IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/12/2004
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU
W.A.No.977 of 1998
Vengaivasal Village Panchayat
by its President .. Appellant
-Vs-
1. The State of Tamilnadu
by its Secretary to the
Revenue Department
Fort St.George
Chennai 600 009.
2. The Commissioner of Land
Administration, Ezhilagam
Chepauk, Chennai-600 005.
3. The District Collector
Kancheepuram.
4. The Commissioner
St.Thomas Mount Panchayat Union
Chennai. .. Respondents
PRAYER: Appeal under Clause 15 of the Letters Patent against the
order of the learned Single Judge dated 4.12.1997 made in W.P.No.18208 of
1997.
!For Appellant : Mr.K.Chandru
Senior Counsel
for Mr.K.Kannan
^For Respondents: Mr.E.Sampathkumar
Government Advocate
:JUDGMENT
(Judgment of this Court was delivered by P.D.DINAKARAN,J.)
The core question of law that arises in the above appeal, as projected
by Mr.K.Chandru, learned senior counsel for the appellant, is ” whether the
action of the Government, first respondent, in passing the impugned government
order, viz., G.O.(Grade) No.239, Revenue Department, dated 27.2.1997, by
exercising the power conferred under Board Standing Order 21, reclassifying
the public road, which power vests with the appellant/village panchayat (local
body) whose vested right, power and jurisdiction are well defined under the
provisions of the Tamil Nadu Panchyats Act, 1944, ignoring the concept of
Panchayat Raj enabling them to function as institutions of self-government
under Article 243G of the Constitution of India, is valid?”
2. The appellant in the appeal is the writ petitioner in
W.P.No.1820 8 of 1997 filed for issue of a writ of Certiorarified Mandamus to
call for the records of the first respondent in G.O.(Grade) No.239, Revenue
Department, dated 27.2.1997, quash the same and to forbear the respondents
from reclassifying the property in Survey Nos.237 and 238 of Vengaivasal
Village from Vandi-patti (cart-track) Poromboke to Natham Poromboke and
assigning it to Raj Bhavan last grade servants.
3. Concededly, the appellant/Village Panchayat is discharging its
rights and duties defined under the provisions of the Tamil Nadu Panchayats
Act, 1994 (hereinafter referred to as the “Act”) through the body elected
under the provisions of the said Act and the Rules farmed thereunder.
4. The character of the impugned land located in Survey Nos.237 and
238 of Vengaivasal Village is classified as Vandi-pattai poromboke
(Cart-track), a road within the meaning of the “public road” defined under
Section 2(28) of the Act, and it is not in dispute that the same vests with
the appellant/Village panchayat as per Section 125(1) of the Act.
5. On a representation made by the last grade employees of the Raj
Bhavan, the Government/first respondent, by G.O.(Grade) No.239, Revenue
Department, dated 27.2.1997, which is impugned in the writ petition, proposed
to reclassify the property in Survey Nos.237 and 238 of Vengaivasal Village
from Vandi-patti Poromboke (cart-track) to Natham Poromboke, and to assign the
same to the last grade servants of the Raj Bhavan without any consent of the
appellant/Village Panchayat by way of appropriate resolution, under the
pretext that the appellant/ Village Panchayat had not responded to the request
of the Collector made in his letter dated 17.2.19897 requiring the appellant/
Village Panchayat to pass necessary resolution to reclassify the impugned land
for the purpose of assigning the same to the last grade employees of the Raj
Bhavan.
6. Based on the strength of the impugned G.O.(Grade) No.239, Revenue
Department, dated 27.2.1997, the Commissioner/fourth respondent, in his letter
dated 12.3.1997 required the appellant/Village Panchayat to pass appropriate
resolution for reclassifying the Vandi-patti Poromboke (cart-track) to Natham
Poromboke. Hence, the above writ petition.
7. When the matter came before the learned Single Judge, neither the
Government nor the Collector filed any counter affidavit.
8. However, the learned Single Judge in the order dated 4.12.1997
made in W.P.No.18208 of 1997, interpreting Section 125(2) of the Act, came to
the conclusion that what is required under Section 125(2) of the Act is only
consultation with the panchayat, but not their consent, and held that the
right of the Panchayat is not affected in any manner by the impugned
G.O.(Grade) No.239, Revenue Department, dated 27.2.1997 and therefore, refused
to interfere with the impugned G.O.( Grade) No.239, Revenue Department, dated
27.2.1997 and dismissed the writ petition, finding no illegality or violation
of the provisions of the Act. Aggrieved by that the writ petitioner has filed
the above appeal.
