IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19-7-2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.17014 of 2007 P.Madhar Sahib ... Petitioner Versus 1.The State of Tamilnadu Rep. by the Secretary and Special Commissioner, Revenue (F) Dept. Fort St.George, Chennai-600 009. 2.The Special Commissioner and Commissioner for Land Administration Ezhilagam, Chepauk, Chennai-5. 3.The District Collector, Cuddalore District, Cuddalore. .... Respondents Writ Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorari to call for the entire records relating to the impugned order passed by the third respondent in his office Ref.No.Ka.V5/35216/1995 dated 19.4.2007 cancelling the assignment of lands and quash the same. For Petitioner :Mr.P.Mani For Respondents :Mr.P.Muthukumar Government Advocate ORDER The petitioner who has been driven pillar to post to retain his property and compelled to file the writ petition challenging the order dated 19.4.2007 by which the assignment granted in favour of the petitioner was cancelled. 2. The case of the petitioner is that he was assigned the lands measuring about 24881 sq.ft. Comprised in T.S.No.1747 and 1472/3 and 1748/4, Thirupapuliyur, Cuddalore District by the third https://hcservices.ecourts.gov.in/hcservices/ respondent in his proceedings dated 23.1.1973. The conditions of the assignment order were that the lands should be brought for cultivation within three years of the assignment there should not be any alienation within 10 years. 3. After 16 years, the second respondent cancelled the assignment by an order dated 25.5.1989, which was challenged in W.P.No.12999 of 1989. The said writ petition was allowed remanding the matter to the first respondent to pass fresh order after affording opportunity to the petitioner. By an order dated 2.12.1999 the first respondent again cancelled the assignment stating that the petitioner sold the property on 21.9.1997 by a sale deed dated 31.1.1997 by contravening the conditions of the Assignment. 4. The said cancellation order was challenged before this court in W.P.No.20313 of 1999 and the same was dismissed by the learned Single Judge on 22.12.1992 and the appeal preferred in W.A.No.33 of 2000 was allowed on 22.12.1999 by quashing the cancellation order dated 2.12.1999 passed by the first respondent. The said order attained finality. 5. When the things stand so, the impugned order dated was served on the petitioner on 28.4.2007 and it is stated that the assignment order passed by the third respondent, was cancelled on the direction of the first and second respondent by which the petitioner's land is sought to be resumed for violating the conditions namely selling the property. The said order is being challenged before this court. 6. Mr.Mani, learned counsel for the petitioner submitted that the petitioner was allotted the lands as early as 1973 and without any notice the second respondent cancelled the assignment on 25.9.1989 stating that the petitioner did not cultivate the land within three years of the assignment. The proceedings with regard to that, already been attained finality by order dated 31.1.2002 in W.A.No.33 of 2000 passed by the First Bench of this Court. Without any basis, now the assignment is cancelled by virtue of the impugned order without disclosing any reason. 7. Mr.Muthukumar, learned Government Advocate submitted that though W.A.No.33 of 2000 was allowed by this court, the respondent has got powers to cancel the assignment for violation, as the assignment was subject to certain conditions which are required to be complied with by the petitioner. 8. A perusal of the records would show that the petitioner was assigned the lands on 23.1.1973 and the assignment was sought to be cancelled by an order dated 25.5.1989. It is seen that no show cause notice was issued before the passing the order and that was the https://hcservices.ecourts.gov.in/hcservices/ reason why this court set aside the order dated 25.5.1989 and remanded the matter for fresh disposal. 9. There were two conditions to be complied with by the petitioner. The petitioner is required to bring the land for cultivation within three years of assignment i.e. on or before 22nd January, 1976. There should not be any alienation of the property within 10 years i.e. on or before 22nd January, 1983. The records on the face of it would reveal that there was no notice/proceedings between the date of allotment on 23.1.1973 and the date of cancellation on 25.5.1989. The cancellation at the first instance was done on 25.5.1989. It is clearly beyond period of 10 years. No doubt the respondents have power to cancel the assignment, if there is any violation of assignment. The record do not reveal any issuance of show cause notice within three years for violation of the first condition or within 10 years for violation of second condition. Admittedly the property was sold on 31.1.1997 i.e. after 26 years of assignment. Hence there is no justification for cancelling the petitioner's assignment. 