IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12 .05.2010 C O R A M: THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.468 of 2002 1.State of Tamilnadu The District Collector, Chengai M.G.R. District, Kancheepuram. 2.The Sub Collector, Office of the Deputy Collector, Chengalpattu. ... Appellants / Respondents Vs Kannigammal ... Respondent / Claimant Prayer : Appeal filed under Section 54 of the Land Acquisition Act against the Judgment ad Decree of the learned Subordinate Judge of Maduranthagam in O.S.No.9/98 dated 28.02.2001. For Appellant : Mr.V.Ravi, Special Govt. Pleader (AS) For Respondent : Mr.V.Bhiman, for M/s.Sampathkumar Associates - - - - - J U D G M E N T
The Appellants/Defendants have preferred this Appeal as against the Judgment dated 28.02.2001 in O.S.No.9/98 passed by the Learned Subordinate Judge, Maduranthagam.
2. The learned Subordinate Judge, Maduranthagam in the original suit filed by the Respondent/Plaintiff in O.S.No.9/98 (O.S.No.35/95 on the file of Principal Judge, Chegalpattu) had passed a judgment on 28.02.2001 declaring the Respondent/Plaintiff’s right to the suit ‘A’ Schedule property viz. the land and also granted the relief of permanent injunction in respect of ‘C’ Schedule property of the suit and in regard to the ‘B’ Schedule property awarded a sum of Rs.1,50,000/- as compensation together with 30% solatium to be paid within one month and also awarded 12% interest per annum for the due amount till the date of payment.
3. Before the trial court, on the side of the Respondent/Plaintiff, witnesses P.W1 to 6 were examined and Exs.P1 to P15 were marked. On the side of the Appellants/Defendants, witness D.W1 was examined and Ex.C1 was marked.
4. The Learned Special Government Pleader (AS) submits that the trial court had committed an error in awarding the compensation amount to the Respondent/Plaintiff and also the trial court had not appreciated an important fact that the suit lands are poramboke lands over which the Respondent/Plaintiff has no manner of right whatsoever.
5. It is the further contention on the side of the Appellants/Defendants that the trial court had failed to note that the burden of Proof was on the Respondent/Plaintiff to prove the title and that Respondent/Plaintiff had purchased the property from an individual who has no manner of right over the suit property.
6. Added further, the assignment given to the vendor of the Respondent/Plaintiff was cancelled and the Government took over the lands, but these aspects of the matter were not taken into account by the trial court in real perspective.
7. That apart, even after assigning of the properties by the Appellants, the Respondent’s vendor or the Assignee had not cultivated the lands within the three years period specified and further not acted in consonance with the conditions prescribed in the Assignment Order.
8. In short, the contention of the Appellants/Defendants is that the Respondent/Plaintiff is not in actual possession and enjoyment of the suit property and more over the title of the suit property is vested with the Government and as such the Respondent/Plaintiff had no cause of action to file the present suit and therefore prays for allowing the present appeal in the interest of justice.
9. The points arise for determination in this appeal are –
(1)Whether the suit filed by the Respondent/Plaintiff is maintainable in law ?
(3)Whether the Respondent/Plaintiff is entitled to claim the relief of declaration of her title in respect of ‘A’ Schedule land ?
(5)Whether the Respondent/Plaintiff is entitled to claim the relief of permanent injunction in respect of ‘C’ Schedule land ?
(7)Whether the Appellants/Defendants are to be directed to pay a sum of Rs.6,00,500/- to the Respondent/Plaintiff as compensation in respect of ‘B’ Schedule lands acquired for Krishna Water Supply Project, Maduranthagam alongwith interest @ 12% and solatium @ 30% ?
Findings on Point No.1 :
10. The Learned Special Government Pleader (AS) submits that the ‘A’ Schedule properties mentioned in the plaint namely viz. Survey No.185/1B, 2 acres and 96 cents with well and Survey No.185/2, 2 acres and 4 cents, totalling in all, 5 acres was originally classified as Dry assessed waste (Government Poramboke) and it was assigned to one Kannigammal w/o Radhakrishnan with a condition that the lands assigned ought not to be alienated within a period of ten years and further the assigned lands must be brought under cultivation within a period of three years from the date of assignment, but the assignee Kannigammal violated the condition.
