Madras High Court
Annamalai And Ors. vs The Secretary To The Government, ... on 28 April, 1993
Equivalent citations: (1993)2MLJ419
ORDER Srinivasan, J.
1. The earlier writ petition has been filed by 12 persons for issue of a certiorarified mandamus calling for the records in the proceedings culminating in the order dated 14.3.1990 made in G.O.Ms. No. 453 on the file of the Secretary to Government of Tamil Nadu, Revenue Department affirming the order dated 20.4.1976 passed by the Land Commissioner and Settlement Officer which in turn affirmed the order dated 31.1.1975 passed by the Director of Survey and Settlement, Madras-5, quashing the same and directing respondents 1 to 3 to forbear from interfering with the petitioner's possession and enjoyment of the holdings in T.S. No. 113, Block No. 52, Ward 'H', corresponding to O.D.T.S. No. 2210 measuring about 62 cents and the superstructures standing thereon except in accordance with law. The later writ petition is filed by the Muslim Burial Ground Protection Committee, Salem, for issue of a writ of certiorari calling for the records in G.O.Ms. No. 453, dated 14.3.1990 and quashing the same.
2. The facts leading to the filing of the two writ petitions are as follows: The Salem Zamin Estate in Salem Taluk and District was notified and taken over by the Government under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (hereinafter referred to as 'Act XXVI of 1948') on 12.1.1951 and ryotwari settlement was introduced in Fasli 1359. The Assistant Settlement Officer, Salem, initiated suo motu enquiry to determine the character of the lands in Zamin Survey Numbers 5105 and 5108 corresponding to old Town Survey Numbers 2253 and 2210 respectively and decide the claims for patta. The village was originally surveyed by the landholder in the year 1903 and both the survey numbers were registered as 'Rudra Bhoomi' poramboke, They were correlated to Town Old Survey Numbers 2253 and 2210 corresponding to new Town Survey Numbers 114/2,1,9 and 10 and 113,90 part, 70 part, 110 part and 112. We are concerned with new T.S. Nos. 113, and 70. While the former was classified as burial grounds, the latter was classified as Municipal waste. In the enquiry before the Assistant Settlement Officer, one R.S. Perumal Chettiar claimed patta for portions of old T.S. Nos. 2253 and 2210. He claimed to have patta assignment for the landholder under Patta Nos. 101-B and 101-A. The Assistant Settlement Officer disallowed the claim on the ground that the land was registered as burial ground poramboke in the village account, and there was no order of the District Collector under Section 20-A of the Tamil Nadu Estates Land Act declaring that the lands were not necessary for their original purpose and that it could be used for any other specified communal purpose or converted into ryotwari land. It was held that the assignment in favour of the claimant was wrong and technically void. There was another claim by one Ramasamy Chettiar, which was also rejected. The Muslim Burial Ground Protection Committee objected to the claim of Perumal Chettiar and Ramasamy Chettiar and represented that the lands should be retained as burial ground poramboke for the Muslims. The Assistant Settlement Officer found that though the lands were registered as 'Rudra Bhoomi', there was no evidence of burial ever having taken place in T.S. No. 113 and there were only two tombs in T.S. No. 1. It was also observed that the burial Ground was ordered to be closed by the Municipality as early as in 1887 due to health reasons.
3. The claimants filed a revision before the Settlement Officer, who found that the assignment and pattas produced by Perumal Chettiar were not genuine. He rejected the claim of Ramasamy Chettiar on the ground that the lands were burial ground porambokes. Further revisions were filed before the Director of Settlement and Board of Revenue, which were dismissed. The claimants filed W.P. Nos. 903 and 1258 of 1960 in the Court. Six other persons by name Malli Chettiar, Veerappan Pillai, Angammal, Obli Chettiar, Manickam and Lakshmiammal filed writ petitions challenging the orders of the authorities. All of them were heard together and a common order was passed on 3.5.1962 by Veeraswami, J. dismissing the same. Appeal were filed in W.A. Nos. 132 to 134 and 154 to 159 of 1962. A Division Bench disposed them of by an order dated 12.1.1965. While dismissing the appeals, the Division Bench directed that the claims of the petitioners should be considered under Section 19-A of Tamil Nadu Act XXVI of 1948. The Following are the relevant observations made by the Division Bench:
We think we have indicated sufficiently that there is no justification for interference in these writ appeals, with the Judgment of Veeraswami J. declining to issue a writ at the instance of any of the parties concerned. The appeals are accordingly dismissed. But, in each of these cases, we would commend the claim of the concerned petitioner to a recognition by Government of his right to continue in possession under Section 19-A of Madras Act 26 of 1948, subject, of course of all considerations that could be urged to the contrary effect by the Muslim Burial Ground Committee, or any person interested in claiming, even at the present time, the communal user or nature of the property in question. Further, our remarks are subject to the condition that the petitioner claiming under Section 19-A of Act 26 of 1948 are bona fide alienees for value, who have taken such properties and put them to private uses in the genuine belief that they were dealing with land in the private ownership of vendors from the Zamindar, and not with communal land. The erection of buildings thereon by these persons may also be considered as evidence of bona fide and a fact entitling them, on equitable considerations, to the benefits of action under Section 19-A of the Act.