9. Till the above appeal was taken up for final hearing on 13.12.200
4, the respondents have not chosen to file any counter affidavit. However, we
granted time till today (22.12.2004) to enable the Government to file a
counter affidavit. Surprisingly, the respondents have chosen to file a
counter affidavit on behalf of the third respondent, which is dated 28.10.2003
only today, viz., 22.12.2004 under S.R.No.4 665. The relevant portion of the
counter affidavit filed on behalf of the third respondent reads as follows:
“I submit that the land in S.No.237 and 238 of Vengaivasal Village, Tambaram
Taluk, Kancheepuram District was classified as “Battai Poramboke”
(Cart-track). The Government in G.O.239, Revenue Department, dated 27.2.1997
ordered for the assignment of 1.88.0 Hectares in the above land to 71
employees of Raj Bhavan on collection of market value. In the G.O. cited the
Government ordered that the classification of the above land be transferred to
village site so as to enable the authorities to assign the lands and in favour
of the employees. The Government directed the Collector of Kancheepuram
District to take further action in pursuant to the Government Order. In
pursuant to the Government orders cited, the Collector of Kancheepuram
District initiated further action for the assignment of the above lands to the
Raj Bhavan Employees and towards that end addressed the St.Thomas Mount
Panchayat Union Commissioner and the President of Vengaivasal Village
Panchayat in his letter No.Rc.18350-99-N5 dated 17.2.1997 favouring a
resolution, for the transfer of classification of the land from ” Vandai
Battai” (Cart-tract) to Village Site.”
10. The facts explained above by the Collector/third respondent would
only go to show that even before getting an appropriate resolution from the
appellant/Village Panchayat, the Government had chosen to reclassify the
Vandi-patti poromboke (Cart-Track) land to Natham poromboke land by
G.O.(Grade) No.239, Revenue Department, dated 27.2.1997 , by exercising the
power conferred under Board Standing Order 21, ignoring the relevant provision
of Section 125(1) read with Section 2(2 8) of the Act.
11. The respondents, of course, have also taken a stand that the
Government is empowered, by notification, to exclude from the operation of the
Act any such public road under Section 125(2) of the Act and it is not
disputed in the counter affidavit that during the pendency of the writ appeal,
the parties to the appeal are maintaining statusquo with regard to the
impugned land and the possession of the land has not been handed over to any
individual pursuant to the impugned Government order.
12. Highlighting the case of the appellant/Village Panchayat as well
as the stand taken by the respondents, referred to above in the counter
affidavit filed on behalf of the third respondent, Mr.K.Chandru, learned
senior counsel appearing for the appellant/Village Panchayat contends that
when there are specific statutory provisions for reclassifying the public road
within the meaning of Section 2(28) of the Act, which vests with the Panchayat
under Section 125(1) of the Act, and the Government is empowered to exclude
from the operation of the Act any such public road by a notification under
Section 125(2) of the Act, the Government ought not to have passed the
impugned G.O. exercising the power conferred under the Board Standing Order
21, as the same violates the spirit and scope of Sections 125(1) and 125(2) of
the Act as well as the principles of natural justice.
13. Per contra, Mr.E.Sampath Kumar, Government Advocate appearing on
behalf of the respondents, reiterating the stand taken by the respondents as
explained in the counter affidavit filed on behalf of the third respondent,
referred to above, attempts to sustain the power of the Government to pass the
impugned G.O. However, the learned counsel for the respondents fairly
concedes that no notification was issued by the Government for reclassifying
the impugned land running through the Survey Nos.237 and 238 of Vengaivasal
Village from Vandipatti Poromboke (cart-track) to Natham Poromboke, by
exercising the power conferred under Section 125(2) of the Act till date.
14. We have given careful consideration to the submissions of both
sides.
15. Under the facts and circumstances of the case explained above and
in the light of the rival contentions advanced on behalf of both sides, the
core question that arises for our consideration in the above appeal is
“whether the action of the Government, first respondent, in passing the
impugned government order, viz., G.O.(Grade) No.239, Revenue Department, dated
27.2.1997, by exercising the power conferred under Board Standing Order 21,
reclassifying the public road, which power vests with the appellant/village
panchayat (local body) whose vested right, power and jurisdiction are well
defined under the provisions of the Tamil Nadu Panchyats Act, 1944, ignoring
the concept of Panchayat Raj enabling them to function as institutions of
selfgovernment under Article 243G of the Constitution of India, is valid?”