11. Continuing further, the learned Special Government Pleader (AS) for the appellant contents that Kannigammal had not cultivated the assigned lands and kept the same as a barren and sold these properties to Respondent/Plaintiff. Further, the fact remains that the Sub Collector, Chengalpet had cancelled the conditional patta issued to Kannigammal as per his proceedings in R.C.No.17284/79/E dated 03.12.1982 and the said properties were brought under the control of the Government and re-classified as “Dry assessed waste”.
12. The Learned Special Government Pleader (AS) brings to the notice of this Court that for the formation of High Level Water Channel, the Government acquired the land in Punnamai Village as per the Land Acquisition Act 1894 and that the Channel passes through Patta and Poromboke lands and only an extent of 20 cents out of 2 acres 96 cents in Survey No.185/1B was taken for the use of the High Level Water Channel.
13. The gist of the plea of the appellants/plaintiffs is that in as much as the Respondent/Plaintiff is not the owner of the suit schedule properties, she is not entitled to claim the reliefs prayed for in the plaint.
14. It is the evidence of P.W1 / respondent (plaintiff) that the suit schedule properties lands namely 5 acres of lands situated at Punnamai Village originally belong to Kannigammal which was given to the Government and that Kannigammal cultivated those lands and 20 years later she has sold those properties to her as per Ex.A1 sale deed dated 26.03.1980 and the assignment order issued by Tahsildar, Maduranthagam dated 16.11.1968 is Ex.P2 and the patta standing in her name is Ex.A3 dated 10.06.1982 and the Tax Receipts paid by her are Exs.P4 to P11.
15. It is the further evidence of P.W1 / Plaintiff that she had re-claimed the suit lands and also dug a well and through well water, she cultivated the lands with the help of an oil engine and in the centre of the properties lay a High Level Water Channel, and that the Government had not acquired the land but they laid the channel and the acquired portion was shown by her as ‘B’ Schedule in the plaint, for which she was not given any notice and also the compensation amount.
16. The Respondent/Plaintiff as P.W1 in her evidence also deposed that she gave notice Ex.A12 to the first Appellant/first Defendant and the acknowledgment is Ex.A13 and since the Government had utilised 1.50 Acres of land, the Appellants are to pay a compensation of Rs.4.50 lakhs and that in the village, the value of the suit land per cent in 1989 was Rs.3,000/-.
17. P.W1 / Plaintiff has in her evidence categorically stated that since the High Level Water Channel was of 15 feet height from one part of the land to the sand part of the land, one could not proceed and therefore she had claimed a compensation of Rs.20,000/- and also she had claimed a compensation of Rs.30,000/- for the rain water stagnation in the land because of which she could not cultivate any crop. She had also claimed a compensation of Rs.500/- for one palm tree and in all, she had claimed a compensation of Rs.6,00,500/- as compensation with subsequent interest, etc.
18. P.W1 / Plaintiff in her cross examination has stated that in Ex.A1 sale deed, it is mentioned that Patta No.174 stood in the name of Kannigammal and that she enjoyed the lands given to her for 12 years by cultivating Paddy and that she handed over patta to her. Further, she has also deposed that after purchasing the lands from Kannigammal, she raised paddy, maize, etc. and also after purchase, she dug a well in the fourth year and that she had also installed an oil Engine.
19. Significantly, P.W1 in her cross examination has specifically stated that as per Ex.A2, Assignment Order dated 16.11.1968 in favour of Kannigammal, she was aware of the Assignment condition, prior to her purchase before four years, that for three years cultivation has to be done and no sale should took place for a period of ten years but she was not aware of the cancellation of patta after the sale being effected in her favour.
20. It is the evidence of P.W2 that Kannigammal was given 5 acres of land by the Government by means of an Assignment order and later she sold the said property to Respondent/Plaintiff in the year 1980 and in the sale deed, Ex.A1 dated 26.03.1980, she signed as a witness and from the date of purchase made by Respondent/Plaintiff, she cultivated groundnuts, paddy for 15 years. Further more, it is the evidence of P.W2 that the Government has laid a High Level Water Channel in the midst of the land of the Respondent/Plaintiff which is in the direction of East to West and that the land is in the direction of South to North and that the land has been bifurcated and therefore for the suit land from one side to another human beings and chattels could not proceed.
21. P.W3 in his evidence has stated that in the suit lands, cultivation will be raised for three times and at a time when channel was formed, the value of a cent was Rs.3,000/- and that the High Level Water Channel breadth is 60 feet and height is of 20 feet.
