S.Tamilvannan v. The District Revenue Officer, Madurai District, Madurai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 25-09-2008CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.1096 of 2001S.Tamilvannan .. PetitionerVersus1.The District Revenue Officer, Madurai District, Madurai.2.The Special Deputy Collector/Revenue Court, Madurai.3.The Tahsildar/Record Officer, Tirumangalam, Madurai District.4.The Executive Officer, Arulmigu Subramaniaswamy Thiru Koil, Tiruparankundram, Madurai-5. .. RespondentsPrayer: This petition has been filed seeking for a writ ofCertiorarified Mandamus, calling for the entire records inconnection with the impugned order of the first respondent made inhis proceedings No.R.B.29/98 G3, dated 12.9.2000 and quash the sameand consequently direct the first respondent to record the name ofthe petitioner as a cultivating tenant in respect of the Punjalands in S.No.30/1-6.83 acres and 30/3-2.20 acres in total 9.03acres, in Kappalur Village, Madurai District. For Petitioner : Mr.M.SriramFor Respondents : Mr.T.Seenivasan Additional Government Pleader(R1 to R3) Mr.G.Sankaran (R4)O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondents.2. It has been submitted that the lands in S.Nos.30/1, with anextent of 6.83 acres and 30/3 with an extent of 2.20 acres, (with atotal extent of 9.03 acres of lands) in Kappaloor Village, belongsto the fourth respondent Temple and the said lands were leased outto the petitioner under the lease deed, dated 7.8.89. From the saiddate, the petitioner has been cultivating the lands and paying the https://hcservices.ecourts.gov.in/hcservices/ lease amount to the temple as a cultivating tenant, regularly,without any default. The petitioner was enjoying the property asper the lease deed executed by the fourth respondent in favour ofthe petitioner. The petitioner further submits that the fourthrespondent temple had also issued receipts in evidence of therental amounts paid by the petitioner. The last receipt has beenissued by the fourth respondent, on 19.6.95, by receiving a sum ofRs.1,300/- for the fasli 1404. While the petitioner was ineffective cultivation of the lands, he had filed an application, inT.R.No.4/95, before the third respondent, under the TamilnaduAgricultural Lands Record of Tenancy Rights Act (X of 1969) toregister his name as a tenant in the tenancy records. The thirdrespondent, after conducting an enquiry, as contemplated under theAct, by considering the materials produced by the petitioner andthe fourth respondent herein, had rightly come to the conclusionthat the petitioner is entitled to the reliefs sought for in thesaid petition. Thus, the petitioner was recorded as a cultivatingtenant in the tenancy records, by an order, dated 25.9.95. 3. Aggrieved by the said order of the third respondent, thefourth respondent Temple had filed an appeal in A.P.No.70/95,before the second respondent, Appellate Authority, on 11.2.95. Thesecond respondent, after considering the materials and thedocuments submitted on behalf of the petitioner, as well as thefourth respondent, had wrongly come to the conclusion that theorder passed by the third respondent is not correct. Accordingly,the order of the third respondent was set aside, and the appealfiled by the fourth respondent temple had been allowed, by anorder, dated 13.10.97. The second respondent while setting asidethe order of the third respondent, dated 25.9.95, had failed toconsider the various materials available on record and the relevantprovisions of the Act and on a wrong assumption that the propertieswere not leased out to the petitioner and that it was only alicence which had been given, to the petitioner by the fourthrespondent temple, for a period of three years. As per theconditions of the lease deed, the petitioner is not a cultivatingtenant and the lands were not leased out for agricultural purposes.The petitioner had also produced additional documents before theAppellate Authority, the second respondent herein, to establish histenancy rights. However, the evidence produced by way of additionaldocuments was not properly considered by the second respondent,while deciding the appeal. Challenging the order passed by theAppellate Authority, the petitioner had filed a revision before thefirst respondent in R.P.No.29/98. The first respondent, withoutconsidering the documents and the evidence filed in respect of theclaims made by the petitioner, dismissed the revision by theimpugned order, dated 12.9.2000. In such circumstances, thepetitioner has preferred the present writ petition before thisCourt, under Article 226 of the Constitution of India. 4. In the counter affidavit filed on behalf of the fourthrespondent, the averments and the allegations made by thepetitioner had been denied. It has been stated that the writ https://hcservices.ecourts.gov.in/hcservices/ petition is not maintainable, either in law or on facts.Admittedly, the petitioner has been put in possession of theagricultural lands belonging to the fourth respondent temple,pursuant to a public auction conducted during the year 1989, forgranting a licence for the fasli years 1399. In the public auctionthe offer made by the petitioner was the highest and therefore, thelicence for the lands in question was confirmed in favour of thepetitioner. Thereafter, the licence period had been extended forthe fasli years 1400 and 1401. While so, the petitioner is notentitled to record himself as a lessee under the TamilnaduAgricultural Lands Record of Tenancy Rights Act (X of 1969).Therefore, his claim has been rightly rejected by the secondrespondent and confirmed by the revisional authority, the firstrespondent herein. It has been further stated that the fourthrespondent temple is