Madras High Court
R.Natesan vs The District Collector on 4 August, 2014
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.08.2014
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
W.P.(MD) No.9060 of 2014
and
W.P.(MD) Nos.9292, 9055, 9367, 9408, 9382, 9273, 9274, 9275, 9245,
9246, 9514, 9723, 9569, 9570, 9571, 10209, 9593, 9594, 9595, 9596, 9597,
9598, 9599, 9600, 9601, 10045, 10046, 10989, 10990, 10104, 10450, 9724,
10152, 10653, 10635, 10899, 10900, 10901, 9648, 11831, 10323, 11286, 12323,
12328 & 12346 of 2014
and
M.P.(MD) Nos.1, 2 & 3 of 2014
in
W.P.(MD) Nos.9292, 9055, 9373 to 9375, 9245, 9246, 9514, 9569 to 9571, 9593
to 9601, 10045, 10104, 10635, 10899 to 10901, 9648, 11831, 11286 & 12323 of
2014
and
M.P.(MD) Nos.1 & 2 of 2014
in
W.P.(MD) Nos.9408, 9382, 10209, 10989, 10990, 12328 & 12346 of 2014
and
M.P.(MD) Nos.2, 3 & 4 of 2014
in
W.P.(MD) Nos.9367, 10046, 9724, 10653 & 10323 of 2014
and
M.P.(MD) Nos.1, 2 & 4 of 2014
in
W.P.(MD) No.9723 of 2014
and
M.P.(MD) Nos.1, 2, 3 & 4 of 2014
in
W.P.(MD) No.9060 of 2014
and
M.P.(MD) Nos.2 & 3 of 2014
in
W.P.(MD) Nos.10152 of 2014
and
M.P.(MD) No.1 of 2014
in
W.P.(MD) No.10450 of 2014
W.P.(MD) No.9060 of 2014
R.Natesan ... Petitioner
-vs-
1.The District Collector
Kanyakumari District
Kanyakumari
2.The Sub Collector
Nagercoil, Kanyakumari District
3.The Tahsildar
O/o.the Tahsildar
Agastheeswaram Taluk
at Nagercoil
Kanyakumari District
4.The Superintendent of Police
O/o.the Superintendent of Police
Kanyakumari District at Nagercoil
Kanyakumari
5.The Inspector of Police
Nesamony Nagar Circle
Nagercoil
Kanyakumari District ... Respondents
PRAYER
Writ Petition is filed under Article 226 of the Constitution of India
to issue a writ of certiorarified mandamus to call for the records pertaining
to the impugned order in R.O.C.No.B4/5788/2013(16), dated 12.05.2014, on the
file of the second respondent and quash the same as illegal and consequently
for a direction, forbearing the respondents not to disturb the peaceful
possession of the petitioner in the Land to an extent of 12 Acres 65 Cents in
Survey No.741 (1 Acre 64 Cents), Survey No.752/1A (0.22 Cents), Survey
No.752/1B (0.63 Cents), Survey No.752/4 (3 Acres 56 Cents), 753/3 (6 Acres 28
Cents) and Survey No.753/4 (0.32 Cents), situated in Kanyakulam Village,
Agasteeswaram Taluk, Kanyakumari District without following the acquisition
proceedings.
!For Petitioner : Mr.T.Lajapathi Roy
^For Respondents : Mr.K.Chellapandian
Additional Advocate General
for Mr.A.K.Baskarapandian
Spl. Govt. Pleader
:COMMON ORDER
In all these writ petitions, the petitioners have prayed for issuance of a writ of certiorarified mandamus to quash the order, dated 12.05.2014, passed by the second respondent and to forbear the respondents from disturbing their possession and enjoyment of the lands comprised in various survey numbers mentioned in the prayer of the writ petitions, without following the acquisition proceedings.
2. Since the facts are identical in all the writ petitions and the grounds of challenge of the impugned order are also identical, all these writ petitions were heard together and are disposed of by this common order.
