Madras High Court
M.Gopalakrishnan vs The District Collector on 6 August, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.08.2014
CORAM
THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN
AND
THE HON'BLE MS.JUSTICE V.M.VELUMANI
Writ Petition (MD) No.8286 of 2012
M.Gopalakrishnan .. Petitioner
Vs.
1. The District Collector
Madurai District.
2. The District Revenue Officer
Madurai District.
3. The Revenue Divisional Officer
Madurai District.
4. The Tahsildar
Melur Taluk, Madurai District.
5. The Superintendent of Police
Madurai Rural District, Madurai.
6. The Deputy Superintendent of Police
Melur, Madurai District.
7. Kusalavan
8. Rajendran .. Respondents
Petition under Article 226 of the Constitution of India praying for a
writ of Mandamus directing respondents 1 to 4 to protect and preserve
Murugakone Kanmoi situated in 811/1 to 4, Puthukanmoi @ Sinnankulam in
Survey Nos.805/1, 2 & 3 and Nayakkankulam Kanmoi situated in Survey Nos.815 &
819 of A.Vallalapatti Village, Melur Taluk, Madurai District and supply
channels from and to these tanks situated in Survey Nos.813 & 814,
A.Vallalapatti Village, Melur Taluk, Madurai District and Survey Nos.9, 8, 7
& 21 Kidaripatti Village, Melur Taluk, Madurai District.
!For Petitioner : Mr.V.Selvaraj
For N.Dilip Kumar
For Respondents 1 to 6 : Mr.A.K.Baskarapandian, Spl.G.P.
For Respondent-7 : Mr.G.Masilamani, S.C.
For Mr.A.Thirumurthy
:ORDER
V.RAMASUBRAMANIAN,J.
This is a writ petition filed in public interest, by a person who claims to be the President of a Farmers Association and also President of the Village Forest Committee organised by the District Forest Department. His prayer in the writ petition is for the issue of a writ of Mandamus to direct the respondents 1 to 4 to protect and preserve three water bodies, namely (i) Murugakone Kanmoi situate in Survey Nos.811/1 to 4, (ii) Puthukanmoi alias Sinnankulam in Survey No.805/1, 2 & 3, and (iii) Nayakankulam Kanmoi situate in Survey Nos.815 and 819 of A.Vallalapatti Village, Melur Taluk, Madurai District and also to protect and preserve the supply channels and field channels from and to these tanks situate in Survey Nos.813 and 814 of A.Vallalapatti Village, Melur Taluk, Madurai District and Survey Nos.9,8,7 and 21 of Kidaripatti Village, Melur Taluk, Madurai District.
2. We have heard Mr.V.Selvaraj, learned counsel appearing for the petitioner, Mr.A.K.Baskara Pandian, learned Special Government Pleader appearing for respondents 1 to 6 and Mr.G.Masilamani, learned Senior Counsel appearing for the seventh respondent.
3. The grievance of the petitioner is
(a) that there are three water bodies in A.Vallalapatti Village, one in Survey No.811 measuring an extent of 8.54 acres and named as Murugakone Kanmoi, another in Survey No.805 known as Puthukanmoi alias Sinnankulam and a third in Survey Nos.815 and 819 known as Nayakankulam Kanmoi, located in A.Vallalapatti Village;
(b) that the rain water that flows from the upper basin to Murugakone Kanmoi from Alagar Malai and the surplus water that flows from Puthukanmoi to Murugakone Kanmoi and from Murugakone Kanmoi to Nayakankulam Kanmoi, are used to irrigate the lands in several villages, such as Sambiranpatti, Vallalapatti, Sekkipatti, Arkkampatti, Pulippatti, Kavattaiyanpatti and Sathirapatti;
(c) that under the proceedings of the Settlement Officer dated 02.02.1970, Ryotwari patta was wrongly granted in favour of some individuals in respect of the lands in Survey Nos.805 and 811 in terms of the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963;
(d) that however the patta automatically stood cancelled in terms of Section 10-A of the Tamil Nadu Inam Estates Leasehold and Minor Inams (Abolition and Conversion into Ryotwari) Amendment Act, 1975; and
(e) that however persons in whose favour the lands stood, started creating sale deeds and also destroying the water bodies, leading to protest by the farmers and that since the official respondents did not take steps to restore these water bodies, the petitioner was compelled to come up with the above public interest litigation.