4. Pursuant thereto, the Board of Revenue ordered that the Director of Settlement may consider the claims of the parties under Section 19-A of Act XXVI of 1948. When the matter was pending before the Director of settlement, the Muslim Burial Ground Protection Committee filed a suit in O.S. No. 1061 of 1963 on the file of the District Munsifs Court, Salem challenging the claims of the parties involved in the proceedings under Section 19-A of Act XXVI of 1948 arid also several other persons. The suit was dismissed on 2.7.1974. The Committee also prayed for issue of patta under Section 19-A of the Act and for a hearing before the passing of the orders. After a detailed enquiry, the Director of settlements passed an order on 31.1.1975 holding that Thiru A. Ramaswamy Chettiar, Tmt. Chellammal, Thiru Obli Chettiar, Tmt. Lakshmi Saroja, Thiru Malli Chettiar, Tmt. Angammal and Thiru Sambasivam were entitled to continue in possession subject to certain conditions. The Muslim Burial Ground Committee filed revisions before the Commissioner of Land Revenue and Settlement of Estates. Similar Revisions were filed by the petitioners in W.P. No. 5735 of 1990 and some other persons. By order dated 20.4.1976, the Commissioner confirmed the order of the Director of Settlements and dismissed the revision petitions.
5. The petitioner in W.P. No. 6300 of 1990 filed a writ petition in W.P. No. 3560 of 1977 challenging the order of the Commissioner. In that petition, the authorities filed a counter affidavit stating that the Government had prima fade come to the conclusion that the orders of the Director of Settlement as Confirmed by the Commissioner of Land Revenue were not sustainable and issued show cause notice to the grantees as to why the orders in their favour should not be cancelled and mat the matter was pending enquiry. In view of the said counter affidavit, Nainar Sundaram, J. held that the writ petition was premature in nature and dismissed the same observing that it was better if the parties are left to agitate the question of factual possession before the Government and in case the ultimate order goes against them, they could seek appropriate remedies. Thereafter, the petitioner in W.P. No. 6300 of 1990 made a representation to the Government and requested for a personal hearing and consideration of the documents already filed by them before the Board of Revenue.
6. The petitioners in W.P. No. 5735 of 1990 challenged the order of the Commissioner of settlement by a further revision to the Government. It was the said Revision Petition and enquiry thereon which was referred to by the authorities in the counter affidavit filed in W.P. No. 3560 of 1977. After the disposal of the writ petition, the Government considered the records and passed G.O.Ms. No. 453, dated 14th March, 1990 confirming the orders of the Commissioner of Settlement and the Director of Settlements. Aggrieved by the same, these two writ petitions have been filed in challenge of the said order of the Government.
7. The contentions of the petitioner in W.P. No. 5735 of 1990 are:
(1) The petitioners have filed a suit O.S. No. 1458 of 1978 on the file of Sub Court, Salem and obtained a decree against the Government restraining it from in anyway interfering with their possession and enjoyment of the suit properties and a declaration that they are entitled to continue in possession until they are duly evicted by the permanent title-holder, being the Government. In view of the said decree, the Government is not entitled to pass an order under Section 19-A of Act XXVI 1948.
(2) Under Section 19-A of Act XXVI of 1948, an order can be passed only in favour of a person admitted into possession by a land-holder. In the present case, it is not established by the respondents, even as observed by the Commissioner himself, that they or their predecessors-in-title were let into possession by the landholder. Consequently, Section 19-A is not applicable to them and no orders should have been passed in their favour.
