Madras High Court
R. Shanmugam vs Mr.A.Annadurai on 16 March, 2017
Author: R.Subramanian
Bench: R.Subramanian
Cont. P. (MD) No.2211 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Delivered on
23.03.2021 16.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Contempt Petition (MD) No.2211 of 2017
Sub A (MD) No.247 of 2017
R. Shanmugam ... Petitioner
Versus
1. Mr.A.Annadurai
The District Collector,
Thanjavur District,
Thanjavur.
2. Mr.N.Sakthivel
The Revenue Divisional Officer,
Pattukottai,
Thanjavur District.
3. Mr.R.Ravichandran
The Tahsildar,
Pattukottai,
Thanjavur District.
4. Mr.Dharmendra Prathap Yadav IAS,
The Director,
Tamilnadu Slum Clearance Board,
Chennai.
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5. Mr.S.Alavudeen
The Commissioner,
Pattukottai Municipality,
Pattukottai, Thanjavur District.
6. Mr.N.Sakthivel
The Assistant Commissioner,
Land Reforms (Incharge)
Mayiladuthurai,
Thanjavur District. ... Respondents
PRAYER: Petition filed under Section 11 of the Contempt of Courts Act,
1971 to punish the respondents committing Contempt of Court by his willful
deliberate disobedience of the order passed by this Court dated 16.03.2017
in WP (MD) No.6398 of 2013.
For Petitioner : Mr.Niranjan S.Kumar
For Respondents : Mr.V.R.Shanmuganathan
Special Government Pleader
ORDER
The petitioner seeks to punish the respondents for having willfully disobeyed of the orders of this Court dated 16.03.2017 made in WP (MD) No.6398 of 2013.
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2. The said Writ Petition was filed seeking a Writ of Mandamus forbearing the respondents 1 to 3 from transferring or assigning the land measuring an extent of 1.90 acres in S.No.42/5B of Nadiambalpuram Village, Pattukottai Taluk, Thanjavur District corresponding to 7650 square metres of land in TS No.24/10, Pattukottai Municipality and directing the respondents 1 to 3 to restore the land in the holding of the petitioner in terms of the order of assignment as per the proceedings of the Authorised Officer, Mannargudi Taluk, vide ref.M.R.IV.534/PTR/A1 dated 10.12.1975.
3. The claim of the petitioner was that the land in question was declared as surplus under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 and was assigned to him under the Tamil Nadu Land Reforms (Disposal of Surplus Lands) Rules, 1965. The said order of assignment was passed on 10.12.1975. According to the petitioner, he had paid the land value payable as per the Rules.
4. When the respondents particularly the Pattukottai Municipality attempted to put up construction in the said land, he had sent in his 3/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 objections stating that the land has been assigned with him and therefore no construction could be put up by the fifth respondent. It was claimed that a resolution was passed by the Municipality to hand over the land that was assigned to the petitioner in old Survey No.42/5B bearing new TS No.24/10 along with other lands to the Tamil Nadu Slum Clearance Board, viz. the fourth respondent in the Writ Petition for being developed by the fourth respondent.
5. The petitioner issued a notice under Section 80 of the Code of Civil Procedure on 19.12.2012. The fourth respondent viz. the Tamil Nadu Slum Clearance Board sent a reply stating that since the land has been classified as Government dry land and the Municipality had passed a resolution to develop the land through the Slum Clearance Board, the Slum Clearance Board is at liberty to develop the land. Upon the receipt of the said reply the petitioner had approached this Court seeking a Writ of Mandamus as stated above.
6. The Writ Petition was disposed of by me on 16.03.2017 recording 4/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 the fact that the land in T.S. No.24/10 has not been taken up for development by the Tamil Nadu Slum Clearance Board and also the fact that the resolution of the Municipality is only for development of land in T.S. No.24/6, 7, 8 and 9 and not the land in T.S. No.24/10. In view of the above statement, I had directed the Authorities to correct the mistake that had crept in the Town Survey Register and incorporate the name of the petitioner as the owner of the land in T.S. No.24/10. When the Writ Petition was disposed of as above, a representation was made by the learned Government Pleader to the effect that the Government should be at liberty to cancel the assignment if the petitioner has not paid the entire land value. Recording the said submission of the learned Government Pleader, I had observed as follows:
“It is open to the Government to take appropriate action in the event it is found that the petitioner has not paid the entire amount payable by him towards the assignment cost for the land.”