4. The seventh respondent, who is a private party, has filed a counter affidavit contending inter alia
(a) that the writ petition is not maintainable, as it raises seriously disputed questions of fact;
(b) that despite knowing that there are several people in whose favour pattas have been granted, the petitioner has deliberately chosen not to implead them as parties, thereby making the writ petition bad for non joinder of necessary parties;
(c) that Sinnankulam is actually situate in Survey No.797/2, but the petitioner has come up with a deliberately false case as though Puthukanmoi and Sinnankulam are one and the same;
(d) that the petitioner who was nobody in the village till 2009, suddenly became visible by breaking the communal harmony in the area and also filing successive writ petitions, the first one for a direction to include the Yadhava community in the temple festivals, second one for granting police protection for the celebration of Aadi festivals, third one for permission to his community people to celebrate temple festivals, fourth one against the refusal of the District Administration to grant customary honours to other communities and the fifth one for omitting the Yadhava community from the temple honours;
(e) that the lands in Survey Nos.805 and 811 in A.Vallalapatti Village were a part of large extent of 456.31 acres in Old Survey No.569 and it was owned by Mr.M.Sheik Fareed Rowther under a Partition Deed dated 25.4.1964;
(f) that in 1966, one Mr.Umar Salai Mohammed Sait purchased 1/3rd share in the land (namely 37.84 acres) from the son of Sheik Fareed Rowther under sale deed dated 28.01.1966;
(g) that it was mentioned in the said document itself that Murugakone Kanmoi had been dug by the predecessors in title at their cost and was under
their possession and enjoyment;
(h) that the remaining shares (2/3rd) were assigned to Umar Salai Mohammed Sait, under a sale deed dated 16.12.1971, in pursuance of a decree dated 16.9.1969 passed in O.S.Nos.253, 254 and 267 of 1967;
(i) that after the enactment of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, the inam character of the lands stood abolished with effect from 15.02.1965 under Section 3;
(j) that the claims for Ryotwari patta for the inam lands were enquired under Section 11(2) and an order was issued by the Settlement Tahsildar dated 02.02.1970 granting Ryotwari patta in respect of the lands in Survey Nos.805 and 811;
(k) that the family members of the seventh respondent purchased the lands in Survey Nos.805 and 811 from Mr.Umar Salai Mohammed Sait and his family members, under sale deeds dated 15.12.1979;
(l) that they have obtained patta in their own names and also cultivating various crops;
(m) that the lands are situate on the slope and foot of Alagar Koil Hills;
(n) that the predecessors in title had dug their own private small water storage pond before a long time in the past;
(o) that these ponds are only private tanks and not public tanks;
(p) that the seventh respondent sold in favour of the eighth respondent, about 21.05 acres in Survey No.805 under a sale deed dated 12.3.2012;
(q) that the petitioner trespassed into the land of the seventh respondent and attempted to catch fish, but he was prevented and a police complaint lodged;
(r) that therefore, on 10.4.2012, the petitioner came with deadly weapons and threatened to kill the watchman;
(s) that therefore, the watchman's wife gave a police complaint on 11.4.2012, which was registered in Crime No.42 of 2012 for offences under Sections 147, 148, 294(b), 506(ii), IPC and Section 4 of the Tamil Nadu Harassment of Women Act;
(t) that criminal proceedings are pending against the petitioner for the above offences;
(u) that the lands in Survey Nos.811 and 805 belong to the family members of the seventh respondent;
(v) that the lands in Survey Nos.815 and 819 and the supply channels in Survey Nos.813 and 814 do not belong to the seventh respondent or his family members;
(w) that the pond in question is a private pond, the water from which is used to irrigate the private lands of the seventh respondent;
(x) that Section 10-A of the 1975 Amendment Act will not apply to the case of the seventh respondent;
(y) that a small pond dug by a pattadar in his own land at his own cost to collect rain water for his exclusive use, would not come within the purview of the Minor Inam Act; and (z) that even according to the seventh respondent, Nayakankulam is only under the control of Melur Panchayat Union, which is not impleaded as a party and that therefore, the writ petition deserves to be dismissed.
5. The official respondents have not filed any counter affidavit. But, the Tahsildar, who is the fourth respondent, filed a report before this Court, on 17.7.2012, in pursuance of a direction issued by this Court. Similarly, the District Collector also inspected the lands in question and filed a report on 17.9.2012.
