Nagalakshmi v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.11.2011Coram:THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAMW.P. Nos.26701, 26703 to 26707 of 2007Nagalakshmi.. Petitioner in W.P.No.26701/07S. Nedunchezhian.. Petitioner in W.P.No.26703/07N. Ramadoss.. Petitioner in W.P.No.26704/07Kadhirvel.. Petitioner in W.P.No.26705/07Manikandan.. Petitioner in W.P.No.26706/07Natajaran.. Petitioner in W.P.No.26707/07vs.1.The State of Tamilnadu, Rep. by the District Collector, Cuddalore.2.The Special Deputy Collector, (Revenue Court), Cuddalore.3.The Record Officer, (Thasildar) Kattumannar Koil, Cuddalore District.4.The Special Thasildar, Adhi Dravida Welfare, Kattumannar Koil, Cuddalore District. .. Respondents in all WpsPrayer in W.P.No.26701 of 2007 Writ Petition filed under Article 226of the Constitution of India, praying for the issuance of Writ ofCertiorari, to call for the records of the third respondent inproceedings dated 13.11.2006, Ni.Mu.Ku.pa.va. No. 13/2004 /Na.Ka.No.6/2006, quash the same. https://hcservices.ecourts.gov.in/hcservices/ Prayer: Writ Petitions filed under Article 226 of theConstitution of India, praying for the issuance of Writ ofCertiorari, calling for the records of the third respondent inproceedings dated 13.11.2006, KU.Pa.(A5) No.7/2004/NA.Ka.No.9/2006.KU.PA.(A5) NO.4018/2005/NA.Ka.No.8/2006 KU. PA (A5) No.6256/2005 /Na.KA.No.10/2006. KU.PA (A5)5/2006 and KU.PA(A5) No.6254/05respectively quash the same.For Petitioner : Mr.R.SubramanianFor Respondents : Mr.R.Lakshmi Narayanan GA for RR1-4 C O M M O N O R D E R Since the issue involved in all these writ petitions areidentical, they were heard together and are disposed of by thiscommon order. The prayer in all these writ petitions are identical,to quash the order dated 13.11.2006, passed by the third respondent,the Record Officer, under the provisions of the Tamil NaduAgricultural Land Record of Tenancy Rights Act, 1969, (1969 Act).2. The petitioners claim to be cultivating tenants in respectof specified extent covered in R.S.Nos.22/2, 88/1, 89, 62/2A, 82/3A,83/3, 107/4, 107/5, 108/1, 108/2, 110/2, 111/2, 111/3, 111/4, 111/5,46/1, 46/2A, 51/2, 51/3, 58/4B, 76/2, 96/5, 97/2C, 97/3, 99/4 and99/5, Kooduvelichavadi village, Kattumanarkoil Taluk, CuddaloreDistrict having taken the same on lease from the respective landowners and said to be cultivating the same for several years. Atthis stage it may be noted that the land owners have not made theparties to the writ petitions.3. The petitioners claim to be entitled to protection under theTamil Nadu Cultivating Tenants Protection Act, 1955, and it isfurther stated that they did not take any proceedings to recordtheir names as a tenants under the 1969 Act. During 2005/2006, thepetitioners appear to have filed applications under Section 4 of the1969 Act before the third respondent. The third respondent passedan order on 17.07.2006, directing that the petitioners' names shouldbe recorded as a cultivating tenants in respect of the said lands. https://hcservices.ecourts.gov.in/hcservices/ The petitioners further state that though the land owners wereserved with notice in the proceedings before the third respondent,they did not choose to appear, but with a view to evict thepetitioners, they executed Gift deed in favour of the Governmentduring October 2006, thereby absolutely gifting the property infavour of the Government. Subsequently, the third respondent passedan order on 06.10.2006, setting aside the earlier order dated17.07.2006 and subsequently, directed the petitioners to appear foran enquiry on 20.10.2006. On receipt of such notice, thepetitioners appeared before the third respondent and stated theirnames have to be recorded as cultivating tenants. The thirdrespondent after conducting an enquiry, by order dated 13.11.2006,cancelled the initial order dated 17.07.2006. Aggrieved by suchorder, the petitioners have filed these writ petitions. It isstated by the petitioners that as against the impugned order thereis no appeal since an appeal would lie under Section 6 of the Actonly against the orders made under Sections 3(8), 4(3) and 5(3) andthe impugned order will not come under any of the said provisions. 4. Mr.R.Subramanian, the learned counsel appearing for thepetitioners contended that there is no power for the thirdrespondent either to cancel or review his own order, except in themanner and the circumstances prescribed under Section 5 and none ofthe circumstances stipulated under Section 5 have been satisfied inthe present case. Further it is contended that the order dated06.10.2006, passed by the third respondent setting aside the orderdated 17.07.2006, was made without notice to the petitioners and inviolation of principles of natural justice and consequently, theimpugned order dated 13.11.2006, is liable to be set aside. 5. Per contra, the learned Government Advocate, by relying uponthe counter affidavit, submitted that there are no records to showthat the petitioners were cultivating tenants and if any such recordis available nothing prevented the petitioners by producing suchdocuments. Further, it is submitted that the earlier order passedby the third respondent dated 17.07.2006, was an ex-parte order andtherefore the same was rightly set aside and thereafter opportunitywas granted to the petitioners and they appeared for enquiry beforethe third respondent and after hearing them, the impugned order hasbeen passed. Therefore, it is contended that there is no violationof principles of natural justice. It is further submitted that itis false to state that the petitioners are cultivating tenants and https://hcservices.ecourts.gov.in/hcservices/ contributing physical labour