{"id":168026,"date":"2007-05-16T00:00:00","date_gmt":"2007-05-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-vs-madasamy-on-16-may-2007"},"modified":"2015-10-05T21:34:34","modified_gmt":"2015-10-05T16:04:34","slug":"the-commissioner-vs-madasamy-on-16-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-vs-madasamy-on-16-may-2007","title":{"rendered":"The Commissioner vs Madasamy on 16 May, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Commissioner vs Madasamy on 16 May, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated : 16\/05\/2007\n\nCoram:\nThe Honourable Mr. Justice V. DHANAPALAN\n\nS.A. No.761 of 1993\n\nThe Commissioner\nRajapalayam Panchayat Union\nRajapalayam\nKamarajar District\t\t\t.. Appellant\n\nvs.\n\n1\tMadasamy\n2\tChinna Madasamy\n3\tKotturan\n4\tSadayandi\n5\tGanesan\n6\tMayandi\n7\tSubbiah\n8\tKalimuthu\t\t\t.. Respondents\n\n\nSecond Appeal preferred under Section 100 of Civil Procedure Code against the\njudgment and decree dated 24.10.1991 made in A.S. No.77 of 1989 on the file of\nthe Court of the Subordinate Judge, Srivilliputtur, reversing the judgment and\ndecree dated 20.04.1989 made in O.S. No.81 of 1985 on the file of the Additional\nDistrict Munsif Court, Srivilliputtur.\n\n\n!For appellant\t\t.. \tMr. V. Raghupathi\n\n^For respondents\t..\tMr. S. Kadarkarai\n\n\n:JUDGMENT\n<\/pre>\n
\tThe plaintiff, who is the appellant herein, has called in question, the
\nlegality of the judgment of the Subordinate Judge, Srivilliputtur in and by
\nwhich the judgment of the Additional District Munsif, Srivilliputtur, was set
\naside.\n<\/p>\n
\t2.\tThe case of the plaintiff, in brief, is as under:\n<\/p>\n
\tThe Thondamankulam tank is situated in S.Nos. 245, 296\/2 and 296\/3 in an
\narea of 47.76 acres and water would spread in other lands located in
\nS.Nos.291\/1A1, 292\/1A, 286\/1A1, 286\/1B-1A, 286\/1B-1C, 285\/1 and 283\/1.  Though
\nthe above lands around the tank are patta lands from the time immemorial, they
\nare shown as water spread area in ‘A’ Register and other revenue records.  The
\nGovernment, in order to avoid spreading of water to the south of the suit lands,
\nacquired the suit lands and formed a bund and the excess water in the tank would
\ngo away by the outlet (kalingu) located in S. No.281.  The suit land owners are
\nentitled to cultivate punja crops when there is no water in the tank and the
\ndefendants, with a view to convert the suit lands into house-sites, as an
\nattempt to raise the level of the suit lands, in mid-January 1985, put up a bund
\nin S. No.291\/1 and this bund would not only prevent spreading of water but would
\nalso obstruct the flow of water from the outlet (kalingu) and hence, the suit
\nfor the following reliefs:\n<\/p>\n
\ta.\tdeclaration that the suit properties are submersible and water-
\nspread area of Thondamankulam tank of Chettiarpatty Village<\/p>\n
\tb.\tconsequent permanent injunction restraining the defendants in
\nraising the level of the suit lands and
\n\tc.\tmandatory injunction to remove the earthern bund put up in S.
\nNo.291\/1 across the red line marked in the rough sketch.\n<\/p>\n
\t3.\tThe defendants, in their written statement, did not deny the
\nexistence of the tank in S.Nos. 245, 296\/2 and 296\/3 but disputed the
\nplaintiff’s claim that the other suit lands are also water-spread area.