6. In the report filed by the Tahsildar, Melur, he has stated as follows:
(a) that the lands in Survey Nos.811/1 to 4, 805/1, 2 & 3, 815 and 819 of A.Vallalapatti Village were originally classified as Minor Inams to the extent of about 456.31 acres, situate in paimash No.569;
(b) that the said lands were given for the benefit of a mosque known as Assara Mubarak Pallivasal, Goripalayam and a patta issued in T.D.No.227;
(c) that by the proceedings dated 02.02.1970, the Settlement Tahsildar issued possessory title to the extent of 8.54 acres in Survey No.811;
(d) that under the said proceedings of the Settlement Tahsildar, all the inam lands measuring about 456.31 acres were divided under two lists, namely B list and C list, with those in the B list being patta lands and those in the C list classified as Government lands;
(e) that the lands in Survey No.811, fell under both the lists, but was later deleted from C list and included only in B list, resulting in the grant of pattas to individuals;
(f) that under the Updating Registry Scheme (UDR Scheme), mutation was effected in respect of Survey No.811 and patta No.1836 issued in favour of Sivabakkiam, Banumathi, Thilagavathy and Sivagami Ammal;
(g) that subsequently, by proceedings dated 21.02.2010, sub-division was carried out and patta issued in favour of K.Thirunavukkarasu and K.Thilagavathy in respect of Survey No.811/1, K.Thilagavathy in respect of Survey No.811/2, Sivabakkiam in respect of Survey No.811/3 and T.Sivagami in respect of Survey No.811/4;
(h) that as per the revenue records, the lands are not Kanmoi poramboke;
(i) that however in the Field Map Book, the lands were shown as water body;
(j) that as per the revenue records, the water body belongs to individuals and is a private water body;
(k) that in respect of land of an extent of 5 acres in Survey No.805, Ryotwari patta was issued to three persons by name Ambar Omar, Minor Hajeemoosa and Haji Sulaiman and later UDR patta was issued in favour of Sivabakkiam and others; and
(l) that the writ petition is born out of personal motives.
7. The District Collector has filed a report, containing about 10 paragraphs. Paragraphs 1 to 9 of the report of the District Collector, are nothing but a mere repetition of paragraphs 1 to 9 of the report of the Tahsildar, Melur. But, however, the last paragraph, namely paragraph 10 of the report of the Collector takes a stand diagonally opposite to the stand taken by the Tahsildar in his report. The Tahsildar's report resembles almost the counter affidavit filed by the seventh and eighth respondents. Therefore, the Tahsildar has concluded that the writ petition deserves to be dismissed.
8. But, paragraph 10 of the report of the Collector shows that the stand taken by the District Administration is little different. Paragraph 10 reads as follows:
"10. It is submitted that with reference to "Tamilnadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 Amendment 1975 (Tamil Nadu Act 2 of 1976), Section 10-A, Ryotwari patta not to be granted in respect of Private tank or Oorani and now this office came to know about that facts and taken steps for the Cancellation of patta for the Sub division Nos.1, 2 & 3 (Pudukulam) in Survey No.805 and for the Sub division Nos.1, 2 & 3 (Murugakone Kanmoi) in S.No.811 and the proposal sent to the Principal Secretary and Commissioner of Land Administration, Chennai in this office letter No.J2/36531/2012 Dated: 10.7.2012 and orders are awaited."
9. From the respective pleadings of parties and the contentions raised on both sides, we are of the view that the following aspects arise for consideration in this writ petition:
(i) Maintainability of the writ petition; and
(ii) The effect of Section 10-A of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 1963, issued under the Amendment Act II of 1976.
MAINTAINABILITY OF THE WRIT PETITION
10. The maintainability of the writ petition is questioned by Mr.G.Masilamani, learned senior counsel appearing for the seventh respondent, on several grounds, such as
(i) complicated and disputed questions of fact arising in the writ petition;
(ii) bad motive on the part of the writ petitioner;
(iii) false statement in the affidavit; and
(iv) non impleadment of necessary parties.
11. The contention that this writ petition raises several complicated and disputed questions of fact and that therefore it is not maintainable, cannot be accepted. The sum and substance of the case of the writ petitioner is (a) that by the proceedings of the Settlement Tahsildar dated 02.02.1970, assignment has been granted in favour of the predecessor in title of the seventh respondent; and (b) that the lands in question are water bodies and hence, the assignment granted by the Settlement Officer got cancelled by the statutory provisions inserted by way of Section 10-A under the Amendment Act of 1975. There is nothing complicated about these two issues. The question as to whether Section 10-A would apply or not, is a question of law to be decided on a very limited disputed questions of fact. Therefore, we do not think that the writ petition involves complicated and disputed questions of fact, to reject it as not maintainable.
