IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2010 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.NOS.3306 & 6491 OF 2009 and connected miscellaneous petitions V.Palaniappan ... Petitioner in W.P.No.3306/2009 1.P.Perumayi 2.P.Sureetha 3.P.Kavitha ... Petitioners in W.P.No.6491/2009 Versus 1.The Government of Tamil Nadu Rep.by the Secretary to Government Revenue Department, Fort St. George, Chennai 600 009. 2.The District Revenue Officer, Salem, Salem District. 3.The Tahsildar, Sangagiri Taluk, Salem District. 4.The Assistant Executive Engineer/ O&M / Rural Tamil Nadu Electricity Board Sangagiri Rural, Sangagiri Post, Salem District. 5.The Assistant Engineer / O&M / Rural Tamil Nadu Electricity Board Sangagiri, Salem District. ... Respondents in
both WPs’
PRAYER: Writ petitions 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 of the first respondent in G.O.Ms.No.108, Revenue (Ni.Mu.7) Department dated 25.02.2008 and the consequential order of the second respondent in Na.Ka.No.29269/2007/K3 dated 27.01.2009 and quash the said orders.
For Petitioners : Mr.P.Rajendran For Respondents 1-3 : Mrs.Lita Srinivasan Government Advocate For Respondents 4&5 : Mr.J.Ravindran COMMON ORDER
The petitioner’s father in W.P.No.3306 of 2009 was assigned land in S.No.1/6, Iveli Village, Sangagiri Taluk, Salem District measuring 1.91 acres by the third respondent by way of assignment dated 30.06.1981. The petitioners’ father in W.P.No.6491 of 2009 was assigned land in S.No.1/6, Iveli Village, Sangagiri Taluk, Salem District measuring 0.57 acres by the third respondent by way of assignment dated 30.06.1981. It seems that the assignments were made after collecting necessary amounts from the assignees. Both the assignees are no more now. It is stated that the legal heirs of the assignees are in possession and enjoyment of the lands assigned to them.
2.While so, in the year 2007, the officials of the Tamil Nadu Electricity Board (shortly “TNEB”) interfered with the possession of the said lands and sought to enter into those lands.
3.In those circumstances, the petitioner in W.P.No.3306 of 2009 filed a suit in O.S.No.253 of 2007 before the District Munsif Court, Sankari, praying for permanent injunction restraining the officials of the TNEB from interfering with the possession and enjoyment of the land assigned to his father, as stated above.
4.The father of the petitioner in W.P.No.6491 of 2009 filed a suit in O.S.No.254 of 2007 before the District Munsif Court, Sankari, claiming identical relief as claimed in the suit in O.S.No.253 of 2007 against the officials of the TNEB. It is also stated that the suits were dismissed for non-prosecution in April 2010.
5.As the officials of the TNEB informed that the lands were to be acquired by the first respondent Government to hand over the same to the TNEB for the purpose of erecting sub-station, the petitioner in W.P.No.3306 of 2009 filed a writ petition in W.P.No.11001 of 2008 praying for a direction to the respondents to forbear the first respondent from acquiring the petitioner’s land without due process of law as the same was assigned to his father. All the respondents herein were the respondents in those writ petitions.
6.Likewise, writ petition in W.P.No.11678 of 2008 was filed by the father of the petitioners’ in W.P.No.6491 of 2009 claiming the same relief as claimed in the aforesaid W.P.No.11001 of 2008.
7.Both the writ petitions were disposed by a common order dated 20.08.2008. From the reading of the common order, it is seen that the Additional Government Pleader informed this Court that notices were issued to the petitioners calling them to explain as to why the assignments/pattas issued to them should not be cancelled. This Court held that the assignment / pattas granted to the petitioners have not been cancelled so far and that it was for the revenue authorities to proceed with the enquiry and to pass appropriate orders in accordance with law. This Court also held that until the pattas are cancelled in accordance with law, the petitioners shall not be dispossessed by the respondents. It is also recorded in the common order dated 20.08.2008 referred to above that the concerned lands were transferred by the Government to the TNEB for the purpose of erecting sub-station as submitted by the learned Additional Government Pleader.
