N.Sastha (died) v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.11.2009C O R A M:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAandTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMW.A.No.1349 of 2002 andW.A.M.P.No.2434 of 20021. N.Sastha (died)2. N.Kumaraswamy3. N.Ganesan4. N.Paramasivam5. M.Rajakumar6. M.Ramkumar7. S.R.Kumar8. S.R.Sekar9. S.R.Kishore (Substituted the Legal Representatives of the deceased 1st appellant (N.Sastha) as appellants 7 to 9 vide order dated 24.06.04 made in W.A.M.P.No.194/04) .. Appellants vs.1. The State of Tamil Nadu, rep. By District Collector, Kanniyakumari District at Nagercoil.2. The Revenue Divisional Officer, Nagercoil.3. The Thasildar, Thovalai Taluk, Boothapandi and Post, Kanyakumari District.4. The Revenue Inspector, Azhagiapandiapuram Firka, Azhagiapandiapuram Post, K.K.Dist. .. RespondentsWrit Appeal filed under Clause 15 of the Letters Patent Actagainst the order of this Court in W.P.No.11495 of 1998 dated15.11.2001.W.P.No.11495/98:- This Petition presented to this Court underArticle 226 of Constitution of India to issue to writ of mandamusdirecting the respondents to forbear from interferring with thepetitioners possession and enjoyment of the lands comprised inOld.S.No.1080 and 1081 (Rs.No.426, 427, 428, 429, 430, 431) as https://hcservices.ecourts.gov.in/hcservices/ declared in O.S.No.25 of 1994 on the file of the Principle DistrictMunsif Court, NAgrcoil under the provision of the Tamil Nadu LandEncorachment Act 1905.For Appellants : Mr.V.SelvarajFor Respondents : Mr.G.Desinghu Special Government PleaderJ U D G M E N T(Judgment of the Court was made by F.M.IBRAHIM KALIFULLA, J.)The appellants are aggrieved against the order of the learnedSingle Judge dated 15.11.2001, in and by which, the claim of theappellants for issuance of a writ of Mandamus forbearing therespondents from interfering with the appellants possession andenjoyment of the lands comprised in old S.Nos.1080 and 1081(R.S.Nos.426, 427, 428, 429, 430 and 431) of Thovalai Village,Kanyakumari Taluk and District, as declared in O.S.No.25 of 1994, onthe file of the Principle District Munsif Court dated 07.03.1996,came to be rejected.2. The appellants are stated to have been in possession of 100acres of land prior to reorganisation of Travancore-Cochin Stateunder the 1956 Act. According to the appellants, the lands weregiven to them for cultivation purposes by the erstwhile Travancore-Cochin Government under the rules for Kuthagapattom or under therules of Kandukrishi Pattom system. The rules relating toKuthakapattom came to be repealed by the State of Tamil Nadu inG.O.Ms.No.3369, Revenue Department, Dated 12.12.1972. Thereafter,the State Government issued G.O.Ms.No.947, Revenue Department, dated02.03.1973, for assignment of lands of small holdings by some of theKuthakapattom holders. Since the holdings of the appellants andtheir forefathers were 100 acres, the assignment provided for underG.O.Ms.No.947, dated 02.03.1997, was not applicable to theappellants. However, under the very same G.O., in paragraph 5 itwas provided as under:"5. The Collector of Kanyakumari and Tirunelveli andthe Board of Revenue are informed that separate orderswill be issued on the question of resumption of the landsunder Kuthakapattom which cannot be assigned to occupiersunder the above instructions."3. The appellants with a view to safeguard their possession,approached the Civil Court namely the Principle District MunsifCourt, Nagercoil by filing O.S.No.25 of 1994 for declaration and https://hcservices.ecourts.gov.in/hcservices/ injunction. The declaration was to the effect that their possessionof the tax assessed Tharisu poromboke lands having an extent ofabout 100 acres in the suit property be declared as such and theState Government be directed by means of a mandatory injection toissue orders of assignment in their favour and also restrain them byway of a permanent injunction from taking any steps for assignmentof such lands in favour of strangers.4. In the plaint, the appellant however referred to the orderof this Court dated 20.12.1991, passed in W.P.Nos.5352 & 12112 of1987 and 17987 & 17988 of 1991 for grant of patta in their favourand for quashing the orders of the Revenue authorities for excesscollection of 'B' memo charges and also for assignment of lands.5. In the said order, this Court has noted the stand of theappellants' counsel for direction to the respondents to considertheir claims for assignment and pass appropriate orders within atime bound programme. This Court directed the District Collectorbefore whom the representations were pending to dispose of thoserepresentations and pass appropriate orders within