12. The second ground on which the learned senior counsel for the seventh respondent questions the maintainability of the writ petition is that the petitioner is involved in a series of litigation and that this litigation is to settle scores with the seventh respondent for a previous enmity. In the counter afidavit, the seventh respondent has given details of about five writ petitions filed earlier by the writ petitioner. The details of the writ petitions are as follows:
(i) W.P.(MD) No.426 of 2010 for a direction to include the Yadhava community in temple festivals of the villages;
(ii) W.P.(MD) No.10842 of 2010 seeking police protection for celebration of temple festival in his village;
(iii) W.P.(MD) No.8441 of 2011 seeking a direction to permit him and his community men to celebrate temple festivals;
(iv) W.P.(MD) No.384 of 2012 challenging an order restricting the temple honours to other three groups of people, leaving out the Yadhava community; and
(v) W.P.(MD) No.2821 of 2012 for a similar grievance.
13. It is also stated by the seventh respondent in his counter affidavit that a criminal complaint was lodged in Crime No.42 of 2012 against the petitioner and the petitioner was arrested and remanded to custody. Therefore, Mr.G.Masilamani, learned senior counsel for the seventh respondent contends that the present writ petition is motivated with a desire to wreak vengeance.
14. We do not find that the filing of the above cases has anything to do with the present writ petition. In all the previous writ petitions, the petitioner was not fighting any lis against the seventh respondent. He was only fighting for the rights of his community. Merely because a person is a seasoned litigant and he is called a Court-bird, it is not proper to reject the writ petition filed by him on the ground that there was a bad motive. The only prayer in the present writ petition is to preserve and protect certain water bodies. If the anwer to the question as to whether these are water bodies or not, is in the affirmative, any amount of bad motives on the part of the writ petitioner, cannot save the seventh respondent. If these lands are not water bodies, even the absence of any bad motive on the part of the petitioner will not entitle him to seek any relief. As we have pointed out earlier, the only question is as to whether these lands are water bodies or not and whether Section 10-A would operate or not.
15. The third ground on which the maintainability of the writ petition is questioned, is that the petitioner had made a false statement as though Puthukanmoi and Sinnankulam are one and the same. According to the seventh respondent, Sinnankulam is different from Puthukanmoi. Therefore, the seventh respondent claims that it is based upon a false averment that the petitioner has come up.
16. It is true that the petitioner has mentioned Sinnankulam as another name for Puthukanmoi. But, the learned counsel for the petitioner agreed that it was a mistake. In any case, the petitioner has nothing to benefit out of such an incorrect statement. A false statement, to be a ground for dismissal of the writ petition, should result in some benefit for the petitioner. In the absence of any such benefit, the writ petition cannot be thrown out, on the basis of false statement.
17. One important ground on which the learned counsel for the seventh respondent seeks the dismissal of the writ petition is that being aware of the mutation in the revenue records in favour of K.Thirunavukkarasu, K.Thilagavathy, T.Sivabakkiam, T.Sivagami and T.Banumathi, the writ petitioner did not choose to implead them as parties. Therefore, the learned senior counsel submitted that the writ petition should be dismissed for non joinder.
18. But, we do not think that on that ground the writ petition can be dismissed. The writ petition on hand is a public interest litigation. The seventh respondent has actually represented those pattadars, as their Power Agent. As a matter of fact, it was the seventh respondent who executed a sale deed in favour of the eighth respondent, acting as the Power Agent of the patta holders. Hence, the seventh respondent cannot now turn around and say that the owners are not impleaded as parties.
19. More over, the prayer in the public interest litigation is only to the official respondents to protect and preserve water bodies in the village. Therefore, as and when the official respondents take any steps, they must certainly put the actual persons in occupation, on notice. A public interest litigation cannot be dismissed on such grounds, when the pattadars are also represented by their Power Agent. Hence, all the grounds on which the maintainability of the writ petition is questioned, are rejected. EFFECT OF SECTION 10-A OF THE ACT
20. The second aspect of the matter is about the effect of Section 10-A inserted by way of amendment under Amendment Act of 1975. Before going into the legal aspect of this issue, it is necessary to have a look at the order passed by the Settlement Officer way back on 02.02.1970, under the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 30 of 1963.
21. It appears from the order of the Settlement Officer dated 02.02.1970, that an enquiry was undertaken under Section 11(2) of the Madras Act XXX of 1963 into the claims for Ryotwari patta. The inam character of the lands stood abolished under Section 3 on 15.02.1965. About 15 persons applied for Ryotwari patta under Rule 9(1). Therefore, notices in Form No.5 were served on the applicants as well as the occupants of the lands. Notice in Form No.6 also got published in the village as per the Rules.
