Madras High Court
T.Mariammal vs The Government Of Tamil Nadu on 28 August, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/08/2012
CORAM
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
W.P.(MD)No.14125 of 2010
and
M.P(MD)No.2 of 2012
T.Mariammal ..Petitioner
Vs.
1. The Government of Tamil Nadu,
represented by the Secretary to Government,
Revenue Department,
Secretariat,
Chennai-9.
2. The Special Commissioner and Commissioner
of Land Administration Department,
Chepauk,Chennai.
3. The District Collector,
Madurai District,
Madurai.
4. The District Revenue Officer,
Madurai District,
Madurai.
5. The Revenue Divisional Officer,
Madurai District,
Madurai.
6. The Tahsildar,
Madurai South,
Madurai District,
Maduai.
7. The Village Administrative Officer,
Avaniapuram Town Panchayat,
41, Avaniyapuram Village,
Madurai South Taluk,
Madurai District.
8. The Assistant Director,
Ex-Servicemen Welfare Board,
Welfare Office,
Madurai-16. ..Respondents.
Prayer
Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus calling for the
records pertaining to the impugned order dated 11.09.2007 in letter No.514/Me
Mu.3(2)/2007 passed by the first respondent, confirming the order passed by the
third respondent herein dated 24.03.1999 in Na.Ka.No.31/5087/97 and the
consequential order passed by the 6th respondent herein, dated 10.04.1999 in
Na.Ka.No.803/95/C2 and to quash the same and consequently to grant a direction
directing the respondents to issue patta for the lands in S.No.226/2A, 265/2,
265/6 to an extent of 3 acres and 37 cents situated in Avaniapuram Village,
Madurai South Taluk, Madurai District, in favour of the petitioner.
!For Petitioner ... M/s.R.Vijayakumar
^For Respondents ... Mr.T.S.Mohammed Mohideen
:ORDER
Challenge in this Writ Petition is to an order by way of a letter No.514/Me Mu.3(2)/2007, dated 11.09.2007 issued by the the Secretary to Government, Revenue Department, Secretariat,Chennai-9,first respondent, confirming the order passed by the District Collector, Madurai District, the third respondent herein, dated 24.03.1999 in Na.Ka.No.31/5087/97 and the consequential order passed by the Tahsildar, Madurai (South), Madurai District, the 6th respondent herein, dated 10.04.1999 in Na.Ka.No.803/95/C2 and to quash the same and consequently prayed for a direction, directing the respondents to issue patta to the petitioner, for the lands in S.No.226/2A, 265/2, 265/6, to an extent of 3 acres and 37 cents situated in Avaniapuram Village, Madurai South Taluk, Madurai District.
2. Record of proceedings shows that when the matter came up for hearing, learned Government Advocate has taken notice. The matter has been adjourned on 28.08.2012 with a specific order that the main writ petition would be disposed of, on the next hearing date, on the basis of available records. The Writ Petition came up before this Court on 7.8.2012 for filing counter affidavit. The respondents took time. On this day, when the matter came up for hearing, Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader submitted that despite intimation given to the District Collector, Madurai District, the District Revenue Officer, Madurai and the Tahsildar, Madurai South, Madurai, to produce the files and also the remarks for preparation of Counter affidavit, there is no response. The age of the petitioner is 70 years. Considering the relief sought for, this Court is constrained to dispose of the Writ Petition on merits, as ordered earlier.
3. According to the petitioner, her husband was an ex-serviceman. He met with an accident, while he was in service and discharged from the army in the year 1947. He died in the year 1954. After his demise, the petitioner and her son were put to hardship The petitioner belongs to Scheduled Caste community and that she is a landless poor and illiterate person. She made an application to the revenue authorities for assignment of land, as per G.O.Ms.No.1750, dated 13.5.1963.
4. The petitioner has further submitted that the lands measuring 3 acres and 37 cents in S.No.226/2A, 265/2 and 265/6 situate in Avaniapuram Vilalge, Madurai South Taluk, Madurai District was allotted to her in the year 1966. According to her, the land was measured and possession was handed over by the revenue and panchayat officials. She has paid necessary charges for measuring lands in S.No. 265/2, 265/6B in challan No.9214, dated 23.1.1967 and for surveying land in S.No.266/2A also. The petitioner has further submitted that she made a representation, dated 13.6.1996 to the District Collector, Madurai District,the third respondent herein, to issue patta for the abovesaid lands. A reply dated 30.1.1996 was given to her stating that Tahsildar, Madurai South Taluk, Madurai/6th respondent herein has taken steps on the representation. Thereafter, the Tahsildar vide proceedings in Ref.No.6696/87-C2, dated 6.7.1987 has addressed a communication to the Town panchayat and sought for its recommendation on the representation of the petitioner. By proceedings dated 13.7.1987 in Reference No.635,/87/Aa2, a report along with a resolution No.232 dated 10.07.19087 has been submitted to the Tahsildar, Madurai South, Madurai District, by the Town panchayat, after measuring the property with the help of a surveyor. Public opinion was also obtained regarding assignment of land to the petitioner.
5. The petitioner has further submitted that she has received a communication in Reference No.5757/01/C2, dated 19.11.1990 from the authorities directing her to pay the market value of the land. The Tahsildar, Madurai South, Madurai, the sixth respondent herein, in his proceedings in Reference No.Yo.Mu.5757/91, dated 30.3.1991 sought for the consent of the petitioner to pay the market value of the land. A further communication, dated 27.2.1993, was also sent by the Tahsildar, the sixth respondent. Pursuant to the above, the petitioner appeared before the Tahsildar, Madurai South Taluk, Madurai on 15.11.1996 and expressed her willingness to pay the market value of the land and that the sixth respondent has also obtained the signatures of the petitioner in this regard. Unfortunately, the proposal for assignment of lands to the petitioner did not fructify, due to some extraneous considerations. Hence the petitioner made a representation, dated 15.4.1997 to the District collector, Madurai District, the third respondent herein, explaining the events which delayed the assignment of lands to the petitioner. Pursuant to the representation, the 5th respondent vide letter No.12.2.1998 has directed the petitioner to appear for an enquiry and that the said enquiry was also conducted. Thereafter, on 24.3.1999, the District Collector, Madurai District,Madurai sent a letter to the petitioner stating that the lands for which assignment has been sought for, have been included in the prohibitory Order Book and that therefore, it cannot be assigned to the petitioner. Similar communication from the Tahsildar, Madurai South Taluk, Madurai dated 10.4.1999 was also sent. In these circumstances, the petitioner was constrained to prefer W.P.No.8726 of 1000 in this Court. Vide order dated 25.4.2012 in the said Writ Petition, this Court, directed the Secretary to Government, Revenue Department, Chennai/the first respondent herein to consider the representation of the petitioner and pass appropriate orders. The Government, after considering the representation vide impugned order, dated 11.09.2007 has rejected the request of the petitioner on the ground that lands in S.No.265/2 and 265/6B are located in two different places; they are valuable and included in the prohibitory book and therefore, assignment cannot be made. Yet another reason assigned by the Government is that the lands adjacent to S.No.226/A and 265/2, are being converted into house sites and that therefore, there is every possibility that the purpose of agriculture would not be fulfilled, even if assignment is made. In view of the above reasons, request for assignment has been rejected. Consequently, orders, have been issued by the District Collector, Madurai, and the Tahsildar, Madurai South, Madurai District.