3. The second respondent Sub-Collector, Nagercoil, in the impugned order, which is identical in all the writ petitions, stated that a representation was received from an individual on 16.12.2013 requesting to resume the Aarachar lands located in Vadasery Village of Kanniyakumari District for public use. The Tahsildar, Agasteeswaram, submitted a report, dated 20.02.2014, stating that the said lands fall under the category of Service Inam, they are not alienable lands as the Inamdar does not have proprietary right over the lands, they have sold the lands to other individuals in violation of the conditions vested with the lands and the mutations have been effected in the revenue records in the name of third party individuals and therefore the Tahsildar appears to have requested for appropriate action.
4. The second respondent would further state that pursuant to the report of the Tahsildar, dated 20.02.2014, notice was caused to the Pattadars on 26.04.2014 and they neither personally appeared nor sent their representations and hence it is presumed that they had nothing to explain and therefore the second respondent decided to proceed ex parte. The second respondent observed that the Aarachar lands were the type of service inam lands existed during the erstwhile Travancore Government and Aarachar means 'hangman' in Malayalam. A family belonging to a particular community of Nanjil Nadu (presently Agasteeswaram and Thovalai Taluks) worked as Aarachars, who carried out the execution of convicts sentenced for death. By referring to Section 2(9)(iv) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (hereinafter, it may be referred as 'the Act') the service inams including the Arachar service inams were to be considered as minor inams and accordingly to be dealt with. After referring to Section 21 of the Act, which deals with the procedure to be adopted in respect of settling the service inams.
5. Further, the second respondent stated that at the time of Ryotwari Survey during 1965-1967, the Aarachar lands were disposed of as per the provisions of Section 21(7)(a) of the Act entitling the Karanavan of the Aarachar family to permanent occupation subject to their continuing the service. It is further observed by the second respondent, in the impugned order, that as on date the lands were found to be in favour of irrelevant persons and as the Aarachars were given only a right to permanent occupation with no right to alienate the lands, the Pattas issued in favour of irrelevant persons are liable to be cancelled and the lands to be restored to the original state at settlement. Therefore, the second respondent held that the transactions made in the lands are without legal basis as the Tarwad had only right to permanent occupation subject to continuing the service and all mutations effected since 21.07.1979 are to be cancelled and the revenue records be resumed to it's original position. With these observations, the mutation of the revenue records made in favour of the petitioners in the Pattas issued to them were cancelled. Further, it is stated in the impugned order that further enquiry under Section 21(7)(b) of the Act shall be proceeded separately and appeal lies to the District Revenue Officer, Kanniyakumari District, within thirty days on receipt of the order.
6. The learned counsels for the petitioners, after elaborately referring to the nature of services rendered by Aarachars, as to how the then King of Travancore granted the lands, submitted that after 1957 i.e., after the State Reorganization Act came into force, the Aarachar services were no longer made use of, since the State had taken over all the functions and it was not a minor inam as long back the services were not availed by the Government. Further, it is submitted that the impugned proceedings are vitiated for not following the principles of natural justice and all the notices are said to have been affixed in the vacant land and therefore the procedure done by the second respondent is wholly arbitrary.
7. It is further submitted that the Settlement Officer granted Ryotwari Pattas from 1979 onwards and as on date there are 69 Pattadars. Further, by referring to Section 19(3) of the Act, it is submitted that the petitioners are liable to be heard in the matter as they are persons interested and no action could have been unilaterally taken without consulting the Government of Kerala. The learned counsels elaborately referred to the procedure to be followed while granting Ryotwary Pattas under the provisions of the Act and how the procedure was not followed and such other matters. Further, it is submitted that the grant in favour of the individual family doing Aarachar work is a grant burdened with the service and there is no clause for resumption given to the Crown. Further while elaborating on the said submissions, it is submitted that there are three types of grants namely grant to institution, grant to a particular office and grant to person individual. Therefore, it is submitted that the question would be whether the grant in the instant case is to the Aarachar or to the office and on perusal of the grant, which was produced before this Court by the learned Additional Advocate General, it is submitted by the learned counsels for the petitioners that the grant is a personal grant and not attached to any service and such personal grant burdened with Aarachar duties to the Crown of Travancore and if they failed to perform their service, only portion of the lands can be recovered.
