BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/08/2009 CORAM THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM Writ Petition No.6689 of 2008 and M.P.(MD)Nos.2 to 3 of 2008 and W.P.(MD)No.3592 of 2009 and M.P.(MD)Nos.1 to 3 of 2009 and Contempt Petition (MD)Nos.557 & 558 of 2009 Sree Krishnaswamy Temple, Kalingarajapuram, Kanchampuram Taluk, Kanyakumari District Rep. by its Manager, Pushkaran ... Petitioner in W.P.(MD)No.6689/2008 & Cont.P(MD)No.557 & 558 of 2008 R.Vasantha ... Petitioner in W.P(MD)No.3592 of 2009 Vs 1.The District Collector, Kanyakumari District. 2.The Revenue Divisional Officer, Padmanabhapuram, Thuckalay, Kanyakumari District. 3.The Tahsildar, Vilavancode Taluk, Kuzhithurai, Kanyakumari District. ... Respondents in both W.Ps.
4.Dilly
5.Renuka
6.Vasantha
7.Ratha
8.Sinthamani
9.Murugan
10.Suresh
11.Rajakumar
12.Vijayakumar
13.Rengan
14.Satheesh
15.N.Venu … 4th Respondent in W.P.(MD)No.3592/2008
16.M.Devadoss
17.Justin Abraham
Zonal Deputy Tahsildar,
Vilavancode Taluk,
Kanyakumari District
18.G.P.Anil Kumar,
Revenue Inspector,
Pinekulam Firka,
Vilavankode Taluk,
Kanyakumari District.
19.Mrs.Sarojini Bai,
Village Administrative Officer,
Eludesam Village,
Vilavancode Taluk,
Kanyakumari District.
20.A.Jeyasubramanian,
Inspector of Police,
Kollamcode in charge of
Nithiravilai Police Station.
… Respondents in W.P.No.6689/2008 and
Cont.P.Nos.557 & 558/2008
Prayer in W.P(MD)No.6689/2008
Petition filed under Article 226 of the
Constitution of India, praying for the issuance of Writ of Certiorari, to call
for the records relating to the proceedings No.A2/16136/2003 dated 15.07.2008 on
the file of the 3rd respondent and quash the same.
Prayer in W.P(MD)No.3592/2009
Petition filed under Article 226 of the
Constitution of India, praying for the issuance of Writ of Certiorari, to call
for the records relating to the impugned order dated 17.04.2009 in
Ref.No.M2/6295/2009 issued insofar as the petitioner is concerned by the first
respondent and quash the same.
Prayer in Cont.P(MD)No.557/2008
Petition filed under Section 11 of Contempt
Act, 1971, to punish the respondents for wilful disobedience of the order passed
by the Court in M.P.No.2 of 2008 in W.P.No.6689 of 2008 dated 29.07.2008.
Prayer in Cont.P(MD)No.558/2008
Petition filed under Section 11 of Contempt
Act, 1971, to punish the respondents for wilful disobedience of the order passed
by the Court in M.P.Nos.1 & 2 of 2008 in W.P.No.9333 of 2008 dated 07.11.2008.
!For Petitioner ... Mr.G.R.Swaminathan (W.P.No.3592/2008 and Respondents 4 to 14 in W.P.No.6689/2008) For Petitioner ... Mr.M.P.Senthil for (In W.P.No.6689/2008 & Mr.K.Srinivasan Cont.P.Nos.557 &558 /2008 ^For 4th Respondent ... Mr.S.Chellapandian (In W.P.No.3592/2009) For Respondents 1-3 ... Mr.Pala.Ramasamy, (In both W.Ps.) Special Government Pleader. :COMMON ORDER
By consent, the writ petitions are taken up for final disposal. Since the
issue involved in these writ petitions and contempt petitions relate to the same
property, the matters are taken up together for disposal.
2.The writ petition in W.P.(MD)No.6689 of 2008 has been filed by Sree
Krishnaswamy Temple, Kalingarajapuram, represented by its Manager Pushkaran
to quash the order passed by the third respondent, dated 15.07.2008.
3.The Writ petition in W.P.(MD)No.3592 of 2009 has been filed by one
R.Vasantha, W/o.Raju for issue of Writ of Certiorari to quash the order dated
17.04.2009 passed by the first respondent.
4.The contempt petition in Cont.P.No.557 of 2008 has been filed for the
disobedience of the order made in M.P.No.2 of 2008 in W.P.No.6689 of 2008, dated
29.07.2008.
5.The Contempt petition in Cont.P.No. 558 of 2008 has been filed for the
disobedience of the order, dated 07.11.2008, made in M.P.Nos.1 and 2 of 2008 in
W.P.No.9333 of 2008.