6. Assailing the correctness of the orders Mr.R.Vijayakumar, learned counsel for the petitioner submitted that first of all, the respondents have failed to consider that the petitioner belongs to Scheduled Caste community and that she is a widow of an ex-serviceman. According to him, she being landless and a widow of ex-serviceman is entitled to seek for assignment of land as per G.O.Ms.1750, dated 13.5.1963. In this context, the learned counsel for the petitioner invited the attention of this Court, to the contents of the said Government order and stressed the object behind it.
7. Taking this Court through the entries made in the village accounts by the District Revenue Officer, Madurai, learned counsel for the petitioner submitted that the lands in S.No.226/2A, 265/2,265/6B are dry lands, reserved for the purpose of assignment of lands to Scheduled caste community, as per the orders of the District Collector in R.C.No.J/5087/97, dated 5.8.1998. He also submitted that as per the directions of the District Collector, Madurai District, entries are stated have been made in the prohibitory book, by the Tahsildar, Madurai South Taluk, Madurai, that the lands may be required in future. In the light of the abovesaid specific entries made in the village accounts book, learned counsel for the petitioner submitted that when the object for which the lands have been reserved and prohibited is not to transfer to others, then, assignment of lands out to have been made when a poor, landless member of Scheduled caste community and hence prayed for assignment.
8. Inviting the attention of this Court to the memo No.5557/91, dated 30.3.1991 of the Tahsildar, Madurai South, Madurai District, learned counsel for the petitioner submitted that the revenue authorities have already decided to assign the lands to the petitioner and also obtained necessary no objection certificate from Avaniapuram Town Panchayat within whose jurisdiction the lands are situated. In this context, he also invited the attention of this Court to the resolution No.232, dated 10.7.1987 passed by the Town Panchayat and the proceedings in R.C.No.635/87/A2, dated 13.7.1987 of the Executive Officer, Avaniapuram Town Panchayat , addressed to the Tahsildar, Madurai South Taluk, Madurai,wherein the Town Panchayat has no objection for assignment of lands to the petitioner.
9. Inviting the attention of this Court to the proceedings in R.C.No. J1/5087/97, dated 24.3.1999, the District Collector Madurai in R.C.No.803./95/C2, of the Tahsildar, Madurai South, Madurai,learned counsel for the petitioner submitted that till 1998, the subject lands in S.No.265/2, 265/6B and 226/2A were not included in the village accounts or in the prohibitory book. Earlier, after considering the continuous, uninterrupted possession and enjoyment of the lands by the petitioner and taking into consideration the the status of the petitioner, a landless poor widow of an ex- serviceman, the revenue authorities have decided to assign the lands on collection of appropriate market value. Subsequently, they have included the subject lands stating that they are valuable and required in future. Learned counsel for the petitioner submitted that the impugned orders do not contain any details, as to how the said authorities have suddenly arrived at a conclusion that the lands are prohibitory and required for future use.
10. Inviting the attention of this Court to the representation dated 22.4.1999 addressed to the Secretary to the Government, Government of Tamil Nadu, Revenue Department, Chennai,the first respondent herein, learned counsel for the petitioner submitted that there was some extraneous reasons, for suddenly including the subject lands in the village accounts, stating that they are prohibited from assignment. Learned counsel for the petitioner further submitted that the first respondent has failed to advert to the contents of the representation, dated 22.4.1999 in proper perspective and merely carried away by the communication, sent by the Revenue Officials, wherein, it has been mentioned that the lands are valuable.
11. Taking this Court through the relevant Board Standing Orders, learned counsel for the petitioner submitted that there is no total prohibition of assignment of even valuable lands to landless poor persons and in the instant case, when the lands have been reserved for the purpose of assignment to the members of the Scheduled Caste community, the petitioner being a member of the same community, and widow of an ex-serviceman has a legal right to seek for assignment subject to the conditions of assignment that may be imposed as per the Board Standing orders. Inviting the attention of this Court to the subsequent proceedings of the Tahsildar, Madurai South Taluk, Madurai, in Na.ka.No.12367/99/A2, dated 8.8.2002 addressed to the Executive Officer, Avaniapuram Town Panchayat, reply of the Executive Officer, Avaniapuram Town Panchyayat, Madurai dated 29.08.2002, communicating the resolution of the said panchayat in resolution No.195, dated 29.2.2002, expressing consent for assignment of land, the recommendations of the Tahsildar,Madurai(South) Taluk, Madurai District, dated 21.12.2010 and the further recommendation of the Revenue Divisional Officer, dated 25.1.2011 submitted to the District Collector, Madurai, after the filing of this writ petition, Mr.R.Vijayakumar, learned counsel for the petitioner submitted that the petitioner has been in possession and enjoyment of the subject lands from the year 1966 onwards and that when the abovesaid revenue authorities have categorically stated that the lands are not required for the Government that therefore the same can be deleted from the prohibitory book, and assigned to the petitioner on collection of the market value of the land for 2.45 acres at Rs.2,66,202/-, appropriate directions be issued to the first respondent, to order assignment.
12. According to the learned counsel for the petitioner, there are no materials, for the Government to arrive at the conclusion that the subject lands are valuable lands. He also submitted that the observation of the first respondent that nearby lands are being plotted out into house sites is also without any basis. As the petitioner belongs to Scheduled Caste community and also a widow of an ex-serviceman and being in continuous possession and enjoyment of the property over a period of 36 years and having regard to the current policy of the Government, assigning dry lands measuring 2 acres to landless poor persons, learned counsel for the petitioner submitted that the impugned order is contrary to the policy of the Government and hence prayed to set aside the same, with consequential directions, directing the respondents to issue patta for the lands in S.No.226/2A, 265/2, 265/6 to an extent of 3 acres and 37 cents situated in Avaniapuram Village, Madurai South Taluk, Madurai District, in favour of the petitioner.
