Madras High Court
K.Sadayandi vs The District Collector on 14 July, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.19532 and 21155 of 2009 and M.P.No.1 of 2009 1.K.Sadayandi 2.S.Vellachi 3.Ponnurangam 4.Babu 5.S.Anusuya 6.C.Rangasamy 7.Desingu 8.Dhanalakshmi 9.V.Gowrilingam 10.V.Jograj 11.K.Panjanathan 12.M.Muniyammal 13.Nayagam 14.R.Vijaya @ Beema Beevi 15.G.Padmanabhan 16.A.Kumar 17.Dheerthammal 18.Saradha 19.P.Ramesh 20.H.Veeramuthu 21.J.Dayalan 22.Kuppumanickam 23.Neela 24.Pandurangan 25.S.Manivannan 26.R.Arumugam 27.M.Selvam 28.Neela ...Petitioners in W.P.No.19532/2009 1.G.Gnana Theeban 2.G.Gnanothayan 3.G.Gnaneswari ... Petitioners in W.P.No.21155/2009 Vs. 1.The District Collector, Collectorate, Kancheepuram. 2.The District Revenue Officer, Collectorate, Kancheepuram. 3.The Revenue Divisional Officer, R.D.O.Office, Hill Bungalow, Chengalpattu 603 001. 4.The Tahsildar, Taluk Office, Tambaram, Chennai 600 045. ...Respondents in W.P.No.19532/2009 1.The Govt. of Tamilnadu, Rep. By Secretary to Government, Revenue Department, Fort St.George, Chennai 600 009. 2.The Commissioner of Land Administration, Land Administration Department, Ezhilagam, Chepauk, Chennai 600 005. 3.The District Collector, Kancheepuram District, Kancheepuram. 4.The District Revenue Officer, Kancheepuram. 5.The Revenue Divisional Officer, Chingleput, Kancheepuram District. 6.The Tahsildar, Tambaram. ... Respondents in W.P.No.21155/2009 Writ Petition No.19532 of 2009 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the third respondent in Proceedings Na.Ka.No.3507/2009/D dated 12.08.2009, quash the same as null and void. Writ Petition No.21155 of 2009 preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records relating to the order of the 5th respondent in Proceedings Na.Ka.No.3507/2009/D dated 12.08.2009 in respect of lands comprised in Survey No.13/9 in Injambakkam Village and quash the same. For Petitioners : Mr.R.Rajaramani in W.P.No.19532/2009 Mr.AR.L.Sundaresan,SC for Ms.AL.Ganthimathi in W.P.No.21155/2009 For Respondents : Mr.V.Subbiah,Spl.G.P. C O M M O N O R D E R
The first writ petition (W.P.No.19532/2009) is filed by 28 petitioners, seeking to challenge an order of the third respondent Revenue Divisional Officer, Chengalpattu dated 12.08.2009 and seeks to set aside the same. By the impugned order, the third respondent found that the lands in S.No.13/9 to the extent of 0.46.5 hectares in Injambakkam Village, Tambaram Taluk were originally given to families of fishermen as house sites and since the conditions of assignment were violated in terms of Revenue Board Standing Order No.15.3, the assignment was cancelled and it was directed to be recorded in the village accounts as Gramanatham, Poramboke.
2. The writ petition was admitted on 18.09.2009. Pending the writ petition, this Court granted an interim stay. On notice from this Court, the third respondent RDO has filed a counter affidavit dated Nil (December 2009).
3. In the mean while, another three persons who were subsequent purchasers of the land assigned in favour of the petitioners in the first writ Petition filed the second writ petition being W.P.No.21155 of 2009 challenging the very same order of the Revenue Divisional Officer, who was shown as 5th respondent in that writ petition.
4. That writ petition was admitted on 15.10.2009. When the matter came up on 29.04.2010, the first writ petition was directed to be posted along with the second writ petition.
5. On notice from this Court, the Revenue Divisonal Officer. Chengalpattu had filed counter affidavits in both writ petitions. In the counter affidavit, he had stated that the petitioners who are subsequent purchasers in the second writ petiton have no locus standi to challenge the cancellation of assignment.