6.The controversy involved in these matters relate to grant of house site
patta in respect of a property situated in Eludesam village, Kanyakumari
District. The survey number of the property in question is not referred to at
this stage, since it is the subject matter of the controversy.
7.The dispute has arisen on account of a correction effected in the survey
number of the property which is said to be allotted in favour of the
beneficiaries. The impugned order in W.P.(MD)No.6689 of 2008 is an order passed
by the Tahsildar effecting the correction in the survey number in respect of
the house site pattas granted to the respondents 4 to 14 as S.No.329/14-29 to
S.No.329/14-21 and such correction having been made by taking into consideration
the direction issued by this Court in W.P.No.9952 of 2005, dated 14.12.2007.
8.The case of the petitioner is that the petitioner temple purchased the
property comprised in S.No.329/14/21 by sale deed dated 13.10.2003 and that the
temple is a private temple and the request made by the temple for grant of patta
was rejected on the ground that the land is a Government poramboke land.
Therefore, the temple filed a suit in O.S.No.175 of 2003 on the file of the Sub
Court, Kuzhithurai for a declaration and injunction. The District Collector who
was one of the defendants resisted the suit stating that one Rajammal was
originally assigned a house site patta No.148/73 and the same was cancelled by
order dated 16.12.1975 and the land was resumed by the Government. Since the
condition of assignment was violated, the patta was cancelled and the land in
R.S.No.329/14/21 was classified as ‘Harijan Kudiyiruppu’. Since the revenue
authorities were taking steps to assign the lands, the temple filed a writ
petition in W.P.No.3677 of 2003 and this Court by an order dated 20.04.2004
disposed of the writ petition by granting liberty to the respondents to take
action after following due process of law and not to evict the petitioner, if
not already evicted. In the meantime, a patta was granted in favour of the
respondents 4 to 14 on 06.08.2003 by mentioning Survey number of the property as
S.No.329/14/29.
9.Since in the writ petition filed by the petitioner a direction was
issued to initiate action after following due process of law, a notice under
Section 10 of the Tamil Nadu Land Encroachment Act was issued, on which orders
came to be passed and when the appeal was pending, there was a threat of
demolition which necessitated the petitioner to file a writ petition in
W.P.No.5595 of 2005 and an order was passed on 28.06.2005 directing to dispose
of the appeal petition and in the meantime, not to take coercive steps to evict
the petitioner. However, it is stated by the petitioner that on the next day
i.e., on 29.06.2005 demolition was carried out.
10.The respondents 4 to 14 who are beneficiaries/assignees filed a writ
petition in W.P.No.9952/2005 to correct the survey number in the patta issued to
them as R.S.No.329/14/21 instead of R.S.No.329/14/29. The petitioner’s complaint
is that the temple was not impleaded as a respondent in W.P.No.9952 of 2005.
Therefore, the petitioner filed an impleading petition which came to be ordered.
Subsequently, the writ petition was disposed of with a direction to consider the
request of the respondents 4 to 14 and liberty was granted to the petitioner
temple to move the Civil Court and it was specifically stated that the order
passed in the writ petition shall not constitute an embargo. In the suit which
had been already filed by the petitioner in O.S.No.175/2003, the petitioner had
filed an application for interim injunction in I.A.No.16/2008 wherein it is
stated that the District Collector who was arrayed as one of the
respondents/defendants, had filed a counter affidavit contending that the
respondents 4 to 14 are not landless poor. At this juncture, the impugned order
effecting the correction in the survey number came to be passed which is
challenged in this writ petition in W.P.(MD)No.6689 of 2008. The petitioner has
challenged the said order on the ground of violation of principles of natural
justice, that when a civil suit is pending, the respondents ought not to have
effected the correction especially, in the light of the counter affidavit filed
by the District Collector in I.A.No.16 of 2008 in O.S.No.175 of 2003, wherein it
has been stated that the respondents 4 to 14 are not landless poor. It is
further necessitated by the petitioner that the impugned order has been passed
misconstruing the direction issued by this Court in W.P.No.9952 of 2005 and
accordingly, prayed for allowing the writ petition.
11.R.Vasantha, W/o.Raju has filed a writ petition in W.P.(MD)No.3592 of
2009 to quash the order dated 17.04.2009 passed by the District Revenue Officer,
insofar as the petitioner is concerned. The petitioner Vasantha is the 6th
respondent in W.P.No.6689 of 2008 but her name mentioned as Vasantha,
D/o.Lakshmi. By the order dated 17.04.2009, the District Revenue Officer has
directed cancellation of patta granted in favour of the petitioner and others
who are named in the impugned order on the ground that enquiry it came to light
that they are not landless poor, as such they are not eligible to the said
benefit.
