✦ High Court of India · 11 Jul 2024

Madrasdated High Court · 2024

Case Details High Court of India · 11 Jul 2024

Court

High Court of India

Decided

11 Jul 2024

Bench

S S SUNDAR

Length

2,822 words

Acts & Sections

A of the Tamil Nadu Estates Land Act 1908 Constitution of India Even when the Bank claimed land under SARFAESI Act 2002 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2022 Since proceedings have to be initiated only by the authorised persons under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act 2007

W.P.No.8661 of 20205. Cholambedu Grama Makkal Podunala Mandram rep.by its President N.Murugesan No.10-16, Perumal Kovil Street Cholambedu Gramam Thirumullaivoyal, Chennai 600 062..RespondentsWrit Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records pertaining to Proceeding No.K1/4068/2014 dated 26.12.2019 on the file of the 1st respondent and quash the same as illegal and unlawful.For Petitioner ::Mr.A.Arokia Satheesh forMr.S.SethuramanFor Respondents::Mr.M.R.GokulkrishnanAdditional Government Pleaderfor R1 & R4Mr.Manoharan Sundaram for R2Mr.G.Harikrishnaa for Mr.S.V.Pravin Rathinam for R3Mr.M.Purushothaman for R5ORDER(Order of the Court was made by S.S.SUNDAR,J.)This writ petition is filed for issuance of a writ of certiorari to quash the proceedings of the first respondent dated 26.12.2019. 2. The petitioner is a Bank. The petitioner granted certain credit facilities to the second respondent to the tune of Rs.3.40 Crores on ____________Page 2 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 202019.03.2011 and to secure its repayment, the second respondent had mortgaged an extent of 72 cents of land out of an extent of 1.68 acres in Survey No.572, Thirumullaivoyal Village, Tiruvallur District. Unfortunately, the land which was mortgaged, is a land that vest with the Government under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, “Act 26 of 1948”). Probably, after obtaining legal opinion as to the marketable title of the property and also the fact that possession of the property was with the second respondent, the bank had extended the credit facilities. The borrower/mortgagor failed to repay the money and hence proceedings were initiated under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2022 (for short, “the SARFAESI Act”) for recovery of dues to the tune of around Rs.5.72 Crores as against the borrower, who is the second respondent. The petitioner-mortgagee had to approach the District Magistrate, namely, the Collector for assistance to take possession and hence an application was also filed under Section 14 of the SARFAESI Act. However, the said application was dismissed on the ground that the issue regarding title is pending before the first respondent. ____________Page 3 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 20203. It is to be noted that the land was classified as “Kanakkankuttai” as per the revenue records, even before the settlement proceedings were initiated pursuant to Act 26 of 1948. Though the classification of land as “Kanakkankuttai” continued even during settlement, the Tahsildar concerned had ordered to issue patta to the second respondent outside the scope of Act 26 of 1948. It is true that vide G.O.Ms.No.1300, Revenue Department dated 03.10.1971 in respect of ryotwari lands which are in the holding of ryots, the Government issued directions to consider the claim of such individuals who are in possession, but who had not filed applications under Act 26 of 1948, for getting ryotwari patta outside the scope of Act 26 of 1948. However, at no stretch of imagination a revenue official would think of granting patta in respect of a water body, as all communal lands including water body vest with Government free from encumbrance and there is no scope of granting patta in respect of water body in favour of either the land holder or the ryots. It is also to be noted that there is an amendment that was introduced by way of Section 14-A to Act 26 of 1948 not to grant patta in respect of even private tank or oorani. Even a patta if mistakenly granted in respect of private tank or oorani, the same shall be ____________Page 4 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020cancelled by virtue of the said amendment. It is also to be noted that a person, who is entitled to ryotwari patta, is required to apply for patta and if patta by mistake is not given and the land is classified in the holding of any other person, the aggrieved person, who is entitled to ryotwari patta, is required to file an appeal. The statutory limitation prescribed for filing an appeal under the Act also was not extended beyond 1987. However, an application filed for issuance of patta outside the scope of Act 26 of 1948, as provided in G.O.Ms.No.1300, Revenue dated 03.10.1971 was relied upon to grant ryotwari patta by the District Revenue Officer. When the classification of the land is not an issue at any point of time as per revenue records, the second respondent has fraudulently obtained patta from the District Revenue Officer, who is not even competent to reclassify the land to issue such ryotwari patta. 