13. Though the respondents have not chosen to file any counter affidavit, despite clear indication that the Writ Petition would be disposed of on the basis of the available materials, Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader made the following objections:
(1) that the impugned order has been passed in the year 2007, and that the petitioner has approached this Court only in the year 2010 and that therefore, there is an unexplained and inordinate delay and therefore, the Writ Petition has to be dismissed on the ground of delay and laches. Learned counsel for the respondent further submitted that though the petitioner is stated to be a landless poor person, she had requested to assign lands measuring three acres, and above, and the said request cannot be entertained by the Government.
14. He also submitted that after considering the market value of the lands, its utility in future, conversion of the nearby lands into house sites the Government have neglected the case of the petitioner, as not feasible. He also submitted that the Government have also taken into consideration as to whether the subject lands can be put in use, for agricultural purposes, even if they were assigned and in the abovesaid circumstances, it cannot be said that decision of the Government to reject the case of the petitioner for assignment as arbitrary. Learned counsel for the respondents further submitted that it is prerogative of the Government to assign the lands, subject to the requirement of the land for the Government and that the petitioner cannot compel the Government to assign the lands to her. For the above said reasons, he prayed for dismissal of the Writ Petition.
15. Heard the learned counsel for the parties and perused the materials available on record.
16. Before adverting to the facts, this Court deems it fit to extract few provisions from the Revenue Standing Orders, dealing with classification of the lands and assignment. Part-II of the Revenue Standing orders deals with disposal of land. Section (1) speaks about the classification of land. Board Standing Orders 15(2) deals with the classification of the land and it is extracted hereunder :
"(2) Land reserved for special purposes: Land is said to be "reserved"
when it is earmarked as being required or likely to be required for special Purpose, an entry being made in the settlement register and village adangal, and also in the prohibitive order book--Please see Rules in the District Office manual Land reserved for Scheduled Castes need not however be entered in the prohibitive order book, but necessary entries should be made in the settlement register and the village adangal. Before any land which is not assessed can be assigned , it must be transferred to assessed. After transfer the ordinary rules under Section 11 apply. The Divisional Officer may order such transfers, subject to the provisions of paragraphs 36 and 38 below. He may also order the transfer of "assessed" and "unassessed" hand to "Poramboke" and their entry as "reserved".
Clause II of RSO 15(2) speaks about reservation of lands for special purposes.
17. Entries in the village account books shows that lands measuring 0.18.0 in S.No.226/2A - 0.89.0 ares in S.No.265/2 and 0.29.0 ares in S.No.265/6B have been reserved for scheduled case community and that there is no dispute that the petitioner also belongs to the said community.
18. RSO15(5), deals with prohibition, as to what kind of lands cannot be assigned.
"(5) What lands may be assigned and what may not:- Only land, the assignment of which is unobjectionable shall be assigned . Such lands may be assigned to individuals where they are in isolated bite or in compact blocks.
Lands acquired for communal purposes shall not be assigned. Grazing ground porambokes shall not be assigned unless there is sufficient grazing ground(other than Panchayat and Reserved Forests) available to serve the needs of cattle without specific orders from the Government. Tank bed lands should on no account be assigned without consulting the appropriate technical officer including the Chief Engineer and without specific orders from the Government. Lands close to village sites which are likely to be regulated for communal purposes or provision of house sites should not be assigned. Applications for assignment of lands with dense valuable forest grown should be rejected. Such lands may be included in the Prohibitory Order Book.
G.O.Ms.No.901 Rev, dated 8.7.1989. G.O.Ms.959, Rev, dated 23.6.1987, G.O.Ms.41, Rev, dated 20.1.1987 The assignment of land within 32 kms from Chennai City limits is banned. The collectors of Kancheepuram/Tiruvallur are competent to assign house sites subject to the instructions issued by the Government from time to time. G.O.Ms.No.1135, Rev, dated 16.5.1982.
The agriculture lands near Chennai city belt area, other towns etc., are converted into house site. Assignment of lands for agricultural purposes around the towns should be avoided. The request for assignment should be considered after careful inspection and ensuring that the lands are not near the town sites or residential colonies and that they are not likely to be converted into house sites in the near future and then only orders of assignment should be issued. Where the assignment is to be ordered by the Government, proposals should be sent with the above details also.
Govt.Lr.No.36741/LD3-1/97-1, Rev. dated 15.7.1997"
19. Section 2 of Part II of Revenue Standing orders deals with the rules which apply to the disposal of the land in being reserved. RSO 15(3)(3)(VI) states as to what are valuable lands:
"(VI) Valuable lands:- Valuable lands include dry lands the estimated value of which dry lands the estimated value of which is Rs.1000/- or more per acre. Wet lands irrigable dry lands and such other lands defined as "valuable"
in paragraph 22 of Revenue standing orders No.15"
20. Persons who are eligible for assignment of the lands under Revenue Standing Orders are :
(3) Who are eligible for assignment:- (i) Only landless poor persons who are likely to engage themselves in direct cultivation shall be eligible for assignment of land free of land value subject to the conditions of assignment, imposed in the "D" Form patta. Cooperative societies consisting entirely of landless and poor persons who are likely to engage themselves in direct cultivation shall also be eligible for cost free assignment of both valuables and non-valuable lands provided lands are available in compact blocks G.O.No.296, Rev. Dt 10.2.1954 B.P.Mis.No.1791, dt 21.12.1956
(ii) Political sufferers and ex-servicemen as such shall not be eligible for assignment of land free of cost except as provided for below. Such of them as are landless and poor shall, however, be eligible for assignment just as any other landless and poor persons.
(ii)(a) The serving personnel or Ex-Servicemen are eligible for assignment of Government waste land (available for assignment) only for bonafide rehabilitation purposes and that assignments to the serving personnel and Ex-
servicemen cannot be claimed as a matter of right.
Govt.Memo No.24426/F-2/67/11, Rev, dated 9.7.1968
(ii)(b) Political sufferers who are landless and poor shall be eligible for assignment just as any other landless and poor persons. They are not eligible for assignment free of land value, except as provided for below:
(ii)(c) The categories of eligible poor persons namely being members of Scheduled caste/Scheduled Tribes and Ex-Servicemen and their dependants etc., should not be considered, when one has become a Government Servant. The financial status and the income are to be taken into consideration on assignment.
B.P Form 758(B), dt 21.10.1978 G.O.Ms.No.1660, Rev.Dt 25.7.1978
(iii) Except as provided in paragraphs below landless and poor persons shall, ordinarily be eligible for assignment of only non-valuable lands. G.O.No.290, Rev.dt.16.2.1954 G.O.336, Rev.Dt15.2.1954.
(iv) Maximum extent of non-valuable land that may be assigned to a landless and poor person shall be that which together with all the land, if any,owned by him makes up a total extent equivalent 1.21.5 hectares of dry land, assuming 40.5 acres of wet land to be equivalent to 80.10 acres of dry land. G.O.No.296, Rev.Dt16.2.1954 G.O.Ms.3316, Rev.dt.5.9.1958 G.O.Ms.No.1562, Rev.Dt24.5.1971.
