional Officer, Trichur finding that the applicant and her family possessed less than 1 acre of land, that the site occupied by the kudikidappukaran was really required by the applicant for her residence and that therefore the application under Section 75 (3) of the Act has to be allowed. The Tahsildar was directed to take necessary steps for acquisition of land consequent upon the finding by the Revenue Divisional Officer.
2. The ground of challenge in both the petitions is identical. It is that the Revenue Divisional Officer is not an authority competent to adjudicate on an application filed before Government under Section 75 (3) of the Act. In order to find that acquisition of other land was necessary to shift the kudikidappukaran satisfaction that the applicant holds less than 1 acre of land and that he requires the land occupied bythe kudikidappukaran for constructing a building for his own residence has to be reached. It is only then that further proceedings would follow. The application being one directed tc Government, could the satisfaction in regard to matters mentioned in Section 75 (3) be reached by any Revenue Officer of the Government or should it be by the Government itself? This is the question on which there is controversy in these cases, a controversy which has caused the reference of these cases to a Full Bench.
3. On the language of the section this court had been holding earlier that it is only the Government that can reach the satisfaction on matters envisaged in Sub-section (3) of Section 75 of the Act. Our learned brother Bhaskaran, J. in the judgment in O. P. No. 1938 of 1973 took the view that no power is conferred on the Revenue Divisional Officer, to pass an order under Section 75 (3) of the Act, and therefore quashed the proceedings by the said officer. This view was followed by this court in other cases. A contrary view was adopted by Chandrasekhara Menon, J., in O. P. No. 2934 of 1975 and by Balakrishna Eradi, J. as he then was, in O, P. No. 1265 of 1976. In support of his view our learned brother Chandrasekhara Menon, J. referred to the notification of the Kerala Government in the Gazette No. 40 dated 6-10-1970 authorising the Revenue Divisional Officers to function under sub-sees. (3-B) and (3-C) of Section 75 and also the provisions in Section 75 (3-B) and (3-C) and Rule 72 of the Kerala Land Reforms (Tenancy) Rules. Apart from a reference to these provisions we find no discussion in the judgment of our learned brother. Our learned brother Justice Eradi also referred to the contention raised that the State Government alone was competent under Section 75 (3) of the Act to pass an order sanctioning the acquisition and met this by the following observation:
'This contention cannot be accepted in view of the provisions contained in clause (3-B) of Section 75 (3) of the Act and Rule 72 of the Kerala Land Reforms (Tenancy) Rules, 1970 which contemplate the authorised officer to conduct an enquiry and to come to a final conclusion as to whether a case is made out for the acquisition of an alternative site for shifting a kudikidappukaranunder Section 75 (3) and directing an acquisition being made in the event of his being satisfied that such a case is made out.'
Evidently there is no detailed consideration of this question in that case too. The matter came up later before a Division Bench of this Court in Sathi Bai Kamath v. Sub Collector. 1977 Ker LT 644. Gopalan Nambiar, Ag. C. J., as he then was, who spoke on behalf of the Division Bench referred to Sub-sections (3), (3-A) and (3-B) of Section 75 and Rule 72 and held that these provisions authorise the Revenue Divisional Officers to pass an order for acquisition on being satisfied of the requirements referred to in Sub-section (3) of Section 75. A Division Bench of this Court doubted the correctness of the decision in Sathi Bai Kamath v. Sub Collector, 1977 Ker LT 644 and referred the question to a Full Bench and that is how the matter is before us now.
4. The view taken in Sathi Bai Kamath v. Sub Collector, 1977 Ker LT 644 was adverted to by this Court in Ayyappan v. State of Kerala, 1980 Ker LT 466. But there has not been an independent discussion and the questions with which we are concerned in these cases did not arise for consideration in that case.