22. P.W4 (Advocate Commissioner) in his evidence has stated that he had measured the lands in Survey No.185/2 and the said Survey Number was divided into 185/1B, 1B1, 1B2, 1B3 and in 1B2, the High Level Water Channel severs the suit item No.1 into two lands and the height of the High Level Water Channel is 20 feet and that the High Level Water Channel proceeds from West to East and from 1B1 land, water could not be lifted from well to the channel and from 1B1 land to 1B3 land, the chattels could not proceed and the total extent of the channel is 1 acre 6 cents and in the entire area of channel, sands were dumped and therefore the suit lands could not be utilised for agricultural purpose.
23. P.W5 in his evidence has stated that in Punnamai Village, in the year 1980, he sold an extent of 8> cents of land to one Kittappa Naicker for a sum of Rs.9,845/-, the value of one cent being Rs.1,125/- and the copy of the sale deed is marked as Ex.A15 dated 05.11.1990.
24. P.W6 (original assignee Kannigammal) in his evidence has stated that the suit property measuring an extent of 5 acres of land was assigned by the Government to her 30 years ago and that she cultivated Paddy, Maize, etc. and at the time of assigning, there was no well in the suit property and also that she had not dug a well and she continued to cultivate for 12 years period and later sold the said lands to the Respondent/Plaintiff for a sum of Rs.5,000/- and therefore the Respondent/Plaintiff is cultivating the lands and when she cultivated the lands at that time, there was no High Level Water Channel and that no notice was issued to her in regard to the cancellation of her patta.
25. D.W1 (Tahsildar, Cheyur) in his evidence has stated that from the date of assigning, Kannigammal had not visited the assigned lands and that she had not cultivated the said lands and that the assignment order in favour of P.W6 Kannigammal was already cancelled and therefore Kannigammal could not sell the assigned lands in favour of the Respondent/Plaintiff and since the suit property was a poromboke land, the Respondent/Plaintiff need not pay the compensation amount.
26. D.W1 in his cross examination has stated that the Respondent / Plaintiff has paid the kist receipts Exs.A4 and A5 and that he has not seen the suit property at any point of time and in the suit, first item is not aware as to whether there is a well and in two lands, no cultivation is raised in regard to the satisfaction whether notice has been issued to Respondent/Plaintiff prior to the cancellation of patta in her favour that could be made known only when she sees the said cancellation file, which has not been produced in the case.
27. The learned counsel for the Respondent/Plaintiff contends that the Respondent/Plaintiff from the date of the purchase of the suit lands from Kannigammal, she was in cultivation of the same and the patta transfer in her name and she paid kist and the entire lands of plaintiff measuring 5 acres mentioned in ‘A’ Schedule and 1.50 cents of land thereof was acquired by the appellants for the purpose of Krishna Water Supply Project Scheme as mentioned in ‘B’ Schedule of the plaint and no notice was given to the Respondent/Plaintiff in regard to the entire acquisition proceedings and equally no compensation was paid to her and therefore the plaintiff had laid the suit praying for the relief of declaration of title in respect of ‘A’ Schedule land, permanent injunction and compensation amount of Rs.6,00,500/- etc. and in fact the land of a citizen earlier assigned by the State to a citizen could not be converted into poromboke without any notice and proceedings and indeed the trial court had taken into account all aspects of the matter in entirety and passed the judgment in the suit in favour of the Respondent/Plaintiff, which need to be interfered with by this Court sitting in appeal.
28. At this juncture, the Learned counsel for the Respondent/Plaintiff Mr.V.Bhiman cites a decision reported in AIR 1987 GUJARAT 225 [Hiraben v. State of Gujarat and Others] wherein it is held as follows –
Where in a suit claiming right, title and interest in the suit land it was alleged that the State Government had acquired some portion of a survey number owned by the plaintiff and also encroached upon some portion of land from remaining land of that survey number which was not acquired, it was held that the ordinary Civil Court had jurisdiction to try the suit because the subject matter of the suit was not that portion of land which was acquired but was that portion of land which was alleged to be encroached and which was not the subject matter of the acquisition proceedings. (1907) 11 Cal WN 875 Foll. (1906) 10 Cal WN 991 and AIR 1971 SC 228, Disting.
He also relies on the decision reported in 1987 Vol.100, L.W. 698 [Periaswami and 4 Others] wherein it is held as follows –
The suit land having been acquired and taken possession of by the Government, there is no question of seeking any declaration. The plaintiffs land has been taken possession of by the Government and the plaintiffs have come forward with a claim for compensation. Here again, there is no question of seeking any declaration that the plaintiffs are entitled to claim compensation. The very prayer for compensation necessarily includes a finding as to whether the plaintiffs are entitled to the suit land. Only if the plaintiffs prove that the suit land belonged to them they will be entitled to compensation. The finding of the learned Subordinate Judge that the plaintiff must have separately asked for a declaration of their right to claim compensation is clearly untenable.
