Madras High Court
R. Ramanathan And Ors. vs The State Of Tamil Nadu, Represented By ... on 21 March, 1997
Equivalent citations: (1997)2MLJ406
ORDER E. Padmanabhan, J.
1. The petitioners, four in number have joined together and filed this writ petition praying for the issue of a writ of certiorari calling for the records of the 1st respondent in G.O.Ms. No. 352 (Revenue), dated 4.3.1987 and the consequential notice of the 2nd respondent dated 25.11.1987 in No. 11638/87(H) and quash the same.
2. An extent of 25.08 acres in Bodinaickenpatti, Karumpatti and Dasarahalli in Harur Taluk of Dharmapuri District were the subject matter of assignment during the year 1922 and 1923 in favour of Adi-Dravidars. The details of the land and assignees are hereunder:
_______________________________________________________ S.No. Extent Name of the Assignee _______________________________________________________ 1 20/1 D.71 135/36 Melacheyan 2 26/1 D.46 226/32 Molai 3 26/2 1.35 -do- -do-
4 26/3 1.44 -do- -do-
5 26/4 4.44 41/33 Perumal Chetty 6 33/3 1.57 10/33 Kuppan 7 33/4 6.98 41/33 Perumal Chetty 8 42/2 1.13 -do- -do-
_______________________________________________________
3. The said assignee or their legal representatives under the registered sale deed dated 14.3.1949 and 19.7.1949 conveyed the said extent of 25.08 acres in favour of Dr. Ahamedullah Khan. After the said purchase, Dr. Ahamedullah Khan applied for inclusion of his name in the permanent land register and issue of patta in his favour. As applied for patta was transferred in favour of Dr. Ahamedullah Khan. The petitioners state that after the said mutation, during the year 1954, the 2nd respondent Tahsildar, on 17.2.1956 reported about violation of assignment condition and transfer of patta in favour of the said Dr. Ahamedullah Khan to the Revenue Divisional Officer and submitted the proposal for resumption on the ground of violation of the assignment conditions. On the said proposal, the Revenue Divisional Officer, Dharmapuri initiated action in his office D. Dis. No. 1784/56, dated 1.9.1956 and ordered cancellation. Subsequently, the said Revenue Divisional Officer, by order dated 31.5.1957 in D. Dis. No. 2074/57 cancelled his earlier proceedings dated 1.9.1956 holding that there is no warrant for resumption and ordered re-issue of patta in favour of the said Dr. Ahamedullah Khan. The Revenue Divisional Officer by proceedings dated 31.5.1957 while cancelling his earlier proceedings directed that all further action of assumption be dropped, and also directed that the patta be continued in favour of Dr. Ahamedullah Khan. The original patta issued to Dr. Ahamedullah Khan has been returned back by orders of Revenue Divisional Officer.
4. On 7.11.1968, the said Dr. Ahamedullah Khan conveyed the entire extent of 25.08 acres and certain other lands to M/s. N. Rengaswami and A.K. Nalliappan by registered deed of conveyance. Mutation of patta for the lands had also been ordered in favour of the said purchasers of M/s. N. Rengaswami and A.K. Nalliappan, patta Nos. being 108 and 109 were issued respectively in favour of M/s. N. Rengaswami and A.K. Naliiappan. Thereafter, on 25.11.1973 under four registered sale deeds, the petitioners herein purchased about 90.13 acres including the aforesaid 25.08 acres from the said M/s. N. Rengaswami and A.K. Naliiappan. The petitioners, who are agriculturists developed the lands, sunk well by investing substantial amount. The petitioners further state that certain members of Adi Dravidars seems to have sent complaint about the purchase of land by the petitioners and their predecessors and violation of the conditions of assignment. Thereafter, there has been correspondence between them and the Revenue Department and certain proposals have been submitted not only for assignment as well for resumption as well as assignment of 5 acres of land on double the market value.