5. Section 75 (1) of the Act confers fixity on a kudikidappukaran. He is granted immunity from being evicted from the kudikidappu except on grounds specified in that sub-section, Section 80-B of the Act enables a kudikidappukaran to purchase the kudikidappu occupied by him as well as the lands adjoining thereto and provides for the procedure by which such purchase is to be made. Sub-section (2) of Section 75 enables a person in possession of the land on which there is a homestead or hut in the occupation of a kudikidappukaran to require the kudikidappukaran to shift to a new site belonging to such person under certain circumstances and also provides for the conditions subject to which he could seek such shifting. Sub-section (3) covers the case of persons who may require the land occupied by the kudikidappukaran for constructing a building for their residence, but this right is limited to persons who hold less than 1 acre of land either as owner or as tenant. The pro-cedure is to apply to the Government for acquisition of other land at their cost to which the kudikidappukaran is to be shifted. This application is to be made to the Government. It is only if they satisfy the requirements mentioned in Sub-section (3) that question of acquiring other land and calling upon the kudikidappukaran to shift would arise. If the kudikidappukaran is to be so shifted provision is made for acquisition of other land, for payment of 87 1/2% of the cost towards such acquisition and for an order to the kudikidaptaukaran to shift to such land. These are the provisions in Sub-sections (3-A), (3-B), (3-BB) and (3-C) of Section 75 of the Act, Sub-section (3-D) of Section 75 provides that where the kudikidappukaran shifts as required under sub-sees. (3-B) or (3-BB), he shall be entitled to the ownership and possession of the land to which he shifts or is bound to shift and also to the registry of such land in his name. Sub-section (3-E) provides that 12 1/2% of the amount of compensation payable for the acquisition under Subsection (3-B) shall be met from the kudikidappukars' Benefit Fund constituted under Section 109 of the Act.
6. Having referred to the scheme of the Act in the matter relevant to these petitions, it would be profitable to set down here Sub-sections (3), (3-A), (3-B), (3-BB) and (3-C) of Section 75. They read:
'(3) Notwithstanding anything contained in Sub-sections (1) and (2), where the total extent of land held by a person, either as owner or as tenant, is less than one acre and there is a kudikidappu on any land held by him, he may, if he requires the land occupied by such kudikidappu for constructing a building for his own residence, apply to the Government for the acquisition of land to which the kudikidappu may be shifted.
Provided that after the expiry of a period of two years from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, an application shall not be made under this Sub-section except with the consent of the kudikidappukaran.
Explanation.-- For the purposes of this sub-section.
(a) the total extent of land held by a person shall be computed as on the 1st day of July, 1969;
(b) in calculating the total extent of land held by a person who is a member of a family, the extent of the land held by any member of his family or jointly by some or all of the members of such family shall also be taken into consideration.
(3A) In an application under Sub-section (3), the applicant shall offer to deposit, whenever called for, eighty-seven and a half per cent of the amount of compensation payable for acquisition of land equal to the extent of the existing kudikidappu subject to a minimum of three cents if within the limits of a city or major municipality or five cents if within the limits of any other municipality or ten cents if in any panchayat area or township.
(3B) An Officer authorised by the Government in this behalf may, after collecting the amount referred to in Sub-section (3-A) from the applicant, acquire the necessary land under the Kerala Land Acquisition Act, 1961, give possession of the land to the kudikida-ppukaran and require him to shift to the said land, and thereupon the kudi-dappukaran shall be bound to shift to the new site.
(3BB) Where the kudikidappukaran doss not shift to the land acquired in pursuance of Sub-section (3-B) within a period of one month from the date of service on him of the requisition under that sub-section, the officer referred to in that sub-section shall cause him to be evicted from the existing kudikidappu.
(3-C) The kudikidappukaran shall be entitled before he shifts as required under Sub-section (3-B) to receive from the person in possession of the land on which his kudikidappu is situate the expenses as determined by the officer referred to in that sub-section to be reasonably required to shift to the new site.'
The Kerala Land Reforms (Tenancy) Rules have been framed by the Government in exercise of the powers conferred by Section 129 of the Act. We are concerned here only with Rule 72 as it stood at the relevant time. Sub-rule (2) as it stands now was substituted by S. R. O. 1134 of 1975 dated 27-11-1975. We are leaving out sub-rules (4), (5) and (6) of the above Rule as it may not be necessary to refer to them for the pur-pose of these petitions. Rule '2 (1), (2) and (3) read thus:--
'72. Form of application for shifting kudikidappukaran.-- (1) The application to the Government by a holder of land for acquisition of land for shifting a kudikidappukaran shall be in Form No. 35.