(4) Notwithstanding anything contained in these rules, plots of assessed waste not exceeding 01.5 acres(or 3 cents) in extgent may be granted as a house site to applicants of the poorer classes who may not be preferentially entitled to obtain land under the ordinary rules and who cannot afford to buy lands for themselves. These grants will be subject to the conditions set out in the special form of order of assignment to be issued in such cases.
G.O.ms.1248, dt 5.7.22 G.O.Mis.1738, Rev.Dt2.8.28 B.P.84, dt 17.7.22 B.P.87,dt.21.8.28 G.O.Ms.No.3316, Rev. dated 3.9.1958.
(5) While assigning lands for cultivation and house sites pattas should be issued only in the name of wives/woman G.O.Ms.No.1763,Rev.Dt 19.11.1987,
21. RSO 15(22) deals with Special valuable lands:
"(22) Land which is specially valuable (1) Disposal of specially valuable lands(1) Classes of specially valuable lands:- Lands falling under the following classes shall be treated as specially valuable:-
(a) Land which is registered as wet under, or is likely to be brought under irrigation from a Government source or irrigation deriving its supply from a major irrigation system for which capital and revenue accounts are kept.
(b) Land which is registered as wet under, or is likely to be brought under irrigation from a Government source of irrigation which does not derive its supply from a major irrigation system for which capital and revenue accounts are kept.
(c) Land irrigable or likely to be brought under irrigation from an irrigation project under execution at the cost of the State.
(d) Land which has a special value by reason of its being in large village
(e) Land at the disposal of the Government included within the limits of towns but which is not disposed of as building site under Revenue Standing Order No.27.
(f) Any other land which the Collector may for special reasons consider to be specially valuable.
(g) Dry land the estimated value of which is Rs.1000/- or more per acre.
(h) Lands in the proximity of towns.
22. RSO 15(2)(3) deals with reservation or assignment of lands to Scheduled Caste community which is as follows"
"(2) Reservation and assignment of land to Scheduled Castes:- The assignment of valuable lands reserved for Scheduled Castes should ordinarily be made on collection of Market Value:. The authority competent to assign either valuable or non valuable lands, and the maximum extent that could be assigned are the same as indicated under paragraph 3(3) of the Standing Order. The form of notice to be given to the publication in the case of contemplated private sale is contained in Appendix V. (3) Sales of land coming under clause(c) in paragraph 1 above, after reserving a sufficient extent for the purposes specified in paragraph 4 of Standing Order No.88, may be held at any time when it becomes apparent that the present or prospective value derived from the project has stimulated the demand for land in these villages but the sanction of the Commissioner of Land Administration should be obtained before notifying such sales. The restrictions on the disposal of land of this description by sale in auction or by private sale do not apply to the assignment of land which from its situation can never be irrigated from the project. Such land if specially valuable by reason of its inclusion in clauses (a)(b)(e) and (i) above,shall be assigned under the rules applicable to these classes, if not specially valuable, it may be assigned by the competent authority under Revenue Standing Order No.15, Section II-B(1)".
23. RSO 15(24) deals with assignment of lands to ex-servicemen. Assignment of lands to others is dealt with in RSO 15(25) and that the same is extracted hereunder:
24. Assignment of land to Ex-Servicemen:-(1) Provision under the old Scheme:- Under the assignment policy of Government as enunciated in 1949, Ex- Servicemen were eligible for cost free assignment of that extent of land which together with the land already owned by them, made up a total of 5 acres(2.2.5 Hect) of Wet or 10 acres 4.4.5 Hect. of dry subject to the conditions mentioned against 23(1) in respect of political sufferers. (2) Transitional provisions:- The scheme referred to above was discontinued in 1952 and new scheme was adopted to assign the land to the Ex- Servicemen who were prepared to take up direct cultivation. (3) Present Position:- Ex-Servicemen who have not been rehabilitated after discharge from Defence Forces may apply for assignment of land if they are landless and poor persons, as defined in this R.S.O and if they are likely to engage themselves in direct cultivation. They shall not be entitled to any preference over the landless poor persons. The question of assignment shall be taken up after considering the claims of other landless and poor persons and after ensuring that the Ex-Servicemen are likely to take up direct cultivation but subject to other conditions and observation of all formalities.
Govt. Memo 24426/F2/67-11, Rev.dt 9.7.68.
(4) Power of resumption:- The assignment of lands made in the name of a widow of a deceased Jawan shall be resumed by the Government in the event of her getting remarried and the lands so resumed shall, at the discretion of the Government be reassigned to the next legal heir, if any, of the deceased Jawan. G.O.Ms. 572,Rev.dt.14.3.1967 B.P perm 1545(B),Dt 6.12.1967 "(25) Assignment of lands to others:-(1) Persons who are not eligible for assignment of lands free of cost under the foregoing rules,whether as a landless and poor person or as a political sufferer or Ex-servicemen, shall be eligible for assignment of valuable lands which are available for disposal by sale in public auctions or by private sale on collection of market value, subject to the provisions referred to above. The disposal of valuable lands to such persons shall be governed by the following special provisions besides the ordinary provisions contained in the Standing Order. (2) Lands which are in the proximity of towns and which in due course of time are likely to become part of town extension schemes shall be treated as specially valuable and shall,except as provided above, be sold in public auction. Other valuable lands shall be disposed of either by sale in public auction or by private sale on collection of market value, whichever course is advantageous to Government.
(3) The extent of valuable land that may be assigned in each cases shall be limited to 6.05 acres if the land is wet or irrigable dry land and 1.21.5 hectares if it is a dry land.
(4) Where a valuable land is assigned by sale in public auction or by private sale on collection of market value the special conditions above shall not apply, but the assignment shall be subject to the usual conditions and assessment shall be payable for the fasli in which the land was assigned. G.O.Ms.No.336, Rev, dated 15.2.1994 G.O.1723, Rev, dated 22.6.1953 G.O.No.316, Rev, dated 5.9.1968.
24. G.O.Ms.No.1750, Revenue Department, dated 13.4.1963 is extracted hereunder:
GOVERNMENT OF MADRAS Abstract Land - Assignment - Assignment of Government lands to Jawans in the active service and ex-servicemen - Certain Concession in the matter of assignment of lands for agricultural purposes - Orders passed.
REVENUE DEPARTMENT G.O.Press No.1750 Dated:- 13th May 1963.
