ORDER
K.P. Sivasubramaniam, J.
1. The writ petitioner/appellant in the Second Appeal is Sivalokam Estate, hereinafter called the petitioner. The petitioner had filed O.S.No.22 of 1998 on the file of the Sub Court, Kuzhithurai, as against the respondent/State of Tamil Nadu for (a) declaration that the claim of the respondent for payment of Rs.7725.95 as enhanced tax for the suit property as illegal and unsustainable (b) a declaration that the sum of Rs.251/- per year will be appropriate rent for the suit property for Fasli years 1397 to 1406 inclusive of both years, (c) for an injunction restraining the respondent from recovering any amount in excess of Rs.251/- per year as rent for the said period or any sum in excess of the amount fixed by the Court as fair rent; and (d) in the event of the Court holding that Rs.251/- per year is not reasonable rent, the Court may fix a fair and appropriate annual rent for the said period. In the mean time even during the pendency of the suit, as the amount due was collected by the respondent and a further prayer was made to recover from the defendant a sum of Rs.7,948.70 with future interest on Rs.7,292.70 at six per cent per annum.
2. The said claims were made by the petitioners contending that an extent of 31.31 acres of dry vacant land in old Survey Nos.3020/C9 and C-13 of Kaliel village belonged to the State of Travancore-Cochin. It was lying adjacent to the patta land of a European Planter by name Captain Alexander. The Travancore-Cochin Government leased out the said extent of land without time limit to the said Alexander on 14.5.1940 on an annual rent of Rs.66.05 only. The said Alexander assigned his lease hold rights to the plaintiff and the Government of Travancore-Cochin recognised the assignment by their order dated 13.1.1945. Since then the petitioner is in possession of the property as lessee and paying the annual rent at the rate of Rs.66.05. The petitioner had paid rent up to Fasli 1396. The petitioner further submits that while recognising the lease in favour of the plaintiff by letter dated 14.5.1940, the Government had sanctioned the lease without limit of time to Captain Alexander.
3. The petitioner further submits that in the year 1976 the Collector of Kanyakumari District claimed increased rent from the plaintiff. The plaintiff filed W.P.No.742 of 1997 before this Court. By order dated 12.10.1979, the High Court held that the Government has the right to revise the rent. The plaintiff also agreed for the revision of the rent and accordingly the Tahsildar, Vilanvancode increased the annual rent to Rs.251/-. But on 20.2.1988, the Village Administrative Officer under the orders of the defendant orally demanded that the plaintiff should pay Rs.7725.95 as rent for the property of an extent of 4.70.5 hectares and thereupon threatened to recover the amount coercively. Not even a written demand was made to the plaintiff. As a result the petitioner issued a suit notice under Section 80 C.P.C. on 24.2.1988 questioning the competency of the State to increase the annual rent. In spite of having received the said notice, the Revenue officials were threatening to recover the amount illegally. The petitioner further submits that the lease in favour of Alexander originally was only of a vacant land without any trees. The rubber plants now available in the property were planted by the plaintiff. Therefore, the respondent cannot claim any rent towards the trees. The Kuthagapattom Rules, hereinafter called “the K.Rules”, were not applicable to the suit property. The lease was granted by the Government under a specific order without any time limit on payment of appropriate annual rent. Therefore, the annual rent was not liable to be enhanced unilaterally by the Government. No opportunity was afforded to the plaintiff to prove the reasonable or appropriate rent. The Government cannot fix the rent arbitrarily without the consent of tenant. The respondent and his subordinates are treating the schedule land as if the lands for which B memo could be issued and tree tax recovered. The plaintiff is not a trespasser, but only a lessee under perpetual lease. The successor Government has no right to vary the terms of the order. There are about 1400 rubber trees in the schedule land. The claim of the respondent was without any basis. The amount claimed towards the rent was unreasonable. The rent is expected to remain as of now for the next ten years. However, if the Court holds that Rs.251/- was not reasonable, the Court may be pleased to fix appropriate rent for the property for the next ten years.