5. However, on 25.11.1987, the 2nd respondent issued a notice based upon G.O.Ms. No. 352, Revenue, dated 4.3.1987 proposed to sub-divide the land. Only from the said notice of the 2nd respondent dated 25.11.1987, it is stated that the petitioners came to know about the impugned G.O.Ms. No. 352, Revenue, dated 4.3.1987. According to the petitioners, they have not been served with any notice before the resumption order passed by the 1st respondent and order impugned i.e., G.O.Ms. No. 352, Revenue, dated 4.3.1987 has not been communicated. According to the petitioners, patta was granted not only in favour of Dr. Ahamedullah Khan but also in favour of N. Rengaswami and A.K. Nalliappan subsequent to the purchases during the year 1968. That being the position and the earlier resumption proceedings having been cancelled for valid reasons recorded by the Revenue Divisional Officer, there is no reason to pass the impugned orders.
6. The petitioners have challenged the proceedings of the 1st respondent in G.O.Ms. No. 352, Revenue, dated 4.3.1957 as well as the notice issued by the 2nd respondent dated 25.11.1987 and filed the present writ petition on 22.2.1988 as arbitrary, violative of principles of natural justice, affects Articles 14 and 21 of the Constitution. This Court issued rule nisi on 24.2.1988 and also granted stay of further proceedings.
7. On behalf of the 1st respondent, the Deputy Secretary to the Government, Revenue Department has filed a counter-affidavit. In the counter-affidavit, it is submitted that after the purchase and mutation of patta in favour of Dr. Ahamedullah Khan, proposal was submitted to the Revenue Divisional Officer by the 2nd respondent Tahsildar on 17.2.1956 for resumption on the ground that condition has been violated. It is also admitted that the Revenue Divisional Officer, Dharmapuri by his proceedings dated 1.9.1956 cancelled the original assignment of land in question and ordered resumption. The Tahsildar has also cancelled the assignment and brought the lands as "Adi Dravidar conditions lands" by his reference dated 18.9.1956.
8. It is further admitted by the respondent that subsequently the Revenue Divisional Officer issued further proceedings in his office D. Dis. No. 4074/57, dated 31.3.1957. The respondents have further stated that the R.D.O., Dharmapuri while considering the question in 1957 appears to have referred only the hand copy of the Settlement A Register maintained by the Village Kafnam and having found no such entry therein, passed an order in D. Dis. No. 4074/57, dated 31.5.1957 by mistake stating that there was no materials to warrant a re-entry and dropped further proceedings. The patta for the lands, have also been transferred in the name of M/s. N. Rengaswami and Nalliappan, the subsequent purchasers. However, it is suggested that the pattas have been transferred without the knowledge of the Tahsildar. The petitioner's application for transfer of patta in respect of 25.08 acres was not ordered. The respondents contend that an extent of 25.08 acres cannot under any circumstances be reassigned to the petitioners since the purchase itself is illegal.
9. As regards developments it is stated that certain developments have been made such as digging of wells and installation of oil engine and electric motor pumpsets, etc., in S. No. 33/48. It is further stated that in G.O.Ms. No. 352, Revenue, dated 4.3.1957, it has been ordered that the land measuring 5 acres in S.F. No. 33/48 of Karumpatty village, Dhasarhali village be disreserved from Adi Dravidas condition and assigned to Mr.R. Ramanathan and others on collection of double the market value of the land.
10. The respondents have not disputed the claim of the petitioners that no opportunity had been given to the petitioner before the issuance of the impugned proceedings.
11. According to the counter-affidavit filed by the 1st respondent, the contentions of the petitioners as to the ratification, acceptance of the purchase, release of the land from the conditional category by the Government, etc., mentioned in various places are all presumptions. However, the Government have committed the above matters. It is further stated that the purchases from the beginning were found to be illegal and suitable action were taken by keeping the petitioners in the picture, and that the petitioners cannot be said to have earned rights through transaction which are illegal. It is further stated that the lands are no longer under the category of condition assignment to Adi Dravidars. The entry as to the category is clear in the printed settlement A register of the village.
12. It is further stated by the respondents that it is proper and within the jurisdiction of the Government to exempt a portion as they deem fit. The impugned G.O.Ms. No. 352, Revenue, dated4.3.1987 is just and proper, according to the respondent and falling with the ambit of law, that the action cannot be brushed as a time barred one and that the Settlement A register is the legal record and purchases of such lands by the persons other than the persons belonging to Schedule Caste have to be treated as violation of conditions grovering the assignment of such land and hence it becomes illegal. The petitioners cannot put forth the plea of ignorance of law. The purchases made by the petitioners are illegal and therefore, the Government order is perfectly in order and legally correct.