Read:
From the Government of India, Ministry of Defence letter No.16/37 D(Ag.1) dated 15-11-1962 From the Government of India, Ministry of Food and Agriculture (Department of Agriculture) Letter No.20-87/62 dated 23-10-62 From the Board of Revenue B.P.Ms.No.2451 (B) dated 12-12-1962.
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ORDER:
Under the policy in force in this state regarding assignment of agricultural lands only landless and poor persons who are likely to engage themselves in direct cultivation are eligible for assignment of lands. The imposition of the condition that the assignee should take to direct cultivation effectively prevents the military personnel in active service from getting lands on assignment. The Government of India have suggested that it would not be proper to bar the claims of serving personnel for the allotment of lands merely on the ground that they are serving in the army and that the term "direct cultivation" be defined so as to include cultivation by own labour or by the labour of any member of one's own family and with occasional assistance, if any, of hired labour on wages payable in cash or kind but not in the shape of a share in the crop. The Government have accordingly examined in consultation with the Board of Revenue the question of granting some concession to servicemen and ex- servicemen in the matter of assignment of lands for cultivation. The Board of Revenue has made the following recommendations:
i) that in regard to assignment of lands to Servicemen the word "Direct Cultivation" should be given a liberal interpretation as defined in B.S.O.15-
3(VII) in order to enable the jawans in active service to get lands but the condition of "direct cultivation" should be insisted on in respect of ex- servicemen.
ii) that one of the pre-requisites for assignment of land viz., that one should be "poor", need not be insisted upon in respect of servicemen and ex-servicemen;
iii) that the assignment policy enunciated in 1949 and given up in 1952 may be revived in order to assign free of cost, 10 acres of dry lands or 5 acres of wet lands to servicemen and ex-servicemen who do not own any lands to assign further extents of lands to make up the total of 10 acres of dry of 5 acres of wet if they already possess small extents of lands;
iv) that the orders in G.O.Ms.No.153 Revenue dated 22-6-54 regarding assignment to Government Servants on obtaining permission of the Head of the Department should be made applicable to persons in active service so that the head of the Department concerned may satisfy whether the person to whom the land is proposed to be assigned is likely to resort to direct cultivation and also to provide for the superior authority's previous permission for getting lands on assignment.
v) that in the mater of assignment of lands the following priority should be adopted:-
(1)persons in active military service.
(2) Ex-servicemen; and (3) Other landless and poor persons; and Vi) that in order to keep the commitments regarding assignments of lands to Jawans in active service, with reference to the concessions to be shown to them, all lands available for assignments should be freezed for the time being by a moratorium on all assignments to persons other than men inactive service.
2. The Government have examined the recommendation of the Board of Revenue and pass the following orders:-
Recommendation (i) in para 1 above:- The Government accept the recommendation and further direct that in the case of persons actually serving in the armed forces even cultivation by lease of the lands assigned to them be permitted and that they be allowed to resume the lands from the lessees after their return from service. The question of amending the Madras Cultivating Tenants Protection Act for this purpose is separately under the consideration of the Government.
Recommendation (ii) in para 1 above:- The Government accept the recommendation.
Recommendation (iii) in para 1 above:- The Government consider that if the maximum extent to be assigned is fixed at 10 acres of dry or 5 acres of wet, there will not be enough lands to go round. They accordingly direct any lands be assigned the maximum extent of 5 acres of dry or 2-1/2 acres of wet and that those who possess extent of lands below 5 acres of dry or 2-1/2 acres of wet, be assigned that extent of land necessary to make the total of 5 acres of dry or 2- 1/2 acres of wet.
Recommendation (iv) in para 1 above:- The Government consider that a certificate is necessary to prove whether a person is a bona fide serviceman or ex-serviceman eligible to get lands on assignment. They accordingly consider only on production of a certificate from the head of the department concerned or the Indian Soldiers' Board as the case may be.
Recommendation (v) in para 1 above:- The Government accept the recommendation and direct that the order of priority recommended by the Board of Revenue be adopted for purposed of assignment of lands for cultivation purposes.
Recommendation (vi) in para 1 above:- The Government consider that the order of priority recommended by the Board will be adequate and that no freezing of lands available for assignment is necessary.
3. The scheme of assignment of lands for cultivation purposes is not in vogue in Kanyakumari District. The concession ordered in para 1 and 2 above will not therefore be applicable to servicemen and ex-servicemen in that District. The Board of Revenue is, therefore, requested to examine and report separately whether any concessions can be shown to servicemen and ex-servicemen in that District under the Kuthagapattam rules.
4. The Government have imposed in 1950 a ban on assignment of lands in the Nilgiris for a period of 10 years. The question of further extending the ban is separately under the consideration of the Government. The question of granting any concession to servicemen and ex-servicemen in the Nilgiris District in the matter of assignment of lands will be taken up along with the question referred to above and orders will be issued separately.
(By order of the Governor) E.P.Royappa, Secretary to Government.
To The Board of Revenu (L.R.) Madras.
All Collectors, District Revenue Officers and Joint Collector, Coimbatore.
All other heads of Departments.
All Departments of Secretariat.
The Government of India (Ministry of Defence) New Delhi.
(with Covering letter).
The Government of India (Ministry of Regional Food and Agriculture) (Department of Agriculture), New Delhi. Copy to Revenue (A) Department.
(True copy)
---Forwarded/by order---
Vc.13.5 SUPERINTENDENT
25. The Government Orders also makes it clear, that servicemen or ex- servicemen or poor and landless persons may be assigned lands in the order of preference. The petitioner a member belonging to Scheduled Caste Community and widow of a ex-serviceman has been in continuous possession and enjoyment of the subject lands for more than 36 years. It is her case that She has been cultivating the lands. Necessary resolutions have been passed by Avaniapuram Town Panchayat in Resolution No.232, dated 10.7.1987 and Resolution No.195 expressing their consent for assignment of lands to the petitioner. Resolution No.232, dated 10.7.1987, is extracted hereunder:
mtdpahg[uk; Bjh;t[ epiyg; Bg:Uuhl;rp kd;w Tl;l eltof;iffs; Kd;dpiy: jpU. f.fpUl;ozd;
bghUs;:
mtdpahg[uk; Bjh;t[ epiyg; BgUuhl;rp mtdpahg[uk; fpuhkk; Frtd;Fz;L rhiyapy; rh;Bt vz;.265/2y; 2 Vf;fh; 20 brd;Lk; rh;Bt vz;.265/6gp 0.72 brd;l; epyj;ij jpUkjp khhpak;khs; epyk; xg;gil bra;a Bfhhp kD bra;Js;shh;. Bkw;go kDjhuh; Bfhhpago xg;gil bra;a kJiu bjw;F tl;lhl;rpah; ef vz;./ 6696/27rp2 eh;s 22.4.97 ;d; Bjjpa fojj;jpy; gq;rhaj;J mgpg;gpuha;jij jPh;khd totpy; mDg;g Bfhhpa[s;shh;. vdBt Bkw;go kDt[f;F epyk; x;;g;gil bra;a kd;wj;jpy; mDkjpf;F .
jPh;khd vz; 232 eh;s 10..7.1987 epyk; x;ggil bra;a Vfkdjhf jPh;khdpf;fg;gl;lJ.