4. In the written statement filed by the respondent, it is contended that the land in question was under Kuthagapattom vide K.P.No.20/70. Subsequently, the K. Rules were repealed in the year 1972. Hence the possession of the plaintiff in the property had become illegal and he is an encroacher. Thereafter, B memo cases were booked against the encroacher under the Land Encroachment Act and the plaintiff has also rightly paid the amount levied on him without any protest. As per Kuthagapattom No.20/1970 the total assessment paid by the occupant comprised of an extent of 29.41 acres only. The plaintiff who was only an encroacher without getting any permission had cut and removed some of the trees from the Government poramboke. The Government levied the tree value and compounding charges. Subsequently also the petitioner had illegally cut and removed all the trees planted in R.S.41/2 and again planted 1400 new rubber trees. Therefore, the allegation that the plaintiff had planted rubber trees during 1986-87 was not correct.
5. B memo charges were increased for the yielding rubber trees from Re.1/- to Rs.5/ in terms of G.O.Ms.No.1009 Revenue Department, dated 24.7.1986. In view of the encroachment caused by the petitioner, land encroachment cases have also been booked against the petitioner and he has to pay Rs.10,259.60 for Fasli 1396. He had remitted a part of the amount and was liable to pay a balance of Rs.7,926.90 to the Government. The plaintiff was not asked to pay any rent at any time. As he was an encroacher, he was paying B memo charges only and hence liable to pay only B memo charges. The Village Administrative Officer has not threatened anybody as alleged and the action taken by the Village Administrative Officer was according to law.
6. The trial Court after considering the mutual contentions held that though the petitioner had established possession of the property, the petitioner has not established the claim of being in possession of the property in the capacity of permanent lease holder and that the petitioner (P.W.1) had admitted in the oral evidence that there was no documentary evidence to establish that the Estate had been granted permanent lease and that he was not aware that the permanent lease hold rights had been cancelled in the year 1972. The trial Court held that the lease hold rights granted by the erstwhile Travancore-Cochin Government were cancelled in respect of the transferred territory and that since then the property was treated only as a poramboke property. As regards the amounts claimed by the respondent, the trial Court held that in terms of G.O.Ms.No.1009 dated 24.7.1986 owners of estate occupying poramboke properties should be taxed at the rate of Rs.5/- per tree and that hence the demand as raised by the respondent towards 1400 rubber trees was perfectly valid. It was further held that in view of upholding the claim of tax at the rate of Rs.5/- per tree, there was no basis for the prayer to fix fair rent or to fix only Rs.251/- as annual tax.
7. In the appeal filed by the petitioner, the learned District Judge rejected the A.S.No.54 of 1992 and dismissed the suit after confirming the findings of the trial Court. Hence the above Second Appeal. At the time of admitting the Second Appeal, the following substantial questions of law have been raised for consideration:-
(i) Whether the lower Courts are right in assuming that the plaintiff is a trespasser when D.W.1 has admitted that the possession of the plaintiff is under a lease.
(ii) Whether the lower Courts are right in approving the action taken by the defendant, when it is arbitrary and violative of the principles of natural justice?
(iii) Whether the decision in W.P.No.742 of 1977 (Ex.A.1) would operate as res judicata against the defendant and would preclude the defendant from pleading that the plaintiff is a trespasser?
W.P.NO.8823 OF 1994:
8. During the pendency of the Second Appeal alleging that the petitioner had received a notice under Section 7 of the Tamil Nadu Act 3 of 1905 by treating the petitioner as an unauthorised occupant, the estate had come forward with this writ petition praying for the issue of a writ of certiorari to call for the said notice and to quash the same.
9. In the writ petition, the petitioner after stating the facts as above and as pleaded in the suit in O.S.No.22 of 1988 on the file of the Subordinate Judge, Kuzhithurai, had further contended that the impugned notice has been issued without complying with the principles of natural justice. The petitioner also contends that having been put in possession in a lawful manner as a lessee the petitioner cannot be treated either as an unlawful or unauthorised occupant or as a trespasser. In the earlier proceedings, the respondent had in fact treated the petitioner only as a lessee.
10. A counter affidavit has been filed by the respondent contending that the amount of Rs.7725.95 had been demanded only towards B memo charges and not as rent. The Kuthagapattom was granted by the erstwhile State of Travancore-Cochin and the said Rules had been repealed and B memo was booked against the petitioner and required to pay tree tax. The petitioner was an unauthorised occupant in Survey No.43/2 which is classified as AWD lands and hence B memo was booked as against the petitioner. The land admittedly belongs to the Government and after the repeal of the K.Rules, the petitioner’s occupation became unauthorised and hence the provisions of the Land Encroachment Act was rightly invoked. It is further stated that no Kuthagapattom was granted with reference to the land in survey No.43/2 and the impugned notice has been issued only in respect of the said land.