(2) Upon receipt of such an application, the Officer authorised by the Government in this behalf shall make such enquiry as he may deem fit after giving the applicant as well as the Kudikidappukaran an opportunity of being heard and after giving them copies of documents on which reliance is placed by him and if he is satisfied that the applicant requires the land occupied by the kudikidappu for constructing a building for his own residence and that the total extent of land held by him on the 1st day of July, 1969, either as owner or as tenant was less than one acre, he shall require the applicant to deposit eightyseven and a half per cent of the cost of acquisition of the land to be acquired and to execute an agreement undertaking to pay the same percentage of any increase in the compensation for the land acquired.
(2A) If the Officer is satisfied after the enquiry referred to in Sub-rule (2) that the applicant does not require the land occupied by the kudikidappu for constructing a building for his own residence or that the total extent of land held by the applicant on the 1st day of July, 1969, either as owner, or as tenant was one acre or more or if the applicant is not prepared to deposit eightyseven and a half per cent of the cost of acquisition of the land to be acquired or to execute an agreement undertaking to pay the same percentage of any increase in the compensation for the land to be acquired, the officer shall forward a report of his enquiry together with his conclusion thereon to the Government for their orders.
(2-B) The Government shall, after considering the report and the conclusion of Officer and after affording an opportunity to the person affected to state his case, pass such order thereon as they think fit.
(2C) The order of the Government under Sub-rule (2-B) shall not be called in question in any court solely on theground that the inquiry by hearing the parties and furnishing the relevant records was conducted by the officer and not the Government.
(3) As soon as may be after the applicant deposits his share of the cost of acquisition, the officer shall take steps to acquire the necessary land, transfer possession of such land to the kudikidap-pukaran and require him to shift to the said land.''
7. We may also in this context advert to Form No. 35 referred to in Rule 72 (1). That, as the rule itself indicates, is the Form of application to Government for acquisition of land for shifting the kudikidappukaran. That application provides for the statement by the landholder that the land including the kudikidappu is required by the applicant for constructing a building for his own residence, and that the total extent of land held by the landholder as on 1-7-1969 is less than 1 acre. There is a schedule to this application which calls for detailed statement of the extent of land held as owner or as tenant as on 1-7-1969. The prayer in the application reads:
'The applicant, therefore, prays that the Government be pleased to direct (a) acquisition of land under the Land Acquisition Act, the applicant bearing 87 1/2% of the cost of acquisition of land for the abovesaid purpose (b) the al-lotment of such land to the abovesaid kudikidappukaran and (c) the shifting of the kudikidappu to the land so allotted.'
8. A close reading of Sub-sections (3-A), (3-B), and (3-C) would indicate that those are provisions concerning the stage of the proceedings subsequent to the decision to acquire land for shifting the kudikidappukaran. The grant of an application under Section 75 (3) necessarily involves two stages. The first, the satisfaction on matters referred to in Section 75 (3) and the second, implementing the process of shifting by acquisition of other land and shifting the kudikidappu to such land. Sub-section (3-A) deals with the obligation to deposit 87 1/2% of the compensation. Subsection (3-B) specifically empowers an officer authorised by the Government in this behalf to collect the amount of 87 1/2% of the compensation from the applicant, acquire the necessary land under the Act, give possession of the land to thekudikidappukaran and require him to shift to the said land. It is then that the kudikidappukaran is obliged to shift to the new site. Where the kudikidappukaran does not comply with the direction to shift Sub-section (3-BB) empowers the officer authorised under subsection (3-B) to evict him from the existing kudikidappu. Sub-section (3-C) enables the authorised officer to determine the expenses reasonably required to shift to the new site and provides for the rights of the kudikidappukaran to receive such expenses before he shifts to the new site as required under Sub-section (3-B). Sub-sections (3-B) and (3-C) no doubt refer to an officer authorised by the Government 'in this behalf' and confers powers on him. Subsection (3-A) is not a Section conferring any power on any officer but laying down the obligation of the applicant to pay 87 1/2% of the amount of compensation payable for acquisition of land. The question of exercise of powers contemplated under Sub-section (3-B) and (3-C) would arise only at the second stage namely after it is found that there is a case for shifting the kudikidappu and therefore there is a case for directing acquisition of land. We may in this context refer to the notification authorising the Revenue Divisional Officers to exercise powers under Section 75 (3-B) and (3-C). The notification reads thus:
'S. R. O. No. 368/70-- Under Sub-section (3-B) of Section 75 of the Kerala Land Reforms Act, 1963 (1 of 1964), the Government of Kerala hereby authorise the Revenue Divisional Officers to exercise the powers conferred, and discharge the duties imposed, by Sub-sections (3-B) and (3-C) of the said section, within their respective jurisdiction.'