16.1. In this regard, we are inclined to refer the definition of ”
public road” as defined under Section 2(28) of the Act, the vesting right of
the Panchayat on the same under Section 125(1) of the Act, and the power of
the Government to exclude from the operation of the Act any such public road,
by notification, provided under Section 125(2) of the Act.
16.2. Sections 2(28) and 125 of the Act read as under:
“Section:2 Definitions.-
(1) to (27) …
(28) “public road” means any street, road, square, court, alley, passage,
cart-track, foot-path or riding-path, over which the public have a right of
way, whether a thoroughfare or not, and includes-
(a) the roadway over any public bridge or causeway;
(b) the footway attached to any such road, public bridge or causeway; and
(c) the drains attached to any such road, public bridge or causeway, and the
land, whether covered or not by any pavement, veranda, or other structure,
which lies on either side of the roadway upto the boundaries of the adjacent
property, whether that property is private property or property belonging to
the State or Central Government.”
Section:125 Vesting of public roads in village panchayat.-
(1) All public roads in any village (other than roads which are classified by
the Government as National Highways or State Highways or as major district
roads or as panchayat union roads) shall vest in the village panchayat
together with all pavements, stones, and other materials thereof, all works,
materials and other things provided therefor, all drains, drainage works,
tunnels and culverts whether made at the cost of the village panchayat or
otherwise, in, alongside or under such roads,and all works, materials and
things appertaining thereto.
(2) The Government may, by notification, exclude from the operation of this
Act any such public road, drain, drainage work, tunnel or culvert and may also
modify or cancel such notification.”
(emphasis supplied)
17. A bare reading of the definition of “public road” specifically
includes a “cart-track” and therefore, there cannot be any dispute that the
impugned Vandi-patti poromboke (cart-track) is covered within the definition
of “public road” under Section 2(28) of the Act. Consequently, by operation
of Section 125(1) of the Act, referred to above, the impugned Vandi patti
Poromboke (cart-track), which is read into the definition of “public road”,
shall vest with the Village Panchayat. Such a vested right conferred on the
village panchayat with respect to the public road, in our considered opinion,
cannot be interfered or encroached even by the Government, without giving any
opportunity to the Village Panchayat (local body) and getting their consent
for such reclassification.
18. In the instant case, at no point of time, the Government had
sought for the consent of the Village panchayat by appropriate resolutions for
the proposal of reclassification of the impugned land from Vandi-patti
Poromboke (cart-track) to Natham Poromboke. Obviously, there is a glaring
violation not only to the principles of natural justice but also to the
procedure contemplated for such reclassification.
19. Of course, an attempt was made on behalf of the Government to say
that since the Government is empowered, by notification, to exclude from the
operation of the Act any such public road, by exercising the power conferred
under Section 125(2) of the Act, the Village Panchayat need not be given any
notice for the said proposal and the consent of the Village Panchayat by way
of appropriate resolutions is also not required, and what was required is only
a consultation but not consent, as held by the learned Single Judge.
20. We are, however, unable to appreciate such proposition because
the Tamil Nadu Panchayats Act, 1994 is intended to implement the principles
relating to Panchayats in the Constitution to provide for among other things,
Grama Sabha in a village or group of villages; constitution of Panchayats at
village and other level or levels; direct elections to all seats in Panchayats
at the village and intermediate level, if any, and to the offices of
Chairperson of Panchayats at such levels; devolution by the State Legislature
of powers and responsibilities upon the Panchayats with respect to the
preparation of plans for economic development and social justice and for the
implementation of development schemes; and also to give sufficient safeguards
for protecting their vested rights conferred under the provisions of the Act
within their respective jurisdictions.
21. In the post independent period, realising the fact that social,
political and economic development of rural area depends on the successful and
effective working of ‘local self Government’, Gandhiji had aptly remarked that
`True democracy can not be worked by twenty men sitting at the Centre. It has
to be worked from below by the people of every village. Article 40 in Part
IV of the Constitution of India directs that the States shall take steps to
organise village panchayats and endow them with such powers and authority as
may be necessary to enable them to function as units of self Government.