6. The case projected by the original assignees who are petitioners in W.P.No.19532 of 2009 are as follows:-
The petitioners were either assignees or legal heirs of the deceased assignees. They were permanent residents of Injambakkam Village and therefore, house sites plots were assigned to the fishermen residing in the neighborhood areas. The petitioners applied for getting assignment. The respondent Revenue Department had initiated action for assignment of the land in New S.No.13/10 and by proceedings dated 27.03.1996 assigned the plots to each of the assignees either 2.5 cents or 3 cents and they were also given possession. As a condition precedent to the assignment, the assignees were asked to pay certain amounts which was also paid by them.
7. It was claimed that they were all fishermen and due to their illiteracy, they sought the help of one Duraisingam (not a party in the writ petition) for obtaining patta in their individual name and for other statutory compliances. The said Duraisingam represented to the petitioners that he had good rapport with the Revenue Authorities and asked the assignees/petitioners to give authorisation to him to represent on behalf of the assignees before the Revenue Officials. As the hut put up by the petitioners requires electrical connection, water supply and was to be assessed for property tax, they gave authorization to the said Duraisingam to represent before the Revenue Authorities. The said Duraisingam was also a resident of the locality. The said Duraisingam also received Rs.5,000/- for meeting the expenses with the statutory authorities. It was stated that the said Duraisingam had misrepresented about the contents of the document and had extracted a document viz., Power of Attorney. The said Power of Attorney was misused by the said Duraisingam and the petitioners came to realize that he had sold the plots to some third parties only when they got show cause notice from the Revenue Department for cancellation of the assignment. On enquiry, they found from the Registrar Office that sale deeds were executed by the said Duraisingam in favour of third parties selling their properties. Since the Power of Attorney was obtained by playing fraud and mis- representation, the sale effected by Duraisingam was void ab initio. It was submitted that they continued to be in possession of the property. The petitioners gave a representation to the first respondent in the form of a statement narrating the facts and circumstances pertaining to the assignment of land. Subsequently, they filed suits before the District Munsif Court, Alandur in O.S.Nos.254, 255, 261 to 273, 283, 284, 291 and 292 of 2008, claiming that the sale deed executed by the said Duraisingam was null and void. The said suits are still pending.
8. Opposing the averments made, the RDO Chengalpet, had stated that the land in S.No.13/9 at Ingambakkam village was originally classified as Cattle Stand Poramboke (Mandeville Poramboke). The then Special Tahsildar of Saidapet had initiated proceedings for granting house sites to the writ petitioners. The Government in G.O.(Rt.)No.1079 Revenue Department, dated 17.11.1995 had issued orders for the transfer of classification to an extent of 0.46.5 Hectares in S.No.13/5 for assignment. It was also ordered that each of the petitioners should pay the land value at the rate of Rs.4,250/- per cent. The house site pattas were issued to the writ petitioners on 30.08.1996. Under Condition No.2 of the assignment, it was stated that the petitioners should put up a hut within 6 months or a tiled house within 12 months and condition No.9 stipulated that the land should not be alienated, sold, mortgaged or leased out to anybody within a period of ten years from the date of issue of patta.
9. It was further stated that the petitioners, within one year from the date of assignment, received a total sum of Rs.20 lakhs by appointing one Duraisingam, a Real Estate businessman as their power of attorney on 08.06.1996 through various documents executed by each one of the petitioners. The Power of Attorney holder sold the properties to M/s.Gnanatheepan, G.Gnanothayan and Gnaneswari, being the sons and wife of one Gnanasekaran, resident of Rangarajapuram at Kodambakkam. The sale deed was executed on 22.09.2003 and registered at the Sub Registrar Office at Neelankarai. The sale deed executed through Power of attorney clearly showed that the sale amount was referred to as Rs.80,000 in case of three cents plots and Rs.50,000 in case of 2.5 cents plots.
10. It was further stated that a complaint was received from the resident of Injambakkam Village on 21.11.2005 regarding the violation of conditions of assignment. Therefore, the revenue department on investigating the complaint found that there was alienation contrary to the conditions of assignment. Hence, by invoking Revenue Board Standing Order 15/3 and as per the instructions in the Government letter dated 15.07.1997 cancelled the assignment on the ground that the petitioners had violated the condition that assignment should not be alienated within 10 years from the date of issue of assignment. It was also stated that the petitioners had not put up any hut or building for their dwelling purposes either before or after the date of assignment. The said lands are still vacant. The second respondent had issued Show cause notice to each of the petitioners on 03.03.2005. It was also stated that the petitioners were allotted group houses in Injambakkam village by the Government and therefore, their contention that they have no other means to reside was also not correct. The suit filed by them before the Civil Court has no relevance to the case on hand. It was stated that the assignments were given during the year 1996 and the Power of Attorney was also appointed in the same year and the entire extent of land was sold on 22.09.2003. Therefore, they had violated the conditions of assignment and it was competent for the Government to cancel the assignment.