The subsequent resolution passed by the Town Panchayat on 29.08.2002 is extracted:
mtdpahg[uk; BgUuhl;rpapy; 29.08.2002k; Bjjpapy; eilbgw;w rhjhuz Tl;lj;jpd; jPh;khdk; vz;. 195-d; cz;ikefy;.
Kd;dpiy :- jpU.Mh;. ghYrhkp jiyth;, mtdpahg[uk; BgUuhl;rp bghUs;: vz;:10
---------------------
mtdpahg[uk; BgUuhl;rpf;Fl;gl;l epy xg;gil kJiu bjw;F tl;lk; rh;Bt vz; 226/2V, 265/2 y; KiwBa 18.6 bcwf;Blh; 0.09.0 bcwf;Blh; g[yA;fs;, rh;fhh; jPh;it Vw;gl;l jhpR (g[q;ir epy) epyk; vz;: jpUkjp khhpak;khs; v;dgth; kD bfhLj;Js;shh;. Bkw;go epyj;ij jpUkjp khhpak;khs; vd;gth; gy tUlA;fshf mtuJ mDgtj;jpypUe;J te;jjhft[k; mjw;F Bkw;go eghpd; fhyk; fpuaj; bjhif :U.90,460/- tA;fp epy x;;g;gil tHA;f khtl;l Ml;rpj; jiyth; mth;fSf;F gpBuuiz mDg;gg;gl;Ls;sjhft[k;, kJiu bjw;F tl;lhl;rpah; mth;fs; fojk; e.f.vz; 12367/95/C2/ehs; 09.08.2002 y; bjhptpf;fg;gl;L cs;sJ. BkYk; mtdpahg[uk; BgUuhl;rp kd;wk; jPh;khdk; vz;.232, eh;s 10.7.97;y; jPh;khdk; bra;J bjw;F tl;lhl;rpah; mth;fSf;F fojk; mDg;gg;gl;Ls;sJ. vdBt Bkw;fz;l fojk; kd;wj;jpd; ghprPyidf;F. jPh;khdk; vz;: 195/ehs ;29.08.2002 epy x;g;gil bra;a Vfkdjhf jPh;khdpf;fg;gl;lJ.
26. Perusal of the report, dated 10.5.2002 of the Tahsildar, Madurai South, Madurai District, addressed to the District Revenue Officer, Madurai makes it clear that the lands in S.No. 265/2 measuring 0.89.0 ares and S.No.265/6B measuring to an extent of 0.20.0 ares have been earmarked for assignment to the members of the Scheduled Caste community and that the S.No.226/2A measuring an extent of 0.18.0 ares, is in possession of the petitioner. According to the report of the Tahsildar, Madurai South, Madurai, inclusion of the above lands have been made in the prohibitory Order Book only in the year 1998. He has specifically stated that the lands are not required for Government. There are no objections from the villagers. The petitioner is a landless, poor person. She has lost her husband, at her young age. For better appreciation this Court deems it to fit to extract the recommendation:
kDjhuh; jpUkjp khhpak;khs; vd;gthpd; fzth; jpU. Jsrpkzp vd;gth. ne;jpa uhZtjj;jpy; Ch;jp Xl;Leuhf gzp g[hpe;jth;. mtuJ rpg;gha; vz;.928704 vd;gjhFk;. mth; uhZtj;jpy; gzpg[hpe;J te;jBghJ tpgj;jpy; rpf;fp gLfhak; mile;j epiyapy; CUf;F jpUg;gp mDg;gg;gl;Ls;shh;. ne;j tpgj;jpy; Vw;gl;l fhaA;fspd; fhuzkhf 25.4.1954y; fhykhfptpl;lhh;. mth; ne;jpa uhZtj;jpy; gzpg[hpe;J te;jBghJ nwe;jikahy; mtuJ kidtp jpUkjp J.khhpak;khs; vjph;fhy thH;it fUj;jpy;bfhz;L Bkw;fz;l epyA;fis mtUf';F x;g;gil bra;a muJ Kd;te;jJ. mjdog;gilapy; Bkw;go epyA;fis 1966k;Mz;L jdJ mDgtj;jpw;F bfhz;L te;Js;shh;. 1966k; Mz;L Kjy;
bjhlh;e;J mtuJ mDgtj;jpByBa nUe;J te;Js;sJ. Kiwahd eilKiwrpf;fy;fspd; fhuzhf mtUf;F Kiwahf x;g;gil cj;jput[ bgwg;gltpy;iy. ne;epiyapy; kJiu khtl;l Ml;rpahpd; cj;jput[ vz;.B$/5087/97, eh;s 8.8.1998d;go Bkw;fz;l epyA;fs;murpd; gpw;fhy Bjitf;F Bjitg;glyhk; vd cj;Bjrpj;J jilahiz g[j;jfj;jpy; Brh;f;fg;gl;L tpl;lJ. Mdhy; jw;BghJ cldoahf murpd; ve;j Bjitf;Fk; Bkw;fz;l epyA;fs; Bjitg;glhj epiyapy; cs;sd. kDjhuh; jhH;j;jg;gl;l ne;Jgs;sh; ndjij Brh;e;jth; Mthh;. Bkw;go egUf;F epy x;g;gil bra;tJbjhlh;ghf fpuhkj;jpy; 2.11.2001 Kjy; 16.11.2001 tiu tpsk;guk; bra;ag;gl;lJ. fpuhkj;jpy; Ml;Brgid Vyk; tug;bgwtpy;iy.