7. This Contempt Petition was filed on 09.11.2017, since the direction 5/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 issued to correct the Town Survey Register was not carried out within a period of four weeks as directed by the order dated 16.03.2017. When the Contempt Petition was first listed for hearing on 25.01.2018, it appears that a representation was made before this Court that despite several notices issued the petitioner did not appear for enquiry and therefore, the respondents are unable to pass orders. Recording the said statement of the learned Government Pleader, this Court had directed the Revenue Divisional Officer/second respondent to conduct an enquiry on 12.02.2018 and directed the petitioner to appear before the second respondent on the said date.
8. Subsequently, the Contempt Petition was posted for hearing on 02.03.2018. The second respondent was directed to produce the entire records relating to the assignment of the land in favour of the petitioner and the payment of the land cost as per the order of the assignment. It is seen from the order passed on 25.02.2020 that the statement was made to the effect that the records are not available, the Tahsildar concerned was required to file an affidavit to that effect. Mr.Arul Prakasam, Tahsildar of the Taluk Office at Pattukottai had filed an affidavit stating that the records 6/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 relating to the assignment file are not traceable.
9. Thereafter when the matter was listed on 23.02.2021, the Government Pleader was required to produce the files relating to the enquiry that was held pursuant to the order dated 25.01.2018. The learned Government Pleader had filed a typed set of papers containing the papers relating to the enquiry and the orders passed by the Revenue Divisional Officer, Pattukottai on 16.02.2018. Since I found that the assignment was sought to be cancelled on a totally new ground viz., that the petitioner has not cultivated the property as required by the conditions of the assignment, I had by my order dated 08.03.2021 required the Revenue Divisional Officer to appear in person on 15.03.2021. The Revenue Divisional Officer was present in person on the said date. After hearing the learned Special Government Pleader on the said date viz. 15.03.2021, I had again required the Government Pleader to produce the ‘Form E‘ that was attached to the order of assignment dated 10.12.1975 and the matter was posted to 22.03.2021. On the said date Mr.V.R.Shanmuganathan, learned Special Government Pleader represented that the said ‘Form E’ was not available. 7/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 Thereafter, I had heard the learned Special Government Pleader and the counsel for the petitioner on merits.
10. By the order dated 16.03.2017, I had directed the Authorities to restore the Revenue Records in the name of the petitioner within a period of four weeks from the date of receipt of a copy of that order. Upon a statement being made by the learned Government Pleader to the effect that the petitioner has not paid the entire land value, I had reserved the liberty to the Government to take action to cancel the assignment. Neither of the two were done within the time stipulated in the order. Therefore, there is a clear disobedience of the orders of this Court by the respondents. It has to be seen as to whether the said disobedience is wilful disobedience and would attract a punishment for contempt of Court.
11. No counter affidavit has been filed by the respondents in the main Contempt Petition. In the affidavit filed by the Tahsildar, Pattukottai on 24.02.2020, it is stated that the assignment files are missing and they are not traceable. If that be so, it is not known as to the basis on which the 8/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 Authority viz., the Revenue Divisional Officer came to the conclusion that the petitioner has not paid the land value as per the order of assignment dated 10.12.1975. The notice issued for the enquiry has been produced and the same does not disclose that it is a show cause notice for cancellation of the assignment. The said notice only reads that an enquiry is to be conducted pursuant to the order dated 14.02.2018 passed by this Court in the Contempt Petition and the petitioner in the Contempt Petition was required to appear before the Revenue Divisional Officer on 16.02.2018. The said notice is shown to have been served on the petitioner on 15.02.2018.
12. On 16.02.2018 it appears that the statement has been obtained from the petitioner to the effect that he had cultivated the land only for one or two years after the assignment and thereafter he had stopped cultivation. It also states that he does not have the receipt for payment of the entire land value, pursuant to the order of the assignment. Based on the said statement, the Officer namely the Revenue Divisional Officer, Pattukottai, has cancelled the assignment in favour of the petitioner. This order has been passed on 16.02.2018 during the pendency of the Contempt Petition. The learned 9/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 Special Government Pleader would claim that this order is in compliance with the order dated 16.03.2017 and therefore there is no wilful disobedience of the order of this Court dated 16.03.2017. I am unable to accept the said contention of the learned Government Pleader. The order dated 16.03.2017 only preserves the liberty of the Government to take proceedings to cancel the assignment under the Tamil Nadu Land Reforms (Disposal of Surplus Lands) Rules, 1965, for non-payment of the entire land value. If action is to be taken for nonpayment of the entire land value the authorities must be first convinced that the petitioner has not paid the entire land value.