one of the ancient temples in the State ofTamil Nadu. It is listed as a public temple, notified under Section46(iii) of the Tamil Nadu Hindu Religious and Charitable EndowmentsAct, 1959. It is being administered by an executive officer in thecadre of a Deputy Commissioner, appointed by the Government ofTamilnadu, subject to the overall control of the Commissioner,Hindu Religious and Charitable Endowments Department, Chennai.5. It has been further stated that a public auction wasconducted for granting a licence, in respect of the property inquestion for three fasli years. Since the petitioner's bid was thehighest, he was given the licence for the fasli years, 1399 to1401. With a view to conduct a fresh auction, on the expiry of thefasli year 1401, the petitioner was directed to surrenderpossession of the agricultural lands, to the fourth respondenttemple. 6. It has been further stated that since the petitioner didnot surrender the land belonging to the fourth respondent temple,no public auction could be conducted. While so, under the falsepretext that the petitioner is a lessee in respect of theagricultural lands belonging to the fourth respondent temple, hehad filed an application before the third respondent, under Section4(2) and 5(2) of the Tamilnadu Agricultural Lands Record of TenancyRights Act (X of 1969), praying that the petitioner may beregistered as a cultivating tenant in respect of the landsmentioned therein. After receipt of the notice in T.R.No.4/95, thefourth respondent Temple had filed a counter statement stating thatthe petitioner was put in possession of the lands in furtherance ofthe public auction conducted in the year 1989, for three fasliyears, from 1399 to 1401. Hence, his possession would be termed asa licence and on the expiry of the three years licence period, heis liable to surrender possession of the lands to the fourthrespondent temple. Therefore, since the licence granted to thepetitioner had already expired, his possession would only be termedas that of a trespasser. 7. Aggrieved by the order of the third respondent, the fourthrespondent had filed an appeal before the second respondent. The https://hcservices.ecourts.gov.in/hcservices/ second respondent had allowed the appeal, on merits, by observingthat the petitioner is only a licencee and that he is not entitledto maintain the application, under the Tamilnadu Act 10 of 1969. Asagainst the order of the second respondent, the petitioner hadfiled a revision before the first respondent. The revisionalauthority had dismissed the revision by confirming the order of theAppellate Authority by holding that the petitioner was only alicencee under the fourth respondent temple and therefore, he isnot entitled to maintain an application before the thirdrespondent, under the said Act. Thus, the authorities constitutedunder Act X of 1969, had concurrently found that the petitioner isonly a licencee in respect of the lands belonging to the fourthrespondent temple. It has been further submitted that, long afterthe expiry of the three years licence granted to the petitioner,taking advantage of the possession of the lands in question, thepetitioner had filed a petition to record himself as a cultivatingtenant, under Act X of 1969, in the year 1995. 8. The petitioner is in possession of the lands in questiononly a trespasser. Further, the agreement, dated 7.3.89, relied onby the third respondent has no application, as it is not anadmissible evidence on the ground that the said document is not aregistered instrument. After the expiry of the period of threeyears for which the licence had been granted to the petitioner, thepetitioner cannot claim that he continues to occupy the lands as alicencee. The lease deed is not admissible in evidence, as it isnot a registered document. The writ petition filed by thepetitioner is devoid of merits, and therefore, it is liable to bedismissed.9. The learned counsel appearing on behalf of the petitionerhad submitted that the first respondent, as a revisional authority,ought to have taken into consideration the admission made on behalfof the fourth respondent temple that the lands were under theeffective cultivation of the petitioner. In the absence of anycontrary evidence, the order passed by the third respondent,holding that the petitioner is a cultivating tenant, ought to havebeen confirmed by the appellate and the revisional authorities. Theimpugned order of the first respondent proceeds on the footing thatthe lands in question were given to the petitioner only on alicence and not as a lease. The first respondent had proceeded onthe ground that the lease had been given to the petitioner only forthe development of an animal farm and for the production of animalfeed. The rejection of the claim of the petitioner that he is acultivating tenant is contrary to the agreement entered intobetween the petitioner and the fourth respondent temple, as well asthe provisions of the Tamilnadu Agricultural Lands Record ofTenancy Rights Act (X of 1969). Section 2 of the Tamilnadu PublicTrust (Regulation of Administration of Agricultural Lands) Act,1961, defines `agriculture' to include horticulture, raising ofcrops, grass or creating produce, Diary Farming, Live StockBreeding, etc., Therefore, the first respondent had passed theimpugned order without considering the applicability of Clauses (1) https://hcservices.ecourts.gov.in/hcservices/ and (5) of Section 2 of the said Act. The revisional authority hadfailed to consider the various documents filed by the fourthrespondent showing that the lands in question were given to thepetitioner on lease. In support of the claims made by the fourthrespondent both the Appellate, as well as the revisionalauthorities, had