IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 25-09-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.1096 of 2001 S.Tamilvannan .. Petitioner. Versus 1.The District Revenue Officer, Madurai District, Madurai. 2.The Special Deputy Collector/Revenue Court, Madurai. 3.The Tahsildar/Record Officer, Tirumangalam, Madurai District. 4.The Executive Officer, Arulmigu Subramaniaswamy Thiru Koil, Tiruparankundram, Madurai-5. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the entire records in connection with the impugned order of the first respondent made in his proceedings No.R.B.29/98 G3, dated 12.9.2000 and quash the same and consequently direct the first respondent to record the name of the petitioner as a cultivating tenant in respect of the Punja lands in S.No.30/1-6.83 acres and 30/3-2.20 acres in total 9.03 acres, in Kappalur Village, Madurai District. For Petitioner : Mr.M.Sriram For Respondents : Mr.T.Seenivasan Additional Government Pleader (R1 to R3) Mr.G.Sankaran (R4) O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2. It has been submitted that the lands in S.Nos.30/1, with an extent of 6.83 acres and 30/3 with an extent of 2.20 acres, (with a total extent of 9.03 acres of lands) in Kappaloor Village, belongs to the fourth respondent Temple and the said lands were leased out to the petitioner under the lease deed, dated 7.8.89. From the said date, the petitioner has been cultivating the lands and paying the lease amount to the temple as a cultivating tenant, regularly, without any default. The petitioner was enjoying the property as per the lease deed executed by the fourth respondent in favour of the petitioner. The petitioner further submits that the fourth respondent temple had also issued receipts in evidence of the rental amounts paid by the petitioner. The last receipt has been issued by the fourth respondent, on 19.6.95, by receiving a sum of Rs.1,300/- for the fasli 1404. While the petitioner was in effective cultivation of the lands, he had filed an application, in T.R.No.4/95, before the third respondent, under the Tamilnadu Agricultural Lands Record of Tenancy Rights Act (X of 1969) to register his name as a tenant in the tenancy records. The third respondent, after conducting an enquiry, as contemplated under the Act, by considering the materials produced by the petitioner and the fourth respondent herein, had rightly come to the conclusion that the petitioner is entitled to the reliefs sought for in the said petition. Thus, the petitioner was recorded as a cultivating tenant in the tenancy records, by an order, dated 25.9.95.
3. Aggrieved by the said order of the third respondent, the fourth respondent Temple had filed an appeal in A.P.No.70/95, before the second respondent, Appellate Authority, on 11.2.95. The second respondent, after considering the materials and the documents submitted on behalf of the petitioner, as well as the fourth respondent, had wrongly come to the conclusion that the order passed by the third respondent is not correct. Accordingly, the order of the third respondent was set aside, and the appeal filed by the fourth respondent temple had been allowed, by an order, dated 13.10.97. The second respondent while setting aside the order of the third respondent, dated 25.9.95, had failed to consider the various materials available on record and the relevant provisions of the Act and on a wrong assumption that the properties were not leased out to the petitioner and that it was only a licence which had been given, to the petitioner by the fourth respondent temple, for a period of three years. As per the conditions of the lease deed, the petitioner is not a cultivating tenant and the lands were not leased out for agricultural purposes. The petitioner had also produced additional documents before the Appellate Authority, the second respondent herein, to establish his tenancy rights. However, the evidence produced by way of additional documents was not properly considered by the second respondent, while deciding the appeal. Challenging the order passed by the Appellate Authority, the petitioner had filed a revision before the first respondent in R.P.No.29/98. The first respondent, without considering the documents and the evidence filed in respect of the claims made by the petitioner, dismissed the revision by the impugned order, dated 12.9.2000. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
4. In the counter affidavit filed on behalf of the fourth respondent, the averments and the allegations made by the petitioner had been denied. It has been stated that the writ petition is not maintainable, either in law or on facts. Admittedly, the petitioner has been put in possession of the agricultural lands belonging to the fourth respondent temple, pursuant to a public auction conducted during the year 1989, for granting a licence for the fasli years 1399. In the public auction the offer made by the petitioner was the highest and therefore, the licence for the lands in question was confirmed in favour of the petitioner. Thereafter, the licence period had been extended for the fasli years 1400 and 1401. While so, the petitioner is not entitled to record himself as a lessee under the Tamilnadu Agricultural Lands Record of Tenancy Rights Act (X of 1969). Therefore, his claim has been rightly rejected by the second respondent and confirmed by the revisional authority, the first respondent herein. It has been further stated that the fourth respondent temple is one of the ancient temples in the State of Tamil Nadu. It is listed as a public temple, notified under Section 46(iii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It is being administered by an executive officer in the cadre of a Deputy Commissioner, appointed by the Government of Tamilnadu, subject to the overall control of the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai.