8. It is further submitted that there is no abandonment of service after 1947 and even assuming such services continued till 1990, the Aarachars did not abandon the duties, but it was the case of abolishment and there can be no failure on the part of the service holder to perform service for the purpose of invoking the provisions of the Act. It is further submitted that without conducting any enquiry under Section 21(7)(b) of the Act, the revenue entries have been cancelled and this would amount to putting the cart before the horse. Further, it is submitted that the show cause notice is vague as the property details, place and time of enquiry have not been informed and such other matters. Further, it is submitted that there should be a clause for resumption and if the service is unable to be performed by an act beyond control of the grantee, it is not a ground to cancel the grant. It is submitted that in the instant case, the Aarachars' duty is not entitled of being performed by operation of law and therefore it is not possible for the State to resume the land.
9. Further, reference has been made to Rule 38 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Rules, 1965 (hereinafter, it may be referred to as 'the Rules') regarding manner of service of notice and it is submitted that the procedures contemplated under the Rules have not been followed. It is further stated that the finality of the orders cannot be allowed to be distributed after hundred years and the petitioners' possession and enjoyment have to be protected and the manner in which the Pattas have been cancelled is wholly illegal. In support of their contentions, the learned counsels referred to the following decisions in the cases of:
i. Prayag Doss vs. Abbupillai, reported in AIR 1931 Madras 370;
ii. Bheemsena Rao vs. Yella Reddi, reported in AIR 1961 SC 1350; iii. M.Liaquat Ali, Pudukottai v. Sri Brahadambal Temple, Pudukottai Devasthanam, reported in (2002) 3 MLJ 296;
iv. P.S.Chandrasekar Raja vs. Sankaranarayana Swamy Devasthanam, reported in 2012 (1) MWN (Civil) 99;
v. Rajathi & another vs. The Principal Secretary & Commissioner of Land Administration & Another, reported in 2013-2-L.W. 485.
10. The learned Additional Advocate General, on behalf of the second respondent, submitted that all these writ petitions were filed by subsequent purchasers and not by original grantees and none of the petitioners have produced any document to show as to in whose favour the service inam was granted and there is no proof to show that the vendors of the petitioners are the legal heirs of the inamdars and all the transactions were effected after 2005. It is further submitted that as against the impugned order, appeal remedy is available before the District Revenue Officer, which has not been exhausted by the petitioners. The learned Additional Advocate General referred to the Proceedings of the Assistant Settlement Officer, Nagercoil, dated 25.04.1967 and submitted that the ryotwari patta has been issued subject to the condition that the Aarachar service will be continued to be performed and upto 1970 Aarachar services were performed and thereafter there was no such service and therefore the lands vest back in the State and the question of alienation of the lands does not arise.
11. By referring to the notification, dated 23.05.2014, under Rule 19(4) of the Rules, it is submitted that the legal heirs of the Aarachar have been notified that they have been failed to render service as required under Section 21(7)(b) of the Act and they have not preferred any appeal as against the said order. Further, it is submitted that the impugned order is only an order canceling the illegal mutation and the second respondent is vested with the power under the Revenue Standing Orders to conduct an enquiry and such power could be exercised suo motu or on application or by a person interested and in this regard, Revenue Standing Order 31(8) was referred to. In support of his contention, the learned Additional Advocate General placed reliance on the decision of this Court in the case of A.Shankar Suresh v. Revenue Divisional Officer, reported in (2007) 6 MLJ 955.
12. Further, the learned Additional Advocate General submitted that the lands res into the Government in terms of Section 3(b) of the Act and the Government proposed to construct housing complex through the Tamil Nadu Slum Clearance Board for being allotted to the deserving poor people.