It may be noticed that the Revenue Divisional Officers could exercise only functions under Sub-sections (3-B) and (3-C) which functions do not take in that of determining the question of acquisition of land under Section 75 (3) of the Act. In other words, the power to decide matters the exercise of which is a pre-requisite for taking proceedings for acquisition of other land to shift the kudikidappukaran is not one falling within Sub-sections (3-B) and (3-C) and therefore the Revenue Divisional Officers competent to exercise powers under those sub-sections would not, for that reason, be competent to determine thequestion of satisfaction on matters referred to in Sub-section (3) of Section 75.
9. Section 75 (3) plainly speaks of applying to the Government for acquisition of land. This is naturally so for, it is the Government which would normally determine whether land of another should be compulsorily acquired under the scheme of the Kerala Land Acquisition Act. Though, in terms Section 75 (3) does not mention that it is the Government to decide on the application, so long as it does not contemplate a decision by any other auch-ority, the plain meaning of the section appears to us to be that the Government should decide the application. Though a Rule may not normally lend colour to the construction of the parent statute, that the Government also was of the same view is evident from Form No. 35, which indicates that the applicant requests the Govt. to decide the question. We cannot consider the statute as having not provided for a decision on the application under Section 75 (3), for, without such a decision the further provision as to acquisition of land and shifting of kudikidappukaran to such land would become unworkable. Therefore Sub-section (3), when it refers to an application to Government, contemplates a decision on that application and so long as it does not indicate any other authority who could take such decision the plain meaning of the sub-section is that the Government to whom the application is made should take the decision. Even the question whether Government could delegate the functions under Sub-section (3) to an authority may not arise in this case because the Revenue Divisional Officers empowered under the notification dated 15-9-1970 have been so empowered only to act under Sub-sections (3-B) and (3-C) and not under Sub-section (3). Perhaps had the Government chosen to delegate its power of decision to the Revenue Divisional Officers we would have been called upon to consider the propriety and the validity of such delegation. B appears to us that such delegation, when, on a proper reading of the section, the authority has been vested in the Government, would not be possible. Therefore as matters stand though the Revenue Divisional Officers could exercise the powers envisaged by Sub-sections (3-B) and (3-C) of Section 75 theywill not be competent to exercise any function in relation to the decision on matters about which satisfaction should necessarily be reached before acquisition is ordered namely, the matters referred to in Section 75 (8) of the Act. We do not find any warrant in the provision in Sub-sections (3-B) and (3-C) to justify a reading of such power in the Revenue Divisional Officers.
10. No rule could override the provisions of the Act and confer on subordinate officers of Government functions which, under the Act are to be performed by the Government. It is no doubt true that Rule 72 which we have extracted in this judgment envisages the officer authorised by the Government in that behalf to make an enquiry and to be satisfied that the applicant requires the land occupied by the kudikidappukaran for constructing a building for his own residence and that the total extent of land held by him on 1-7-1969 is less than 1 acre. Sub-r. (2-A) provides that in case the officer is satisfied that the applicant does not require the land for that purpose or the total extent is more than the minimum or that the applicant is not prepared to deposit the compensation amount which he is obliged to, the officer is to forward a report of his enquiry to the Government. The scheme in Rule 72 appears to be that where the acquisition is to be proceeded with the officer could himself take decision on all matters without reference to the Government but if for some reason or other the landlord's application cannot be proceeded with so as to effectuate the shifting the matter has to be reported to the Government so that the Government may take a decision. We can see no justification in the Act for this approach. Evidently the rule is framed on the mistaken assumption that the enactment empowers the conferment of the power to decide under Section 75 (3) of the Act on an officer of Government. Now that we construe Section 75 (3) of the Act as not conferring power on any officer of the Government there is no question of any officer of Government being empowered by any rule to make a decision as contemplated in Rule 72 (3) of the Rules. The Rule to that extent is repugnant to the Act and cannot therefore operate.
