Madras High Court
Rajeshwari Home Developers India (P) ... vs The District Revenue Officer on 7 January, 2019
Author: S.S.Sundar
Bench: S.S.Sundar, C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.A(MD)No.1300 of 2014
and
M.P.(MD)No.1 of 2014
Rajeshwari Home Developers India (P) Ltd.,
Annur,
Through its Director, Rajeswari. ... Appellant/Petitioner
Vs.
1.The District Revenue Officer,
Thoothukudi District,
Thoothukudi.
2.The Tahsildar,
Kovilpatti Taluk,
Thoothukudi District.
3.N.Srinivasan ... Respondents/Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.18538 of 2013, dated
05.09.2014.
For Appellant :Mr.S.Meenakshi Sundaram,
Senior Counsel
for Mr.A.Seenivasan
For R1 and R2 :Mr.R.Sethuraman
Special Government Pleader.
For R3 :Mr.Ajmal Khan,
Senior Counsel
for M/s.Ajmal Associates
http://www.judis.nic.in
2
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J.) This writ appeal is filed against the order of the learned Single Judge of this Court in W.P.(MD)No.18538 of 2013, dated 05.09.2014, dismissing the writ petition filed by the appellant.
2.The brief facts that are necessary for the disposal of this writ appeal are as follows:
2.1.The appellant's name was included as owner of a property measuring to an extent of 2.30.5 hectare, that is equivalent to 5.69 Acres in S.No.281/3C in Appaneri Village. It is stated by the appellant that the original owner one Thangammal, who was given patta in respect of 2.30.5 hectares transferred an extent of 5.56 Acres to one M/s.Arun Anith Shelters Limited by a registered sale deed, dated 24.12.2001 and that the said property was once again transferred in favour of the appellant, which is only a sister concern of M/s.Arun Anith Shelters Limited, on 24.10.2003.
It is also stated that the entire extent of land was converted into housing plots and that most of the plots have been sold out in favour of third parties, who are in physical enjoyment as on date. http://www.judis.nic.in 3 2.2.It is further stated that later based on an application made by the third respondent, there are alteration of revenue records with regard to an extent of 46 cents in favour of third respondent by the impugned order of the first respondent on the basis of the report submitted by the Tahsildar. Later, the appellant has filed a suit in O.S.No.271 of 2013 on the file of the Principal District Munsif, Kovilpatti, for permanent injunction against the third respondent from interfering with the peaceful possession and enjoyment of the suit property by the appellant.
2.3.It is also not in dispute that the third respondent has filed a written statement making a counter claim for a declaration of title and for recovery of possession in respect of the extent in which the first respondent has directed change of patta. The appellant, thereafter, filed the writ petition challenging the order of the first respondent, dated 18.12.2013, by which the patta originally stood in the name of the appellant, was changed in favour of the third respondent to an extent of 46 cents in S.No.281/3C1. This extent was given a separate subdivision, namely, S.No.281/3B, as per the impugned order.
3.In the writ petition, one of the main contentions raised by http://www.judis.nic.in 4 the appellant is that the impugned order is passed in violation of principles of natural justice, inasmuch as the first respondent did not give any personal hearing or notice before passing the impugned order. It is also specifically stated in the affidavit filed in support of the writ petition that the third respondent claims title on the basis of a sale deed alleged to have been obtained by the father of the third respondent in the year 1977 from one Krishna Konar, who died in the year 1967. Though the specific issue with regard to the validity of sale deed that was obtained by the father of the third respondent in the year 1977 is questioned in the writ petition, in the counter affidavit filed by the official respondents as well as the third respondent, there is no specific denial, except referring to the fact that the third respondent's father had obtained the sale deed in the year 1977.