Further, in the aforesaid decision, at Para 10, it is laid down as follows –
It is clear that the first plaintiff had purchased the suit land and had been in possession and enjoyment thereof ever since till a portion of the survey number had been taken possession of by the Government for the formation of the by-pass road. It is futile on the part of the Government to contend that this land is a “Poramboke” land or that it has been described as “Poramboke” land in the Fair Land Register. The documents produced into the Court and the testimony of D.W.1 establish beyond doubt that the suit land is the private property of the plaintiffs and that, therefore, they are entitled to compensation for the land taken over by the Government for laying the by-pass road.”
The Learned counsel for the Respondent / Plaintiff invites the attention of this Court to the Hon’ble Supreme Court decision reported in 2008 2 L.W. 497 [Gurunath Manohar Pavaskar & Others v. Nagesh Siddappa Navalgund & Others] wherein it is held that –
A revenue record is not a document of title and it merely raises a presumption in regard to possession and the presumption of possession of continuity thereof both backward or forward can be raised under Section 110 of the Indian Evidence Act.
29. In the instant case on hand, the fact that the suit lands were originally assigned to Kannigammal as per Ex.A2, Assignment Order of the Government dated 16.11.1968 is not in dispute. Also the Respondent/Plaintiff had purchased the lands from Kannigammal as per Ex.A1 sale deed dated 26.03.1980 is admitted between the parties to the present proceedings before this Court.
30. It has to be borne in mind that the Land Acquisition Act has created a special jurisdiction and provided a special remedy for persons affected with anything done in the exercise of that jurisdiction. The well established principle is that when a jurisdiction has been conferred upon a special court for investigation of particular matters, such jurisdiction is exclusive.
31. This Court pertinently point out the decision reported in AIR 1922 Calcutta 4 [ Saibesh Chandra Sarkar v. Bijoy Chand] wherein it is observed as follows –
The Land Acquisition Act creates a special jurisdiction and provides a special remedy. It would not be reasonable to hold that the Legislature having provided a special remedy in the Land Acquisition Act intended to make it optional with a party to apply for a reference under S 18 or to institute a suit in the ordinary Civil Court.
A person having been served with a notice under S.9 was bound to apply for reference under S.18 when he was dissatisfied with the award. He cannot maintain a suit in the ordinary Civil Court.
32. In this connection, it is not out of place for this Court to make a relevant mention that when a power has been conferred in an unambiguous language by a statute, then the Court of Law cannot interfere with its exercise and substitute its own discretion for that of persons or bodies selected by the jurisdiction for that purpose as per decision reported in (1876) 4 Ch.d 735 [Attorney General Vs. Great Western Railway Company] .
33. This Court recalls the decision reported in 2000 (3) MLJ Madras [State of Tamilnadu V. Rajamanickam] wherein it is held that “Civil Courts cannot declare that the acquisition proceedings are void.
34. When an individual’s property is being acquired by resorting to coercive procedure, then each of the condition of the condition precedent for acquisition by the Government has to be strictly complied with. Also when the law requires that a notice has to be served upon the claimant, then such a procedure must be followed and the notice must be received by a claimant in a documentary form, in the considered opinion of this Court.
35. In the Standing Order of the Board of Revenue (Land Revenue, Settlement and Miscellaneous) Volume I, Chapter 1, Standing Order 41 speaks of reservation of land for assignment to Scheduled Castes Powers
and as Sub Rule (1) refers to the power of Revenue Divisional Officers to set apart land.
36. Standing Order 41 (4) (i) enjoins as follows –
4(i) Restrictions to be imposed on alienation.-Assignments whether of ordinary land or of valuable land in these areas, will be subject to the condition that the land shall not be alienated to any person (whether a member of the scheduled castes or not) in any manner before the expiry of ten years from the date of the grant not even thereafter, except to other members of these castes. However, in cases where the assignees offer to give such conditionally assigned lands to Gramdan Sarvodaya Cooperative Societies within 10 years from the date of assignment or even thereafter, the Tamil Nadu State Bhoodan Yagna Board is permitted to accept such gift of lands. The Collectors of the districts concerned are authorised to relax the conditions of assignment of lands on receipt of a joint request from the Bhoodan Board and the donor.