13. Mr. G. Masilamani, learned senior Counsel appearing for the petitioners raised number of contentions. On the other hand, Mr. N. Selvanayagam, Government Advocate contended that the impugned orders are legal and in view of the admitted violation, there could be no interference with the resumption proceedings. The learned Government Advocate referred to the decision of the Supreme Court in Chandevarappa v. State of Karnataka and Murlidhar Dayanadeo Kasemar v. Viswanatha Pandu Darde 1995 S.C.C. (Supp.) 549 and sought to contend that the alienation being invalid and the 1st respondent is justified in resuming the lands.
14. Before proceeding further, the material portions of the counter-affidavit which has a bearing in deciding the contentions raised by either side has to be extracted. Para.4 of the counter-affidavit which is relevant reads thus:
Regarding the averments made in para. 3, it is submitted that the illegal purchase of the lands in question by Dr. Ahamedullah Khan was brought to the notice of the Tahsildar, Harur and the matter was reported to the Revenue Divisional Officer, Dharmapuri in Harur Tahsildar's RDC. No. 8568/55/84, dated 17.2.1956 and requesting orders for the resumption of the lands in question, subsequent reports in this contention were also sent to Revenue Divisional Officer, Dharmapuri. The Revenue Divisional Officer, Dharmapuri in his reference D. Dis No. 1784/56, dated 1.9.1956 cancelled the original assignment of lands in question made to the Adi Dravidars and ordered recently of the lands. The Tahsildar, Harur cancelled the assignments and brought the lands as "Adi-Dravidar conditions lands" vide Ref. Roc. No. 8568/56 B-4, dated 8.9.1956. Inasmuch as the original assignments to the Adi Dravidars having been cancelled the purchase of the lands in question by Dr. Ahamedullah Khan became illegal. The petitioners contention that the sales were ratified by the grant of pattas is incorrect and untenable.
However, it is true that the Revenue Divisional Officer, Dharmapuri subsequently dropped further proceedings in D. Dis. No.4074/57, dated 31.3.1957. In the printed copy of the Settlement A register of the village, the lands in questions (25.08 acres) were mentioned as reserved as Harijan conditioned lands. The Revenue Divisional Officer, Dharmapuri while considering the question in 1957 appears to have referred only, the hand copy of the Settlement A register maintained by the Village Karnam and having found no such entry therein passed by the order in his D. Dis. No. 4674/57, dated 31.3.1957 by mistake stating that there were no materials to warrant a re-entry and dropped the further proceedings. If he had perused the Printed Settlement A register of the village, he would not have passed such order aforesaid. It is also true that the pattas were transferred subsequently in the names of Tvl. A.N. Rengaswamy and A.K. Nalliappan, the subsequent purchases from Dr.Ahamedullah Khan. This was made by the karnam of the village without the knowledge of the Tahsildar.
A portion of para. 5 of the counter which is also relevant is extracted hereunder:
The extent of 25.08 acres of lands in question cannot under any circumstances be re-assigned to the petitioners, since the purchase, itself being illegal. As regards developments, it is submitted that certain developments have been made, such as digging of wells and installation of oil engine and electric pumpset etc. in S. No. 33/48 since the present occupier of the land measuring 5 acres in S. No. 33/48 have improved the land spending huge amount. In G.O.Ms. No. 352, Revenue, dated 4.3.1987, it has been ordered that the land measuring 5 acres in S. No. 33/48 of Karumpatty village Jesirihalli village be dis-reserved from Adi-Dravidar condition and assigned to Thiru R. Ramanathan and others on collection of double the market value of the land. The petitioners' contention that some of the Adi-Dravidars in the village have raised objections without interest in the subject matter is baseless.
15. The learned Senior Counsel Mr. G. Masilamani, contended that the impugned action is arbitrary, without jurisdiction not supported by law, that he respondents are estopped by conduct,' that the earlier proceedings by the Revenue Divisional Officer by which patta was restored and conditions have been deleted is binding on the Government, that at this belated stage, and after a lapse of 60 years from the date of assignment and 40 years after the sales, there could be no action for resumption as the petitioners and their predecessors who have been in interrupted possession for more than 30 years to the knowledge of the respondents and their subordinates and that the impugned order is violative of Articles 14 and 21 of the Constitution, besides raising other contentions.