kDjhuUf;F x;g;gil tHA;ft[s;s g[y vz;.226/2V, 265/2 Mfpa g[yA';fspd; tpiy cah;e;j kuA;fBsh, g[uhjd rpd;dA;fBsh ghJfhf;fg;gl Btz;oa nlA;fs; kw;Wk; cah; kpd; mGj;j kpd; fk;gA;fs; VJkpy;iy. BkYk; jpUkjp J.khhpak;khs; x;g;gil Bfhhpa[s;s brhj;Jf;fis jtpu BtW brhj;Jf;f;s VJkpy;iy. mth; kpft[k; VH;ikapy; thGk; tajhd tpjitahthh;. ntUf;F xBu xU kfd; cs;shh;. mth; nejpa jghy; Jiwapy; filepiy CHpauhf gzpg[hpfpwhh;. mth; jpUkzk; bra;J jdpf;Foj;jdk; Bkw;bfhz;Ls;shh;. mth; mtuJ jhahiu Mjhpg;gjpy;iy. Bkw;fz;l epyA;fs; fle;j 36 tUlA;fshf kDjhuhpd; mDgtj;jpy; nUe;J tUfpwJ. mtuJ fzth; ne;jpa uhZtj;jpy; gzpg[hpe;jth;. nsk; tajpy; nwe;jth;. mtuJ FLk;g $ptdj;jp;wfhf Bkw;go epyA;fis ePz;l fhykhf tptrhak; bra;J guhkhpj;J te;Js;shh;.kDjhuh; jpUkjp khhpak;khs; jw;BghJ tBahjpfepiyapy; cs;shh;. mtuJ kf;d kj;jpa muR jghy; Jiwapy; gzpg[hp;eJ tUfpwhh;. njid fUj;jpy; bfhz;Lk;,kDjhuh; Kd;dhs; uhZtj;jpdhpd; kidtpa[k; VH;ik epiyapy; jw;BghJ nUg;gpDk;, kDjhuh; x;g;gil Bfhhpa[s;s g[y vz;.265/2, 265/6gp, 266/2V, Mfpa g[yA;fsp;d; 265/6gp, 0.29.0 bcwf;Blh; jtph;j;J fPH;f;fz;l tptug;go fhyf;fpiya tRy; bra;Jk;, ng;g[yA;fs; jilahiz g[j;jfj;jpypUe;J ePf;fk; bra;J, fPH;f;fz;lthW fhyf;fpiua bjhifapid tTy; bra;J jpUkjp J. khhpak;khs; vd;gtUf;F epy x;g;gil tHA;f ghpe;Jiu bra;fpBwd;.
27. Perusal of the letter of the District Revenue Officer, Madurai addressed to the Special Commissioner and Commissioner for Land Administration, Chennai, also shows that he had endorsed the view of the Revenue Divisional Officer, Madurai, dated 25.6.2002. Relevant paragraphs of the letter are extracted hereunder:
vdJ tprhuizapy; kDjhuh; kpft[k; VH;ik epiyapy; cs;sjhy; epyf;fpiuaj;jpid brYj;Jk; mst[f;F tifaw;wth; vd;gjhYk; Mjp jpuhtplh; ndj;jth; vd;gjhYk; kDjhuhpd; fzth; ne;jpa uhZtj;jpy; fduf thfd Xl;Leuhf gzpg[hpe;J tpgj;jpy; fhykhfp tpl;ljhYk; fUiz Behf;Fld; kDjhuhpd; Bfhhpf;ifapid ghprPyid bra;ayhk; vd bjhptpj;Jf; bfhs;fpBwd;.
vdBt kJiu bjw;F tl;lk;, mtdpahg[uk; fpuhkk; g[y vz; 226/2A(0.18.0) kw;Wk; 265/2(o.89.0) bcwf;Blh; epyj;ij jilahiz gjpBtl;oypUe;J ePf;fp jpUkjp khhpak;khs; vd;gtUf;F nytrkhf x;g;gil tHA;f jFe;j Mizfs; gpwg;gp;f;fyhk; vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpBwd;. nj;Jld; rk;ge;jg;gl;l MtzA;fs; nizj;J mDg;gg;gLpfd;wJ vd;gijg; gzpt[ld; bjhptpj;Jf; bfhs;fpBwd;.
28. As stated supra, as per the provisions of the Revenue Standing Orders, even if the lands are valuable the same can be assigned to a landless, scheduled caste person. There is no total prohibition that valuable lands cannot be assigned at all. The only condition is that it should be sold in public auction or the market value has to be ascertained and received from the person, before assignment is made.
29. In the case on hand, when the entries in the village accounts book makes it clear that the subject lands are reserved for assignment to the members of the Scheduled Caste community, then Revenue Standing orders 15(22) would come into operation and that even if the said lands are valuable the same can be assigned to landless poor scheduled caste person, on collection of the market value of the lands to be assigned. When the petitioner has come forward to pay the market value as determined by the revenue authorities, and when the consent of the petitioner has also been obtained, there cannot be hard and fast rule, to reject the request of the petitioner, on the ground that the lands are valuable lands and that therefore, it cannot be assigned.
30. At this juncture, this Court deems it fit to extract few cases, as to how the discretion conferred on the authorities has to be exercised.
(i) As to what the reasonable exercise of discretionary power would mean, the learned authors, WADE & FORSYTH, In Associated Provincial Picture Houses Ltd., V.Wednesbury Corporation, (1948) 1 KB 223 at 229 have referred to Lord GREEN's Views as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently been used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may be something so absurd often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. WARRINGTON LJ in Short V.Poole Corporation (1926) Chapter 66) gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another".
(ii) While considering, a litigation arising out of Bangalore Development Authority Act, 1976, the Supreme Court in Bangalore Medical Trust v. B.S.Muddappa and others, reported in (1991) 4 SCC 54, held that "Discretion is an effective tool in administration. It provides an opinion to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authority to abuse the law or use it unfairly. Where the law requires an authority to act or decide, 'if it is appears to it necessary' or if he is 'of opinion that a particular act should be done' then it is implicit that it should be done objectively, fairly and reasonably. In a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society is involved. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and purposive approach. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the statute itself. The authority exercising discretion must not appear to be impervious to legislative directions. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised."
(iii) In Shiv Sagar Tiwari v. Union of India and others, reported in 1997 1 SCC 444, the Supreme Court held that the discretionary power has to be exercised to advance the performance, to subserve for which the power exists.
The discretionary power has to be exercised, keeping in view the reasons for conferring a wide discretion on the authority, to effectuate the provisions and the policy. Of course, the disposal of the public property, should not be made arbitrarily or for any extraneous reasons and that it has to be done in public interest.
(iv) In Bombay Dyeiing & Mfg. Co., Ltd V.Bombay Environmental Action Group reported in (2006) 3 SCC 434, the Supreme Court dealing with the matters involving environmental challenges, in case of execution, action formulated and certain factors to be considered.
i)Whether the discretion conferred upon the statutory authority had been properly exercised;
ii)Whether exercise of such discretion is in consonance with the provisions of the Act;
iii)Whether while taking such action, the executive Government had taken into consideration the purport and object of the Act, whether the same subserved other relevant factors which would affect the public at large;
iv)Whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and
v)Whether in arriving at such a decision, both substantive due process and procedural due process had been complied with.