8.In view of the aforesaid fact, the petitioners made application to the first respondent under the Right to Information Act, seeking the details of the order transferring their lands to the TNEB. Then they were furnished with the order in G.O.Ms.No.108 Revenue (Ni.Mu.7) Department, dated 25.02.2008 passed by the first respondent.
9.After the disposal of the aforesaid writ petitions on 20.08.2008 as referred to above, the second respondent herein issued a notice dated 19.12.2008 alleging that the petitioners contravened condition Nos.14, 15, 15A, 16 and 20 of the conditions of assignment and as there was violation of the conditions of assignment, it was proposed to cancel the assignment. Further, the petitioners were directed to submit their reply within 15 days form the date of receipt of the said notice.
10.The petitioners requested time up to 28.02.2009 to submit their reply. However, final order in e/f/29269/2007 nf3 dated 27.01.2009 was passed by the second respondent cancelling the assignments / pattas of lands.
11.Hence, the petitioners filed these writ petitions seeking to quash G.O.Ms.No.108, Revenue (Ni.Mu.7) Department dated 25.02.2008 of the first respondent and the consequential order of the second respondent in Na.Ka.No.29269/2007/K3 dated 27.01.2009.
12.Notice was ordered on 13.03.2009 in W.P.No.3306 of 2009 and the writ petition in W.P.No.6491 of 2009 was admitted on 16.04.2009. The respondents 1 to 3 have filed counter affidavit. The second respondent filed additional counter affidavit. The petitioner in W.P.No.3306 of 2009 filed rejoinder affidavit.
13.Heard Mr.P.Rajendran, learned counsel for the petitioner; Mrs.Lita Srinivasan, learned Government Advocate for the respondents 1 to 3 and Mr.J.Ravindran, learned counsel for the respondents 4 and 5.
14.The learned counsel for the petitioners submits that the entire action of the second respondent is mala fide as it was pre-determined to cancel the assignment. It is submitted that the very fact that the transfer of lands by the impugned Government Order took place prior to the cancellation of assignment would make it very clear the mala fides and therefore, both the impugned orders are bad and illegal. Further, it is submitted that transferring the lands in issue to the TNEB by the impugned G.O., before the cancellation of assignment is illegal.
15.On the other hand, the learned Government Advocate submits that the petitioners are not in possession of those lands and they failed to cultivate the land. She further submits that the very assignments could not be relied on the by the petitioners, since the same was not recorded in the revenue records. It is further submitted that since the petitioners approached the Civil Court by filing suits in O.S.Nos.253 and 254 of 2007, they could not come to this Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India.
16.I have considered the submissions made on either side and perused the materials available on record.
17.As rightly contended by the learned counsel for the petitioners, the impugned G.O.Ms.No.108 transferring the lands to the TNEB was passed by the first respondent without noticing the relevant fact that the concerned lands were assigned and pattas were issued to the fathers’ of the petitioners. The lands were assigned after collecting necessary charges as seen from the plaint filed in O.S.No.253 of 2007. Paragraphs III to IX of the same are extracted here-under:
“III.Plaintiff humbly submits that the property morefully described hereunder, herein after called the suit property, originally belonged to the Government. It is humbly submitted that the plaintiff’s father Velappa Gounder, son of Marappa Gounder was in actual physical possession and enjoyment of the suit property for more than 25 years, along with his family.
IV.It is humbly submitted that the plaintiff’s father had been actually cultivating the suit property in his own rights. Plaintiff humbly submits that considering the long possession and enjoyment of the suit property, the plaintiff’s father had applied for assignment of the suit property in his favour. A copy of the application of the plaintiff’s father is herewith produced for the kind perusal of this Hon’ble Court.
V.It is humbly submitted that on the basis of the said application, the Village Administrative Officer of Iyveli Village and Revenue Inspector had made a detailed enquiry. They had confirmed the actual physical possession and enjoyment of the suit property by the plaintiff’s father. On that basis the Tahsildar of Sankari had sent a report in Na.Ka.A.M.97/AM/90(A3) to the Deputy Collector of Sankari on 20-7-1980. It is humbly submitted that he had specifically mentioned that the suit property is not necessary for the public use and that there was no objection whatsoever from the general public or the Panchayat union Office.