16. At this stage, as pointed out by Government Advocate, it is essential to extract the relevant provisions of the Board Standing Order which the assignment has been made in favour of Scheduled Caste/ Scheduled Tribes. The Board Standing Order 15 provides for reservation of land for assignment to Scheduled Caste. Board Standing Order 15, para. 41(4)(i) reads thus:
Restrictions to be imposed on alienation : Assignments whether of ordinary land or valuable and in these areas will be subject to the condition that the lands shall not be alienated to any person (whether a member of the scheduled caste or not) in any manner before the expiry often years from the date of the grant nor even thereafter, except to other members of these caste.
Clause (iii) which is also relevant reads thus:
Power to re-enter in case of violation of conditions : If the condition of non-alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after the ten years) other members of their class, owing to sale by process of law or otherwise, or, if default is made in the payment of the Government revenue on the dates prescribed the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money.
17. A special form of order to be used in the case of assignment to the Scheduled Castes had also been provided as seen from the Appendix V as Special Form D. The Form is found in page. 309 of the Board Standing Order, Vol. 1, 1966 Edition. Clause (9) of the Special Form D which is relevant for our purpose reads thus:
(9) If the land is alienated to any person within a period often years from the date of the grant by way of sale, gift, mortgage of lease of any kind, or after that period to any person who is not a member of the Scheduled Caste, or if it ceases to be owned by the original grantee or his legal heirs (or after the ten years) other members of the Scheduled Castes owing to sale by process of law or otherwise, or if default is made in the payment of the Government Revenue on the dates prescribed, the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money. This prohibition does not however apply to hypothecation of the land to Government under the Land Improvement and Agriculturists' Loans Acts or to a Co-operative Society which is solely composed of the members of the Scheduled Castes nor does it separate to debar payment of compensation when such lands are subsequently acquired under the Land Acquisition Act. The lower of resuming the grant and ordering reentry referred to above will vest in the Revenue Divisional Officer, in regard to valuable lands subject to a maximum limit of 2 1/2 acres of wet or irrigable dry land, or of 5 acres if the land is valuable and not wet or irrigable dry. Similarly, this power will be exercised by Tahsildar's, Independent Deputy Tahsildar's having separate jurisdiction and dependent Deputy Tahsildar's incharge of sub-taluks in regard to non-valuable lands subject to a maximum limit of 5 acres.
18. Board Standing Order 15, para.41, sub-para. (4) was amended by G.O.Ms. No. 889, Revenue, dated 1.6.1926. This condition has not been continued till 1966. Clause (iii)(i) of sub-para. (4) of para. 41 of Board Standing Order 15 had been amended during the years 1940 as well as in 1958. Clause (9) of the Special Form D also imposes restrictions with respect to alienation of assigned land by Scheduled Castes. A conjoint reading of the said provision as well as Clause (9), Special Form D makes it clear that a member of Scheduled Castes who had been assigned, shall not alienate to any person (whether a member of the Scheduled Castes or not) in any manner before the expiry of 10 years from the date of grant nor even the re-enter, except to other members of these cases. This amendment has been introduced by G.O. 889, Revenue, dated 1.6.1926.
19. The assignment of the lands in question was during the years 1922 and 1923. For violation of assignment condition or violation of the restrictions as to alienation the grant will be liable to be resumed by the Government. Further a procedure has also been prescribed for cancellation. The conditions imposed from time to time with respect to alienation or restriction are only prospective and they are not retrospective. The grant as was originally made by the Tahsildar/Revenue Divisional Officer in favour of Adi Dravidars during the year 1922 and 1923 has not been placed before the Court by either of the parties. In the circumstance the respondent suggested that it could be reasonably presumed that the assignment of the lands were made in the Standard Form that was in vogue during the years 1922 and 1923. The conditions as found in the standard format might have been issued in favour of Adi Dravidars while assignment was made in their favour.