11. As we have indicated, in the decisions in O. P. No. 2934 of 1975 and 1265of 1976 there has not been a detailed examination of this question. The Division Bench in Sathi Bai Kamath v. Sub Collector, 1977 Ker LT 644 no doubt has adverted to all these provisions. The Division Bench in paragraph 2 is seen to observe thus:
'It will be noticed from this Rule and from the sub-sections that we had extracted that the object of Section 75 (3) is to enable the Government to acquire the land to which the kudikidappu may be shifted. The acquisition is to be directed if 'the Government is satisfied' in regard to the requirements mentioned in Sub-section (3) of Section 75, namely, that the applicant had only less than one acre of land, and that there is a kudikidappu on the same, and that he requires the land occupied by the kudikidappu for constructing a building for his own residence.' (emphasis (hereinto ' ') supplied)
But in the same para after referring to the argument that the Government alone had to be satisfied about the matters mentioned in Section 75 (3) the learned Ag. Chief Justice observes:
'Looking through the scheme and the purpose of Sub-section (3) and having regard to the fact that the Government in these matters can only function, and must necessarily function, through some ministerial agency or officer of the Government, we are of the opinion that the provisions of Sub-section (3-A) and Sub-section (3-B) are meant to provide the machinery for implementing the purposes of the application mentioned in Sub-section (3). It appears to us this has been provided for by Rule 72 as it stood prior to its substitution in 1975.'
We are afraid we cannot, with great respect to the learned Judges of the Division Bench, agree. That is because despite the fact that the Government acts through its officers to collect information and data, when, by a statute, it is called upon to exercise functions such functions cannot be delegated to any of its officers. There is a manner and method by which Government speaks for itself. Of course it must be through a human agency. Rules of business of the Government determine the form in which the Government is to speak. When it is so spoken it is the Government that speaks. If it is otherwise, and if a subordinate officer speaks it is not the Government's voice but thevoice of the officer who so speaks. We find nothing in the scheme and purpose of Sub-section (3) which justifies the view expressed by the learned Judges of the Division Bench nor do we consider Sub-sections (3-A) and (3-B) of Section 75 as of any consequence in reading the powers of the Revenue Divisional Officers as extended to matters falling within the scope of Sub-section (3) of Section 75. With great respect we do not find our way to agree with the view expressed in Sathi Bai Kamath v. Sub-Collector, 1977 Ker LT 644. The function of deciding on the question whether an applicant under Section 75 (3) requires the land occupied by kudikidap-pukaran or whether the total extent of land held by the applicant is less than 1 acre is that to be exercised by the Government and the Government alone and not by the Revenue Divisional Officers. Notification S. R. O. 368 of 1970 cannot and does not empower such officers to exercise such functions.
12. A contention has been urged before us that we should not take notice of the plea as to the absence of iurisdic-tion of the Revenue Divisional Officers in these proceedings since such contention was not raised before the Revenue Divisional Officers themselves. It is not in controversy that the Revenue Divisional Officers purported to act as if they were empowered to act under Rule 72 of the Rules and if so it would have been futile to contend before them that despite the rules they should not act. Our attention has been drawn to the decision of this court in T. Dist. Wholesale Society Ltd. v. Dy. Registrar, 1975 Ker LT 589 : (AIR 1976 Ker 124). The exercise of writ jurisdiction being discretionary it is not any and every attack to a decision that is to be entertained by this court. Whether the discretion is to be exercised will depend on consideration of many matters one of which would be the validity of the explanation for the failure to raise objection as to jurisdiction before the Tribunal or the authority who decided the question. If proper explanation is offered or the explanation is self-evident, the court would not deny exercise of jurisdiction under Article 226 of the Constitution of India. In the case before us the question whether Government itself should pass an order under Section 75 (3) or whether the RevenueDivisional Officer could pass such an order was a matter not free from doubt and the decision of this court in Sathi Bai Kamath v. Sub-Collector, 1977 Ker LT 644, having held the field at the relevant time it is not reasonable to expect every litigant in every case to raise this objection before the Tribunal, well knowing that it would be futile to so raise it. That explains the failure to raise this question before the Revenue Divisional Officer and we do not think in these circumstance? we should decline to exercise our jurisdiction.
The result of our finding is that Ext. P-2 in O. P. 1073 of 1976 and Ext. P-l in O. P. 2981 of 1977 are quashed. This does not preclude the proceedings on the applications under Section 75 (3) being continued in accordance with law and as contemplated by the provision in Section 75 of the Act. The Original Petitions are allowed as above. No costs.