37. Also Standing Order 41 (4) Sub Rule (iii) refers to the power of the Government to re-enter and take possession of the land in
case of violation of conditions and the same is extracted below –
Power to re-enter in case of violation of conditions.- If the condition of non alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after the ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the Government revenue on the dates prescribed, the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money.
38. In this connection, it is not out of place for this Court to point out the decision of this Court in 9IC 341 [The Deputy Collector, Calicut Vs. Ayyavu Pillai] wherein it is held that “where the Government’s claim to the land was disputed by the private party, holding that such a case the Collector (and the reference court) should determine whether he was a claimant by him or was entitled only to a limited interest”.
39. A perusal of Ex.A2 , assignment order dated 16.11.1968 issued in favour of Kannigammal by the Tahsildar, Maduranthagam shows that the assignment lands ought not to be alienated within a period of 20 years from the date of assignment and the same must be brought under cultivation within a period of 3 years from the date of assignment. However, after verification and enquiry, the Sub Collector, Chengalpet had cancelled the conditional patta issued to Kannigammal as per his proceedings in R.C.No.17284/79/E dated 03.12.1982.
40. Interestingly, the sale deed in favour of Respondent/Plaintiff is dated 26.02.1980 marked as Ex.A1 before the trial court. Nearly, after a lapse of 14 years 1 month and 3 days, the Assignment order in favour of Kannigammal, Ex.A2 dated 16.11.1968 was cancelled by the Sub Collector, Chengalpet on 03.12.1982 in his proceedings R.C.No.17284/79/E dated 03.12.1982. According to the Appellants/Defendants, these properties were brought under the ambit of the Government and was re-classified as “Dry assessed waste”, even though the cancellation of conditional patta issued to Respondent/Plaintiff predecessor Kannigammal was after a period of 10 years mentioned in Ex.A2, assignment order dated 16.11.1968.
41. Standing Order 41 (4) (iii) of the Standing Orders of Board of Revenue clearly spells out that if the condition on non-alienation is violated or if the lands ceases to be owned by the Assignee or his Legal Heirs (after a period of 10 years), other members of their clause, owing to sale by process of law or otherwise, etc., the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money and as such, it is quite evident that the power of the Government to re-enter the land in case of violation of conditions specified in the assignment order is unfettered in the considered opinion of this Court.
42. As a logical corollary, when the Sub Collector, Chengalpet had cancelled the conditional patta issued to Kannigammal as per his proceedings dated 03.12.1982, then the land once again vests with the Government and the title also passes to the Government. In as much as the Respondent/Plaintiff is only a subsequent purchaser from the original Assignee namely Kannigammal (who has no marketable title), she has no right to file the present suit because of the simple fact that after vesting of the property with the Government, after cancellation of patta, Respondent/Plaintiff cannot be called as the owner of the schedule mentioned property. Moreover, by virtue of sale deed Ex.A1 dated 26.03.1980, no Title passes to the Respondent/Plaintiff in the considered opinion of this Court. Therefore, the suit filed by the Plaintiff praying for the relief of declaration of a title to suit ‘A’ Schedule land, permanent injunction and compensation of Rs.6,00,500/- for the ‘B’ Schedule lands, etc. is not maintainable in the eye of law and the point is answered against the Respondent/Plaintiff and in favour of the Appellants/Defendants.
Point Nos. 2 to 4 :-
43. Since this Court has held for Point No.1 that the suit is not maintainable in the eye of law, the Respondent/Plaintiff is not entitled to –
[a] the relief of declaration of her title in respect of A Schedule land
[b] permanent injunction in respect of C Schedule land and
[c] compensation of Rs.6,00,500/- in respect of B Schedule lands with 12% interest and solatium of 30%
and the point Nos.2 to 4 are answered accordingly.
44. In the result, the Appeal Suit is allowed. The Judgment and Decree dated 28.02.2001 passed by the trial court in O.S.No.9/98 are set aside. The suit in O.S.No.9/98 on the file of the Sub Judge, Chengalpattu is dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in this Appeal.
.05.2010 Internet : Yes / No Index : Yes / No rgr To 1.The Subordinate Judge Maduranthagam 2.The State of Tamilnadu The District Collector, Chengai M.G.R. District, Kancheepuram. 3.The Sub Collector, Office of the Deputy Collector, Chengalpattu. M.VENUGOPAL, J. rgr PRE-DELIVERY JUDGMENT IN A.S.No.468 of 2002 12.05.2010