5. It has been further stated that a public auction was conducted for granting a licence, in respect of the property in question for three fasli years. Since the petitioner’s bid was the highest, he was given the licence for the fasli years, 1399 to 1401. With a view to conduct a fresh auction, on the expiry of the fasli year 1401, the petitioner was directed to surrender possession of the agricultural lands, to the fourth respondent temple.
6. It has been further stated that since the petitioner did not surrender the land belonging to the fourth respondent temple, no public auction could be conducted. While so, under the false pretext that the petitioner is a lessee in respect of the agricultural lands belonging to the fourth respondent temple, he had filed an application before the third respondent, under Section 4(2) and 5(2) of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act (X of 1969), praying that the petitioner may be registered as a cultivating tenant in respect of the lands mentioned therein. After receipt of the notice in T.R.No.4/95, the fourth respondent Temple had filed a counter statement stating that the petitioner was put in possession of the lands in furtherance of the public auction conducted in the year 1989, for three fasli years, from 1399 to 1401. Hence, his possession would be termed as a licence and on the expiry of the three years licence period, he is liable to surrender possession of the lands to the fourth respondent temple. Therefore, since the licence granted to the petitioner had already expired, his possession would only be termed as that of a trespasser.
7. Aggrieved by the order of the third respondent, the fourth respondent had filed an appeal before the second respondent. The second respondent had allowed the appeal, on merits, by observing that the petitioner is only a licencee and that he is not entitled to maintain the application, under the Tamilnadu Act 10 of 1969. As against the order of the second respondent, the petitioner had filed a revision before the first respondent. The revisional authority had dismissed the revision by confirming the order of the Appellate Authority by holding that the petitioner was only a licencee under the fourth respondent temple and therefore, he is not entitled to maintain an application before the third respondent, under the said Act. Thus, the authorities constituted under Act X of 1969, had concurrently found that the petitioner is only a licencee in respect of the lands belonging to the fourth respondent temple. It has been further submitted that, long after the expiry of the three years licence granted to the petitioner, taking advantage of the possession of the lands in question, the petitioner had filed a petition to record himself as a cultivating tenant, under Act X of 1969, in the year 1995.
8. The petitioner is in possession of the lands in question only a trespasser. Further, the agreement, dated 7.3.89, relied on by the third respondent has no application, as it is not an admissible evidence on the ground that the said document is not a registered instrument. After the expiry of the period of three years for which the licence had been granted to the petitioner, the petitioner cannot claim that he continues to occupy the lands as a licencee. The lease deed is not admissible in evidence, as it is not a registered document. The writ petition filed by the petitioner is devoid of merits, and therefore, it is liable to be dismissed.
9. The learned counsel appearing on behalf of the petitioner had submitted that the first respondent, as a revisional authority, ought to have taken into consideration the admission made on behalf of the fourth respondent temple that the lands were under the effective cultivation of the petitioner. In the absence of any contrary evidence, the order passed by the third respondent, holding that the petitioner is a cultivating tenant,- ought to have been confirmed by the appellate and the revisional authorities. The impugned order of the first respondent proceeds on the footing that the lands in question were given to the petitioner only on a licence and not as a lease. The first respondent had proceeded on the ground that the lease had been given to the petitioner only for the development of an animal farm and for the production of animal feed. The rejection of the claim of the petitioner that he is a cultivating tenant is contrary to the agreement entered into between the petitioner and the fourth respondent temple, as well as the provisions of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act (X of 1969). Section 2 of the Tamilnadu Public Trust (Regulation of Administration of Agricultural Lands) Act, 1961, defines `agriculture’ to include horticulture, raising of crops, grass or creating produce, Diary Farming, Live Stock Breeding, etc., Therefore, the first respondent had passed the impugned order without considering the applicability of Clauses (1) and (5) of Section 2 of the said Act. The revisional authority had failed to consider the various documents filed by the fourth respondent showing that the lands in question were given to the petitioner on lease. In support of the claims made by the fourth respondent both the Appellate, as well as the revisional authorities, had proceeded only on assumptions and presumptions to come to the conclusion that the lands were assigned to the petitioner under a licence. Once it was found that the petitioner has been continuously cultivating the land from the year 1989, and when the said fact had not been disputed by the fourth respondent temple, the first respondent ought not to have rejected the claim of the petitioner that he is a cultivating tenant, since the lands were assigned to the petitioner by the fourth respondent Temple only under an agreement of lease. When it is not disputed that the petitioner has been carrying on the activities of cattle rearing and animal feed production, including growing of fodder for the animals, it cannot be held that the petitioner is not a cultivating tenant. As per the lease deed, dated 7.8.89, the lands were given to the petitioner on lease and from the year 1989, the petitioner has been paying the lease amount to the fourth respondent temple, without any default. While so, the fourth respondent temple cannot claim that the lands were given to the petitioner only under a licence. In such circumstances, the impugned proceedings of the first respondent, dated 12.9.2000, is liable to be set aside.
