Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 3.7.2007Coram: The Hon'ble Mr.JUSTICE S.RAJESWARAN W.P.No.18489 of 1998andW.M.P.No.28030/19981.M.Ramaiyan2.V.Ramaswamy3.V.K.Muthuramalingam4.M.Chinnathambi5.A.Karuppiah.. Petitionersvs.

The Government of Tamilnadu rep., by the Secretary to Govt. Revenue Dept., Fort St. George Chennai-600 009.

The Special Commissioner and Commissioner for Land Administration Ezhilagam, Chepauk Chennai-600 0053.The District Revenue officer Thanjavur4.Shamuganathan (decd.) 5. Leelavathi6.Vijayan7.Tmt. Kanagarani8.Tmt. Tamilarasi9.Udayakumar10.Tmt. Anbukarasi11.Ravikumar12.Selvakumar R5 to R12 substituted as per order dt.25.8.06 in WPMP.38424/03... RespondentsWrit Petition filed under Article 226 of the Constitution of Indiaseeking to issue a writ of certiorari to call for the records of the 1strespondent relating to his order dt.4.11.1998 passed in G.O.(Nilai) https://hcservices.ecourts.gov.in/hcservices/ No.889/Revenue Dept/Ni.A1(2) and quash the said order. For Petitioners: Mr.M.Kalyanasundaram, Senior Counsel, for M/s.Md.Fiaz Hussain For Respondents: Mr.C.Ramesh, A.G.P., for R1 to R3. M/s.T.S.Ramasamy & Mr.G.Ravichandran, for R5,R6,R8 to R12. ORDER:This Writ Petition has been filed under Article 226 of the Constitution of India seeking to issue a writ of certiorari to call forthe records of the 1st respondent relating to his order dt.4.11.1998passed in G.O.(Nilai) No.889/Revenue Dept/Ni.A1(2) and quash the saidorder. Heard the learned counsel appearing for the parties. 2. The writ petitioners are aggrieved by the order of the 3rdrespondent herein dated 30.5.89 by which the 3rd respondent granted pattain favour of the 4th respondent for an extent of 69.56 acres in Ammayandivillage and 33.07 acres in Panchanathipuram village, which was upheld byrespondents 1 and 2 herein.

This case has got a chequered history. One Vijaya RaghunathaMuthukumara Vanangamudi Vazhuvatti Thevar was the Zamaindar of SendangudiZamin consisting of Ammayandi, panchanathipuram `and other villages. Hedied in 1925 and as he was unmarried his brother's 2 year old sonsucceeded. Thereafter his mother Thangammal Ayiyar succeeded to thezamin. After her death, there was a quarrel for heirship of zamin between Appan @ Kumarasamy, the sister's son of last zamindar on th one side andthe pangalis of the Zamindar Singamuthu Vazhuvattiyar and others on theother side. As per the District Revenue Officer's order, Appan became theheir. Since the pangalis did not have enough resources to fight thelitigation, they sought the help of Thiru Chockalingam Pillai, the fatherof the 4th respondent herein. As per the arrangement between them, thepangalis executed a sale deed dated 1.7.1943 conveying the zamin to Chokkalingam Pillai. Thereafter, Singamuthu Vazhuvattiar and his sonsfiled a suit in O.S.No.19/1947 on the file of the District court, Thanjavur to declare the sale deed dated 1.7.43 as sham and nominal. Thesuit ended in a compromise decree dated 11.9.1950. According to which, Chokkalingam Pillai was to get Rs.1,36,550/- as compensation as thevillage was taken over on abolition of Inam Tenure and 2/3rd of the wastelands reclaimed by him in Ammayandi village was to be retained by him. The remaining 1/3rd would go to Singamuthu Vazhuvattiar and his sons. Theother suit in O.S.No.11/1943 on the file of the District court, Thanjavurbetween Appan and Chokkalingam Pillai went up to Supreme Court and the Supreme Court in C.A.No.35/1949 passed a compromise decree dated30.1.1951, according to which Chokkalingam Pillai released his entire https://hcservices.ecourts.gov.in/hcservices/ rights over the zamin and in turn he was to get a compensation ofRs.1,25,000/- and 70 acres of waste lands reclaimed by him in Panchanathipuram village.

