BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 16/09/2010 Coram The Hon'ble Mr. Justice T.RAJA Writ Petition (MD) No.7022 of 2005 and WPMP (MD) No.7628 of 2005 R.Banuraman ... petitioner vs. 1. The State of Tamil Nadu, Rep. by Secretary to Government, Revenue Department, Fort St. George, Chennai 600 009. 2. The Special Commissioner & Commissioner of Land Administration, Chepauk, Chennai 600 005. 3. The District Collector, Pudukkottai District, Pudukkottai. 4. The District Revenue Officer, Pudukkottai District, Pudukkottai. ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus to call for the records in connection with the impugned order passed by the first respondent vide G.O.Ms. No.328 (Revenue Department), dated 26.05.2005, quash the same and direct the first respondent to grant/extend lease in respect of an extent of 20.5 cents S. No.40/2 Rathinakottai Village, Aranthangi Taluk, Pudukkottai District, by reclassifying the land as per the usage or by relaxing the temporary ban or the general prohibition if necessary regarding the assignment or grant of lease. !For petitioner ... Mr.S.S. Sundar ^For respondents... Mr.D.Sasikumar, Govt. Advocate. - - - - - :ORDER
The present writ petition has been filed challenging the Government Order
in G.O. Ms. No.328 (Revenue Department), dated 26.05.2005, in and by which, an
extent of 20.5 cents of land in S.F. No.40/2 of Rethinakottai Village,
Aranthangi Taluk, Pudukottai District, (in the course of this order referred to
as ‘the land in question’) granted to the petitioner’s father-in-law on lease
basis, came to be resumed by the respondents/State by restricting the extension
of lease period as the date of issuance of the impugned Government Order and
imposing a general ban on the assignment or extension of lease in respect of the
said land as it is a classified watercourse poramboke.
2. Learned counsel for the petitioner points out that the land in
question, with a total extent of 23 cents, belongs to the Government and that
originally, it was leased out to one Navin Raj, who had held the leasehold right
over it for about 20 years ie., till 06.04.1988. The lease was not renewed and
further, there was default in payment of rent to the Government by the said
Navin Raj. After his demise, there was no action taken by his legal heirs to get
back the leasehold rights, this resulted in the 4th respondent taking over
possession of the land.
It is further stated that during 1995, the father-in-law of the petitioner
late Manicka Udayar, on coming to know that the land in question was available
for lease, applied to the Revenue Department for grant of lease of land to an
extent of 20.5 cents for running a bus service station. The then Revenue
Divisional Officer (RDO) was willing to recommend the case of the petitioner’s
father-in-law for grant of fresh lease provided the loss caused to the
Government due to the default committed by the previous lessee-Navin Raj was
made good and suggested for payment of entire arrears of the lease amount
defaulted, whereupon, a sum of Rs.25,000/- was remitted by Manicka Udayar on
03.11.1995. Subsequently, on the recommendation of the RDO, the District Revenue
Officer (DRO) and the Special Land Commissioner-cum-Commissioner for Land
Administration, decided to grant lease in favour of the petitioner’s father-in-
law in respect of the land in question. Ultimately, a Government Order in G.O.
Ms. No.287 (Revenue Department), dated 12.03.1997, directing grant of lease in
favour of Manicka Udayar subject to the usual conditions as per Revenue Standing
Order (RSO) No.24-A came to be issued, fixing 14% of the market value as lease
amount and a formal lease deed was executed, stipulating the lease period
initially for 3 years taking effect from 09.06.1997 with a fixed rent as
Rs.42,569/- per annum.
Subsequently,the petitioner’s father-in-law created a Public Charitable
Trust in the name of ‘Manickam Pichai Ammal Education Rural Health Improvements
Charitable Trust’ by a deed of trust, dated 19.07.1997, and as such, a portion
of the land to an extent of 7.5 cents was being utilised for setting up of a
Training Centre to give free training to poor students in the field of computer,
tailoring etc.
