IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI Writ Appeal No.1399 of 2001 Ummal Sahida Ammal .. Appellant Vs. 1.The State of Tamilnadu rep. by Secretary to Government, Revenue Department, Fort St. George, Chennai-9. 2.The Assistant Settlement Officer, SE No.4, Thanjavur. 3.TheSettlement Officer, Thanjavur. .. Respondents Prayer: Writ Appeal is filed under Clause 15 of Letters Patent against the Order of the learned single Judge of this Court dated 11.06.1999 in W.P.No.11387 of 1991. For Appellants : Mr.K.Chandrasekaran For Respondent : Mr.M.Dhandapani Spl. Government Pleader. JUDGMENT
[Judgment of the Court was made by R.BANUMATHI,J]
This Writ Appeal arises out of the order of learned single Judge in W.P.No.11387 of 1991 whereby the learned single Judge declined to quash the Proceedings of the 3rd Respondent-Settlement Officer dated 26.08.1978 and dismissing the Writ Petition on the ground of laches.
2. Brief facts are that No.259, Kallivayalthottam village, Pattukottai taluk was notified and taken over on 16.1.1968 and ryotwari settlement was introduced in Fasli 1380 under Act 26/1963. Suit R.S.No.44/2 measuring an extent of 0.25 cents was ordered to be vested in the name of the Appellant under Sec.15(4) of the Act 26/1963 by the Settlement Tahsildar (SE), Thanjavur in his RP 479/IA/PKT/69 dated 31.3.1969. According to the remarks of the Field Staff in SPL Account, the suit R.S.No.44/2 was noted as ‘tank’ on ground. Then the Assistant Settlement Officer said to have inspected the land on 30.12.1970 and observed that it was ‘tank’ on ground in public use and transferred it as ‘tank poramboke’.
3. According to Sec.11 of Tamil Nadu Inam Estates (Abolition & Conversion into Ryotwari) Amended Act 2/1976, ryotwari patta granted in respect of any private tank or oorani under the Act shall stand cancelled. Since the suit land was noted as ‘tank’ in pursuance of Sec.11 of the Amended Act 2/1976 vesting of the site under Sec.15(4) of the Act was cancelled. By the Proceedings dated 22.1.1978 in Rc.No.929/1978 grant of Patta for R.S.No.44/2 in the private tank or Oorani was cancelled and the Assistant Settlement Officer ordered that the said tank or Oorani vest with the Government on and from the date of coming into force of the Amendment Act.
4. Challenging the said Proceedings dated 22.1.1978, Appellant filed Revision before the 3rd Respondent-Settlement Officer [SP:II], Thanjavur. Pointing out that Sec.11A of the Amended Act 2/76 attracts the suit land which was ‘tank’ on or before the notified date and therefore, according to the provisions of the Amended Act 2/1976, the order of Settlement Tahsildar stands cancelled and on those findings, upheld the order of Assistant Settlement Officer. 3rd Respondent further observed that subsequent conversion of the site into a building site cannot alter the classification of the land and statutory cancellation and the Assistant Settlement Officer’s order is only a notification of such a statutory cancellation.
5. Appellant had earlier filed W.P.No.5802 of 1983 for declaration that Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari Act) Amended Act 2/76 is void and unconstitutional. In the said Writ Petition, amendment was sought for to quash the Proceedings of the 3rd Respondent in SR.No.3/11A Revenue PKT 78 dated 26.08.1978. Later, the said W.P.No.5802/1983 was withdrawn. Thereafter, Appellant had filed W.P.No.11387/1991 seeking for Certiorarified Mandamus to quash the Proceedings of the 3rd Respondent in SR.No.3/11A Revenue PKT 78 dated 26.08.1978. Pointing out that nearly 13 years after the impugned Proceedings, the Appellant had come forward with the Writ Petition seeking to quash the same, the learned single Judge dismissed the Writ Petition mainly on the ground of laches.
6. Mr.Chandrasekaran, learned counsel for Appellant submitted that learned single Judge failed to note that earlier, Appellant had filed W.P.No.5802/1983 in which vires of the provision of Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari Act) Amended Act 2/76 was questioned and when the Appellant challenged the vires of the Amendment Act 2/1976, there was no necessity for the Appellant to question the impugned Proceedings separately. It was further submitted that patta was granted infavour of the Appellant as early as on 31.3.1969 and while so, exercising suo moto power, the same was cancelled on 22.1.1978 nearly 9 years after the grant of patta and the learned single Judge ought to have held that exercise of suo moto power was belated and unsustainable. It was further submitted that Appellant having purchased R.S.No.44/2 0.24 cents under document No.1590/1960 which was filed as Ex.P1 before the Settlement Officer, learned single Judge ought to have allowed Writ Petition quashing the impugned Proceedings dated 26.8.1978.
7. We have heard Mr.Dhandapani, learned Special Government Pleader appearing for the Respondents. Learned Special Government Pleader has submitted that even as per the statement of the husband of the Revision Petitioner, the suit land was shallow place where rain water gets stagnated during rainy season and invoking Sec.11-A of Amendment Act 2 of 1976, Settlement Tahsildar has rightly cancelled the patta. Learned Special Government Pleader further submitted that retrospective effect of Sec.11-A as per the Amendment Act 2 of 1976 has been upheld by this Court. Learned Special Government Pleader would further contend that the property sold under document No.1570/1960 does not relate to R.S.No.44/2.