11. Mr.M.V.Venkataseshan, learned counsel for the petitioner contends that the petitioner had been granted permanent tenancy rights and such rights were presumed to continue even after the Constitution and transfer of the territory to Tamil Nadu. The rights enjoyed in respect of the transferred territories are kept in tact and hence the petitioner was entitled to permanent lease hold rights. He would further contend that even otherwise the petitioner having been admitted into possession by lawful grant of lease he cannot be treated as a trespasser so as to justify the action for summary eviction as if the petitioner was an unauthorised occupant. Further, the said notice has been issued without issuing a proper show-cause. Basic principles of natural justice require that in any proceeding resulting in any civil consequence and would affect the valuable rights of the parties, the party shall be entitled to prior notice. Learned counsel further contended that the decision of the Court in W.P.No.742 of 1977 will operate as res judicata and the Court had positively found that the petitioner had the permanent tenancy right. Hence the claim of the respondent as well as the findings of the Courts below in the Second Appeal are unsustainable.
12. Learned counsel further contends that the main ground on which the plaintiff had been non-suited was that Kuthakapattom was not established and hence there was no evidence of permanent tenancy. Subsequently, the Kuthagapattom has been traced and it was not possible to file the same in the earlier proceedings in spite of diligent search for the same. In C.M.P.No.5403 OF 1995 the petitioner had sought for admission of two additional documents viz. (i) Kuthagai Pattom issued in favour of Alexander in Malayalam Era 1116 and (ii) Kuthagai Pattom issued in favour of the petitioner in Malayalam Era 1118 with their Tamil translations.
13. I have also heard learned Additional Government Pleader and considered the submission of both sides. Though both the writ petition and the Second Appeal have been heard together and almost identical contentions are raised by both sides in both the proceedings, it is seen that the actual subject matter of the two proceedings are different namely, that the suit property in the Civil Suit is different from the property in respect of which the impugned notice in the writ petition had been issued. A perusal of the schedule to the plaint shows that the reliefs are sought for in respect of an extent of 4.70.5 hectares in Survey No.41/2. In contrast, the notice impugned in the writ petition relates to an extent of 7.19.5 hectares in Survey No.43/2 which stands classified as AWD. The respondent/Government had also taken the stand that in respect of Survey No.43/2 no Kuthagapattom had been granted. Therefore, the issues arising for consideration in both the proceedings have to be separately considered.
S.A.No.404 of 1993
14. The suit claim is based on the pleading that there was a permanent lease in favour of the total extent of 31.31 acres in favour of one Alexander and that the lease hold right was subsequently assigned to the petitioner. The lease was permanent in nature and in respect of transferred territories, the claim for enhanced lease amount was unreasonable. Per contra, the defendant had pleaded that though the suit land was under Kuthagapattom, the Rules governing Kuthagapattom were repealed in 1972 and hence possession of the land by the petitioner was made subject to B memo.
15. It is pertinent to note that though the plaintiff had pleaded that there was permanent tenancy, the plaintiff did not seek for declaration that the plaintiff had the right of permanent tenancy. The said claim was rejected by both the Courts below on facts as well as on law.
16. On facts, not even a single document was filed by the plaintiff to substantiate the claim of tenancy much less permanent tenancy. It is true that now the petitioner had sought for admission of two documents as additional evidence. The only witness examined on the side of the plaintiff is the Clerk of the Estate who was employed only in 1963. He does not know anything about the nature of the lease. He has also admitted that there was no document to show that the lease was a permanent one. It is on the basis of the said admitted position, the Courts below held that there was no proof of any permanent lease in favour of the plaintiff. However, the plaintiff has now come forward with C.M.P.No.5403 of 1993. Two documents are sought to be filed by the petitioner and they are no doubt, valuable documents to support the claim of permanent lease, subject to the documents being marked in evidence in accordance with law. Under normal circumstances, having regard to the nature of the documents I would have permitted the documents being admitted in evidence as additional evidence pertains to a relevant issue. But the admission of the said documents which has to be marked in evidence through witness, would be in my opinion, a futile exercise in view of the fact that K.Rules had been subsequently repealed and consequently the petitioner cannot claim to be a tenant as discussed in the following paragraphs. Therefore, I am inclined to dismiss C.M.P.No.5403 of 1993 as unnecessary.