\nAccording to them, the suit lands around the suit tank are patta lands and not
\nwater-spread area, as manipulated in the Village ‘A’ register and the bund as
\nalleged to be put up by them, has been in existence for the last thirty years
\nprior to the suit.  It is the case of the defendants that the existence of a
\ncinema theatre at the north of the suit lands and the emergency exit of the said
\ncinema theatre towards the suit lands would go to show that the suit lands are
\nnot water-spread area.  It is the further case of the defendants that there is
\nno outlet (kalingu) as claimed by the plaintiff in S.No.281 and in fact, there
\nis no outlet at all for the tank.  The strong case of the defendants is that the
\nsuit is at the instigation one Varadharajulu who is the owner of the lands in
\nS.Nos.295 and 296 and they have also been granted new pattas by the Government
\nwithout any condition, and as such, the suit tank is in no way affected by the
\nsuit lands.\n<\/p>\n
\t4.\tThe Trial Court, on appreciation of the oral and documentary
\nevidence and also Revenue Board Standing Orders, (R.B.S.O), holding that grant
\nof patta is not an absolute right, decreed the suit as prayed for.\n<\/p>\n
\t5.\tOn the appeal by the defendants, the appellate court, based on the
\nadmission by P.W.1, Village Administrative Officer that Ex.A.1, Village Map and
\nEx.A.2, Adangal do not bear the Government’s seal and the hand-writing in
\nEx.A.2, Adangal is not his and holding that ‘A’ Register was not marked by the
\nplaintiff and the Government, being the owner, ought to have been impleaded, set
\naside the judgment of the Trial Court, thereby allowing the appeal.  Against
\nthis judgment of the lower appellate court, the present Second Appeal has been
\npreferred by the plaintiff.\n<\/p>\n
\t6.\tThis Second Appeal has been admitted by this Court on the following
\nsubstantial questions of law:\n<\/p>\n
\ta.\tWhether the plaintiff, one of the instrumentalities of the State,
\nhas sovereign powers to impose reasonable restrictions at any time, even over
\nthe patta lands?\n<\/p>\n
\tb.\tWhether the lower appellate court is justified in not considering
\nthe Revenue Board Standing orders as per which the authorities can impose
\nrestrictions on the rights of the pattadhars whenever there is damage to the
\nwater tank?\n<\/p>\n
\tc.\tWhether the lower appellate court is justified in rejecting the
\nevidentiary value of public documents, namely, Exs.A.1 and A.2 which are Village
\nMap and Adangal extract respectively?\n<\/p>\n
\td.\tWhether the lower appellate court is right in finding that the suit
\nis not sustainable since the State Government is not impleaded as party?\n<\/p>\n
\te.\tWhether the questions of maintainability of the suit and also locus
\nstandi on the part of the plaintiff to institute the suit are correctly decided
\nby the lower appellate court?\n<\/p>\n
\t7.\tMr. V. Raghupathi, learned counsel for the appellant has contended
\nthat the lower appellate court has failed in considering the unqualified
\nsovereign rights of the State over all properties in the State and has brushed
\naside the oral evidence of P.Ws. saying that those are interested witnesses.\n<\/p>\n
\t8.\tMr. S. Kadarkarai, learned counsel for the respondents, per contra,
\nhas contended that the defendants have every right in their own patta lands and
\nthey are entitled to protect their lands.  It is his strong contention that the
\nTrial Court has miserably failed in noting that there was a cinema theatre to
\nthe north of the suit lands which would amply prove that the suit lands are not
\nwater spread bodies.   He has further contended that the plaintiff had wantonly
\nfailed to appoint a Commissioner to report on the salient features of the suit
\nproperty and has not even marked ‘A’ Register, its main documentary evidence.
\nArguing so, he has pleaded that the appeal by the plaintiff has to be dismissed,
\nparticularly when so-called substantial questions of law raised are not so and
\nthey are merely questions of fact.\n<\/p>\n
\t9.\tOn his argument that adverse inference cannot be drawn against the
\nappellant for non-production of ‘A’ Register, the counsel for the appellant has
\nrelied on a Division Bench judgment of this Court reported in 2003 (2) CTC 106
\nin the case of A.S. Rathinam vs. A.S. Ponnammal & 3 others and the relevant para
\nreads as under: (para 10)<\/p>\n
\t“The general principle enunciated in the decision of the Apex Court on
\nwhich counsel placed reliance is always required to be applied in relation to
\nthe facts of the given case, having regard to the context in which the plea of
\nnon-production of the best evidence is raised.  When the evidence required to be
\nproduced is accessible to the plaintiff who seeks to have adverse inference
\ndrawn by reason of the non-production of that evidence by the defendants, it is
\nthe duty of such plaintiff to produce the evidence and the failure to do so
\ncannot be got over by inviting the Court to draw adverse inference from the
\nconduct of the defendants who had produced some evidence, but not all the
\nevidence in their possession with regard to the properties mentioned in the
\nplaint schedule.  In the context of the facts of the case, it cannot be said
\nthat there was a duty cast on the defendants to produce the title deeds even
\nwhen the title deeds did not show the ownership of their father.  The properties
\nwhich belonged to them individually cannot become the subject matter of
\npartition at the instance of their sister, and the mere fact that she chose to
\ninclude them in the plaint does not cast a burden on the defendants.”\n<\/p>\n
\t10.\tTo strengthen his argument that the development of the suit lands
\ninto house-sites would affect the water table of the suit tank, the counsel for
\nthe appellant has relied on a judgment of this Court reported in (2006) 1 MLJ
\n388 in the case of Y. Kidhermoidheen vs. Secretary<\/a> to Government,Revenue
\nDepartment, Chennai and others in which the relevant para runs as follows: (para\n<\/p>\n
6)<\/p>\n
\t“In the face of the aforesaid decision, the third respondent has taken
\npreliminary steps to evict the encroachers on the ground that they have
\nencroached upon Odai Poramboke.  Therefore, the petitioner cannot be permitted
\nto contend that he has been in possession of such land for ever so many years or
\nthat he has got electricity connection or that he has paid B memo charges.