12.The case of the petitioner is that on 06.08.2003, patta was granted to
an extent of 2.50 cents mentioning the Survey number as R.S.No.329/14/21. The
petitioner and others filed W.P.No.3131 of 2004 when the Manager of the Temple,
Mr.Pushkaran attempted to trespass into the property. It is further stated that
on 20.06.2005 the said Pushkaran was evicted. Thereafter, the petitioner and
others found that the survey number of the property has been wrongly mentioned
and therefore, they were constrained to file W.P.No.9952 of 2005 to correct the
survey no as 329/14/21 instead of 329/14/29 and a direction was issued on
14.12.2007 to consider their request. Subsequently, correction has been
effected on 15.07.2008 and this order impugned in the other writ petition in
W.P.No.6689 of 2008. It is further stated that interim stay was granted in
W.P.No.6689 of 2008 and contempt was also filed for disobedience and petition
for vacating the stay has also been filed. The petitioner would further submit
that she occupied the premises for which patta has been granted in her favour.
Further, the petitioner and others have filed O.S.No.140 of 2009 on the file of
the Principal District Munsif, Kuzhithurai against the said Pushkaran and
interim injunction has also been granted. It is further stated that one of the
close friend of Pushkaran who has been impleaded as fourth respondent in
W.P.No.3592 of 2009, filed a writ petition in W.P.No.683 of 2009 for considering
the request for grant of patta in respect of the same property. On 28.01.2009,
a direction issued by this Court to consider the representation dated 04.12.2008
made by the fourth respondent, viz., N.Venu. The first respondent, thereafter,
issued notice on 03.04.2009 to the petitioner and she also appeared before the
first respondent and thereafter, the impugned order dated 17.04.2009 has been
passed directing the second respondent to cancel the patta issued in favour of
the petitioner on the ground that she and others are not landless poor. Hence,
the petitioner has filed the above writ petition in W.P.No.3592 of 2009, to
quash the said order. It is further stated that the impugned order is in
violation of the principles of natural justice, since no show cause notice was
issued and on merits also would state that she is not the wife of any other
allottee and the first respondent ought to have waited for the outcome of the
W.P.No.6689 of 2008 and ought not to have resorted to passing of the impugned
order. The petitioner further made certain allegations which are not necessary
to be considered at this stage.
13.Heard Mr.M.P.Senthil, learned counsel for the petitioner in W.P.No.6689
of 2008 and Mr.G.R.Swaminathan, learned counsel for the petitioner in
W.P.No.3592 of 2009 and respondents 4 to 14 in W.P.No.6689 of 2008,
Mr.S.Chellapandian, learned counsel for the fourth respondent and
Mr.Pala.Ramasamy, learned Special Government Pleader, for the respondents 1 to 3
in both the writ petitions.
14.A scramble for a Government property has resulted in the present
litigation. Government have evolved a scheme of granting free pattas to
alleviate the grievances of landless poor. The object of the Government behind
the said scheme is to alleviate such of those landless poor from the pangs of
poverty and to ensure them to a decent living. This laudable object has been
abused which has resulted in various disputes between the parties herein thereby
defeating the very purpose of the scheme and the grant.
15.The facts which have arisen to the filing of the writ petitions and the
contentions raised by either party have been set out in the preceding paragraphs
and therefore, they need not be repeated once again at this stage.
16.The Writ petition in W.P.No.9952 of 2005 which came to be filed by
Dilli and 10 others for issue of Writ of Mandamus to direct the Revenue
Divisional Officer to correct the patta issued in their favour by incorporating
the survey No.329/14/21 instead of S.No.329/14/29.
17.The rival claimant to the property who is the petitioner in W.P.No.6689
of 2008 was not impleaded as party and it is seen that he has filed a petition
in M.P.No.1 of 2006 to implead himself in W.P.No.9952 of 2005 and the same came
to be ordered by this Court on 22.08.2006. This Court by an order dated
14.12.2007 passed final orders in the above writ petition and issued a direction
to consider the request made by the said Dilli and 10 others. After issuing such
a direction, this Court made it clear that the Civil Court is the competent
Court to decide the title over a particular property and it was further made
clear that order of this Court need not be taken as one giving any finding on
the title in favour of the Government or the third respondent over the said
S.No.329/14/21 and that the Civil Court is at liberty to decide on it as per
law. Ultimately, while issuing such direction to the respondents to consider the
request made by the petitioners therein, for correction of the Survey Number,
the third respondent therein was directed to move the Civil Court for obtaining
appropriate orders and the order passed in the writ petition will not be
construed as an embargo in the venture of the third respondent to get
appropriate orders as per law. This order made in W.P.No.9952 of 2005 has become
final.