13. Admittedly the Authorities are not possessed of the records relating to assignment, therefore they cannot positively assert that the entire land value has not been paid by the petitioner. The petitioner has filed a typed set of papers in which certain receipts have been produced showing payment of the land value as early as in the year 2007. These receipts would show that the payment is made in respect of the assignment made in the year 1975. These receipts are not denied or disputed by the respondents. The 10/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 petitioner has also produced copy of a Register which shows the amount that he has been paid by the assignees and the amount payable by the assignees in the year 2007. The learned Government Pleader is unable to either affirm or deny the correctness of the statement that has been produced by the petitioner. Therefore, I do not think the Revenue Divisional Officer, Pattukottai, viz. the second respondent in the Contempt Petition was right in presuming that the petitioner has not paid the entire amount due under the assignment. Even otherwise there is a legal embargo as regards cancellation of an assignment for non-payment.
14. Admittedly the assignment has been made under the Tamil Nadu Land Reforms (Disposal of Surplus Lands) Rules, 1965. Therefore any cancellation thereof must be under the powers conferred by the said Rules. Rule 9 of the Tamil Nadu Land Reforms (Disposal of Surplus Lands) Rules, specifies the conditions for assignment. Sub Rule (ii) of Rule 9 provides for payment of the value of the land in instalments. Sub Rule (ii) of Rule 9, reads as follows:
(ii) If the land has been assigned, subject to the 11/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 payment of value of the land and buildings and trees thereon in instalments,,
(a) the first installment shall be payable before the execution of the deed of assignment;
(b) the second and subsequent instalments of land value shall be payable on the 10th February of every succeeding year;
(c) in the event of default in the payment of an instalment, the amount of the instalment shall be recovered as an arrear of land revenue;
(d) in the event of default of the payment of two consecutive instalments, the amount already paid shall be liable to be forfeited to the Government and the land shall be liable to be resumed; and
(e) if, in any year, due to adverse seasonal conditions, the land revenue in respect of the land is remitted or suspended, the recovery of the instalment payable in that year and of the instalment payable in 12/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 subsequent years shall be postponed by one year.
15. A reading of Sub Rule (ii) would show that cancellation of assignment is not automatic consequence of non-payment. There are various conditions that are to be satisfied. The assignment was admittedly made in the year 1975 and the action for cancellation was taken in the year 2018 i.e., after 43 years of the assignment. It is at this juncture Sub Rule (iii) of Rule 9 assumes importance. Sub Rule (iii) of Rule 9 reads as follows:
iii) [(a)] The land will vest absolutely in the assignee only after the value of the land and the buildings and trees thereon is paid in full or after the expiry of a period of twenty years from the date of assignment whichever is later.
[(b)]If at any time before the expiry of the period specified in sub-clause (a) above, the land assigned is required for any public purpose, the assignment shall be modified or cancelled and the land shall be resumed by Government. In such cases the annual value as fixed under Schedule III of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Tamil Nadu Act 13/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 58 of 1961),] for use of the land from the date of assignment to the date of resumption by Government and the loans and advances, if any, granted for the improvement of the land on the security of the land will be recoverable from the assignee. Subject to adjustment of such dues, the assignee shall be entitled to refund of the instalments of land value paid by him and reimbursement of the cost of any permanent improvement effected or any structure such as wells, buildings, etc., erected on the land at his own expense for agricultural purposes or for his own residence.
It is clear from a reading of Clause (a) of Sub Rule (iii) of the Rules that any action for cancellation of the assignment could be taken within a period of 20 years from the date of the assignment. The very fact that Clause (a) of Sub Rule (iii) provides that the land will vest absolutely in the assignee either after payment of the entire land value or after the expiry of period of 20 years from the date of assignment, whichever is later would only mean that any proceedings for cancellation particularly on the ground of non- payment should be taken within a period of 20 years.