(3) The claims of the respondents were on the earlier occasion discussed threadbare and it was factually found that they were not in possession of the lands and therefore, no orders should have been passed in their favour under Section 19-A of Act XXVI of 1958.
8. The petitioner in W.P. No. 6300 of 1990 contends that having filed a counter affidavit in W.P. No. 3560 of 1977 that the matter was to be enquired afresh by the Government, the latter erred in disposing of the same without giving a personal hearing to the petitioner as prayed for by it. Thus, the principles of natural justice have been violated. Secondly, it is argued that the lands have been registered as burial grounds and under the Muslim Law, once a property is dedicated to be a burial ground, it cannot be utilised for any other non-religious purposes. It is also contended that the respondents have not proved their possession of the property.
9. There is no substance in the contention of the petitioner in W.P. No. 5735 of 1990 that the decree in O.S. No. 1468 of 1978 prevents the Government from passing orders under Section 19-A of Act XXVI of 1948. The suit itself was filed after the Commissioner of Land Revenue and Settlements passed the order dated 20.4.1976 confirming the order of the Director of Settlements. In the suit, 32 persons were impleaded as defendants including the grantees of the Order Under Section 19-A of Act XXVI of 1948. The 32nd defendant was the State Government. When the suit came up for trial, the plaintiffs gave up their claim as against the 32nd defendant. The suit was dismissed as withdrawn against defendants 1 to 31. It is not clear from the judgment and decree whether the Government was represented by the Government Pleader. The preamble to the judgment reads as if there were counsel only for defendants 1 to 31. But, the preamble to the decree reads as if counsel represented all the 32 defendants, which could not have been the case. No doubt, in paragraph 4 of the judgment, there is a reference to the written statement filed by the 32nd defendant. Clause (1) of the decree contains a declaration that the plaintiffs are entitled to continue in possession of the suit properties until they are duly evicted by the permanent title-holder, being the Government of Tamil Nadu. Clause (2) restrains the Government of Tamil Nadu by means of a permanent injunction from in any way interfering with the possession of the plaintiffs of the properties. To some extent, the two clauses are contradictory to each other. But giving an understandable meaning to the decree, the only result is that the possession of the plaintiffs should not be disturbed by the Government except in accordance with due process of law. As the decree is only against the Government, that does not in any manner bind defendants 1 to 31 against whom the suit was withdrawn and dismissed. The Government also was not prevented by the decree from passing orders under Section 19-A of Act XXVI of 1948. The title of the Government has been recognised by the decree itself and it is considered to be a permanent title-holder. The Government is, therefore, entitled to carry out its functions under Act XXVI of 1948 and pass appropriate orders under Section 19-A thereof. I am of the view that the action of the plaintiffs in that suit in having withdrawn the suit as against the contesting defendants who are the respondents herein, including the grantees of orders under Section 19-A of Act XXVI of 1948 and getting a decree behind their back against the Government is clearly mala fide and fraudulent. The decree cannot in any way enable the petitioners in the writ petition to challenge the grant in favour of the respondents herein.
10. The second contention is not available to the petitioners. It is the case of the respondents that the petitioners entered into possession as they are tenants and licencees and already proceedings have been initiated against them for eviction in civil Courts and before the authorities under the Tamil Nadu Buildings (Lease and Rent Control) Act. It is not necessary for me to consider that question here. However, the petitioners have not stated anywhere in the affidavit filed in support of the writ petitioner as to how they came into possession of the lands in question and under what right they are making claim. They never claimed patta for the lands before the authorities.
11. Clause (1) of Section 19-A of Act XXVI of 1945 reads thus:
Except where the Government otherwise direct, no person admitted by a landholder into possession of any communal land or forest or other land which is not a ryoti land, shall be entitled to any rights in or to remain in possession of such land.