22. The applicants before the Settlement Tahsildar were M.Gulam Dasthagir Sahib Achary and the Secretary to the Special Officer of the Madras State Wakf Board. The claim made before the Settlement Tahsildar by these two applicants was that the land measuring an extent of about 456.31 acres in Survey No.569 was a minor inam, granted for the performance of service in a mosque known as Assara Mubarak Pallivasal at Goripalayam and that the first petitioner was a service holder. According to them, the inam was confirmed in TD No.227 and TD patta was granted in favour of the paternal uncle of the first petitioner and later transferred in the name of his son, who died issueless. According to the applicants before the Settlement Tahsildar, they have been the owners of both the warams (melwaram and kudiwaram) and that they have been leasing out portions of the lands to several cultivators.
23. There were 35 respondents before the Settlement Officer. Some of them filed written statements claiming (i) that the grant of inam was of melwaram only, (ii) that the respondents and their predecessors have been in possession and enjoyment of kudi waram interest; (iii) that the Huqdars for the lands have recognised the rights of the respondents and also issued pattas; and (iv) that the respondents 1 to 5 before the Settlement Tahsildar had purchased the lands from the sons of one Sheik Parith Rowther and that the respondents 14 to 22 had purchased kudiwaram more than 100 years ago.
24. On the pleadings, the Settlement Tahsildar framed four issues as arising for consideration. They were:
(i) Whether the grant consisted of melwaram only?
(ii) If so, which of the claimants are lawfully entitled to kudiwaram interest and in which of the lands?
(iii) Whether the sales relied on by the claimants are true and covered by the provisions of the Act? and
(iv) Who are the persons entitled to patta under the Act?
25. Before the Settlement Tahsildar, the first applicant, namely Gulam Dasthagir Sahib Achary examined himself as PW1. 11 witnesses were examined on the side of the respondents. On issue No.(i), the Settlement Tahsildar held that the grant consisted not only of melwaram, but also of kudiwaram in the lands. On issue No.(ii), the Tahsildar held that the mosque at Goripalayam represented by Huqdar is lawfully entitled to kudiwaram interest in the lands detailed in Schedule D. Insofar as Schedule C lands are concerned, Tahsildar recorded a finding on the basis of the inspection carried out by the field staff that they were communal lands. There were actually no claims for the lands described in Schedule C, except insofar as Survey No.811 was concerned. As per S.F. 7, the land in Survey No.811 was indicated to be a tank. The Settlement Tahsildar found that the respondents 1, 3 and 4 before him, namely Umar Salai Mohammed Sait, Minor Hajeemoosa and Minor Mohammed Ismail (sons of Umar Salai Mohammed Sait) derived title to this land. All of them had claimed the tank to be a private tank, used for the irrigation of their own private lands. Therefore, they wanted patta for Survey No.811.
26. On issue No.(iii), as to whether the sales in favour of the claimants were true, the Settlement Tahsildar held that the lands were alienable and that therefore, the sales were valid and true.
27. On issue No.(iv) as to who are the persons entitled to the grant of patta, the Settlement Tahsildar held that under Section 11(2) of the Act, the Pallivasal at Goripalayam represented by the applicant before him was entitled to Ryotwari patta for the lands described in Schedule D under Section 8(1) of the Act. The Tahsildar also held that the respondents before him were entitled to Ryotwari patta for the lands detailed in Schedule B, as per Section 8(1) of the Act. At the same time, the plea for grant of patta for the lands except the one in Survey No.811, mentioned in Schedule C was disallowed by the Settlement Tahsildar.
28. Two important things are to be noted in the order of the Settlement Tahsildar dated 02.02.1970. The first is that Survey No.811, without doubt, was a tank known as "Muruganeri". This is seen from Schedule C of the order of the Settlement Tahsildar dated 02.02.1970. Even according to the claimants, who were respondents 1 to 4, Survey No.811 was only a tank. But, their claim was that it was a private tank and not a public tank. The relevant portion of the order of the Settlement Tahsildar dated 02.02.1970, dealing with this aspect, is extracted as follows:
"The field staff have inspected all the lands covered by this Inam and reported in their statement No.7 that the lands mentioned in Schedule 'C'are communal lands and submitted proposals for the transfer of these lands to poramboke. There are also no claimants for these lands except for S.No.811. As per S.F.7, S.No.811 is a tank. It is not registered as an Irrigation source. The Respondents 1, 3 and 4 derived title to this land as mentioned above. They say that this is not a public tank and that this is a private tank used for irrigation of their own private lands. Hence, they want patta for S.No.811."