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16. The other ground on which the cancellation has been purportedly made is that the petitioner has not brought the land under cultivation. No doubt Sub Rule (iv) of Rule 9 requires the assignee to engage in direct cultivation of the land so assigned, but it does not require him to continue to cultivate forever. There may be cases were the land becomes a part of an urban agglomeration as it has happened in the case on hand. The land which form part of Nadiambalpuram Village, has become a part of the Pattukotai Municipal Town and a T.S. Number has also been assigned to it. I am therefore of the considered opinion that the 20 years period prescribed under Clause (a) of Sub Rule (iii) of Rule 9 of the Tamil Nadu Land Reforms (Disposal of Surplus Lands) Rules, would apply even to an attempted cancellation on the ground of non cultivation. Since the effect of the Rule is to vest the land absolutely in the assignee on the expiry of the period of 20 years. I therefore find that the order of cancellation dated 16.02.2018 has no legal sanctity.
17. The learned Government Pleader would however contend that the order dated 16.02.2018 is an appealable order and the same can be appealed 15/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 against by the petitioner. Therefore, I should not sitting in contempt jurisdiction venture to look into the validity or legality of the order dated 16.02.2018. I do not think such a plea is open to the Government Pleader. The power to punish for contempt conferred on the High Court under Article 215 of the Constitution of India, is very wide and the High Court in exercise of such plenary jurisdiction can, in my opinion, look into the legality or otherwise of the so called compliance of the order disobedience of which is complained of in the Contempt Petition. Even otherwise being for Court of record the High Court in terms of Articles 225 and 226 of the Constitution of India, has got enough and more power to correct or set aside erroneous orders passed by the authorities purportedly in exercise of a liberty given in its own order.
18. Liberty was given to the Authority to proceed as per law if it is found that the petitioner has not paid the value of the land assigned to him as per the orders of assignment. On more than one occasion the Authorities have submitted before this Court that the records of the assignment are not available, the Tahsildar, Pattukotai has even filed an affidavit stating that the 16/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 records are not available. The only reason that has been given for the cancellation is that the petitioner is unable to produce the receipts for payment of the entire land value. I am unable to accept the said contention inasmuch as Clause (a) of Sub Rule (iii) of Rule 9 of the Tamil Nadu Land Reforms (Disposal of Surplus Lands) Rules, 1965, prohibit cancellation of any assignment after 20 years had lapsed. Merely because the liberty is given in the order dated 16.03.2017, it cannot be deemed as a license to the Authorities to act in contravention of the statutory provisions. I therefore find that the order dated 16.02.2018 is a mala fide exercise of power by the second respondent namely the Revenue Divisional Officer, Pattukotai and the same has no legal sanctity.
19. Adverting to the submission of the learned Government Pleader that this Court cannot set aside the order in the contempt jurisdiction, I must point out that even if the contempt jurisdiction is not available the plenary jurisdiction of High Court under Articles 225 and 226 of the Constitution of India, are very much available to me and it is an indisputable that such power can be exercised even suo motu. A Division Bench of this Court in 17/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 C.Amutha V. I.Shankar and others, made in Contempt Petition No.11 of 2019 in HCP No.2099 of 2018 dated 22.01.2021 has observed that the High Court has got powers to take suo motu action to quash illegal orders passed by the respondents claiming that they are passed as per the liberty given by this Court.
20. After referring to the judgments of the Hon’ble Supreme Court in Union of India and others v. R.Reddappa and another, reported in 1993 (4) SCC 269 and Baby v. Travancore Devasvom Board and others reported in 1998 (8) SCC 310, the Division Bench had observed as follows:
“32. Merely passing an order without giving relief to the aggrieved party is injustice done to the party. Therefore, this Court has to pass an order in such a way that the fruits of the order reach the parties. Otherwise, the people approaching the Court having faith in the judicial system would be frustrated. Each case gives a chance for the Court to make innovation, even going beyond the prayer, as the situation warrants. Irrespective of the party who approaches the Court, the Courts could decide the issue and grant relief to the right person or 18/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 persons, even though they may be opposite party or may not even be a party to the proceedings. If the relief, as per the evidence available on record is to be given to a third party, definitely this Court should render justice by giving relief to such a stranger.
35. This Court is a constitutional Court and there cannot be any fetter or prohibition for this Court to set at naught the orders which have been passed illegally without application of mind and contrary to the facts, without taking into consideration, the conduct of the petitioner’s son.”