proceeded only on assumptions and presumptions tocome to the conclusion that the lands were assigned to thepetitioner under a licence. Once it was found that the petitionerhas been continuously cultivating the land from the year 1989, andwhen the said fact had not been disputed by the fourth respondenttemple, the first respondent ought not to have rejected the claimof the petitioner that he is a cultivating tenant, since the landswere assigned to the petitioner by the fourth respondent Templeonly under an agreement of lease. When it is not disputed that thepetitioner has been carrying on the activities of cattle rearingand animal feed production, including growing of fodder for theanimals, it cannot be held that the petitioner is not a cultivatingtenant. As per the lease deed, dated 7.8.89, the lands were givento the petitioner on lease and from the year 1989, the petitionerhas been paying the lease amount to the fourth respondent temple,without any default. While so, the fourth respondent temple cannotclaim that the lands were given to the petitioner only under alicence. In such circumstances, the impugned proceedings of thefirst respondent, dated 12.9.2000, is liable to be set aside. 10. The learned counsel appearing on behalf of the petitionerhad relied on the decision of the Supreme Court in Thimmappa RaiVs. Ramanna Raj (2007(5) CTC 287) , wherein it has been held asfollows:"13. Madras Cultivating Tenants' Protection Act,1955, was enacted for protection from eviction ofcultivating tenant in certain areas in the then State ofMadras. Cultivating Tenant has been defined in Section 2(a) of the said Act to mean;2(a) "Cultivating tenant" in relation to any landmeans a person who carries on personal cultivation onsuch land, under a tenancy agreement, express or implied;and includes: (i) any such person who continues inpossession of the land after the determination of thetenancy agreement, and (ii) the heirs of such person, butdoes not include a mere intermediary or his heirs."14. Thus, inter alia a person, who thus, carries onpersonal cultivation of said land under a tenancyagreement expressed or implied, including one whocontinues in land after determination of the tenancyagreement in terms of the provisions of the Act, would bea cultivating tenant under the said Act and a landlord isprohibited from evicting him whether in execution of adecree or an order of a Court or otherwise."11. Even though the learned counsel appearing on behalf of thepetitioner had raised various grounds in challenging the impugned https://hcservices.ecourts.gov.in/hcservices/ proceedings of the first respondent, dated 12.9.2000, he has placedemphasis on his contention that both the appellate authority, thesecond respondent herein, as well as the revisional authority, thefirst respondent in the present writ petition, have not consideredthe various contentions made by the petitioner, which are shown asgrounds, forming part of the present writ petition. The learnedcounsel had submitted that this Court may be pleased to remit thematter back to the third respondent for a fresh enquiry and to passappropriate orders thereon, taking into consideration thecontentions raised by the petitioner and in view of the evidencemade available before the third respondent, on behalf of theparties concerned. 12. Though the learned counsel appearing on behalf of therespondents had contended that the lands in question were given tothe petitioner by the fourth respondent temple, only under alicence and not under a lease, they have not been in a position toshow that the second respondent, who is the Appellate Authority andthe first respondent, the revisional authority, have considered thevarious aspects pointed out by the petitioner before arriving attheir conclusions. Further, the learned counsels appearing onbehalf of the respondents, have not substantiated their claims thatthe first and second respondents have properly considered theevidence on record, while rendering their findings. Even though thepetitioner had raised various grounds, both factual as well aslegal, they have not been properly appreciated by the first andsecond respondents before coming to their conclusions that thepetitioner is not entitled to register himself as a cultivatingtenant in respect of the lands belonging to the fourth respondenttemple. 13. In such circumstances, this Court is of the consideredview that the matter is to be remitted back to the third respondentto assess all the relevant aspects in its proper perspective beforegiving his findings on the issues raised before him. Therefore, thefindings of the third respondent, in his order, dated 25.9.95,culminating in the impugned order of the first respondent in hisproceedings NO.R.B.29/98-G3, dated 12.9.2000, are set aside and thematter is remitted back to the third respondent to give clearfindings, after considering the issues raised by the petitioner, aswell as the fourth respondent temple, by giving them sufficientopportunity to present their case and to substantiate their claimsby adducing evidence, both oral as well as documentary and passappropriate orders thereon, on merits and in accordance with law,within a period of four months from the date of receipt of a copyof this order.With the above directions, the writ petition is disposedof. No costs. sd/-Asst.Registrar/true copy/cshSub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The District Revenue Officer, Madurai District, Madurai.2. The Special Deputy Collector/Revenue Court, Madurai.3. The Tahsildar/Record Officer, Tirumangalam, Madurai District.+ 1 c.c. to Mr. G. Sankaran, Advocate. S.R.No.54833.+ 1 c.c. to The Government Pleader. S.R.No.55206.Writ Petition No.1096 of 2001MRD (CO)GSK 17.11.2008.25-09-2008