22. The concept of Panchayat Raj system in our country, enshrined
under Chapter IX of the Constitution of India relating to the Panchayats, vide
Articles 243 and 243A to 243O of the Constitution, is generally a three-tier
arrangement, the first at village or group of villages (lower level), the
second at block level (middle level) and third at the district level (upper
level), intended to give a free hand to the respective panchayat in the
matters of their internal administration which is well defined under the
statutory provisions of the Act. Such power conferred by the statutory
provisions in consonance with the spirit and object of the Constitutional
provisions inserted by the Constitution (73rd Amendment Act), 1992, whereunder
Part IX of the Constitution of India was inserted, in our considered opinion,
cannot be lightly sidelined by the Government by passing the impugned G.O.
resorting to the provisions of the Board Standing Order 21, or otherwise the
consequence will be not only an infringement of the powers of the Village
Panchayat conferred under the Act, but also a violation to Article 243G of the
Constitution of India, whereunder respective panchayats are endowed with such
powers and authority as may be necessary to enable them to function as
institutions of self-government.
23. The power conferred on the Government under Section 125(2) of the
Act is not absolute and independent but the same is subject to the power
conferred under Section 125(1) of the Act protecting the vested right of the
village panchayats, which is endowed with such powers and authority as may be
necessary to enable them to function as institutions of self-government, as
provided under Article 243G of the Constitution of India. If that be so, we
are unable to agree with the view of the learned Single Judge that mere
consultation of the panchayat is required and not their consent.
24. In the instant case, it is clear from the impugned G.O. that the
Government ignoring the vested right of the appellant/village panchayat
conferred under Section 125(1) of the Act with respect to the ” public road”
in question passed impugned government order without even following the
procedure contemplated under Section 125(2) of the Act for taking appropriate
steps to exclude from the operation of the Act any such public road, and had
chosen to reclassify the impugned Vandi-patti (Cart-track) poromboke as Natham
poromboke and assign the same to the individuals, of course, resorting to
Board Standing Order 21 .
25. The question whether the Government is entitled to invoke the
Board Standing Order ignoring the provisions of the Land Acquisition Act came
for consideration before the Apex Court in Government of Andhra Pradesh &
another v. Syed Akbar, 2004 (5) CTC 506, in a matter of assignment of land
vested with the Government, which was acquired for public purpose, but was
attempted to be used for other public purpose, viz., for grant of assignments,
invoking the Andhra Pradesh Board Standing Order, 90(32), and the Apex Court
held as follows:
“..13. From the position of law made clear in the aforementioned decisions,
it follows that (1) under Section 16 of the Land Acquisition Act, the land
acquired vests in the Government absolutely free from all encumbrances; (2)
the land acquired for a public purpose could be utilized for any other public
purpose; and (3) the acquired land which is vested in the Government free from
all encumbrances cannot be re-assigned or re-conveyed to the original owner
merely on the basis of an executive order.
14. At the hearing, we specifically asked learned counsel for the respondent
whether the Board’s Standing Order 90(32) was issued under any particular
statute, the learned counsel was not able to point out to any provision of law
under which it was issued. He was not in a position to show that the said
order bears any statutory force. Even otherwise, as per para 32 of the said
order, the land acquired, no longer required for the public purpose for which
it was acquired, could not be disposed of in favour of any person other than
the citizen of India and that too without the sanction of the Government. If
the land acquired for the public purpose is specifically relinquished, such
land could be disposed of as stated in the said paragraph. If the land
relinquished is likely to be again required for public purposes, it should be
merely leased out for such term as may be considered desirable in each case.
If the acquired land was an agricultural land at the time of acquisition, it
should be disposed of inviting for sale in public auction by giving wide
publicity in respect of sale. If at the time of sale, anybody puts forth his
claim in respect of any field either as an adjacent owner or as an original
owner, the sale of that field should be stopped and his claim investigated and
disposed of in the manner specified in sub-clauses (i) and (iv) of Note (2) of
the Board’s order 90(32). If it is found that his claim is not proved, the
field should be sold by public auction. In the case on hand, there is nothing
on record to show that the part of the acquired land which remained unused was
relinquished by the Government. A letter of Resident Engineer stated that the
unused land was no more required cannot amount to relinquishment of the said
land by the competent authority. In order to make a claim under para 32 of
the said Board’s Standing Order in the first place, it was necessary that the
competent authority had subsequently relinquished the unused land. After such
relinquishment of the land, the land had to be notified for sale in public
auction. If at the time of sale of such land, the original owner made a
claim, sale could be stopped and his claim could be investigated and
thereafter the land was to be disposed of in the manner specified under the
said paragraph. Added to this, by virtue of the amendment to para 32 brought
about by G.O.Ms.No.783, dated 9.10.1998 , the land for the public purpose
shall be utilized for the same purpose for which it was acquired as far as
possible and in case the land is not used for the purpose for which it was
acquired due to any reason, the land shall be utilized for any other public
purpose as deemed fit. It appears this amendment was not brought to the
notice of the High Court.