4.While dismissing the writ petition, the learned Single Judge has held as follows:
"22. The second issue as to whether there has been violation of principles of natural justice. The petitioner would state that it may be true that notice was issued, but such notice was not issued by the first respondent, but by the second respondent and statement was taken from Manager of the petitioner Company and based on that the first respondent passed the impugned order. It is to be noted that the rectification, if any, has to be ordered by the first respondent, who is the competent authority to rectify errors, which occurred during UDR Scheme and the second respondent is the http://www.judis.nic.in 5 authority, who has to carry out the rectification so ordered by the first respondent. Therefore, it cannot be stated that the second respondent has absolutely no role to play in the decision making process. Perusal of the impugned order shows that it is the first respondent, who directed to issue notice and the information was gathered through the second respondent. Therefore, the second respondent was in fact playing the role of a fact finding authority and ultimately it is the first respondent who passed the order. The petitioner did not raise any objection before the second respondent stating that he has no jurisdiction to call for information rather the petitioner cooperated in the enquiry, made their submissions and sought to sustain the entry in the revenue records. Therefore, the petitioner having acquised themselves of the factual position and having been satisfied with the manner in which enquiry was conducted, would be precluded from now contending that the order suffers from violation of principles of natural justice."
5.From the order passed by the learned Single Judge, it is evident that one of the main questions, that was raised by the appellant was not considered, even though it was specifically made by the writ petitioner in the writ petition. Secondly, the legal submission of the appellant that the impugned order passed by the first respondent is in violation of principles of natural justice. Though, the learned Single Judge accepted that no notice was issued by the first respondent before passing the impugned order, the learned Judge has held that the principles of natural justice has been complied with, as the impugned order passed by the first respondent is based on the report submitted by the second respondent and that the fact finding authority, namely, the second http://www.judis.nic.in 6 respondent, had conducted an enquiry. The learned Single Judge has further held that the appellant, who is a subsequent purchaser, ought to have verified the document of title before entering into purchase of the wet land with an intention to develop the layout.
6.It is further observed that the writ petitioner was not prevented from producing any documents before the authority. The order of the learned Single Judge itself is self contrary. Having regard to the admitted facts in this case that the appellant was not given any opportunity by the first respondent before passing the impugned order, this Court is of the view that the findings of the learned Single Judge that the report of the second respondent which is based on spot enquiry would be sufficient and that there was compliance of principles of natural justice cannot be countenanced.
7.The important factual submission of the appellant regarding the validity of the sale deed that was obtained by the third respondent's father in the year 1977 was neither considered by the first respondent nor discussed by the learned Single Judge of this Court. The fact remains that there is no specific denial of the contention of the appellant in the counter affidavit either filed by http://www.judis.nic.in 7 the official respondents or by the third respondent. In such circumstances, the learned Single Judge has presumed that the report submitted by the Tahsildar, namely, the second respondent was relied upon by the first respondent and that the appellant had not raised those points before the second respondent at the time, when the second respondent conducted an enquiry. The conclusions of the learned Single Judge are therefore, based on surmises and conjunctures.
8.When the question of lack of opportunity or violation of principles of natural justice is raised, it has to be considered with reference to the facts admitted, which are established before this Court. Hence, we are of the firm view that the order impugned in the writ petition is liable to be quashed on the short ground of violation of principles of natural justice and that the findings of the learned Single Judge that there is compliance of principles of natural justice in this case cannot be sustained.
9.The learned Senior Counsel appearing for the third respondent submitted that he can demonstrate before this Court by producing the death certificate of the father of the third respondent to show that the death certificate has been fraudulently obtained by http://www.judis.nic.in 8 the appellant. He also relied upon a judgment of the Honourable Supreme Court in the case of Suraj Bhan and others vs Financial Commissioner and others, reported in (2007) 6 SCC
186. In the said judgment, the Honourable Supreme Court has held as follows:
"8.So far as mutation is concerned, it clear that entry has been made and mutation has been effected in Revenue Records by Tehsildar on the basis of an application made by respondent No.5 herein and his name has been entered in Record of Rights on the basis of the Will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of respondent No.5 in Revenue Records, any illegality had been committed by Tehsildar. It is true that no notice was issued to the appellants but the Tehsildar had taken the action on the basis of Will said to have been executed by deceased Ratni Devi in favour of respondent No. 5. The said order has been confirmed by the Collector as also by Financial Commissioner. When the grievance was made against the said action by filing a Writ Petition, the High Court also confirmed all the orders passed by Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned.
9.There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors., AIR 1994 SC 1653). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."