The zamin was taken over by the Government on 3.5.1951 and RyotwariSettlement was introduced under the Madras Estates Abolition of Zamindariand Conversion into Ryotwari Act (Tamil Nadu Act 26/1948). ChokkalingamPillai died in 1959 and his son the 4th respondent herein made an Application on 24.3.1970 for grant of patta in respect of the waste landsin Ammayandi and panchanathipuram villages. By orders dated 7.7.1971and 12.7.71, the D.R.O., Thanjavur rejected the application for patta forboth the villages. A revision was filed against the orders of rejectionand the same was also dismissed by the then Board of Revenue by orderdated 17.5.76. However the Board granted patta for 86.79 acres in Ammayandi village and 39.48 acres in panchanathipuram village in favour ofthe 4th respondent against his claim of 124.56 acres in Ammayandi villageand 98.86 acres in Panchanathipuram village. Aggrieved by the order ofthe Board in not granting the entire claim, the 4th respondent filed arevision before the Government. So also the objectors who were aggrievedby grant of patta by the Board. By order dated 22.3.80, the Governmentremanded the matter to the Board for fresh disposal. As the Board of Revenue was disbanded in 1980, the District Revenue Officer who wasempowered to enquire into the matter by order dated 30.9.83 granted pattain favour of the 4th respondent for 69.56 acres in Ammayandi village and33.07 acres in Panchanathipuram village. The said order was challengedbefore the Commissioner for Revenue Administration, who by order dated7.10.85 set aside the order of DRO and remanded the matter to DRO forfresh consideration.

By order dated 30.5.89, the 3rd respondent/DRO herein, confirmedthe earlier order dated 30.9.83 granting patta for 69.56 acres and 33.07acres in favour of the 4th respondent. The objectors filed a revisionagainst the order of the DRO before the 2nd respondent and the 2ndrespondent by order dated 5.5.97 confirmed the order of the 3rdrespondent. Against the order of the 2nd respondent, the objectors, i.e.,the writ petitioners preferred a further revision to the Government, the1st respondent herein, and the 1st respondent by order dated 4.11.98confirmed the order of respondents 2 and 3 dated 5.5.97 and 30.5.89respectively. Aggrieved by the above orders, the petitioners have filedthe above writ petition. According to the writ petitioners, they are inoccupation and cultivation of the lands as village communal lands whichare now granted to the 4th respondent by issuing patta.

The 4th respondent died pending writ petition and as per orderdated 25.8.2006 in WPMP No.38424/2003, respondents 5 to 12 weresubstituted as Legal Representatives of the 4th respondent. Respondents 5to 12 except 7th respondent filed a counter affidavit wherein, apreliminary objection was raised as to the maintainability of the writpetition and the locus standi of the writ petitioners to file the writpetition. On facts, the respondents denied the entire averments and https://hcservices.ecourts.gov.in/hcservices/ supported the orders of respondents 1 to 3 in granting patta to the 4threspondent.

Heard Mr.M.Kalyanasundaram, the learned Senior counsel for the writpetitioners, the learned Addl. Government pleader for respondents 1 to 3and the learned counsel for respondents 5 to 12 (except respondent 7). Ihave also perused the documents and the judgments referred to by them insupport of their submissions.

The learned Senior Counsel for the petitioners submitted that thecompromise decree dated 30.1.1951 passed by the Supreme court inc.A.No.35/1949 is a judgment in rem and according to which the father ofthe 4th respondent is not eligible for any lands in Ammayandi village. Further the learned Senior counsel submitted that the writ petitionershave a legal right to oppose the grant of patta to the 4th respondent asthey have been in continuous possession and enjoyment of the lands, whichare communal lands. The learned Senior Counsel relied on the decision ofthe Rajasthan High Court reported in 1972 RAJ 180 (Sri Ram v. PrabhuDayal) to submit that the Supreme Court judgment dated 30.1.1951 is ajudgment in rem and not a judgment in personam. He further submittedthat respondents 1 and 2 did not independently decide the issue and theysimply followed the orders of the 3rd respondent which itself was notbased on any evidence. The learned Senior counsel further pointed outthat the 1st respondent-government straight away passed the ordersconfirming the orders of respondents 2 and 3 without even affording anopportunity to the petitioners to put forward their case with theavailable evidence.