4. The fifth respondent approached the first respondent as against the illegal order passed by the District Revenue Officer granting patta in respect of the land which is classified as “Kanakkankuttai”, an objectionable water course poramboke that actually existed as water body during settlement. ____________Page 5 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020The first respondent, after going through all the records, recorded specific findings in paragraph-15 of the order. It is worthwhile to refer to the said findings, in this order, as detailed below:-“15) The District Revenue Officer, Tiruvallur has confirmed that the land remains as Government Poramboke-Kanakkan Pillai Kuttai, but there is no trace of Kuttai there.ii) The then District Revenue Officer had acted beyond his powers and granted fraudulent Ryotwari Patta in 2011 based on the application of the petitioner, Thiru Ramadoss dated 18.10.2010.iii) As per Inam Act 26/63 or Act 26/48, the period of Limitation ends with 31.3.1977 for Inam Act and 30.8.1987 for Act 26/48. Therefore, the District Revenue Officer has granted patta beyond his powers and period of limitation.iv) Now, the District Revenue Officer, Tiruvallur reported that even the file number mentioned in the proceedings is not tallying with the subject of dealing assistant.v) Even though the District Revenue Officer passed such an order, the subordinate revenue officials should have informed the higher officials i.e., the Collector, the Director of Survey and Settlement and the Commissioner of Land Administration but this was not done in this case.vi) Prima facie, it is a water course land and the revenue subordinate officials should have objected when the District Revenue Officer granted patta on a water course, ____________Page 6 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020that too, after the period of limitation, but kept silence and left the issue in dark.vii) The Ryotwari Patta was granted in 2011, but Cholambedu Grama Podu Makkal Nala Sangam had informed about this irregularity in 2014, but the District Administration neither prevented nor took prompt action to report.viii) Now, the District Administration had allowed the petitioner to build up a big apartment and innocent purchasers had purchased their flats, without knowing the fraudulent issue prevailing there upon.ix) Even when the Bank claimed land under SARFAESI Act 2002, the District Administration had never reported these facts to the Bank. Now, impleading respondent had paid money and is claiming his right as the petitioner, Thiru Ramadoss has become a bankrupt. x) The District Collector has also not mentioned the status of S.No.572/3, measuring 0.30.0 ha or 2985 Sq.Mts classified as Kanakkan Kuttai, whether it has any encroachment or still vested with Government.”5. From the facts recorded by the first respondent in the order, this Court appreciates and approves every findings of the first respondent which only reflects the settled principles of law. Based on the findings, the first respondent further directed the cancellation of patta issued by District ____________Page 7 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020Revenue Officer in his proceedings dated 21.01.2011 and directed the District Collector to restore the Government land and enter it in the Prohibitory Order Book. The first respondent also recommended stringent disciplinary action to be initiated against the officials who are in the Collectorate, the Tahsildar and his staff including the survey staff, as these officials failed to report the erroneous order passed in respect of a water body that existed even when Act 26 of 1948 was enacted. The first respondent has also found based on records that the order of District Revenue Officer was not passed in his officiating capacity as no file is traceable in the office and that the file number mentioned in the order of District Revenue Officer is not tallied with the subject of the dealing Assistant and Distribution Register, exposing the fraud. There were further directions in the order, which we need not elaborate. Challenging the same, the mortgagee, namely, the bank which had accepted the documents relating to the water body, has filed the above writ petition.6. The learned counsel appearing for petitioner submits that the bank was not given sufficient opportunity before passing the order, even though ____________Page 8 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020as mortgagee their right is affected and they are interested persons to be heard. The counsel then submitted that the petitioner has obtained legal opinion from experts. Since patta had already been issued in favour of the second respondent, the first respondent has no authority to cancel the patta. The counsel further submitted that the land is not Government poramboke land and therefore the private ownership that vests with the second respondent by granting patta cannot be interfered with. The counsel also challenged the finding of the first respondent that the disputed land is a water body. Since proceedings have to be initiated only by the authorised persons under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, the counsel submitted that the impugned order is without jurisdiction. 7. This Court is unable to accept any of the contentions of the learned counsel for petitioner. The bank is only a mortgagee. They are only claiming under the second respondent, who has offered the title deeds. Going through the documents including the patta granted in favour of the second respondent by the District Revenue Officer based upon ____________Page 9 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020G.O.Ms.No.1300 dated 03.10.1971, anyone will understand that the re-classification was done by the revenue without any authority. The classification of the land even at the time of introduction of Act 26 of 1948 is not in dispute. The District Collector has power and authority to change the classification only under Section 20-A of the Tamil Nadu Estates Land Act, 1908. Unfortunately, the Estates Land Act was also repealed by Act 26 of 1948 and therefore it is no more open to the District Collector to exercise his power for re-classifying any land, which was earlier classified as communal land. It is in the said circumstances, this Court is unable to find any basis for the erstwhile District Revenue Officer to come to the conclusion that ryotwari patta can be granted either under the Act 26 of 1948 or outside the scope of Act 26 of 1948. It is to be noted that the petitioner, which is lending money, on the basis of title deed, in favour of the second respondent, is just a mortgagee. The petitioner, who is expected to be vigilant before verifying title, cannot claim any independent title or right over the property merely because the bank has advanced substantial loan as against the security. Any alienation is not binding on the Government. The petitioner's right as mortgagee to proceed against the ____________Page 10 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020borrower is still available. If the property does not belong to the borrower, the petitioner has no better title than the second respondent and hence the petitioner cannot have a grievance merely because the petitioner was not heard by the first respondent. The petitioner has not produced any material or pleaded a case which would improve the case of borrower to tilt the balance. 