VI.It is humbly submitted that the Tahsildar of Sankari had specifically mentioned that the plaintiff’s father had spent about Rs.3,500/- for levelling the suit property and has directed the plaintiff’s father to pay the necessary amounts for assigning the suit property in his favour. The said proceedings are herewith produced for the kind perusal of this Hon’ble Court.
VII.It is humbly submitted that on the basis of the said report, the Deputy Collector of Sankari had issued an order in Pa.Mu.11437/80 dated 25-7-1980 to receive the necessary amounts and assign the suit property in favour of the plaintiff’s father. Further, he has also directed the Tahsildar of Sankari to issue D-card Patta in favour of the plaintiff’s father and to effect necessary name transfer in the revenue records. A copy of the same is herewith produced for the kind perusal of this Hon’ble Court.
VIII.It is humbly submitted that on that basis, the plaintiff’s father had paid the necessary amounts for assignment of the suit property. The copies of the receipts for making payment are herewith produced for the kind perusal of this Hon’ble Court. It is humbly submitted that the plaintiff’s father had specifically paid the amounts for the purpose of sub-dividing the suit property for laying boundary stones and also for assigning the suit property and the trees therein.
IX.It is humbly submitted that after the above said payments, the Tahsildar of Sankari on 30-6-1981 had issued D-card patta in favour of the plaintiff’s father in respect of the suit property. A copy of the same is herewith produced for the kind perusal of this Hon’ble Court. It is humbly submitted that the plaintiff’s father had also accepted the same with the shown boundary. The acknowledgment is herewith produced for the kind perusal of this Hon’ble Court.”
The order of assignment is also enclosed in the typed set of papers and the very fact that the second respondent sought to cancel the assignment would itself make it clear that the lands were assigned to the petitioners and they are in possession and enjoyment of the same. Hence, the issuance of the impugned G.O. by transferring the lands by the Government to the TNEB, when the lands were assigned long back during 1980’s to the fathers’ of the petitioners, is on the face of it illegal. On finding that the lands were transferred by the first respondent to TNEB, when the assignments stood in the name of the petitioners’, they proceeded to cancel the assignments by issuing notice and passing the final order. It is like putting the cart before the horse. The very sequence of events itself makes it very clear that the action of the respondents lacks bona fide.
18.As rightly contended by the learned counsel for the petitioners, when the petitioners sought time up to 28.02.2009 to submit their explanation and to submit records, the impugned order dated 27.01.2009 was passed cancelling the assignments / pattas.
19.The show cause notice dated 19.12.2008 was served on the petitioners and the petitioners were directed to submit their reply within 15 days. The petitioners sought time up to 28.02.2009. If the concerned authority was of the opinion that they were not prepared to give time up to 28.02.2009, they should have intimated to the petitioners that their request is rejected. Admittedly, it is not done. But straight away the second respondent passed the impugned order cancelling the assignments. Thus, the impugned G.O., was passed in violation of the principles of natural justice.
20.In any event, I am of the view that since the very proceeding initiated to cancel the pattas itself is mala fide as they already transferred the concerned lands to the TNEB, the issuance of notice and hearing are all farce.
21.It is stated in the counter affidavit that the Iveli Panchayat passed a resolution on 29.06.2007 classifying the lands as Anatheenam Poramboke. Based on such resolution, the Government issued the impugned G.O. transferring the ownership to TNEB. I am surprising to note that when the lands were assigned long back in 1981 to the fathers’ of the petitioners’, the Panchayat passed a resolution stating that the lands were classified as Anatheenam Poramboke. It is for the Revenue Authorities to classify the category of lands and not for the Panchayat to say so.
22.The learned Government Advocate submits that they do not want to rely upon the counter affidavit and that is why they have filed the additional counter affidavit on the same day itself. The crux of the averment in the counter affidavit is that the petitioners did not comply with the conditions imposed for grant of assignment. Since I have come to the conclusion that the very proceeding was a pre-determined one so as to sustain / justify the issuance of the impugned G.O., the averments made in the counter affidavit does not merit consideration.