The learned counsel appearing for respondents 5 to 12 (exceptingrespondent 7) seriously questioned the locus standi of the writpetitioners in invoking Article 226 of the Constitution of India. Thelearned counsel submitted that the writ petitioners are not rivalclaimants claiming patta under the Act 26/1948 and as such they have nolegal right to maintain the writ petition itself. The learned counselrelied on the decisions of the Supreme court reported in AIR 1957 S.C.529(Sohan lal v. Union of India), AIR 1962 S.C. 1044 (Cal. Gas Co.(Prop.) Ltd.v. State of W.B., and AIR 1964 S.C. 685 (State of Orissa v. Ram Chandra)to substantiate his submissions. The learned counsel further submittedthat the Supreme Court judgment is not a judgment in rem and the writpetitioners are not parties before the Supreme court. Further theconditions mentioned in the Supreme Court judgment were not complied withby the parties and therefore it was not at all acted upon. The learnedcounsel further submitted that the writ petitioners are adjudicated asencroachers and even assuming that if they have some rights over thelands, they have to approach only the civil courts and not the writpetition under Article 226 of the Constitution of India.

I have considered the rival submissions carefully with regard tofacts and citations.

Admittedly the 4th respondent when he was alive, made an https://hcservices.ecourts.gov.in/hcservices/ Application for grant of patta in 1970, outside the scope of AbolitionAct, in respect of waste lands in Ammayandi and Panchanathapuram villages. After two rounds of remand, the 3rd respondent by order dated 30.5.1989confirmed the earlier order of the DRO dated 30.9.83 granting patta to the4th respondent for an extent of 69.56 acres in Ammayandi village and 33.07acres in Panchanathapuram village. In his order, the 3rd respondent aftergoing through the evidence adduced before him held that it is anundisputed fact that the 4th respondent's father was declared land holderof Sendangudi Zamin on the date of taking over of the village under the Act of 26/1948. He also referred to the fact that there was Kudivaram or Melvaram claims before the settlement authorities for the lands in respectof which patta was now sought for. The 3rd respondent referred to accountbooks produced by the 4th respondent for the year 1943, the notices issuedto the landholder dated 10.8.1945 and 21.8.50 directing him to bring thelands under wet cultivation and the letter dated 28.7.75 of the ASOopining that the 4th respondent would have got patta had he applied intime before the settlement authorities themselves, came to the conclusionthat the lands for which the patta was granted are only cultivable landswhich were in possession and enjoyment of the 4th respondent'spredecessors in title. Insofar as the claim of the objectors areconcerned, the 3rd respondent found that the objectors encroached thelands, but the lands were not under their encroachment on the date oftaking over the village under the Act 26/1948. Therefore the 3rdrespondent held that the objectors are not eligible to get patta eitherunder the Act or under the provisions of various Government Orders. Therefore the 3rd respondent passed an order granting patta in favour ofthe 4th respondent for the above said acres of lands in the above referredtwo villages.

The 2nd respondent, before whom the order of the 3rd respondentdated 30.5.1989 was assailed, re-appreciated the entire evidence and cameto the same conclusion of the 3rd respondent. The 2nd respondent has alsospecifically referred to the fact that objectors did not have any specificclaim under the Act and their intention is only to stop the issuance ofpatta to the 4th respondent. The 2nd respondent was also aware that thecase of the 4th respondent was to be considered outside the scope of the Act and on the basis of G.O.Ms.No.1300 dated 30.4.1971 according to which, the lands should have been in possession and enjoyment of the claimantsprior to and on and from the notified date. Thus the 2nd respondentconfirmed the order of the 3rd respondent and the further revision beforethe Government was rejected by confirming the orders of respondents 2 and3.

The orders of the authorities below are based on evidence, andsuch findings of the authorities cannot be easily disturbed by this courtunder Article 226 of the Constitution of India unless it is shown that theorders are perverse and are in violation of sound legal principles.