11. In the affidavit filed in W.P.No.21555 of 2009, the purchasers of the assigned land stated that the original assignees approached the Duraisingam and gave a Power of Attorney in his favour as they were in dire need of money and were facing financial difficulties. The said Duraisingam on 06.01.1997 applied to the Divisional Revenue Officer for 'No Objection Certificate' for sale of the properties. The said representation by Duraisingam was forwarded to the Tahsildar, Tambaram and the said Tahsildar had issued NOC dated 14.02.1997 certifying that all the 28 allottees had paid their entire land cost and there was no objection for them to obtain loan or to transfer property on the basis of patta which was granted in their favour. Therefore, the properties which were allotted to the 28 fishermen, who are the petitioners in the first writ petition was sold by the said Duraisingam as Power of Attorney holder in favour of the three petitioners vide various sale deeds in the year 2003 for valuable consideration and they were also put in possession and enjoyment of the property as its absolute owners.
12. It was contended that while cancelling the allotment, no notice was issued to them. They submitted a representation on 29.04.2008 to the 5th respondent enclosing various certificates. Even though, they appeared for a hearing before the DRO, Kancheepuram no proper response was forthcoming. Inasmuch as no show cause notice was issued to them and the cancellation of assignment were made without due application of mind, the impugned order is liable to be set aside. It was also stated that cancellation will have to be done within a period of 10 years and since it was passed only in the year 2009, it is invalid.
13. It is not clear as to how the petitioners in W.P.No.21155 of 2009 can challenge the order of cancellation of assignment which was not in their favour. Their very purchase in the year 2003 is contrary to the terms of assignment. In the matter of assignment, a subsequent purchaser has no locus standi to question the cancellation of assignment. If such contentions are allowed, it would not only expand the scope of the assignment issue, but it will also bring in persons who in utter violations of the conditions of assignment purchased the land and also fighting over the assignment issued as if they were original assignees. Therefore, the objection raised by the RDO in his counter affidavit in this regard is valid and the second writ petition is liable to be rejected on this short ground.
14. With reference to the first writ petition, the 28 petitioners had set up a false case before this Court. In the affidavit, they have not stated anything about the sale deed executed in their name by the Power of Attorney holder and the receipt of sale consideration in their favour. In fact the averments made in Paragraphs 10 and 11 of the affidavit filed in support of W.P.No.21155 of 2009 by the subsequent purchasers completely contradicts the stand of the petitioners in the first writ petition and they had suppressed vital information from this Court with reference to the receipt of the sale consideration. The assignments were made in the year 1996 and in the very very same year, they had executed the Power of Attorney and the lands were sold within 7 years as per the sale deed, violating the conditions of assignment. Further, as rightly contended by the respondents, they have not even put up any structure in the land in question and on that score also, they have violated the conditions of assignment. The statement made by the RDO Chengalpet that the petitioners are enjoying group houses allotted to them by the Government and therefore, it is not as if they have been rendered shelterless by the impugned notice. In so far as the assignment made in terms of the Revenue Board Stannding Orders 15/3, it only requires a show cause notice before cancellation. The petitioners have not given any valid explanation to the show cause notice and therefore, it cannot be said that the impugned order is passed iwthout notice to them or without a reasonable cause. The petitioners having received the sale consideration form the subsequent purchasers have deliberately not impleaded the said Duraisingam as well as the subsequent purchasers as party to the writ petition. It is very clear that they have been set up by the writ petitioners in the second writ petition, who are the subsequent purchasers. The writ petition is also liable to be rejected on the ground of suppression of material facts and the petitioners have not come to this Court with clean hands. Inasmuch as there was no illegality or irregularity in the impugned order, the first writ petition is also liable to be rejected. The fact that they had paid certain value to the land assigned to them will not make them the ultimate owner with full liberty to alienate the land contrary to the terms of assignment. In the present case, the sale itself had taken effect within 7 years and therefore, it is not a fit case where any interference can be shown to the petitioners. If they think that the said Duraisingam had cheated them to get power of attorney and also taken away the money from the subsequent purchasers, they can establish the same in the suits filed by them said to be pending before the District Munsif Court, Alandur, but on that ground the writ petition cannot be entertained.