8. We have considered the rival contentions and materials on record. We have also perused the records produced by the learned Special Government Pleader.
9. By the order dated 31.3.1969, the Settlement Tashildar has ordered that Appellant would be entitled for patta in respect of R.S.No.44/2 0.25 cents. By the same order, the Settlement Tahsildar held that Appellant would be entitled to patta in respect of R.S.No.44/1 1.08 acres [classified as dry pond] and R.S.No.44/3 0.11 cents [classified as cart]. We may usefully refer to the schedule of the said order of Special Tahsildar which reads as under:-
Schedule
Item No.
OS No.
R.S.No.
Extent
Descn.
Result
RP 479
44/1
44/2
0.25
Dry
Shall vest with Ummal Saitha Ammal under Sec.15(4)
RP 479
44/1 pt
44/1 pt
44/1
44/3
1.08
0.11
Dry pond
cart
Nobody is entitled to patta u/s.15(4)
10. Later invoking Sec.11-A as per the Amended Act 2 of 1976, the Settlement Tahsildar has cancelled grant of patta to R.S.No.44/2 0.10.9 Ares [0.25 cents]. 2nd Respondent has cancelled the patta mainly on the ground that grant of patta in respect of R.S.No.44/2 was relating to a private tank or oorani. 3rd Respondent-Settlement Officer confirmed the order of cancellation of patta observing that R.S.No.44/2 is a private oorani and therefore Sec.11-A as per the Amended Act 2 of 1976 is attracted since the land was private tank before the notified date and on those findings 3rd Respondent dismissed the Revision.
11. Sec.11-A inserted by Amendment Act 2 of 1976 which has got retrospective effect would be attracted is applicable only in case of private tank or oorani. Sec.11-A reads as under:-
“11-A. Ryotwari patta not to be granted in respect of private tank or oorani.- (1) Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or oorani.
(2) Any ryotwari patta granted in respect of any private tank or oorani under this Act before the date of the publication of the Tamil Nadu Inam Estates, Lease holds and Minor Inams (Abolition and Conversion into Ryotwari) Amendment Act, 1975, in the Tamil Nadu Government Gazette, shall stand cancelled, and for purposes of compensation under this Act, the private tank or oorani shall be deemed to be land in respect of which neither the landholder nor any other person is entitled to ryotwari patta under this Act.
12. Since the Revisional Authority has referred the statement of husband of the Appellant that water gets stagnated during rainy season, for clarification, we have called for the original File and the original File was produced before us. The original File contains updating survey scheme of No.259, Kallivayalthottam village of Pattukottai taluk. By perusal of “epythp jpl;l gjpntL@ in respect of Mallipattinam village, Kallivayalthottam, it is seen that R.S.No.44/2 has been originally classified as
VERNACULAR (TAMIL) PORTION DELETED
The relevant entry in the said File reads as under:-
VERNACULAR (TAMIL) PORTION DELETED
By perusal of original File, we have noted that R.S.No.44/1 has been classified as “nfhuf;Fl;il@/ R.S.No.44/2 is situated on the southern side and there is nothing to indicate that R.S.No.44/2 is a “private oorani” or “tank”. Upon consideration of records and the classification of R.S.No.44/2 as
VERNACULAR (TAMIL) PORTION DELETED
it is abundantly made clear that R.S.No.44/2 was not a private oorani or tank. When R.S.No.44/2 was not classified as private oorani or tank, 2nd Respondent was not justified in invoking Sec.11-A and suo moto cancelling the patta granted infavour of the Appellant. While considering the Revision, 3rd Respondent has not gone into the original classification of R.S.No.44/2 as
VERNACULAR (TAMIL) PORTION DELETED
While dealing with the Revision, 3rd Respondent proceeded under erroneous footing that R.S.No.44/2 has been classified as “private oorani” or “tank” and held that Sec.11-A is attracted. Since R.S.No.44/2 was not classified as “private oorani” or “tank”, the order of 3rd Respondent dated 22.01.1978 and the order of 2nd Respondent/Revisional Authority dated 26.08.1978 cannot be sustained.
13. Learned single Judge has not considered the matter on merits, but dismissed the Writ Petition mainly on the ground that Writ Petition is hit by latches. Learned single Judge did not keep in view that earlier, Appellant-Writ Petitioner had filed W.P.No.5802/1983 challenging the vires of the Amendment Act 2 of 1976 and the said W.P.No.5802/1983 came to be disposed only on 26.08.1991 and thereafter, Appellant has filed W.P.No.11387/1991. Appellant has been bonafidely pursuing the other Writ Petition in W.P.No.5802/1983. In such view of the matter, we do not think that the Writ Petition is hit by laches. The learned single Judge did not go into the merits of the matter and simply dismissed the Writ Petition merely on the ground of laches. For the foregoing reasons, the order of learned single Judge cannot be sustained and the is liable to be set aside.
14. In the result, the order of learned single Judge is set aside and the Writ Appeal is allowed. Resultantly, the order of 3rd Respondent in SR.No.3/11A.Rev./PKT/78 dated 26.8.1978 is quashed. In the circumstances of the case, there is no order as to costs.
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