Though the above factors, have been considered in a case relating to environmental challenge, the principles of law, in the matter of exercise of discretion, can be made applicable, in all cases involving exercise of discretion. The subjective satisfaction has to be arrived at, with reference to the provisions on the basis of which, the power of discretion is conferred and it has to be exercised in consonance with the object to be achieved by the Government in giving effect to the policies. Distribution of land and economic justice is the intent and object in incorporating suitable the provisions, in the revenue standing orders, which enables the competent authorities to assign lands to landless poor persons. When the discretion exercised by the executive is not inconformity with the abovesaid principles, then the Court can interfere and strike down an order on the ground of failure to exercise discretion. In such circumstances, there cannot be a contention that the Court is sitting over the opinion of the executive or substituting his opinion. There should be a reasonable nexus between the subjective satisfaction arrived at by the executive to the intention or object of the Government in carving out certain provisions which are consonance with the Directive Principles of the State Policy. If the constitutional objective is engrafted, in the revenue standing orders, so as to enable the competent authorities to assign lands to the landless poor persons, then the same ought to have been adverted to by the executive, who is enjoined with a duty to carry out the policy of the Government.
(v) In GCHQ Vs.Minister for the Civil Service (1984) 3 All ER 935 at 949, Lord DIPLOCK has suggested a three-fold classification of the various grounds, on which a discretionary decision is subject to control by judicial review. These grounds are :
(i) Illegality, which means, according to Lord DIPLOCK, "that the decision-maker must understand correctly the law that regulates his decision-
making power and must give effect to it." It means that the decision-making authorities must keep within the scope of their legal powers. Illegality means that the decision-maker has made an error of law; it represents infidelity of an official action to a statutory purpose,
(ii) 'Irrationality', in the sense of unreasonableness,
(iii)'Procedural Impropriety' which includes failure to observe the procedural rules.
31. The above classification seems more a matter of form rather than of substance. The third head, i.e., 'Procedural Impropriety' includes what we have called above as 'procedural ultra vires' along with the rules of natural justice and fairness discussed earlier. 'Irrationality' as a ground of review is distinct from 'illegality'. A decision may be 'legal' but it may, nevertheless, be invalid on the basis of some substantive principle, e.g., unreasonableness, mala fides etc., The term 'Illegality' includes all the rest of the grounds mentioned above including 'substantive ultra vires'.
32. One point which Lord DIPLOCK projects is important and may have substantial effect on the future course of development of judicial review. He has said : 'That is not to say that further development on a case by case basis may not in course of time add further grounds." Thus, it means that judicial review is not static and further grounds of judicial review may develop in course of time. In fact, Lord DIPLOCK has, taking his cue from the continental system of administrative law, suggested adoption of the principle of proportionality.
33. Discretionary power flows from the statutes or the provisions or the Government orders or guidelines issued from time to time. Therefore, the Courts exercising its jurisdiction, while testing the correctness of an order which enables from such discretionary power has to adjudge the same, with reference the above mentioned factors and if the executive action assailed does not satisfy the requirement of subjective and objective satisfaction or the legal obligation to discharge the duties to subserve economic justice or if the Court finds that the authority had not addressed the matter and swayed away by some irrelevant considerations, then it should be construed as an action, then it must be treated as an irrational or unreasonable decision, without reference to the object sought to be achieved by the Government.
34. The reasoning of the Government that lands adjacent to the subject lands have been plotted out into house sites and that therefore the utility, namely agriculture would not be continued is purely on surmises and conjectures. Going through the impugned communications and the order of the Government in No.514, Ne.Mu.3(2)/2007 dated 11.09.2007, this Court is not able to gather any material as to how the Government had come to the conclusion that the petitioner would not continue to engage in any agricultural activities and that there is likelihood of conversion of the lands into house sites. No credible material is furnished in the impugned order, warranting such conclusion. If the Government had any reasonable doubt that the petitioner, a widow of a ex-serviceman and landless poor scheduled caste person would alienate the property to a third party, after getting an assignment, then the Government or the competent authority, can always impose stringent conditions not to alienate the property if the lands are assigned free of cost. Judicial Notice also be taken that as per the policy of the Government, landless poor persons are assigned two acres of lands. Though the petitioner has demanded assignment of lands to the extent measuring 3 ares and 34 cents, the District Revenue Officer, Madurai District has recommended assignment of lands only to an extent of 2.45 acres and that there is excess land measuring 0.45 ares. Even as per version of the revenue authorities viz., the Tahsildar, Madurai South Taluk, Madurai, the District Revenue Officer, Madurai District, the petitioner has been in continuous possession and enjoyment of the properties in S.Nos. 226/2A, 265/2, 265/6 for over 36 years. The submission of learned counsel for the State that the petitioner has been paying necessary charges to the Government under 'B' Memos issued periodically, proves her continuous possession. Report of the Tahsildar makes it clear that the subject lands are being used for agricultural purposes.
35. Having regard to the policy of the Government and taking into consideration the rights of poor landless scheduled caste persons and widow of an ex-serviceman, who has rendered his service to the country, the Government ought to have taken a pragmatic approach in dealing with the request of such persons, instead of rejecting the same, without adverting to the provisions in the Board Standing orders.
36. The objections of the learned Additional Government Pleader that the Writ Petition has been filed belatedly cannot be countenanced. All along the petitioner has been moving the authorities, for assignment of lands. On the question of laches, this Court is of the view that no third party right has accrued, due to the delay in approaching the Court. The rights poor landless persons for assignment of land are clearly set out in the Revenue Standing, and therefore the objections are overruled.
37. Though it may be contended that it is the prerogative right of the Government to consider the grant of of assignment of lands to landless poor, the discretion ought to have been exercised in the light of the policy of the Government and with reference to provisions under the Board standing orders.
38. In the light of the discussion, the impugned orders are set aside. Consequently, a direction is issued to the respondents to issue patta to the petitioner for the lands in S.No.226/2A, 265/2, 265/6 situated in Avaniapuram Village, Madurai South Taluk, Madurai District, in favour of the petitioner, on collection of market value, determined by the revenue authorities earlier, within a period of two months from the date of receipt of the order. Consequently, connected Miscellaneous Petition is closed. No costs.
vsn/gcg To
1. The Government of Tamil Nadu, represented by the Secretary to Government, Revenue Department, Secretariat, Chennai-9.
2. The Special Commissioner and Commissioner of Land Administration Department, Chepauk,Chennai.
3. The District Collector, Madurai District, Madurai.
4. The District Revenue Officer, Madurai District, Madurai.
5. The Revenue Divisional Officer, Madurai District, Madurai.
6. The Tahsildar, Madurai South, Madurai District, Maduai.
7. The Village Administrative Officer, Avaniapuram Town Panchayat, 41, Avaniyapuram Village, Madurai South Taluk, Madurai District.
8. The Assistant Director, Ex-Servicemen Welfare Board, Welfare Office, Madurai-16.