10.With great respect to the Honourable Supreme Court, http://www.judis.nic.in 9 the Honourable Supreme Court in that case had upheld an order of revenue officials, who had changed the revenue records based on the Will said to have been executed by the original owner in favour of the contesting respondents in the appeal before the Honourable Supreme Court. This Court and the Honourable Supreme Court had repeatedly held that the revenue authorities are not competent to decide the rights under the instruments of interstate succession, when they are in dispute. It may be true that the revenue records may not confer title in all cases. It is only for assessment and collection of land revenue, the land records are prepared by the Government. Though the title of the property cannot be decided merely on the basis of the revenue records, still the entries in revenue records are also relevant. It is to be seen that under the Tamil Nadu Patta Pass Book Act, 1983, the patta is a document of title. The entries in patta or certified copy of entries in patta pass book shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted, as per Section 4 of the Act. Under Section 5 of the Act, no document relating to transfer of any land by sale, gift, mortgage, exchange, settlement or otherwise, shall be registered by the registering authority, unless, the patta pass book relating to such land is produced before such registering authority.
http://www.judis.nic.in 10
11.As stated above under Section 6 of the Act, the entries in patta pass book issued by the Tahsildar, shall be prima facie evidence of the title of person, in whose name patta has been issued. Under Section 10 of the Act, the modification of entries in patta pass book is permissible only under three following circumstances:
"(1)Either by reason of death of person;
(2)by reason of transfer of interest in land; and (3)by reason of any subsequent change in circumstance."
12.Having regard to the admitted facts in the present case, the dispute is with regard to title. The fact that the appellant's name was in the revenue records before the modification of entry by the impugned order passed by the first respondent is not in dispute. In such circumstances, even for carrying out any correction, the person, against whom the entry is made, should be given an opportunity before the modification of entry is made. In this case, it is not in dispute that the appellant was not given any opportunity by the first respondent before passing the impugned order. Admittedly, no notice was issued to the appellant before passing the impugned order. The fact that the second respondent, namely, the Tahsildar, conducted an enquiry and submitted a report before the first http://www.judis.nic.in 11 respondent and on the basis of the said report, the first respondent passed the impugned order will indicate that the impugned order in writ petition is in violation of principles of natural justice. Hence, this Court is inclined to allow this writ appeal.
13.Accordingly, the writ appeal is allowed with the following observations:
1)The order of the learned Single Judge in W.P.(MD)No. 18538 of 2013, dated 05.09.2014, is set aside. No costs.
2)The impugned order in writ petition in Na.Ka.No.D2/35057/2013, dated 18.10.2013, passed by the first respondent is quashed and the matter is remitted to the first respondent for fresh hearing and the first respondent shall pass an order after affording sufficient opportunity to both appellant as well as the third respondent and consider their case on merits. It is open to the appellant as well as the third respondent to raise all their objections and submit their documents before the first respondent.
The first respondent shall pass an order in accordance with law and uninfluenced by any of the findings of this Court and the order passed by the first respondent will subject to the outcome of O.S.No.271 of 2013, on the file of the Principal District Munsif, Kovilpatti. The Civil Court can independently decided the question http://www.judis.nic.in 12 of title.
14.While rendering the judgment, we are not holding that the revenue authorities are not competent to decide the question of title based on admitted facts for effecting mutation of records. We are only holding that the revenue authorities are not competent to mutate the revenue records contrary to the provisions of Tamil Nadu Patta Pass Book Act, 1983. Similarly, when a question is raised about the fraudulent nature of transaction and if it is established by documents, which are not disputed, the revenue authorities are competent to correct the entries and restore the revenue records to its original stage, if they are convinced that change or mutation of revenue records was by playing fraud. Similarly correction of entries wrongly made during UDR is also permissible. However, in all instances, when correction of entries is called for, it shall be done only after hearing the person interested. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [C.S.N., J.]
07.01.2019
Index : Yes / No
Internet : Yes / No
cmr
http://www.judis.nic.in
13
http://www.judis.nic.in
14
To
1.The District Revenue Officer,
Thoothukudi District,
Thoothukudi.
2.The Tahsildar,
Kovilpatti Taluk,
Thoothukudi District.
http://www.judis.nic.in
15
S.S.SUNDAR, J.
and
C.SARAVANAN, J.
cmr
W.A(MD)No.1300 of 2014
07.01.2019
http://www.judis.nic.in