15. Chapter V of the Act deals with occupation of khalsa land and right of
occupant. Under Section 54, procedure is prescribed for acquiring unoccupied
land. This Section enables a person to submit a petition to Tehsildar if he
is desirous of taking unoccupied land. On such application, the Tehsildar may
in accordance with the rules made by the Government give permission on writing
for occupation. Section 5 4-A indicates the procedure in respect of land
acquired for the purpose of public benefit and which is no more required. It
is clear from plain and clear language of the said Section that when an
agricultural land acquired for public benefit is no longer required, the patta
thereof shall be made in the name of the person or his successor from whom
such land was acquired provided he consents to refund the compensation
originally paid to him. This Section does not say that the agricultural land
acquired for public benefit is no longer required for the purpose for which it
is acquired. This Section can be attracted only in a case where agricultural
land acquired for public benefit is no longer required not necessarily for the
specific purpose for which it was acquired. Added to this, that the land is
no more required is a decision required to be made by the competent authority.
As in the present case, mere letter of Resident Engineer that the unused land
is no more required is not enough. When the land is acquired under the Land
Acquisition Act which is vested in the State Government free from all
encumbrances, the question of reconveying the land as claimed by the
respondent could not be accepted in view of the clear position of law stated
in the decision of this Court aforementioned. Whether the unused remaining
land out of the acquired land was sufficient or not for the purpose of
construction of Mandal Revenue Office could not be decided by the High Court.
It was for the competent authorities to decide about the same. The High
Court, in our view, was not right in saying that the proposal to construct the
Mandal Revenue Office in the unused land acquired was an after-thought. No
material was placed on record to attribute any mala fides on the part of the
authorities or to support the case that the proposal to build a Mandal Revenue
Office was an after-thought.”
(emphasis supplied)
26. In view of the ratio enunciated from the decision in Government
of Andhra Pradesh & another v. Syed Akbar, 2004 (5) CTC 506, we do not find
any difficulty to answer the legal issue raised in this appeal in negative to
the effect that the Government shall not resort to exercise their powers under
the Board Standing Orders which have no statutory force, ignoring the
statutory provisions, viz., Section 125(2) of the Act, which could be
exercised, in our considered opinion, by following appropriate procedure
contemplated under law.
27. It is trite law that the courts jurisdiction to interpret a
statute can be invoked when the same is ambiguous. It is well known that in a
given case the court can iron out the fabric but it cannot change the texture
of the fabric. It cannot enlarge the scope of legislation or intention when
the language of the provision is plain and unambiguous. It cannot add or
subtract words to a statute or read something into it which is not there. It
cannot rewrite or recast legislation. It is also necessary to determine that
there exists a presumption that the legislature has not used any superfluous
words, vide Nasiruddin v. Sita Ram Agarwal,(2003) 2 SCC 577.
28. The words employed in Section 125(2) of the Act viz., the
Government is empowered to exclude from the operation of the Act any such
public road by way of a notification, cannot be lightly disregarded.
29. In the instant case, we are satisfied that the impugned G.O. is
obviously passed ignoring the provisions of Sections 125(1) read with Sections
2(28) and 125(2) of the Act, as no steps have been taken by the Government to
issue any notification till date, in a manner contemplated under law, and
therefore, the impugned order is liable to be set aside.
In the result, the writ appeal is allowed and the impugned G.O. as
well as the consequential proceedings, if any, stand quashed. However, taking
into consideration the reasons that weighed the Government to allot the lands
to the last grade employees of the Raj Bhavan, we add that the Government may
consider to allot equal extent of land to the deserving allottees from any
alternate site, if they are so advised. No costs. Consequently,
C.M.P.No.10705 of 1998 is closed.
Index : Yes Internet: Yes sasi To: 1. The State of Tamilnadu by its Secretary to the Revenue Department Fort St.George Chennai 600 009. 2. The Commissioner of Land Administration, Ezhilagam Chepauk, Chennai-600 005. 3. The District Collector Kancheepuram.