18.It is the case of the writ petitioner that the impugned order in
W.P.No.6689 of 2008, dated 15.07.2008 has been passed misconstruing the
direction issued in W.P.No.9952 of 2005. I am inclined to agree with the learned
counsel for the petitioner because this Court only issued a direction to
consider the request in accordance with law and did not issue a positive
direction to correct the survey number. It is incumbent upon the appropriate
authority to examine such request on merits and in accordance with law and
cannot pass an order as if there is a positive direction by this Court to effect
correction of survey number. Therefore, the scope of the direction has been
misconstrued by the Tahsildar, Kuzhithurai while passing the order dated
15.07.2008. However, this issue need not be further dealt with in the matter in
view of the following facts:
Admittedly, a civil suit filed by the temple in O.S.No.173 of 2003 is
pending on the file of the Sub Court, Kuzhithurai and I.A.No.16 of 2008 seeking
for interim injunction is also pending and a counter affidavit has been filed in
the said interim application by the District Collector, Kanyakumari District
stating that the Dilli and 10 others are not landless poor to receive the house
site pattas and they are not Harizans and they are not eligible to get patta
since the land classified as ‘Harijan Kudieruppu’. It is stated across the bar
that the said Dilli and 10 others have also impleded themselves in O.S.No.175 of
2003. Further, the Dilli and 10 others have also filed a suit in O.S.No.140/09
on the file of the Principal District Munsif, Kuzhithurai and the temple
represented by its Manager Pushkaran has also impleaded himself in the said suit
and the matter is also pending. As held by this Court in the earlier writ
petition, the Civil Court is the ultimate court in which the title has to be
decided. The revenue officials cannot give a decision as regards the title and
the decree of the Civil Court as regards the title is binding upon the revenue
officials. In such circumstances, since the petitioner temple has already been
relegated to approach the Civil Court to establish their right over the property
that such an order cannot be varied or modified at this stage of the matter.
19.Therefore, considering the rival claims between the parties and the
facts and circumstances of the case stated above, I propose to issue the
following directions:
“i)The impugned order in both the writ petitions shall be kept in abeyance
and no right could flow pursuant to such orders until the competent civil court
decides the question of title.
ii)Either party cannot create any encumbrance on the disputed property.
iii)All the parties shall abide by the decision which shall be rendered by
the Civil Court in the pending suits.
iv)It is not in dispute that O.S.No.175 of 2003 pending on the file of the
Sub Court, Kuzhithurai and O.S.No.140 of 2009 pending on the file of the
Principal District Munsif, Kuzhithurai, relate to the same property. Therefore,
in the interest of justice, in order to give an early resolution to the problem
to both the suits are required to be clubbed and heard together.
20.The Hon’ble Supreme Court in Surya Dev Rai Vs.Ram Chander Rai and
others reported 2003 (3) MLJ 60, while construing the power under Articles 226
and 227 of the Constitution of India and held that proceedings under Article 226
are in exercise of the original jurisdiction of the High Court while
proceedings under Article 227 of the Constitution of India are not original
but only supervisory. Though the power is akin to that of an ordinary Court of
appeal, yet the power under Article 227 of the Constitution of India is
intended to be used sparingly and only in appropriate cases for the purpose of
keeping the subordinate Courts and tribunals within the bounds of their
authority and not for correcting mere errors.
21.Therefore, in exercise of such power, I deem it appropriate that both
the suits in O.S.No.175 of 2003 and O.S.No.140 of 2009 are to be tried together
and therefore, there shall be a direction to the effect that O.S.No.140 of 2009
which is now pending on the file of the Principal District Munsif, Kuzhithurai
shall be transferred and tried along with O.S.No.175 of 2003 which is pending on
the file of the Sub Court, Kuzhithurai. The learned trial Judge is requested
to expedite the trial of both the suits and conclude the proceedings within a
period of six months from the date of receipt of a copy of this order. It is
needless to state that the parties in the present writ petitions have agreed to
co-operate with the trial of both the suits.
22.The writ petitions are disposed of to the extent indicated above. No
costs. Consequently, connected miscellaneous petitions are closed.
23.In view of the orders passed in the above writ petitions, no separate
orders are necessary in the contempt petitions and accordingly, the contempt
petitions are closed.
sms
To
1.The District Collector,
Kanyakumari District.
2.The Revenue Divisional Officer,
Padmanabhapuram,
Thuckalay,
Kanyakumari District.
3.The Tahsildar,
Vilavancode Taluk,
Kuzhithurai,
Kanyakumari District.