21. In Union of India and others v. R.Reddappa and another, while considering the scope of the power of the High Courts under Articles 225 and 226 of the Constitution of India, the Hon’ble Supreme Court had held as follows:
“5. More than a decade has gone since these employees were dismissed for participating in strike called by the Union recognized by the Railways. But end has not reached. Barring appellate and revisional authority whose discretion too was attempted to be 19/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 curtailed by issuing circular no Court or tribunal has found the orders to be well founded on merits. True the jurisdiction exercised by the High Court under Article 226 or the tribunal is not as wide as it is in appeal or revision but once the Court is satisfied of injustice or arbitrariness then the restriction, self imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice. .….”
22. A Full Bench of this Court in Century Flour Mills Ltd., v. S. Suppiah and others, reported AIR 1975 Mad 270, has held that Order 39 of the Code of Civil Procedure should not be considered as placing any limitation on the scope of the inherent power under Section 151 of the Code of Civil Procedure. The Full Bench had held that if something has been done in dis-obedience of the order of the Court, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. While examining the power of the Court, this Court had observed as follows:
“9. In our opinion, the inherent powers of this 20/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 court under Section 151 C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court's orders. But in this case it is not necessary to go to that extent as we hold that the power is available under Section 151. C.P.C.”
23. Even though the Hon’ble Full Bench was dealing with the powers of the Court under Section 151 of the Code of Civil Procedure, I am of the considered opinion that the statement of law made therein would equally apply to the jurisdiction under Article 226 of the Constitution of India, which is much wider than the jurisdiction under Section 151 of the Code of 21/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 Civil Procedure.
24. From the above decisions of the Hon’ble Supreme Court as well as a Full Bench of this Court, it is clear that the High Court while dealing with the Contempt Petition cannot be expected to be a mute spectator and allow illegal orders to stand and drive the affected parties to take recourse to statutory proceedings viz. Appeals or Revisions provided under the enactments. It is always open to the High Court as a Court of record and as a court having plenary powers under Article 226 of the Constitution of India, to set aside those orders and ensure that justice prevails.
25. On facts the land was assigned to the petitioner in the year 1975 and action for cancellation was initiated after 43 years in the year 2018 that too after the petitioner has approached this Court seeking correction of an error in the Town Survey Records. Originally before the Writ Court, the Authorities had conceded that the land was assigned to the petitioner and they also conceded that they are not making any development work in the land assigned to the petitioner situate in T.S. No.24/10. However, pursuant 22/25 http://www.judis.nic.in Cont. P. (MD) No.2211 of 2017 to the liberty granted a notice was sought to be issued without specifying the purpose for which it was issued, a statement was extracted from the petitioner and the order of assignment is sought to be cancelled. This, in my considered opinion, is not the proper procedure that is to be adopted for cancellation of assignment. I also find that the entire exercise was without jurisdiction, since it is sought to be done after 43 years from the date of the assignment.
26. I have already referred to Clause (a) of Sub Rule (iii) of Rule 9 which vests a property absolutely in the assignee after the expiry of 20 years dehors the payment of the land value. I am therefore convinced that the order dated 16.02.2018 cancelling the assignment in favour of the petitioner is wholly illegal and cannot be allowed to stand. Hence in exercise of my suo motu powers under Article 226 of the Constitution of India, the order dated 16.02.2018 is quashed and the Authorities are directed to restore the land in T.S. No.24/10 of Pattukottai Muncipality of an extent of 1 acre 90 cents in the name of the petitioner within four weeks from today and file a report of compliance before this Court.
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27. Now adverting to the punishment that is to be imposed upon the second respondent for the disobedience of the order dated 16.03.2017, I find that the second respondent had in fact disobeyed the orders of this Court. The second respondent claims that he had acted in a bona fide manner and he had no intention to disobey the orders of this Court, he has also tendered unconditional apology in person when he appeared before this Court on 15.03.2021. Considering the fact that the second respondent had tendered his apology and the fact that the second respondent has also been transferred out of the post, I desist from imposing any punishment on him though I find him guilty of having disobeyed the orders of this Court, since element of willfulness is absent. The Contempt Petition is disposed of as above. No costs. Consequently, the connected miscellaneous petition is closed.
16.04.2021
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Internet : Yes
Speaking Order
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R.SUBRAMANIAN, J.
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Contempt Petition (MD) No.2211 of 2017
Sub A (MD) No.247 of 2017
16.04.2021
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