10. The proceedings would show that the petitioner was subjected to harsh treatment by the respondent by one way or other and that is the reason why he was compelled to file W.P.No.12999 of 1999, and W.P.No.1301 of 1992, W.P.No.20313 of 1999 and W.A.No.33 of 2000. 11. The order passed in W.A.No.33 of 2000 clearly negatived the conditions of the respondents. Paragraph 2 of the judgement is extracted as follows: "An extent of 1 acre and odd comprised in S.F.Nos.1747,1478/3 and 1748/4 situated at Cuddalore was assigned to the Writ Appellant on 23.1.1973 fastened with some conditions. One condition which is relevant is that the assignee should bring the land for cultivation within a period of three years from the date of assignment. This is not violated. The other condition is that the assignee should not alienate the land by sale,gift or mortgage etc, for a period of ten years from the date of assignment. According to the authorities this condition is violated. But the authorities have lost sight of the fact that the sale was after 23 years of assignment. An embargo was there to the effect that the assignee should not alienate the land within a period of ten years. But in the instant case, the sale was effected after a period of 23 years. It is submitted that the said condition viz., sale should not be made within a period of ten years, has been lifted and there is absolute prohibition of sale. https://hcservices.ecourts.gov.in/hcservices/ But the same was only by Government Order dated 9.11.1979, and the same cannot act retrospectively. As such, we do not find any illegality in the sale of land by the Writ Appellant, and accordingly the order of the learned single Judge and the authorities cancelling the assignment in favour of the Writ Appellant are set aside." 12. When that is the position, it is surprising respondents on imaginary grounds passed the impugned order. The respondents ventured to search for grounds to cancel the petitioner's assignment by hook or crook, that is evident from paragraph 7 of the counter affidavit which is extracted as follows: "It is submitted that though this Hon'ble Court's order in W.A.No.33 of 2000 dated 30.1.2002 and the legal opinion for filing SLP in Supreme Court of India are against violation of the second condition that the assignee should not alienate the land, it should be possible for the Government to take necessary action within a period of 10 years as per rules and under the law to cancel the assignment on the ground of violation of first condition, i.e. Thiru. Madhar Sahib did not bring the assigned land under cultivation within three years from the date of assignment. Accordingly, the Collector of Cuddalore District in his proceedings V5/35216/95 dated 19.4.2007 had cancelled the assignment made in D.K.T2/82 dated 31.1.73 to the petitioner." 13. It has been observed in the judgement passed in W.A.No.33 of 2000 that the conditions regarding bringing the land for cultivation within three years was not followed. When such was the finding given in the writ appeal, it is not for the respondents to contend in the counter affidavit stating that it should be possible for the government to take necessary action within 10 years as per rules and under law to cancel the assignment on the ground of violation of first condition. The contention made in paragraph 7 of the counter affidavit is not only false but is against the order passed by the First Bench of this court. Having failed in their attempt to cancel the petitioner's assignment and having failed in earlier proceedings, the impugned order has been passed that too without giving any show cause notice. It is nothing but clear abuse of process of law and misuse of powers by the respondents. 13. Though the conduct of the respondents does not show any bonafide and it requires awarding of cost, this court restrains itself from awarding costs on the respondents. Therefore the writ petition is allowed and there will be no order as to costs. https://hcservices.ecourts.gov.in/hcservices/ Consequently the connected M.P.No.1 of 2007 and M.P.No.1 of 2008 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Secretary and Special Commissioner, Revenue (F) Dept. Fort St.George, Chennai-600 009. 2.The Special Commissioner and Commissioner for Land Administration Ezhilagam, Chepauk, Chennai-5. 3.The District Collector, Cuddalore District, Cuddaloare. +1cc to Govt. Pleader Sr 52230 LA(CO) km/31.8. W.P.No.17014 of 2007 https://hcservices.ecourts.gov.in/hcservices/