29. Therefore, the fact that Survey No.811 was a tank, even at the time when the Settlement Tahsildar passed the order, is not in doubt. Though the Settlement Tahsildar did not actually record a finding as to whether it was a public tank or a private tank, he proceeded to pass an order that had the effect of granting patta to Umar Salai Mohammed Sait and his sons. But, unfortunately, there was some lack of clarity. Even in the operative portion of the order of the Settlement Tahsildar dated 02.02.1970, he directed the grant of patta. The operative portion of the order of the Settlement Tahsildar dated 02.02.1970 reads as follows:
"It has been held under point No.2 that the respondent claimants are lawfully entitled to Kudiwaram interest in respect of the lands in their possession as detailed in schedule 'B' and that the Asara Mubarak Pallivasal represented by the 1st Petitioner is lawfully entitled to Kudiwaram interest in the lands mentioned in Schedule 'D'. Hence, I decide under section 11(2) of the Act that Asara Mubarak Pallivasal at Goripalayam represented by the huqdar M.Gulam Dastagir Sahib Achary is entitled to ryotwari patta for the lands mentioned in schedule 'D' under section 8(1) of the Act and that the Respondent-claimants are entitled to ryotwari patta for the lands as detailed in Schedule 'B'under section 8(1) of the Act and I disallow grant of patta for the lands except S.No.811 mentioned in Schedule 'C'."
30. It can be seen from the operative portion of the order extracted above that insofar as the lands described in Schedule D are concerned, the Settlement Tahsildar gave a positive finding that Gulam Dasthagir Sahib, the Huqdar of Pallivasal was entitled to patta for the lands in Schedule D under Section 8(1). Similarly, the Settlement Tahsildar recorded another positive finding that the respondents/claimants before him were entitled to Ryotwari patta for the lands detailed in Schedule B under Section 8(1). But, in respect of the lands in Schedule C, of which Survey No.811 is a part, the order of the Tahsildar is without either a finding or a direction. The Settlement Tahsildar simply stated "I disallow grant of patta for the lands except Survey No.811 mentioned in Schedule C".
31. Refusing to grant patta stands on a different footing than a positive direction to grant a patta. While in respect of lands in Schedules B and D, the Tahsildar issued positive directions for the grant of pattas, he did not issue such positive directions in respect of the lands in Schedule C. He merely disallowed the claim for grant of patta in respect of lands in Schedule C, except the one in Survey No.811. However, it was taken to be an order for grant of patta and patta was issued in favour of Umar Salai Mohammed Sait for the land in Survey No.811.
32. As seen from the affidavit as well as the writ petition, we are now concerned in this public interest litigation only with four survey numbers. The first is Survey No.811, on which there was admittedly a lake known as "Muruganeri" or "Murugakone Kanmoi". The second is the land in Survey No.805, on which there is another water body known as Puthukanmoi. The third and fourth are the lands in Survey Nos.815 and 819, on which there is a tank known as Nayakankulam Kanmoi.
33. Keeping the above survey numbers in mind, if we now get back to Schedules A to D of the order of the Settlement Tahsildar dated 02.02.1970, it can be seen that Survey No.805 measuring an extent of acres 21.81, is included in Schedule B, for which the patta was directed to be granted in favour of the three sons of Umar Salai Mohammed Sait. Survey No.811 is in Schedule C and the measurement is given as acres 8.54. It is indicated to be a tank. Survey No.815/2 is included in Schedule D that has been allotted to the Pallivasal. Survey No.819 is included in Schedule B to the order of the Settlement Tahsildar dated 02.02.1970 and it is of the extent of about 16 acres that stood in the name of V.M.Veeranan Ambalam.
34. Out of the above lands, the seventh respondent is admittedly concerned with the land of the extent of 8.54 acres in Survey No.811/1 to 4; the land of the extent of 21.81 acres in Survey No.805/1, 2 and 3, and the land of the extent of about 60 acres located in Survey No.810.
35. Keeping the above facts in mind and also specifically keeping in mind the fact that even in 1970, a question arose as to whether Survey No.811 was a public tank or a private tank, but, the Settlement Officer did not record any categorical finding, let us now turn on to the provisions of the Act.