15. On the question of challenge made by a subsequent buyer regarding the cancellation of assignment for violation of conditions of assignment, a similar issue was considered by the Supreme Court in Guntaiah v. Hambamma reported in (2005) 6 SCC 228. In para 14 it was stated as follows:
"14.It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third-party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware of the condition. The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third-party purchasers."
(Emphasis added)
16. When a condition imposed by banning any alienation within a specified period, the purpose of such conditions was explained by the Supreme Court in Manchegowda v. State of Karnataka reported in (1984) 3 SCC 301. It was observed in paragraph 17, which is as follows:-
"17.Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
17. The judgment in Guntaiah's case (cited supra) and Manchegowda's case were quoted with approval by the Supreme Court in Chinde Gowda v. Puttamma reported in 2008 AIR SCW 268 = (2007) 12 SCC 618
18. The Supreme Court had also held that imposition of conditional assignment was valid and it does not contravene Transfer of Property Act vide its decision in the State of U.P. v. Zahoor Ahmad, reported in (1973) 2 SCC 547. In para 16, it was held thus:-
"6. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections 2 and 3 of the Government Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the rights, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.
19. A similar view was also expressed by the Supreme Court in Papaiah v. State of Karnataka, vide its decision reported in (1996) 10 SCC 533. The following passage found in paragraph 8 may be reproduced below:-
''8.It is seen that Article 46 of the Constitution, in terms of its Preamble, enjoins upon the State to provide economic justice to the Scheduled Castes, Scheduled Tribes and other weaker sections of the society and to prevent their exploitation. Under Article 39(b) of the Constitution, the State is enjoined to distribute its largess, land, to subserve the public good. The right to economic justice to the Scheduled Castes, Scheduled Tribes and other weaker sections is a fundamental right to secure equality of status, opportunity and liberty. Economic justice is a facet of liberty without which equality of status and dignity of person are teasing illusions. In rural India, land provides economic status to the owner. The State, therefore, is under constitutional obligation to ensure to them opportunity giving its largess to the poor to augment their economic position. Assignment of land having been made in furtherance thereof, any alienation, in its contravention, would be not only in violation of the constitutional policy but also opposed to public policy under Section 23 of the Contract Act, 1872. Thereby, any alienation made in violation thereof is void and the purchaser does not get any valid right, title or interest thereunder. It is seen that Rule 43(8) specifically prohibits alienation of assigned land. It does not prescribe any limitation of time as such. However, it is contended that the appellant has obtained land by way of sale in 1958 long before the Act came into force and thereby he perfected his title by adverse possession. We find no force in this contention."
20. So far as the submission that the condition of restriction on alienation is violative of the provisions of the Transfer of Property Act is concerned, a Division Bench of this Court in Sisili Ammal -vs- Sundararaja Naidu (AIR 1946 Mad 52) while dealing with a condition, similar to the one contained in clause (9) under the Crown Grants Act, 1895 held that though such a condition would be invalid if the grant was made by a private individual, the condition was perfectly valid in the case of a Crown grant. It was held by the Bench that the prohibition against alienation was not violative of the provisions of the Transfer of Property Act.
21. In the light of the above legal precedents, both the writ petitions will stand dismissed. However, there will be no order as to costs.
svki To
1.The District Collector, Collectorate, Kancheepuram.
2.The District Revenue Officer, Collectorate, Kancheepuram.
3.The Revenue Divisional Officer, R.D.O.Office, Hill Bungalow, Chengalpattu 603 001.
4.The Tahsildar, Taluk Office, Tambaram, Chennai 600 045.
5.The Secretary to Government, The Govt. of Tamilnadu, Revenue Department, Fort St.George, Chennai 600 009.
6.The Commissioner of Land Administration, Land Administration Department, Ezhilagam, Chepauk, Chennai 600 005