The section is only negative in terms and prevents any person admitted by a landholder into possession from claiming any rights in the land or remaining in possession of such land without the express direction of the Government. That does not restrict the power of the Government to permit any person to continue in possession on such conditions as it may impose. It has been found as a fact that the lands were not put to use as a burial ground for over a century. It is also found that the respondents are claiming under documents of purchase for vendors, who in turn claim under their predecessors in title. In fact, in the case of Lakshmi Saroja, documents have been traced upto 1863. It is also found as a fact that the respondents have constructed buildings and have been in enjoyment thereof not only by themselves but also by letting them out. I have already extracted the passage in the judgment of the Division Bench in A.A.132 to 134 etc. of 1962 pointing out that the erection of buildings is a fact to be taken into consideration. No doubt, the Commissioner of Settlements has observed in his order that there is no satisfactory proof that the predecessors-in-title to the respondents were admitted to possession by the landholder. But, there is nothing wrong in drawing an inference that in the facts and circumstances of the case, they could have been admitted into possession only by the landholder and none else. In any event, the lands having vested in the Government, it is open to the Government to grant permit to any person to be in possession. When the petitioners in the writ petition have not pleaded or proved any better claim to be in possession and to be recognised by the Government, they are not entitled to challenge the grant made to the respondents. The discretion of this Court under Article 226 of the Constitution of India should not be exercised in favour of such petitioners.
12. The third contention is also without any merit. The documents produced by Perumal Chettiar were found not to be genuine by the Settlement Officer on the prior occasion. Perumal Chettiar is no longer on the scene. None of the respondents claims under him. The claim of Ramasamy Chettiar was not considered by the Settlement Officer on the merits. It was rejected on the only ground that the land was a burial ground. Equally so the claim of the other claimants who were parties to the writ appeals. Learned Counsel for the petitioner took me through the order of the Assistant Settlement Officer and the Settlement Officer passed on the earlier occasion in 1959. The observations made therein do not in any way help the petitioners to prove that they have any iota of claim in the lands in question. Hence, I reject all the three contentions put forward by the petitioners in W.P. No. 5735 of 1990.
13. As regards the petitioner in W.P. No. 6300 of 1990, there is no substance in the contention that a personal hearing should have been granted and the failure to give the same has vitiated the order of the Government. There is no rule providing for a personal hearing of the revision petition before the Government. The representation made by the petitioner to the Government after the disposal of the writ petition referred to the documents already filed by the petitioner before the Board of Revenue and prayed for reference to the same at the time of the hearing. The petitioner did not refer to any other document in order to sustain its. claim. Even in the earlier proceedings, it was found as a fact that the land was not used as a burial ground after 1867. In the present proceedings also the Director of Settlements has considered the question in detail and come to the same conclusion, which has been affirmed by the Commissioner of Settlements. Nothing has been placed before me to show that the factual conclusion is erroneous. In fact, the Assistant Settlement Officer rejected the claims for patta on the technical ground that there was no Order under Section 20-A of the Estate Lands Act, though on the facts he found against the user of the land as a burial ground. No writ can be issued at the instance of the petitioner, who has failed to establish that the land continued to be a burial ground throughout.
14. The second contention has not been substantiated by learned Counsel by referring to any text book on Muslim Law or any authority. The entry in the earlier registers, described it only a 'Rudra Bhoomi' and not a "Muslim burial ground". As stated already, we are concerned in this case only with new T.S. Nos. 70 and 113 corresponding to old T.S. No. 2210. The entry in the registers as regards old T.S. No. 2210 was merely burial ground, whereas the entry relating to old T.S. No. 2253 read as 'Muslim burial ground'. The distinction between the two entries is certainly very significant. The old T.S. No. 2253 corresponds to new T.S. Nos. 114/2,1, 9-and 10. Even under the present survey, T.S. No. 1 in Block No. 53 has been registered as "burial ground' and it is found as a fact that two tombs existed on the said land. That land has already been handed over to the Wakf Board. Hence, there is no merit in the claim of the petitioner that old T.S. No. 2210 was also dedicated for the use of Muslims as burial ground. The old registers described it only a Rudra Bhoomi. If it had been Muslim burial ground, a different expression would have been used. Taking that along with the fact that there was no burial actually after 1867,I do not find any merit in the claim of the petitioner, that the use of the land could not be changed under the Muslim law. Whether it was a Muslim burial ground or not is itself in doubt.
15. The third contention is the same as the third contention of the petitioner in W.P. No. 5735 of 1990. I reject it for the same reasons.
16. In the result, all the contentions urged in these writ petitions against the impugned orders fail and the writ petitions are dismissed. The petitioners in W.P. No. 5735 of 1990 shall pay the costs of respondents 4 to 21. Counsel's fee one set Rs. 2,000 to be shared equally by counsel for respondents 4 to 13 and 15 to 21 and counsel for respondent No. 14. In W.P. No. 6300 of 1990, there will be no order as to costs.