20. The learned Government Advocate appearing for the contesting respondents relied upon the recent pronouncement of the Supreme Court reported in Charan Singh and Ors. v. State of Punjab and Ors. and also earlier judgment of the Apex Court reported in Murlidhar Dayanadee Kasemar v. Viswanatha Pandu Garde 1995 S.C.C. (Supp.) 549, Chandevarappa v. State of Karnataka . According to the learned Government Advocate, any alienation by the assignee Adi Dravidars is also violates the Constitutional objectives. In , the Apex Court considered as to whether the alienation of Government Lands allotted to the Scheduled Castes are in violation of the Constitutional objectives under Articles 39(b) and 46. On the facts of these cases, the Apex Court held that economic empowerment to Adi Dravidars and the power as a part of distributive justice is a fundamental right and the alienation is void under Section 23 of the Contract Act being violative of the constitutional scheme of economic empowerment to accord equality of status, dignity of persons and economic empowerment.
21. On the other hand, Mr. G. Masilamani, learned Senior Counsel contends that the question that arises for consideration in the present writ petition is not as to the validity of alienation or otherwise. It is contended by the learned senior counsel that the grant in favour of Adi Dravidars and the restrictions, if any imposed thereon should be as well as originally imposed and it cannot be presumed by the respondents that there has been perpetual restriction has been imposed at the time of assignment. It is pointed out by the learned Senior Counsel that only at a later date and not on the date when the assignment has been made in the present case in favour Adi-Dravidars such restrictions were imposed.
22. Further, it is contended that the alienation in the present case has been effected on 5.3.1949 and 19.7.1949 in favour of Dr. Ahamedullah Khan, who in turn conveyed the lands in favour of M/s. Rengaswami and Nalliappan, from whom the petitioners have purchased on 28.11.1973. Apart from the violation of principles of natural justice, it is contended by the learned senior counsel that the respondents are estopped by their conduct. Though there was an order of mutation of patta in favour of Dr. Ahamedullah Khan during the year 1950, subsequently, it was sought to be resumed by the Revenue Divisional Officer by his proceedings dated 1.9.1956. On 31.3.1957, but the very same Revenue Divisional Officer ordered after consideration of the matter that there is no warrant to re-enter or order resumption of the lands and patta had been restored in favour of the alienees. On that basis, the Revenue Divisional Officer dropped the proceedings to cancel the patta issued in favour of Dr. Ahamedullah Khan as well as M/s. Rengaswami and Nalliappan. As such, it is contended that it is not open to the respondents to pass order on 25.11.1987 after 32 years to resume the land.
23. According to the learned Senior Counsel for the petitioners the respondents are estopped and the earlier orders passed by the Revenue Divisional Officer on 8.9.1956 had reached finality and which factum is not disputed by the respondents and it cannot be reopened after 32 years on the same premises and such action is violative of ArticleS 14 and 21 besides without jurisdiction. According to the learned Senior Counsel, petitioners have invested huge amounts from time to time which claims have not been disputed. Such being the position, it is contended that the respondents are estopped by their conduct from cancelling the orders of assignment already made once again on the ground of violation of conditions of alienation. The respondents have not established as what was the original condition and what were the conditions that were imposed and they have not even made clear by the respondents. It is obvious that the condition of such assignment of land in favour of Adi Dravidars had been subsequently amended from time to time and the powers to cancel the assignments on the ground of violation of condition of assignment has also been introduced subsequently and not on the date of assignment in question. The dates on which amendments have been issued to various standing orders and special paragraphs had not been set out by the respondents. On the other hand, the respondents have proceeded on the basis that the initial order of assignment itself contained such a restriction and therefore, such assignment could be cancelled at any time and without any limitation. It is incumbent on the part of the respondents to disclose as what is the condition that was imposed at the time of assignment and that has been violated by the assignees. The respondents have not produced the original grant. In the circumstances, the court has to decide the matter on the basis of the available materials and on the basis that the Standing Orders as amended from time to time will have no application.
24. According to the learned Senior Counsel, the impugned order is without jurisdiction and arbitrary besides it is not supported by law. There are merits in these contentions raised by the learned Senior Counsel and it requires acceptance. So also the further contention that the respondents are estopped by their earlier proceedings from cancelling the assignment, also merits consideration and acceptance.