\nFurther, the petitioner’s contention that his house is located far away from the
\nwater source, viz., dam or that the Panchayat has constructed a canal for the
\nflow of water or there are other buildings put by the local body.  It is for the
\nthird respondent  and other concerned revenue officials to take action to evict
\nthe encroachers, which they deem necessary to maintain delicate ecological
\nbalance and provide a proper and healthy environment to enable people to enjoy a
\nquality life, which is the essence of the right guaranteed under Article 21 of
\nthe Constitution of India.  The Government, including the revenue authorities,
\nhaving noticed that a pond or lake is falling in disuse, should bestow their
\nattention to develop the same, thereby they can prevent the ecological disaster
\nand also provide better environment for the benefit of public at large.  In this
\nview of the matter, I do not find any merit in the writ petition and the same is
\naccordingly dismissed .. .”\n<\/p>\n
\t11.\tI have given careful consideration to the arguments of the counsel
\non either side and the rulings relied on by the counsel for the appellant in
\nsupport of his arguments.\n<\/p>\n
\t12.\tIt is not in dispute that the defendants’ lands are patta lands.
\nThis is admitted by the plaintiff in the plaint itself.  In support of its case,
\nthe plaintiff-Panchayat Union has marked the Village Map as Ex.A.1 and copy of
\nthe village adangal as Ex.A.2.  Admittedly, the Village A Register has not been
\nmarked.  For oral evidence, the Village Administrative Officer and two villagers
\nhave been examined.  On the side of the defendants, the eighth defendant has
\nbeen examined and no documentary evidence has been let in.\n<\/p>\n
\t13.\tThe Trial Court, in its judgment, based on the evidence available
\nbefore it, observing that:\n<\/p>\n
\ta.\tthe defendants have put up a bund in S.No.291\/1 and this bund would
\nprevent spreading of water and obstruct the flow of water from the outlet
\n(kalingu) and the bund has not been in existence thirty years prior to the suit
\nas claimed by the defendants and it has been constructed sometime around 1985;\n<\/p>\n
\tb.\tthe lands of the defendants are submersible and water-spread area
\nand the defendants are arranging to increase the height of their lands with a
\nview to convert them into house-sites;\n<\/p>\n
\tc.\tthe suit was not instituted at the instigation of Varadaraja Naidu;\n<\/p>\n
\td.\tas per Revenue Board Standing Orders, the Revenue officers, though
\nhad issued unconditional pattas to the defendants, have got every right to
\nmodify the rights of the pattadhars by virtue of sovereign rights available with
\nthe Government and thus, the plaintiff does not lack the locus standi to file a
\nsuit: and<\/p>\n
\te.\treasonable restrictions can be imposed by the State at any time with
\nits powers,<\/p>\n
decreed the suit as prayed for.\n<\/p>\n
\t14.\tOn the contrary, the lower appellate court, observing that:\n<\/p>\n
\ta.\tExs.A.1 and A.2 do not bear the Government seal and P.W.1, the
\nVillage Administrative Officer himself has admitted that the handwriting found
\nin Ex.A.2 is not his;\n<\/p>\n
\tb.\tVillage “A” Register has not been produced by the plaintiff to prove
\nthe restricted covenant;\n<\/p>\n
\tc.\tP.W.3 himself has admitted in the cross-examination that the suit
\nhas been instituted at the instigation of Varadaraja Naidu; and<\/p>\n
\td.\tthe plaintiff has no locus standi to file the suit and the
\nGovernment ought to have been impleaded as a party to the suit<\/p>\n
reversed the judgment of the Trial Court and dismissed the suit.\n<\/p>\n
\t15.\tAs regards the finding of the lower appellate court that Exs.A.1 and
\nA.2 do not bear the Government seal, I am of the view that they cannot be simply
\nbrushed aside for this reason alone.  In fact, I have perused Ex.A.2, the
\nvillage adangal which bears the seal and signature of the Deputy Tahsildar and
\nin that view of the matter, the finding of the lower appellate court that it
\ndoes not contain the Government seal has to fail.\n<\/p>\n
\t16.\tSecondly, with regard to the finding of the lower appellate court
\nthat the Village “A” Register has not been furnished by the plaintiff, it cannot
\nbe said that the plaintiff can prove its case that the defendants’ lands are
\nsubmersible lands only by producing the Village “A” Register.  Exs.A.1 and A.2,
\nnamely Village Map and Adangal extract and the oral evidence of P.Ws. are by
\nthemselves ample proof to show that the suit lands are of submersible nature and
\nthe finding of the lower appellate court that the plaintiff has not produced the
\nVillage “A” Register to show that the suit lands are submersible lands does not
\nappear to be convincing.  In this regard, the Trial Court has given a cogent and