The crux of the argument of the learned Senior counsel for thepetitioners is that the compromise decree passed by the Supreme Court is ajudgment in Rem which will bind all the parties. According to thecompromise decree dated 30.1.1951 the father of the 4th respondent is not https://hcservices.ecourts.gov.in/hcservices/ entitled to any lands in Ammayandi village and he is entitled to an extentof 70 acres of land in Panchanathapuram village only. Therefore grantingpatta in Ammayandi village is obviously not in order, according to thelearned Senior counsel.

I am not able to accept this submission of the learned Seniorcounsel.

A perusal of the Supreme court judgment dated 30.1.1951 revealsthat there are certain conditions to be complied with by both the partiesso as to bind the judgments on them and it is not established as towhether those conditions were fully complied with by the parties. Therefore without going into the question of whether the Supreme courtjudgment is a judgment in Rem or personam, I am of the considered viewthat such factual aspects could not be gone into in a writ petition filedunder Article 226 of the Constitution of India especially when therespondents 5 to 12 (excepting 7) are contesting and disputing these factsput forward by the petitioners.

Insofar as the rights of the petitioners to maintain the writpetition are concerned, I find force in the submissions of the learnedcounsel for respondents 5 to 12 herein. Admittedly the petitioners arethe encroachers that too after the notified date and in suchcircumstances, they have no legal right over the lands under theirpossession and therefore as rightly held by the authorities below, theycould not prevent the 4th respondent from getting the patta from the Government that too, under the guidelines issued by the Government. If atall they have any right, over the lands under their possession it is forthem to establish the same before a proper forum and they cannot maintainthis writ petition opposing grant of patta to the 4th respondentespecially when they are not claiming patta from the Government eitherunder the Act or under the Government Orders issued in this regard. Therefore I do not find any merits in the above writ petition.

In AIR 1957 S.C. 529 (cited supra) the Supreme Court held that the Supreme Court will not enquire into the merits of the rival claims oftitle to the properties in dispute set up by the parties as it is a fieldof investigation which is more appropriate for a civil court in a properlyconstituted suit rather than for a court exercising the prerogative ofissuing writs.

In AIR 1962 S.C.1044 (cited supra), the Supreme court held that Article 226 of the constitution of India confers a very wide powers on the High court to issue writs, but it is implicit in the exercise ofextraordinary jurisdiction that the relief asked for must be one toenforce a legal right.

In AIR 1964 S.C.685(cited supra) the Supreme court held thatthough the jurisdiction of the High Court under Article 226 is wide, itmust be established that the party has a right and the said right isillegally invaded or threatened. https://hcservices.ecourts.gov.in/hcservices/

From the above it is very clear that unless the petitioners have alegal right, they cannot invoke Article 226 of the constitution of India. It was already found by the authorities that the writ petitioners are onlyencroachers and therefore they do not have any legal right to file theabove writ petition challenging the granting of patta to the 4threspondent.

The learned Senior Counsel submitted that the writ petitionershave a legal right under the provisions of the Tamil Nadu EncroachmentAct, 1905 and therefore they can very well maintain the writ petition.

I am unable to accept the submissions of the learned SeniorCounsel for the writ petitioners. The writ petitioners are notchallenging the action of the Government by taking recourse to LandEncroachment Act. They are only assailing the orders of the authoritiesin granting patta under the Act 26/1948 and by the Government Ordersissued in this regard. Therefore they should establish that they have aright either under the Act or under the guidelines issued in this regard. Therefore it cannot be contended that they have a legal right which isenforceable under Article 226 of the Constitution of India.

The learned Senior counsel for the writ petitioners finallysubmitted that as no opportunity was given by the 1st respondent beforepassing orders, the order is to be set aside and the same is to beremanded for fresh disposal after giving opportunity to the parties.

I am unable to accept this submission also. First of all, it isnot known under what provision the petitioners filed the second revisionbefore the Government. Further, I have already taken the view that thewrit petitioners have to work out the remedy before the appropriate forumif they have any right over the lands as it is proved that they have nostatutory right either under the Act 26/1948 or under the GovernmentOrders. Therefore no useful purpose would be served by remanding thematter to the Government. Further the parties are agitating the issuefrom 1970 onwards and in the interest of justice, the litigation shouldcome to an end rather than prolonging it endlessly, especially when thewrit petitioners are found to be encroachers only.