Learned counsel for the petitioner further pointed out that one
C.Thirunavukkarasu, claiming to have purchased leasehold rights in respect of
the land in question from the erstwhile lessee-Navin Raj, filed a suit before
Civil Court in O.S. No.235 of 1996, which was dismissed on 27.10.1998, and also
preferred a writ petition before this court in W.P. No.8241 of 1997 with a
prayer not to permit the official respondents to lease out the property in
favour of Manicka Udayar or any other person, and the said petition came to be
dismissed by order dated 23.04.2004, observing that a lease granted in favour of
a lessee cannot be transferred to any other person as it would be opposed to the
conditions of lease particularly in a situation where the lessee himself was
dead and the rents were not paid and that, in the absence of right to claim any
title over the land, petitioner-Thirunavukkarasu cannot have any amenities over
the impugned order in granting the lease in favour of Manicka Udayar/present
petitioner’s father-in-law and another.
It is further submitted that though the petitioner’s father-in-law was
paying the lease amount as per the lease agreement without any default and, long
before expiry of the lease agreement, had also applied for extension of lease,
such application was not seriously considered by the respondents. While the
petitioner’s father-in-law was in possession of the land in question, he died on
02.09.2002. The petitioner, being one of the trustees of the public charitable
trust created over an extent of about 7.5 cents of land, in succession to his
father-in-law, was in continuous possession of the entire land in question.
Pending consideration of the application sent by the petitioner’s father-in-law
prior to his death for extension of land, the petitioner, having been put in
possession of the lease hold land as his successor, submitted a representation
to the 2nd respondent for renewal of lease in her favour stating that other
legal heirs of late Manicka Udayar gave a consent letter in an unequivocal
expression consenting for extension of lease in her favour.
It is also stated that the 4th respondent/DRO, Pudukottai, and the 3rd
respondent/District Collector recommended for renewal of lease in favour of the
petitioner and for fixation of rent. On examining the case of the petitioner,
the 2nd respondent/Special Commissioner also recommended for renewal of lease,
however, the first respondent, in an unjust manner passed G.O. Ms. No.328,
Revenue Department, dated 26.05.2005, extending the lease by way of
regularisation only upto the date of the Government Order and directing
resumption of land on the ground that the land in question is a nedungulam
poramboke (watercourse-tank poramboke) and there is a general prohibition for
grant of lease or assignment in respect of those lands which are classified as
tank proamboke.
By adverting to the above factual aspects, learned counsel submits that
the impugned Government Order is liable to be set aside since it singles out the
case of the petitioner, for, similar lands with same or similar classification
have been assigned and leased in favour of others for commercial ventures, but,
in the case of the petitioner, the first respondent specifically directed the
3rd respondent to resume the land immediately on the date of publication of the
Government Order and not to extend the lease any further. Even though the
petitioner did not commit any default and had promptly paid the lease amount,
she was not given an opportunity to put forth certain factual aspects noted in
the impugned order relating to payment of rent, etc.
It is further contended that for the past 40 years, the land in S.F.
No.40/2 was given on lease for commercial purpose and the Government was
continuously receiving rent at commercial rates; that being so, restoring the
classification of such land as watercourse (negungulam) poramboke is only an
apparent mistake and the resumption would only be a loss to the Government.
Therefore, the impugned Government Order is liable to be quashed as it is highly
arbitrary, unfair and unreasonable.
Ultimately, it is prayed that the respondents, who acted in an unfair and
unjust manner in utter violation to the principles of natural justice, may be
directed to relax the temporary ban or the general prohibition standing in the
way of assignment or extension of lease hold rights in favour of the petitioner
regarding the land in question, by quashing the impugned Government Order as
otherwise the petitioner, who is also doing public service by running a
charitable trust in a portion of the land, would be put to irreparable loss and
hardship.