25. The learned Senior Counsel for the petitioner in support of his contention that the respondents are estopped, placed reliance upon the judgment of the Supreme Court reported in Union of India v. Anglo Afghan Agencies A.I.R. 1968 S.C. 718. The judgment of Lakshmanan, J. in Vipanchi Investments (P) Limited v. Deputy Secretary to Government of Tamil Nadu and three Ors. W.P. No. 3544 of 1991, dated 14.9.1993 and various other decisions. There is no escape and the respondents have no answer at all for these contentions. Admittedly, on 1.9.1956 even before the purchase of the lands by the petitioners, the R.D.O., Dharmapuri cancelled the assignment and ordered resumption. Subsequently, on 31.3.1957 the very same R.D.O. after consideration of the matter had held that there was nothing to warrant resumption and set aside the orders of cancellation. The said proceedings were initiated on the basis that the lands were alienated in favour of Dr. Ahamedullah Khan on 15.3.1949 and 19.7.1949. Thus, the respondents having dropped action and having set aside the cancellation proceedings are estopped from initiating fresh proceedings in 1987. On this ground, alone, the writ petitions are entitled to succeed.
26. The lands in question which was the subject-matter of assignment during the years 1922, 1923, 1928 were purchased by Dr. Ahamedullah Khan during 1949, subsequently the said Ahamedullah Khan sold the lands to Nalliappan and another on 7.11.1968 in whose favour Revenue patta has also been granted and mutation of revenue register has also been affected. In the said circumstances, the petitioners had purchased the lands on 28.11.1973. Thus, the petitioners were made to believe that their vendors Nalliappan and Dr.Ahamedullah Khan had right to convey the property as patta had also been issued in their favour after the cancellation of the earlier proceedings dated 1.9.1956. Based upon that, the petitioners have also invested huge amounts which aspect has also not been denied or disputed by the respondents. The patta has also been transferred not only in the name of the petitioners' vendors but also in favour of the petitioners and substantial amount had also been invested by the petitioners to sink wells, to improve the lands, to instal electric motor and oil motor pumpset based on the fact that the petitioners' vendors had already been granted patta. But, for the representations and mutation by the respondents, the petitioners would not have purchased and would not have invested huge amount. On this ground also, the respondents are estopped from going back and cancelling the assignment at this belated stage.
27. It is contended that the respondents were well aware of the alienations effected during the year 1949 and also the subsequent dropping of action of R.D.O. on 31.3.1957. The orders of the R.D.O. has not been set aside or reviewed by the appellate or revisional authority within a reasonable time and the said order of the R.D.O. dated 31.3.1957 and issuance of patta have been allowed to become final. At this stage, after a period of 40 years, it is highly arbitrary on the part of the respondents to initiate action as if it is being done for the first time. The action of the respondents is highly arbitrary and violative of Article 14 of the Constitution.
28. As rightly contended by the learned Senior Counsel not only after the 1957 cancellation of the earlier resumption proceedings but subsequently also the action was taken by the State Government but it was dropped and no orders have been passed. Thereafter, for the first time, the present impugned order has been passed on 4.3.1987 and without even issuing a show cause notice and thus the impugned order passed by the respondents is violative of principles of natural justice. The plea of the respondents that the earlier proceedings are illegal and that it has been passed without reference to the entries made in the Settlement A register are of devoid of merits and has no relevance.
29. It is also transpires from the records that a show cause notice was issued on 31.3.1974 but after receipt of objections, the respondents kept silent and it is deemed that the respondents have dropped the action. Thereafter, a lapse of another decade, the present impugned order has been passed and that too without affording an opportunity. A perusal of the impugned G.O. dated 4.3.1987 also demonstrates that there has been no application of mind at all and it has been passed arbitrarily. Even in the impugned proceedings, it has been stated that the petitioner had invested huge amounts and therefore, the extent of 5 acres alone be assigned to the petitioner on the double the market value and the remaining land be resumed which in my considered view is arbitrary and offends Article 14 of the Constitution.
30. For the reasons stated above, the impugned proceedings are quashed and the writ petition is allowed as prayed for with costs of Rs. 3,500.