17. A legal contention has been raised on behalf of the respondent and accepted by both the Courts below namely that K.Rules have been repealed in the year 1972. The said contention is amply established by the respondent. Ex.B.1 is an extract of the Gazette Publication of G.O.Ms.No.2314, Revenue, dated 25.9.1971 under which the provisions of Board’s Standing Orders were extended to the transferred territories also, namely, Shencottah and Kanyakumari District and that consequently K.Rules issued by the erstwhile Travancore-Cochin Government shall stand repealed with immediate effect. Consequential order was passed under Section 7 of the Travancore-Cochin Government Land Assignment Act, 1950, repealing K.Rules vide G.O.Ms.No.3369, Revenue, dated 13.12.1972. A perusal of the two documents now sought to be filed as additional evidence also discloses that under Section 7, Kuthagapattom shall continue only as long as it (Pattom) continues to subsist. It would imply that the pattom is revocable in a manner known to law. The pattom will continue only as long as it is not cancelled or withdrawn. In the background of the above mentioned two Government Orders, K.Rules themselves having been repealed, no rights can be asserted on the strength of K.Rules. Therefore, there is no legal basis for the claim of permanent tenancy. The tax receipts filed by the petitioner do not advance the case of the petitioner in any manner.
18. It is also relevant to bear in mind that the petitioner had not questioned or challenged the validity of the Government Orders repealing the K. Rules, notwithstanding the fact that in the suit itself the petitioner was made aware of the said Government Orders and the repeal of the K.Rules. Therefore, both on law and on facts, the claim of the petitioner as a permanent lessee of the respondent, cannot be sustained. With the cancellation of the Kuthagapattom, the possession of the land by the petitioner can be described only as unauthorised or at the most permissive, subject to B memo notice and the right of the Government to resume the land. In fact the contentions of the respondent that subsequent to 1972 the petitioner was treated as a trespasser and was being issued with B memo notices have not been denied by the petitioner/plaintiff.
19. The only dispute in the suit as could be perceived from the reliefs sought for in the plaint is that according to the plaintiff, the Government has no right to increase the lease amount and that at any rate, the increased rate is unjustified and that the Court itself may fix a fair rental amount.
20. I am unable to sustain any of such claims of the plaintiff. As stated earlier with the repeal of the K.Rules, the plaintiff is no more a tenant/lessee of the land. The amount which is sought for from the plaintiff is therefore, not rental amount, but only demanded either as B memo penalty or as tax for the trees or both. The claim that the enhanced rent was unreasonable or that this Court should fix fair rent, is totally misconceived, even assuming that the plaintiff could be described as a tenant. The Civil Court is not the proper forum for fixing the fair rent. The parties have to be governed by Kuthagapattom Rules and the actual terms of the lease. A landlord is entitled to demand periodical increase in the quantum of rent and as the Courts below have pointed out, that fixation of Rs.5/ per one rubber tree, whether it is described as rent or tax, cannot be stated to be excess or unreasonable. In the present case, in fixing the said quantum, the respondents have complied with G.O.Ms.No.1009 Revenue, dated 24.7.1986 and hence I am unable to find any error in the demand of Rs.5/- per tree.
21. Therefore, viewed from any angle, the reliefs sought for in the suit are not only misconceived and are not maintainable, but also even otherwise on merits, the amount as demanded cannot be stated to be unreasonable.
22. The contention that the order of this Court in W.P.No.742 of 1977 would operate as res judicata is also not sustainable. In that writ petition, the petitioner had prayed for the issue of a writ of mandamus to restrain the Government from auctioning the usufructs of the trees standing in Survey Nos.43 and 44. The lis in that writ petition was as to whether the Government had the right to auction the usufructs to third parties as long the petitioner was in possession of the land and it was rightly held that the Government had no right to do so. That order cannot have any relevance to the right of the Government to seek eviction of the petitioner when he is found to be in unauthorised possession. Moreover, a perusal of the judgment discloses that there is absolutely no reference to G.O.Ms.No.2314 Revenue, 25.9.1971 and G.O.Ms.No.3369, Revenue dated 13.12.1972 whereunder the K.Rules were repealed. Therefore, with due respect, the judgment could be treated only as per incurium rendered in the absence of any reference to any of the relevant statutory Government Orders issued under Section 7 of the Travancore-Cochin Government Land Assignment Act, 1950. The judgment also appears to have been rendered on the basis of concession by the learned counsel appearing for the Government stating that the petitioner was a lessee.