13. In reply, the learned counsels for the petitioners submitted that the legal heirs of the original Aarachars have sold the lands to the petitioners and it is not as if none of the persons have dealt with the property. Further, it is submitted that Section 38(3) of the Act is only entitled to prevent the transfers, which are made with an intention to defeat the provisions of the Act. Further, the learned counsel referred to the statement of objections and reasons for the 1963 Act and submitted that the object is to convert the lands into ryotwari lands and Section 38 does not cover any transaction made after coming into force the Act. Further, the learned counsels referred to Section 41 of the Transfer of Property Act and submitted that the transaction is not voidable on the ground that the transferrer was not authorized to make as the petitioners after taking reasonable care to ascertain that the transferrer had power to make the transfer, had acted in good faith.
14. Further, it is submitted that the District Revenue Officer has permitted 61 mutations in the revenue records based on the sales effected and the lands originally classified as agricultural lands and subsequently they were converted into non-agricultural lands and twenty houses have been constructed in that area and all of them are in occupation of the said lands.
15. Heard the learned counsel for the parties and perused the materials placed on record.
16. The learned counsels for the parties have extensively argued the matter with reference to the claim under the Act and the Rules framed thereunder. The petitioners endeavoured to demonstrate before this Court that the grant in favour of the Aarachars were not liable to be cancelled, the grant is not a grant to an office, but to an individual and therefore the question of resumption does not arise. It is their further case that resumption would arise only upon failure to perform the service when the grant is burdened with service. Even assuming so, there is no failure on the part of the Aarachars to perform their service and it is by operation of law the service is not capable of being performed. By referring to the order passed by the Assistant Settlement Officer, Nagercoil, dated 25.04.1967, it is submitted that the ryotwari patta was granted to Aarachars subject to the condition that the Aarachar service will be continued to be performed in Kerala State as and when orders are issued in the matter by Kerala Government. Therefore, it is argued that the condition is that the service should be performed in Kerala State subject to orders to be passed by Kerala Government and the service is not to the State of Tamil Nadu and hence the question of resumption does not arise.
17. According to the learned Additional Advocate General, the transactions are void as the Aarachars had not alienable right to the property and consequently the mutations of the revenue records made pursuant to such void transactions are nullity and therefore the authority was entitled to cancel the mutations made in favour of the persons, who are irrelevant persons, sofar as the grant is concerned.
18. It is to be noted that the impugned order has not been passed by the second respondent by invoking the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963. The second respondent proceeded as a revenue official by exercising powers under the Revenue Standing Orders. The learned Additional Advocate General would trace the power to RSO 31(8). However, there is no such reference to the said provision in the impugned order. In any event, the said provision deals with, to which authority application should be made for transfer of registry and how such application should be proceeded. Therefore, it is rather doubtful as to whether the impugned order could have been passed in exercise of power under RSO 31(8). Be that as it may, till date, the ryotwari Patta granted pursuant to the order passed by the Assistant Settlement Officer, dated 25.04.1967, has not been cancelled. The larger question would be as to whether such Patta could be cancelled and under what circumstance it could be cancelled.
19. In the order, dated 23.05.2014, which is a notification issued in Form No.15, under Rule 19(4) of the Rules, the legal heirs of the Aarachars have been notified as they have failed to render service as required under Section 21(7)(b) of the Act. Further, it is stated that the legal heirs of the Aarachars were liable to render service as Aarachar to the Government of Tamil Nadu under Section 21(2) of the Act. This finding/observation in the notification is factually incorrect, since the order passed by the Assistant Settlement Officer, Nagercoil, dated 25.04.1967, states that the ryotwari patta will be issued in favour of the Aarachars under Section 11 r/w 8(1) Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 and subject to the condition that the Aarachar service will be continued to be performed in Kerala State as and when orders are issued in the matter by Kerala Government. Therefore, it is evidently clear that the second respondent while issuing the notification, dated 23.05.2014, was under the misconception that the Aarachar service had to be done to the State of Tamil Nadu. This misconception has gone to the root of the matter. In any event, the proceedings, dated 23.05.2014, is not a subject matter of challenge in these writ petitions.