three months fromthe date of receipt of a copy of that order.6. In the suit, the respondents resisted the claim by filing awritten statement. In paragraph 6 of the written statement, it ispointed out that after the repealing of the Kuthagipattom Rules inthe year 1972, 'B' memos were issued under the Land EncroachmentAct, 1905 for unauthorised enjoyment of Government lands against theappellants; that the appellants were not entitled to get anyassignment in their favour and that in the light of theG.O.Ms.No.377, Revenue Department, dated 13.05.1993, rejecting therequest of the appellants, they are liable to be evicted from thelands in question. The suit came to be disposed of by the CivilCourt on 07.03.1996 and the Civil Court held that the appellants arein possession of 100 acres of Government poromboke lands. Theprayer for mandatory injunction was rejected and it was further heldthat the respondents were entitled to evict the appellants inaccordance with law. The Civil Court also directed the appellantsnot to alienate the properties.7. In pursuance to the order of this Court dated 20.12.1991,passed in different writ petitions preferred by the appellants, theState Government issued G.O.377, Revenue Department, dated13.05.1995, reiterating the position that the appellants were notgoverned by the Kuthakapattom Rules, that the lands which were inpossession of the appellants have been declared as Governmentporomboke lands, governed by the provisions of Land EncroachmentAct, 1905. The G.O. also made it clear that the lands were treatedas poromboke lands and appropriate 'B' memos were duly issuedtreating the appellants as encroachers. The claim of the appellants https://hcservices.ecourts.gov.in/hcservices/ for assignment in their favour was rejected and the DistrictCollector was directed to communicate such rejection under the saidG.O. to the appellants.8. It is in the above stated background, the appellants cameforward with the present writ petition. The learned Judge after adetailed reference to the earlier proceedings and after taking noteof the Government Order in G.O.Ms.No.377, dated 13.05.1993, has heldthat the appellants were not entitled to seek for assignment of thelands and that they were not qualified to get any such assessment.The learned Judge also noted that the appellants having beenadmittedly assessed by way of 'B' memo from 1972 onwards, theiroccupation of the lands being unauthorised namely as encroachers,the State Government is entitled to proceed against the appellantsfor eviction under the provisions of the Land Encroachment Act,1905.9. The above conclusion of the learned Judge are found inparagraphs 6, 7 and 8 of the impugned order, which reads as under:"6. Though a copy of the said Order (G.O.Ms.No.465,dated 20.07.95) has been filed, from the writtenstatement filed by the District Revenue Officer inO.S.No.25/94, it is seen that the petitioners herein havefiled earlier W.P.No.5301/92 for a direction to theGovernment to assign the lands in R.Sy.No.626/1 ofArumanallor Village. After holding an enquiry asdirected by this Hon'ble Court, the Government havepassed G.O.Ms.No.377, Revenue Department, dated 13.05.93,rejecting the request of the petitioners on the groundthat he is rich pattadar, Income tax assessee etc.According to the said order, the land is required forGovernment purpose and hence the Government have passedorders to evict the plaintiff from the land. Thereafter,the petitioners herein filed a suit in O.S.No.25/94praying for a declaration and permanent injunction. Thelearned District Munsif in his considered judgment dated07.03.1996, found on issues No.1 to 3 with reference todeclaration that the petitioners cannot seek forassignment of lands. He considered the Government Orderin G.O.Ms.No.947, dated 02.03.73 and found that thepetitioners are not entitled for assignment. The learnedMunsif also found that the petitioners did not questionthe order passed by the Government rejecting theassignment. Therefore, the very question of eligibilityof the petitioners to get the benefit of the GovernmentOrder was considered by the learned District Munsif inparagraph No.12 of the Judgment and the same wasnegatived. On the other issues, whether the petitionerscan seek for a permanent injunction and a mandatory https://hcservices.ecourts.gov.in/hcservices/ injunction. While dismissing the plea of the petitionersthat till such time the Government is entitled to evictthe petitioners in accordance with law they can continuein possession. Ultimately a decree was passed holdingthat these 100 acres of land are Government porambokelands and they are in possession of lands. However, theprayer for permanent injunction and