3. Per contra, learned Government Advocate appearing for the
respondents/State submitted that the land in question measuring to an extent of
23 cents and classified as nedungulam poramboke (watercourse poramboke) was
originally leased out to one Navinraj, who committed default resulting in
cancellation of the lease granted in his favour, whereupon, the petitioner’s
father-in-law and one Rajendran, who applied for 20.5 cents of land and 1 cent
respectively, were given leasehold right fixing 14% of land revenue as lease
rent per annum, whereupon, one Thirunavukkarasu filed O.S. No.235 of 1996 before
District Munsif Court, Aranthangi, for permanent injunction on the ground that
he purchased the leasehold right from the erstwhile lessee Navin Raj, and the
said suit was dismissed by Judgment dated 27.10.1988. Subsequently, he filed
W.P. No.8241 of 1997 before this Court and the said petition was dismissed and
thereupon, the grant of lease in favour of petitioner’s father-in-law Manicka
Udayar and one Rajendran was upheld. After completing the lease period viz.,
three years, Manicka Udayar made a renewal application and in the meanwhile, he
died on 02.09.2002. Thereafter, the petitioner, who is the daughter-in-law of
lessee-Manicka Udayar, made a representation to the authorities, seeking renewal
of lease. The representation was duly considered and her case was recommended
for grant of lease. However, the Government, taking note of various crucial
aspects including a specific directive of the High Court issued in W.P. No.20186
of 2000 vide order dated 27.06.2005, to the State Government prescribing ban
regarding allotment and assignment of lands classified as watercourse and water
bodies, and also considering the fact that the land in question had already been
classified as a watercourse poramboke, declined to further extend the lease
period except till the date of issuance of the impugned G.O. on the ground that
every tank, pond, kuttai, vari, odai or any other water course proamboke
classified by the Settlement Authorities at the time of settlement of village is
absolutely necessary to protect the welfare of the people for maintaining the
water courses which are absolutely essential to recharge ground water levels.
Since any decision taken otherwise would run contrary to the directive issued in
the aforesaid Judgment of this Court, the Government could not positively
consider the claim of the petitioner and under such circumstances, the
petitioner cannot challenge the impugned Government Order passed in larger
interest of the public and therefore, the writ petition is liable to be
dismissed.
4. Considered the rival submissions advanced on either side. The issue
that arises for consideration is as to whether the respondents are justified in
rejecting the claim of the petitioner for extension of lease and ordering
resumption of land.
5. Admittedly, the land in question at S.F. No.40/2, Rethinakottai
Village, Aranthangi Taluk, Pudukottai District, leased out to the petitioner’s
father-in-law for an extent of 20.5 cents, is a classified watercourse
poramboke. Originally, the land in question with some more extent viz., 23
cents, was leased out to one Navin Raj for running a kerosene Depot and it is
stated that he was a chronic defaulter and after his demise, his Legal heirs did
not come forward to revive/renew the leasehold rights in their favour.
Subsequently, on the application made by the petitioner’s father-in-law and one
Rajendran, they were granted lease in respect of 20.5 cents and 1 cent
respectively, by virtue of G.O. Ms. No.287, dated 12.03.1997. One
Thirunavukkarasu, claiming to have purchased leasehold rights from the erstwhile
lessee Navin Raj, initiated civil proceedings in O.S. No. 235 of 1996 which came
to be dismissed by judgment dated 27.10.1998 and the writ petition filed by him
in W.P. No.8241 of 1997 challenging the grant of lease to the petitioner’s
father-in-law and Rajendran was also dismissed with the following observation:
” The only ground on which the petitioner seeks his claim over the land is the
purchase of the lease hold right by a unregistered sale deed. It cannot be
disputed that the lease granted in favour of the lessee cannot be transferred to
any other person, as it would be opposed to the condition of lease. Moreover,
after the demise of the lessee himself and the rents were also not paid, the
respondents-2 and 3 are entitled to resume the land as per the terms and
conditions of lease. A person is entitled to claim any right much less to any
lease hold right only on the ground that he has derived such a right from the
erstwhile lessee. As the claim would be contrary to the lease conditions, in the
absence of right to claim any title over the land, the petitioner cannot have
any amenities over the impugned order in granting the lease in favour of
respondents 2 and 3. ”
6. Now, the grievance of the petitioner is, even though an application for
extension of lease was made by her father-in-law long before expiry of the lease
period and, after his death in the year 2002, she herself, being successor to
the Trust created by him in a portion of the land in question and having been
granted consent letters from other legal heirs of her father-in-law for
extension of lease in her favour, made representation to the 2nd respondent,
without even affording an opportunity to her, the first respondent in an unfair
manner straight way ordered resumption by the impugned Government Order.