36. The Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, provides for the acquistion of the rights of Inamdars in minor inams in the State of Tamil Nadu and for the introduction of Ryotwari settlement in such inams. The word "inam" is defined by Section 2(5) of the Act to mean (i) a grant of the melwaram in any inam land, or (ii) a grant of both melwaram and kudiwaram in any inam land. Melwaram is the share of the produce due to the landlord and kudiwaram is the cultivator's share of the produce.
37. Under Section 3 of the Act, every minor inam, including communal lands, poramboke, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and ooranies (including private tanks and ooranies), fisheries and ferries, situated within the boundaries thereof, shall stand transferred to the Government and vest in them free of all encumbrances. This Section 3 also declares that all rights and interests created by the inamdar in or over his inam before the appointed day, shall, as against the Government, cease and determine. It is pertinent to note that the words "tanks and ooranies (including private tanks and ooranies) and irrigation works" were inserted in Section 3(b) only under Tamil Nadu Inam Estates Leaseholds and Minor Inams (Abolition and Conversion into Ryotwari) Amendment Act, 1975.
38. Section 8(1) of Act 30 of 1963 entitled every person who was lawfully entitled to kudi waran in an inam land, to ryotwari patta in respect of that land. Section 8(1) reads as follows:
"8. Grant of ryotwari pattas. -
(1) Subject to the provisions of sub-section (2), every person who is lawfully entitled to the Kudiwaram in an inam land immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect of that land."
39. Therefore, what could be granted under Section 8(1) is only a ryotwari patta and the same could be granted only to a person who is lawfully entitled to kudiwaram in an inam land. Keeping this in mind, if we now have a look at the order of the Settlement Tahsildar dated 02.02.1970, it could be seen that Survey No.811 was claimed by the field staff to be part of communal lands mentioned in Schedule C to the order of the Tahsildar. Umar Salai Mohammed Sait claimed title to it, under an agreement of sale and possession in pursuance of such agreement of sale as well as a decree passed by the District Munisf Court, Melur.
40. The Tamil Nadu Inam Estates, Lease-holds and Minor Inams (Abolition and Conversion into Ryotwari) Amendment Act, 1975, as we have seen earlier, made an amendment to Section 3(b) of Act 30 of 1963. It also introduced Section 10-A in the Parent Act, which reads as follows:
"10-A. Ryotwari patta not to be granted in respect of private tank or orrani.-
(1) Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or oorani. (2) Any ryotwari patta granted in respect of any private tank or oorani under this Act before the date of the publication of the Tamil Nadu Inam Estates, Leaseholds and Minor Inams (Abolition and Conversion into Ryotwari) Amendment Act, 1975, of the Tamil Nadu Inam Estates, Lease holds and Minor Inams and for purposes of compensation under this Act, the private tank or oorani shall be deemed to be land in respect of which no person is entitled to ryotwari patta under Section 8."
41. As seen from Sub-section (1) of Section 10-A, no ryotwari patta can be granted in respect of any private tank or oorani. Under Sub-section (2), any ryotwari patta granted in respect of any private tank or oorani under the Act XXX of 1963, before the date of publication of the Amendment Act, 1975, shall cease.
42. Again under Section 6 of the Tamil Nadu Amendment Act II of 1976, it was declared that the provisions of the Amendment Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or decree or order of a Court or other authority. Therefore, a plain reading of the amendment shows that after the advent of the 1975 Act, no person can claim to hold a valid ryotwari patta in respect of a tank, whether public or private.
43. However, it is contended by Mr.G.Masilamani, learned senior counsel appearing for the seventh respondent that the object of the Act XXX of 1963 was only to abolish the inam tenure and convert the same into ryotwari tenure. Therefore, he contended that the vesting is notional and it did not affect the kudiwaram right lawfully enjoyed or acquired. In support of this contention, the learned senior counsel also relied upon a decision of this Court in Angappa Gounder v. Sivamalai Gounder [(1987) 100 LW 721].
44. But, we do not think that the above contention can be accepted. It is true that the object of Tamil Nadu Act XXX of 1963 was to acquire the rights of inamdars in minor inams and to introduce ryotwari settlement in such inams. We have already indicated that the expression "inam" includes within its purview, both melwaram as well as kudiwaram. Under Section 3(b), every minor inam, including communal lands as well as tanks and rivers (both private and public) stood transferred to the Government and vested in them free of all encumbrances. The seventh respondent claimed both melwaram and kudiwaram rights before the Settlement Tahsildar. The Settlement Tahsildar accepted the same and granted ryotwari patta by his proceedings dated 02.02.1970. Therefore, the seventh respondent cannnot escape the consequences of the amendment introduced under Act II of 1976.