when infact the petitioners are wealthypersons owning cultivable lands and employing labourers for doingcultivation in their own lands. It is further submitted that thepossession of the lands have been taken over and it is going to beutilised for construction of Government ITI and Polytechnic for thebenefit of the Adi Dravida student and it is false to state that thepetitioners are in possession of the lands.6. Heard the learned counsels for the parties and perused thematerials available on record.7. Act 10 of 1969, was enacted to provide for the preparationand maintenance of record of tenancy rights in respect ofagricultural lands in the State of Tamilnadu. Section 2(4) defines'land', Section 2(5) defines 'Land Owner' and Section 8(i) defines'tenant' in respect of any area in the State other thanKanniyakumari District. In terms of Section 3 of the Act, theGovernment may by notification direct the preparation of a record oftenancy rights for such village as may be prescribed in thenotification. In terms of Section 3(3)(a) after the publication ofthe notification under Sub-Section 1 of Section 3, the RecordOfficer shall publish a notice in the village, informing the publicthat a record of tenancy rights is to be prepared for that villageand information has to be given by the tenant or intermediary andthe landlord. In terms of Sub-Section 4 of Section 3, the RecordOfficer on the basis of the intimation given under Sub-Section 3 ofSection 3 or on the basis of information obtained under Section 9 orrecommendations made under Section 5(A), the Record Officer aftergiving a reasonable opportunity to the parties concerned to maketheir representations either orally or in writing prepare a draftrecord of tenancy rights for the village. In terms of Sub-Section 5of Section 3 such draft record of tenancy rights, shall be publishedin the District Gazette and in such other manner, as may beprescribed and the extract of the entries in the draft record shallalso be served on the land owner, intermediary, if any, and thetenant concerned. Any person aggrieved by such draft record, canmake an application to the Record Officer under Sub-Section 6 ofSection 3 for rectification of any entry. If such application isreceived under Sub-Section 6, the Record Officer shall follow theprocedure and after giving reasonable opportunity to the partiesconcerned, decide that any rectification or inclusion should bemade. In any event, in terms of clause (c) of Sub-Section 8 of https://hcservices.ecourts.gov.in/hcservices/ Section 3, such order shall contain reasons. It is only thereafterunder Sub-Section 9 of Section 3, the final record of tenancy rightsshall be prepared, which shall be published in the Gazette asrequired under Sub-Section 10 of Section 3. Section 4 of the Actdeals with inclusion of lands in the approved record of tenancyrights. In terms of Sub-Section 3 of Section 4, the procedure isakin to the procedure under Section 3 (3) (a) and the Record Officershall give reasonable opportunity to the parties concerned to maketheir representations either orally or in writing. Further, theorder is also required to be communicated to the parties concerned.Section 5 of the Act deals with modification of entries in approvedrecord of tenancy rights. From the language used in Section 5(1),it is manifest that modification in the records of tenancy ispermissible when there is transfer of interest, by reason of deathof any person or any subsequent change in the circumstancesnecessitating modification in the revenue records. 8. The case of the petitioners is that they are cultivatingtenants and were entitled to protection even under the 1969 Act.Further they would state that though Act 10 of 1969, came intoforce, they did not choose to avail the benefit of the Act and forthe first time, they made the applications before the Record Officerduring 2006. This applications are purported to have been madeunder Section 4 of the Act. The third respondent had passed anorder on 17.07.2006, stating that the applicants appeared for thehearing and though notice was sent by Registered post to the landowners, they did not appear. However, in the order, it has not beenstated whether the notice of enquiry was served on the lands owners.Thereupon, the third respondent stated that on perusal of thedocuments, it is established that the applicants are cultivatingtenants. However, what are the nature of documents produced by theapplicants, have not been mentioned in the order dated 17.07.2006. 9. As noticed above, in terms of clause (c) of Section 4 (3) anorder was passed by the Record Officer, shall contain in the reasonsand shall be communicated to the parties concerned. A bear perusalof the impugned order, shows that it is devoid of reasons. Itappears that the land owners on coming to know about the ex-parteorder dated 17.07.2006, filed an application before the RecordOfficer, to set aside such order and an afford them an opportunity.It cannot be stated that a statutory authority such as the RecordOfficer who has been given power to adjudicate upon tenancy rights https://hcservices.ecourts.gov.in/hcservices/ does not have the power to re-call an ex-parte order, moreso whensuch order could be treated as a quasi judicial order. 