7. From a careful scrutiny of the impugned Government Order, this Court
finds that the first respondent, before proceeding to resume the land,
elaborately traversed into all relevant aspects including the status of the
land, the claim of the parties as well as the grievance/representation made in
that regard, and the said Authority, taking note of the fact that the land in
question is a watercourse poramboke and there is a general ban and prohibition
to deal with the same by way of grant of lease, assignment etc., ultimately
ordered for resumption of the land. In that context, as rightly pointed out, it
must also be borne in mind that maintenance of water bodies such as kuttai,
tank, vari, odai and any other water course poramboke, as such is absolutely
essential to protect and recharge ground water levels in the larger interest of
the public. Public interest is paramount and it always prevails over individual
and private interests and, viewing from such a longer perspective, this Court is
of the considered opinion that there was nothing wrong on the part of the
authority in passing the order of resumption, which is just and equitable. Even
otherwise, the petitioner does not derive any automatic right to claim extension
of lease, for, the authorities have to look into all essential facts and
circumstances even before proceeding to renew a licence or lease.
8. Another vital aspect is, the learned Government Advocate has brought to
the notice of this Court that the impugned G.O. came to be passed keeping in
mind the observations made by a division Bench of this Court while disposing of
W.P. No.20186 of 2000, by order dated 27.06.2005, on the aspect of maintenance
of water courses in the State. In this regard, it is relevant to quote below the
observations of the Division Bench in the nature of a directive to the State:-
” Inasmuch this writ petition has come before us by way of a public interest
litigation, we take this opportunity to direct the State Government to identify
all such natural water resources in different parts of the State and wherever
illegal encroachments are found, initiate appropriate steps in accordance with
the relevant provisions of law for restoring such natural water storage
resources which have been classified as such in the revenue records to its
original position so that the suffering of the people of the State due to water
shortage is ameliorated. ”
In terms of such specific direction issued to the State for strict
implementation, this court could infer that the authority has, in an endeavour
to implement the same, ordered resumption with a view to restore the original
position of the land in question as a water course in the larger interest of the
public to prevent water scarcity and recharge ground water levels in the area.
9. In support of his submission, learned counsel relied on the decisions
of the Apex Court reported in AIR 1993 SC 1601 (Food Corpn. of India v.
Kamadhenu Cattle Feed Industries), 1997 (7) SCC 592 (M.P. Oil Extraction vs.
State of M.P.) and 1995 (2) SCC 326 (U.P. Awas Evam Vikas Parishad v. Gyan Devi)
on the principle of ‘legitimate expectation’ and stated that, in a case of this
nature, failure to consider and give due weight to the legitimate expectation of
the petitioner would render the ultimate decision arbitrary. Reliance is also
placed on another Judgment of the Apex Court in Dwarkadas Marfatia and Sons v.
Bombay Port Trust (1989 (3) SCC 293) to highlight the principle that public
authorities as landlord are not expected to behave like private landlord and, in
particular, any authority covered under Article 12 cannot act arbitrarily even
in contractual matters and must act only to further public interest; and it is
submitted that, in the present case, the petitioner is treated as an unequal
while similarly placed persons are allowed to enjoy the benefit.
10. The above mentioned judgments are not related to either lease of land
or renewal of lease. Therefore, in the above circumstances, the case laws
relied on by the learned counsel for the petitioner, as cited supra, on the
point of legitimate expectation and arbitrary exercise of power are held to be
not applicable to the present case as they are distinguishable on facts. In the
present case, the Government being party to a public interest litigation before
the court, in implementation of the directives issued, took diligent steps in
restoring the water bodies/courses to their original position and the present
case being one such instance, this Court does not find any reason much less
valid reason to interfere with the impugned proceedings. Consequently, the Writ
Petition fails and it is dismissed as devoid of merits. Connected Miscellaneous
Petition is closed.
ji/rkm
To
1. The Secretary to Government,
Revenue Department, Fort St. George,
Chennai 600 009.
2. The Special Commissioner
& Commissioner of Land Administration,
Chepauk, Chennai 600 005.
3. The District Collector,
Pudukkottai .
4. The District Revenue Officer,
Pudukkottai.