45. In Angappa Gounder, a Division Bench of this Court pointed out that Act XXX of 1963 was enacted not with a view to take over the entire interest, but only for the purpose of abolishing the inam tenure and converting the same into ryotwari tenure. Consequently, the rights of a ryot, who is in enjoyment of a minor inam land, who is lawfully entitled to kudiwaram right and who satisfies the conditions laid down under the Act, are recognised under ryotwari patta given.
46. But, a careful look at the said decision would show that the effect of Section 10-A inserted by way of amendment under Act II of 1976 was not in question in the said decision. Therefore, the said decision is of no assistance to the seventh respondent.
47. The learned counsel for the seventh respondent also relied upon another decision in S.Kulanthaivel v. The District Revenue Officer, Namakkal [2010 WLR 356]. In the said decision, a learned Judge of this Court took a view that even where Survey Land Register described the land has kuttai (tank), the authorities may have to go by what is on site. But, we do not know as to how the said decision is of any assistance. In this case, even at the time when the Settlement Tahsildar passed the order dated 02.02.1970, the report filed before him clearly indicated that it was a tank. The authorities claimed even at that time that it was a public tank. But, Umar Salai Mohammed Sait claimed to be a private tank. Therefore, the nature of the land is not at all in doubt in this case. The moment Section 3(b) of the Act was amended and Section 10-A was inserted, even private tanks became vested with the authorities. Therefore, the patta granted to the predecessors of the seventh respondent cannot survive any longer.
48. In Hansaraj Chandran v. The Sivakasi Municipal Council [(2010) 5 LW 640] relied upon by the learned senior counsel for the seventh respondent, the question that arose before a learned Judge of this Court was as to whether the suit property was a public or private oorani and whether the patta granted by the Settlement Officer was valid or not. Based upon records, the learned Judge came to the conclusion in paragraph 24 of the judgment in that case that the nature of the property was described as oorani in the documents of the period from 1905 to 1933 and that even in the settlement proceedings, it was stated as Oorani. However, the learned Judge held in favour of the appellant before him on the ground that once ryotwari patta had been granted, the only question to be decided was whether at the relevant point of time, the grant of patta was for ryotwari land or for a private tank. Therefore, in paragraph 27 of his judgment, the learned Judge held that in that case, patta was granted for a ryoti land and not for a private land or oorani. The Commissioner's report filed in that case also indicated that there were only some reminiscences of a pond or tank and that there was no water source or water body at present. Therefore, the said decision turned on the facts of the particular case.
49. In the case on hand, the property in question was admittedly a tank even at the time when the Settlement Tahsildar granted ryotwari patta on 02.02.1970. On the date on which ryotwari patta was granted, Section 3(b) had not been amended to include even private tanks and ooranies. This is why patta was granted in favour of the predecessors in title of the seventh respondent, as though the land is a ryoti land. However, after the amendment to Section 3(b) and insertion of Section 10-A, even private tanks and ooranies were taken out of the purview of ryoti lands and ryotwari patta. In such circumstances, when the nature of the land in question is not in dispute, the seventh respondent cannot escape the consequences flowing out of the amendment under Act II of 1976.
50. Lastly it is contended by Mr.G.Masilamani, learned senior counsel for the seventh respondent that the amendment introduced under Act II of 1976 cannot take away vested rights created by the proceedings of the Tahsildar, much before the amendment. According to the learned senior counsel, the amendment can at the most be applied prospectively.
51. But, we do not think so. A careful look at the Tamil Nadu Act II of 1976 would show that it amended three enactments, namely (i) Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963, (ii) Tamil Nadu Leaseholds (Abolition and Conversion into Ryotwari) Act, 1963, and (iii) Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. In all the three enactments, new provisions were inserted so as to include private tanks and ooranies within the purview of the lands which vested with the Government and also to cancel the ryotwari pattas already granted in respect of private tanks. The provisions of the Amendment Act are not under challenge before us. Therefore, the cancellation of patta under the Amendment Act is a natural consequence from which the seventh respondent or his predecessors in title cannot escape.
52. In view of the above, the writ petition is allowed and the respondents 1 to 4 are directed to protect and preserve the tanks in question, after issuing notices and giving an opportunity of hearing to the persons who are in possession thereof, within a period of 12 weeks from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, M.P.Nos.1 and 2 of 2013 are closed.