\nconvincing finding that as per Revenue Board Standing Orders, if the carrying
\ncapacity of the tank is affected, bearing in mind the public interest, the
\nRevenue officers can modify the rights of the pattadhars by exercising the
\nsovereign rights vested with the Government.  This reasoning of the Trial Court
\nis perfectly in order in view of the fact that maintenance of the tank in
\nquestion which is of great public utility is of paramount consideration.\n<\/p>\n
\t17.\tThirdly, the lower appellate court has observed that P.W.3 himself
\nhas deposed in his cross-examination that the suit has been instituted at the
\ninstigation of Varadaraja Naidu. But, on the contrary, on a persual of the
\ndeposition of P.W.3, I find that nowhere P.W.3 has stated so.  As such, the
\nfinding of the lower appellate court that the suit has been instituted by the
\nplaintiff only at the instigation of Varadaraja Naidu has to obviously fail and
\nI am of the view that the lower appellate judge has held so for the reason best
\nknown to him.\n<\/p>\n
\t18.\tLastly, when Section 133 of the Tamil Nadu Panchayats Act empowers
\nPanchayat Unions the right of maintenance and when Section 143 provides
\nindependent right to Panchayat Unions to remove the danger in respect of tanks,
\nwells, etc., I am not in agreement with the finding of the lower appellate court
\nthat the plaintiff-Panchayat Union does not have the locus standi to file the
\nsuit and that the Government ought to have been impleaded as a party to the
\nsuit. This is because, as rightly contended by the counsel for the appellant,
\nthe plaintiff-Panchayat Union, being an instrumentality of a welfare State which
\nhas the duty and responsibility to protect the interest of the public at large,
\nhas every right to set right the wrong done to the communal property which is
\nnothing but the tank in the instant case.\n<\/p>\n
\t19.\tAdmittedly, the appellant is a wing of the Government and an
\ninstrumentality of the State and it is governed by the Tamil Nadu Panchayats Act
\nand the provisions made therein provide independent right of maintenance of tank
\nbund to the appellant and also to take action to evict the encroachers, to
\nmaintain the delicate ecological balance and to provide proper and healthy
\nenvironment to enable people to enjoy a quality life which is the essence of the
\nfundamental right guaranteed under Article 21 of the Constitution of India.
\nThus, there can be no doubt that the appellant has the domain power by virtue of
\nthe sovereign rights available with the Government and the appellant, being a
\nwing of it, can exercise its powers particularly in the matter of public
\nutility.  Therefore, the appellant’s action in preventing any kind of
\nobstruction of flow of water is obviously within its powers and the Trial Court
\nhas gone into this matter in detail with its cogent reasonings; whereas the
\nlower appellate court, on the contrary, has gone wrong in interfering with the
\nfindings of the Trial Court by giving unconvincing and unacceptable reasonings
\nto disbelieve the evidence.  The primary object of the appellant is to protect
\nthe interest of the public at large and the interest of the individuals
\ncertainly cannot prevail over the public interest.  Thus, on any count, I hold
\nthat the findings arrived at by the Trial Court are perfectly valid and the
\nlower appellate court has interfered with the findings of the lower appellate
\ncourt without any valid justification.\n<\/p>\n
\t20.\tFrom the above findings, it is crystal clear that the lower
\nappellate court has erred in each and every stage of its findings and as such,
\nthe substantial questions of law based on which this Second Appeal was admitted,
\nare answered in favour of the appellant\/plaintiff.  As such, by setting aside
\nthe judgment of the lower appellate court, the judgment of the Trial Court in
\ndecreeing the suit is confirmed.\n<\/p>\n
\tIn the result, the appeal stands allowed without any order as to costs.\n<\/p>\n
To<\/p>\n
1\tThe Subordinate Judge, Srivilliputtur<\/p>\n
2\tThe Additional District Munsif Court, Srivilliputtur<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Commissioner vs Madasamy on 16 May, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 16\/05\/2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.761 of 1993 The Commissioner Rajapalayam Panchayat Union Rajapalayam Kamarajar District .. Appellant vs. 1 Madasamy 2 Chinna Madasamy 3 Kotturan 4 Sadayandi 5 Ganesan […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-168026","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Commissioner vs Madasamy on 16 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-commissioner-vs-madasamy-on-16-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Commissioner vs Madasamy on 16 May, 2007 - 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