8. We have heard the learned counsel appearing for the second respondent, who has not produced any document or material to show that the findings are perverse or unsustainable on any ground, in view of the specific findings rendered by the first respondent in the impugned order. As already observed, the first respondent has conducted proper enquiry. On the basis of records maintained prior to settlement and after the introduction of ryotwari settlement, the disputed property is classified as a water body known as “Kanakkankuttai”. Since patta has been obtained by playing fraud, the same cannot confer any title either in favour of the second respondent or in favour of the petitioner. In such circumstances, we find no merits in the writ petition. ____________Page 11 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 20209. The learned counsel appearing for the petitioner bank, however, has expressed that in view of the pendency of proceedings before this Court, they are unable to proceed further against the second respondent towards recovery. In case the bank is prevented from taking action on account of any statutory limitation, the period of pendency of this writ petition shall be excluded for the purpose of limitation to which they are entitled to in terms of Section 14 of the SARFAESI Act and their right to proceed against the borrower is preserved. Since the involvement of second respondent in getting patta by fraudulent means is not ruled out, the bank can also initiate criminal proceedings against the second respondent. The writ petition stands dismissed with the aforesaid liberty. Consequently, W.M.P.No.11610 of 2020 is closed. No order as to costs.10. The learned counsel appearing for second respondent submitted that though action has been taken to remove the encroachment in respect of 72 cents to which the second respondent had erroneously obtained patta, no action is taken in respect of the remaining extent out of 1.68 acres, which was classified as “Kanakkan Pillai Kuttai”.____________Page 12 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020 11. The learned counsel appearing for the fifth respondent has produced before this Court the order passed by this Court dated 23.04.2018 in W.P.No.10075 of 2018. When the said writ petition was filed by the fifth respondent for issuance of a mandamus directing the revenue officials to evict one C.Vijayakumar from the land comprised in Survey No.572, this Court after finding that the property is a water body as per revenue records, has directed removal of encroachment within a period of six weeks from the date of receipt of a copy of the order after a survey and inspection. 12. In view of the direction of this Court earlier by order dated 23.04.2018, the official respondents shall initiate appropriate action and to see that the entire property in Survey No.572, which is classified as “Kanakkan Pillai Kuttai” is restored. The official respondent or even the Government cannot regularise the encroachment, as the ownership over such communal land never vest with Government, but to be held for the benefit of public. Appropriate proceedings shall be initiated against every person who has encroached any portion of the water body. Even if any ____________Page 13 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020construction is put up in the water body, the same shall be demolished after following the procedure. The entire exercise shall be completed within a period of sixteen weeks from the date of receipt of a copy of this order. Post this matter after eighteen weeks 'for reporting compliance'. 13. Before parting with the case, this Court directs the District Collector concerned to hold an enquiry to find out the persons responsible for doing this mischief i.e., granting patta in respect of a water body. If the report of enquiry reveals any of the officials being responsible, the Collector may collect the particulars about the individual revenue officials who are involved in this fraudulent scam and to see that disciplinary proceedings are initiated against everyone immediately wherever they are. The District Collector shall complete the disciplinary proceedings against the officials concerned as expeditiously as possible and to see that they are not assigned any key posts in the district and are kept in vigil by the Vigilance and Anti Corruption Department for the rest of their career. The District Collector shall also file a report before this Court as to the action taken against the persons named and the officials who are found involved in reclassifying the ____________Page 14 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020land at the relevant point of time in his report. The first respondent shall monitor the proceedings initiated by the District Collector in this regard.Index : yes/no (S.S.S.R.,J.) (N.S.,J.)Neutral citation : yes/no 11.07.2024ssTo1. The Additional Chief Secretary/ Commissioner of Land Administration Chepauk, Chennai 600 0052. The District Collector O/o the Collectorate of Tiruvallur Tiruvallur District____________Page 15 of 16 https://www.mhc.tn.gov.in/judis W.P.No.8661 of 2020S.S.SUNDAR,J.AND N.SENTHILKUMAR,J.ss W.P.No.8661 of 202011.07.2024____________Page 16 of 16

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