20. The impugned order, dated 12.05.2014, has virtually nullified all the sale transactions, which have been taken place, since 2005 and it has cancelled the mutations effected during the past nine years, which were effected by the Revenue Officials. The validity of the impugned order after the grant of approval for conversion of agricultural land into residential layout is a big question mark. Further, planning permission is said to have been granted in favour of twenty persons and they have put up constructions. Unless and until the ryotwari pattas, which was granted to the Aarachars during 1967, are terminated or cancelled or modified in the manner known to law for failure of any condition or such other matters, the question of nullifying the subsequent transactions made by the legal heirs of the Aarachars would not arise. As rightly contended by the learned counsels for the petitioners, it amounts to putting the cart before the horse. The entire proceedings are in a total disarray, principles of natural justice have been thrown to the winds, arbitrariness looms large on the face of the impugned order, perversity is manifest and the impugned order does not satisfy the test of reasonableness or fairness.
21. That apart, the impugned order has been passed on a thorough misconception of the legal and factual position. The authority has misread the order of the Assistant Settlement Officer, dated 25.04.1967 and was under
the impression that the Aarachar service was to be rendered to the State of Tamil Nadu when the condition is to be done for the State of Kerala on orders being passed by the Kerala Government as and when required. This misconception has lead to arbitrary exercise of power. The notices for all the petitioners are said to have been served by affixure. Several of the petitioners have not put up construction and only twenty of them have put up construction. It is not known as to what procedure was followed while affixing such notices in the vacant lands. The action initiated by the second respondent appears to be a knee jerk reaction to the petition received from an individual on 16.12.2013. It is stated that there are very serious allegations as against the said individual that he and his group of persons promised to get free pattas and collected several lakhs of rupees as registration fees and FIR in this regard is said to be pending against them. That apart, the second respondent referred to the report of the Tahsildar, dated 20.02.2014. Copy of such report was not furnished to the petitioner nor placed before this Court. Thus, the impugned order is manifestly illegal and liable to be set aside.
22. Hence, for all the above reasons, all these writ petitions are allowed and the impugned order, dated 12.05.2014, passed by the second respondent is set aside and the respondents are restrained from interfering with the possession and enjoyment of the petitioners in respect of the lands purchased by them for the reasons assigned in the preceding paragraphs. Since this Court has held that the impugned proceedings having not been passed by the second respondent under the provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, the contentions advanced by the learned counsels for the petitioners as regards the validity of the action under the Act and such other matters are left open. Consequently, connected miscellaneous petitions are closed. No costs.
04.08.2014
Internet : Yes / No
Index : Yes / No
krk
To:
1.The District Collector,
Kanyakumari District,
Kanyakumari.
2.The Sub Collector,
Nagercoil, Kanyakumari District.
3.The Tahsildar,
O/o.the Tahsildar,
Agastheeswaram Taluk
at Nagercoil,
Kanyakumari District.
4.The Superintendent of Police,
O/o.the Superintendent of Police,
Kanyakumari District at Nagercoil,
Kanyakumari.
5.The Inspector of Police,
Nesamony Nagar Circle,
Nagercoil, Kanyakumari District.
T.S.SIVAGNANAM, J
krk
PRE-DELIVERY ORDER
IN
W.P.(MD) Nos.9060, 9292, 9055, 9367, 9408, 9382, 9273, 9274, 9275, 9245, 9246, 9514, 9723, 9569, 9570, 9571, 10209, 9593, 9594, 9595, 9596, 9597, 9598, 9599, 9600, 9601, 10045, 10046, 10989, 10990, 10104, 10450, 9724, 10152, 10653, 10635, 10899, 10900, 10901, 9648, 11831, 10323, 11286, 12323, 12328 & 12346 of 2014 04.08.2014