23.At this juncture, it is relevant to note the findings of this Court in the order dated 20.08.2008 passed in W.P.Nos.11001 and 11678 of 2008. Paragraph Nos.2 to 5 of the said order are extracted here-under:
“2.The learned Additional Government Pleader appearing for the respondents 1 to 4 would submit that already notices have been issued to the petitioners calling upon them to explain as to why the patta issued to them should not be cancelled and as a matter of fact, according to him, enquiry is in progress and final order is yet to be passed.
3.The learned Additional Government Pleader would further submit that the lands have been transferred to the Tamil Nadu Electricity Board for the purpose of erecting Sub Station.
4.I have considered the rival submissions.
5.Admittedly, pattas were issued to the petitioners in respect of their respective lands and the same have not been so far cancelled. It is for the Revenue authorities to proceed with the enquiry and pass appropriate orders in accordance with law. The petitioners are at liberty to make their objections before the authorities concerned in this regard. But without passing any final order and without adopting due process of law, the respondents cannot dispossess the petitioners from their lands.”
It was stated before this Court that as if notices were already issued to the petitioners calling upon to explain as to why the assignments could not be cancelled. But it is seen that notice was issued only on 19.12.2008 after the order of this Court dated 20.08.2008. Further, paras 2 and 3 of the aforesaid order make it very clear that the Government already transferred the lands before taking final decision on the cancellation of assignment even according to the stand taken before this Court during the earlier round of litigation.
24.Another objection of the learned Government Advocate also deserves to be rejected. That objection is that the petitioners approached the Civil Court by filing suits and that this Court could not invoke its jurisdiction under Article 226 of the Constitution of India. The learned Government Advocate states that the suits were dismissed in April 2010 for non-prosecution. The aforesaid suits were against the officials of the TNEB in the year 2007, since the petitioners were not aware why the officials of the TNEB sought to enter into their lands. Hence they filed those suits, which are admittedly for permanent injunction restraining the respondents TNEB officials from interfering in their peaceful possession and enjoyment of the lands. They were not aware of the impugned G.O. In fact, the impugned G.O. was subsequently passed in the year 2008. Even before passing the impugned G.O. it seems that the officials of the TNEB sought to take possession of those lands. In those circumstances, the petitioners approached the Civil Court by filing suits against the TNEB officials praying for permanent injunction restraining the TNEB officials from interfering with the possession and enjoyment of the lands. The suits were based on the assignments of lands in favour of the petitioners. Hence, the filing of suit could not be put against the petitioners when they have approached this Court by filing the present writ petitions to quash the impugned G.O. transferring the lands to TNEB and also the impugned orders cancelling the assignments.
25.For the aforestated reasons, the impugned orders are liable to be quashed and accordingly, the same are quashed.
26.In the normal course, in view of quashing the impugned orders, the petitioners could automatically continue to possess and enjoy the lands assigned to them. But in this case, though I quashed the impugned orders, I hereby permit the TNEB to proceed with the erection of sub-station work, as the erection of sub-station is for the public purpose and the public purpose would always prevail over the private interest. Further, it is not in dispute that the Government could acquire the lands in accordance with law and thereafter it could validly transfer to the TNEB for the purpose of erecting sub-station. The delay in acquisition process would definitely cause prejudice to the public purpose. Already three years delay have taken place in erecting sub-station. Hence, I hereby direct the first respondent to hold private negotiation with the petitioners and arrive at a settlement, within a period of two months from the date of receipt of a copy of this order. If no such settlement is arrived, the first respondent is directed to invoke its emergency powers under Section 17 of the Land Acquisition Act, 1894 to acquire those lands and also to pay compensation in accordance with the Land Acquisition Act.
27.The writ petitions are allowed on the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
TK
To
1.The Secretary to Government
Government of Tamil Nadu
Revenue Department,
Fort St. George, Chennai 600 009.
2.The District Revenue Officer,
Salem, Salem District.
3.The Tahsildar,
Sangagiri Taluk, Salem District.
4.The Assistant Executive Engineer/ O&M / Rural
Tamil Nadu Electricity Board
Sangagiri Rural, Sangagiri Post,
Salem District.
5.The Assistant Engineer / O&M / Rural
Tamil Nadu Electricity Board
Sangagiri,
Salem District