23. Learned counsel for the petitioner placed reliance on the judgment of the learned single Judge of this Court in NEW AMBADI ESTATE (P) LTD. v. THE STATE OF TAMIL NADU (1988 I L.W. Summary of cases, 55). That arose out of a suit for declaration of the plaintiff’s title to the property and for an injunction to restrain the Government from collecting any amount in excess of the land revenue. The plaintiff had sought for declaration of the title to the land (poramboke) on the basis of a Sale deed and that he had also perfected title by adverse possession. The said pleadings were upheld on the basis of the evidence and therefore, the facts relating to the said judgment are not comparable at all to the present case whereunder the claim of the petitioner himself is only that of a tenant. Much less is there any pleading for declaration of the title or adverse title. It is also settled proposition of law that a tenant cannot deny title of his landlord nor can he prescribe title in favour of himself vide judgment of the Supreme Court in VEERRAJU v. VENKANNA . The Second Appeal is therefore, liable to be dismissed.
W.P.No.8823 OF 1994
24. The writ petition pertains to the land of an extent of 7.19.5 hectares in Survey No.43/2 questioning the notice for eviction issued under the Land Encroachment Act. The effect of G.O.Ms.No.2314 Revenue, dated 25.9.1971 and G.O.Ms.No.3369 Revenue, dated 13.12.1972 repealing the K.Rules had already been discussed and explained above while dealing with Second Appeal No.404 of 1993. The status of the petitioner cannot be that of a tenant. He is no more than a person in occupation of poramboke land subject to the levy of B memo charges and would be governed by Board’s Standing Orders. In fact, as stated earlier the contention of the respondent that the petitioner was subjected to B Memo charges which was also paid by him without any protest had not been disputed by the petitioner. Therefore, individuals like the petitioner are liable to be evicted after following the statutory requirements. In the present case, the reliance placed on the judgments dealing with the need to issue show-cause notice and to comply with the principles of natural justice can have no relevance at all on a perusal of the impugned notice dated 13.9.1994. In the said notice, the petitioner has been called upon to submit his explanation/show cause against the proposal for eviction either before the signatory (Revenue Inspector) or the Collector. Hence, there is no basis for the allegation of failure to comply with the principles of natural justice. However, I find that the time limit as contemplated under the format is left blank. The Revenue Inspector appears to have sent the notice only as a formality or as an eye-wash without being really sincere about the steps to be taken for proper eviction and collusive as it happens in most of the cases in order to enable the encroachers to approach the Court and obtain an order of stay. There is absolutely no justification to despatch such a notice without filling up the blanks and indicating the time limit by which period the concerned individual has to submit his explanation. In the printed format, even the year of the Tamil Nadu Land Encroachment Act is given wrongly as 1950 instead of 1905. With the result, I am inclined to pass the following order:-
(i) Second Appeal is dismissed. No costs.
(ii) C.M.P.No.5403 of 1993 for additional evidence is dismissed as unnecessary.
(iii) The writ petition is partly allowed. The right of the Government to invoke the provisions under Act 3 of 1905 is upheld. But the impugned notice is quashed with liberty to the respondent to issue a show-cause notice afresh in the proper format and to follow up the legal requirements in a proper manner. No costs.
(iv) Learned counsel for the petitioner contended that similar lands have been leased out to various individuals by the Government fixing reasonable rent and also providing for periodical escalation of the rent. Learned counsel requests that this Court may issue directions to the respondent in this case. This is however, outside the scope of these proceedings and within the discretion of the Government to do so or not or subject to such conditions as may be prescribed by the Government. If the petitioner chooses to approach the respondent with such a proposal, it is for the Government to deal with the request. The petitioner cannot claim it as a matter of right and it is up to the petitioner to seek for such a lease and within the discretion of the Government.