10. The learned counsel appearing on behalf of the petitioner had relied on the decision of the Supreme Court in Thimmappa Rai Vs. Ramanna Raj (2007(5) CTC 287) , wherein it has been held as follows:
“13. Madras Cultivating Tenants’ Protection Act, 1955, was enacted for protection from eviction of cultivating tenant in certain areas in the then State of Madras. Cultivating Tenant has been defined in Section 2(a) of the said Act to mean;
2(a) “Cultivating tenant” in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied; and includes: (i) any such person who continues in possession of the land after the determination of the tenancy agreement, and (ii) the heirs of such person, but does not include a mere intermediary or his heirs.”
14. Thus, inter alia a person, who thus, carries on personal cultivation of said land under a tenancy agreement expressed or implied, including one who continues in land after determination of the tenancy agreement in terms of the provisions of the Act, would be a cultivating tenant under the said Act and a landlord is prohibited from evicting him whether in execution of a decree or an order of a Court or otherwise.”
11. Even though the learned counsel appearing on behalf of the petitioner had raised various grounds in challenging the impugned proceedings of the first respondent, dated 12.9.2000, he has placed emphasis on his contention that both the appellate authority, the second respondent herein, as well as the revisional authority, the first respondent in the present writ petition, have not considered the various contentions made by the petitioner, which are shown as grounds, forming part of the present writ petition. The learned counsel had submitted that this Court may be pleased to remit the matter back to the third respondent for a fresh enquiry and to pass appropriate orders thereon, taking into consideration the contentions raised by the petitioner and in view of the evidence made available before the third respondent, on behalf of the parties concerned.
12. Though the learned counsel appearing on behalf of the respondents had contended that the lands in question were given to the petitioner by the fourth respondent temple, only under a licence and not under a lease, they have not been in a position to show that the second respondent, who is the Appellate Authority and the first respondent, the revisional authority, have considered the various aspects pointed out by the petitioner before arriving at their conclusions. Further, the learned counsels appearing on behalf of the respondents, have not substantiated their claims that the first and second respondents have properly considered the evidence on record, while rendering their findings. Even though the petitioner had raised various grounds, both factual as well as legal, they have not been properly appreciated by the first and second respondents before coming to their conclusions that the petitioner is not entitled to register himself as a cultivating tenant in respect of the lands belonging to the fourth respondent temple.
13. In such circumstances, this Court is of the considered view that the matter is to be remitted back to the third respondent to assess all the relevant aspects in its proper perspective before giving his findings on the issues raised before him. Therefore, the findings of the third respondent, in his order, dated 25.9.95, culminating in the impugned order of the first respondent in his proceedings NO.R.B.29/98-G3, dated 12.9.2000, are set aside and the matter is remitted back to the third respondent to give clear findings, after considering the issues raised by the petitioner, as well as the fourth respondent temple, by giving them sufficient opportunity to present their case and to substantiate their claims by adducing evidence, both oral as well as documentary and pass appropriate orders thereon, on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order.
With the above directions, the writ petition is disposed of. No costs.
csh
To
1.The District Revenue Officer,
Madurai District, Madurai.
2.The Special Deputy Collector/Revenue Court,
Madurai.
3.The Tahsildar/Record Officer,
Tirumangalam, Madurai District.
4.The Executive Officer,
Arulmigu Subramaniaswamy Thiru Koil,
Tiruparankundram,
Madurai 5