10. In my view, the power to recall such ex-parte order, isinherent in the third respondent and such inherent power could beexercised after affording fair and reasonable opportunity to theaggrieved persons. In the instant case, though the third respondentdid not afford an opportunity at the first instance, while passingthe order dated 06.10.2006, thereafter issued notice to thepetitioners for hearing their objections and to conduct an enquiryas contemplated under Section 4(3)(a) of the Act. At this stage, itis to be relevant to note that the petitioners without any demurparticipated in the fresh enquiry conducted by the third respondentin the presence of the land owners. Therefore, having participatedin such enquiry, and having not raised any such contention beforethe third respondent, the petitioners should not be permitted toraise such a contention before this Court after having beenunsuccessful before the third respondent. Further, no plea ofprejudice was raised or pleaded by the petitioners before the thirdrespondent on account of the order dated 06.10.2006, but willinglyparticipated in the enquiry conducted by the third respondent on20.10.2006. 11. At this stage, it would be relevant to take note of thedecision of this Court in Jayarama Naidu Vs. Meenakshi Ammal andanother 1995 (1) CTC 566. The substantial question of law which wasframed in the said case was, when the order obtained from the RecordOfficer was obtained ex-parte and a collusive one without making theplaintiff a party, whether the party is entitled to the benefit ofthe Cultivating Tenants Protection Act. While answering the saidquestion this Court held that such order made in violation ofprinciples of justice, fraud or collusion and such entries of theRecord Officer is nonest in the eye of law and it will not conferany right. Further this Court held the entries made by the Recordof Tenancy Tahsildar behind the back of the real owner and personsinterested renders it a nullity and non est . By applying the lawlaid down by this Court in the aforementioned decision, this Courthas no hestitation to hold that the ex-parte order dated 17.07.2006,cannot confer any right on the petitioners. https://hcservices.ecourts.gov.in/hcservices/

12. The next issue which has to be seen is as to whether thepetitioners were able to substantiate their claim before the RecordOfficer. As seen, no documents were produced by the petitioners toprove their claim. Therefore, the Record Officer rightly held thatthe claim to be not proved. That apart the contention raised by theland owners that the petitioners are wealthy persons owning vastextent of lands and they are cultivating their lands by employinglabourers and one of the petitioner, namely Nagalakshmi's husbandwas employed in France and he had returned to India and receivingmonthly pension of Rs.30,000/- and their claim was not bonafideremained uncontroverted before the Record Officer. Further, even inthe writ petitions, no grounds have been raised in this regard. 13. That apart, the Record Officer took note of the fact thatthe land owner executed a gift deed in favour of the Government on09.10.2006, which was registered as document No.481 of 2006 andpursuant thereto possession was taken and the patta maintained bythe Tahsildar, Kattumannarkoil, has been directed to be changed inthe name of the Adi Dravida Welfare Department, Chidambaram.Further, the third respondent recorded a finding of fact that thechitta and adangal stand in the name of the original land owners.That apart it is seen from the order that lands in question weregifted to the Government during 2001 and after compliance offormalities, the gift was accepted by the Government on 27.12.2005and the gift deed was registered on 09.102.006. Therefore it ismanifest that the petitioners having been aware of the entiretransaction by adopting certain fraudulent means, during 2006, tooksteps to record their names alleging as if they are cultivatingtenants. Therefore, the Record Officer rightly observed that if theclaim of the petitioners was bonafide nothing prevented them fromapproaching the authority earlier and their attempt to record theirname after the lands were gifted to the Government is not a bonafidetransaction and their plea that they are cultivating tenants isunbelievable, moreso when no documents were produced by thepetitioners before the Record Officer. 14. The land owners in a magnanimous manner have gifted thelands to the Government even during 2001, but it took nearly fiveyears for the Government to accept the gift and ultimately it wasregistered in favour of the Government. Therefore, the plea raisedby the petitioners that they were cultivating tenants is absolutely https://hcservices.ecourts.gov.in/hcservices/ false and not established before the Record Officer and there is noerror in the decision making process by the third respondent and theex-parte order obtained initially from the Record Officer on17.07.2006, is exfaci illegal and non est in the eye of law and thepetitioners having participated in the fresh proceedings conductedby the third respondent and having miserably failed to prove theirclaim, are not entitled for any indulgence before this Court.Further the allegation that the petitioners are wealthy landlordsowning vast extent of lands and employing labourers to cultivatetheir lands have remained uncontroverted. Thus, the plea that thepetitioners are cultivating tenants lacks bonafide and the RecordOfficer rightly rejected their claim.15. In the result, the writ petition fails and it is dismissed.No costs. Consequently, connected miscellaneous petitions areclosed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.pbnTo1.The District Collector, State of Tamilnadu, Cuddalore.2.The Special Deputy Collector, (Revenue Court), Cuddalore.3.The Record Officer, (Thasildar) Kattumannar Koil, Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/

4.The Special Thasildar, Adhi Dravida Welfare, Kattumannar Koil, Cuddalore District.6 ccs to Mr.R. Subramanian, Advocate, Sr. 71807, 71809, 718131 cc to Government Pleader, Sr. 71957W.P. Nos.26701, 26703 to 26707 of 2007BKY (CO)kk 16/12