mandatory injunctionwas refused, and thirdly it was decreed that till suchtime they are evicted in accordance with law, these landswill not be transferred to third parties. The saiddecree has become final and no appeal has been preferred.7. In the light of the finality of the order passedby the Government in G.O.Ms.No.377 (Revenue) dated13.05.93 and dismissal of the suit and decree and furtherorder by the Government in Revision dated 15.07.1997, Ihold that the petitioners cannot get any assignment ofthese lands and that they are not qualified to getassignment.8. The petitioners are admittedly been assessed for'B" memos from 1972 onwards. That is not in dispute. Solong as the petitioners occupation is found to beunauthorised and that they have been assessed 'B' memos,they have no manner of right to claim once again thatthey must be assigned with lands. So long as theiroccupation continues to be unauthorised, the Governmentcan proceed to evict the unauthorised persons afterissuing Section 6 notice."10. Mr.V.Selvaraj, learned counsel appearing for the appellantsin his submissions stated that the G.O.Ms.No.377, dated 13.05.1993,has not been communicated to any of the appellants and that it isstated that the District Collector should communicate the rejectionof the appellants prayer for assignment and that there is nocommunication in the G.O. as to service of the said G.O. on theappellants.11. As far as the right of the appellants to make a claim inany other category other than what has been provided for inG.O.Ms.No.947, dated 02.03.1973, a perusal of the Civil Court decreeas well as the representations pursuant to which the ultimateG.O.Ms.No.377, dated 13.05.1993, came to be passed disclose thatwhile as per G.O.Ms.No.947, dated 02.03.1973, the appellants areadmittedly not entitled for any assignment to be granted in theirfavour and under the very same G.O. they are liable to be proceededagainst under any other law by the State Government. 12. When the appellants moved the Civil Court, the Civil Courtalso made it clear that there is no scope for any mandatory https://hcservices.ecourts.gov.in/hcservices/ injunction for assignment of lands in their favour based onG.O.Ms.No.947, dated 02.03.1973 or any other provision of law. Onthe other hand, the Civil Court has noted the possession of theappellants by virtue of 'B' memo issued in their favour right fromthe year 1972, which is in recognition of their status asencroachers of the Government poromboke land. When once thatposition emerges from the various proceedings placed before theCivil Court, as well as before this Court and since G.O.Ms.No.377,dated 13.05.1993, has come into existence, we can only hold that theappellants if are aggrieved against the order passed inG.O.Ms.No.377, dated 13.05.1993, they should work out their remedyin the manner known to law.13. As far as the grievance expressed by the learned counselfor the appellants that there is no indication that G.O.Ms.No.377,dated 13.05.1993, was duly communicated to the appellants, as theG.O. itself sates that the District Collector should communicate thesaid order to the appellants. If such order had been communicatedby the District Collector as per the directions of the StateGovernment, there is no necessity for this Court to issue anyfurther directions. If by any chance, the G.O.Ms.No.377, dated13.05.1993, had not been communicated to the appellants, it is forthe District Collector, Kanyakumari to communicate the same asexpeditiously as possible in any case within two weeks from the dateof receipt of a copy of this order. We make it clear that if theorder had already been communicated as per the direction containedin the G.O. itself, the District Collector can ignore the directionissued in this Judgment. 14. As we are convinced with the reasons mentioned by thelearned Single Judge in the impugned order, in particular thevarious reasoning which weighed with the learned Judge for passingthe impugned order, we do not find any scope to grant any relief orinterfere with the order of the learned Judge in this writ appeal.The writ appeal fails and the same is dismissed. The connectedmiscellaneous petition is closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.kk https://hcservices.ecourts.gov.in/hcservices/ To1. The District Collector, Kanniyakumari District at Nagercoil.2. The Revenue Divisional Officer, Nagercoil.3. The Thasildar, Thovalai Taluk, Boothapandi and Post, Kanyakumari District.4. The Revenue Inspector, Azhagiapandiapuram Firka, Azhagiapandiapuram Post, K.K.Dist.1 cc to MR.V. Selvaraj, Advocate, Sr. 601561 cc to Government Pleader, SR. 60133 W.A.No.1349 of 2002 andW.A.M.P.No.2434 of 2002AKR (CO)kk 25/11