IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.10.2010 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P. No. 6540 of 2010 and M.P.Nos.1, 2 and 3 of 2010 Savithri Naidu .. Petitioner vs. 1.The District Revenue Officer, Additional District Magistrate, Coimbatore, Coimbatore District. 2.The Revenue Divisional Tahsildar, Coimbatore, Coimbatore District. 3.The Zonal Deputy Tahsildar, Coimbatore Town, Coimbatore District. 4.Santhosh .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records relating to the order dated 18.01.2010 made in Na.Ka.No.Pa.Ma.23/08(37081/08/E1) and the order dated 30.07.2008 made in Na.Ka.No.15021/2007/A3 and the order dated 13.11.2007 made in RTR.No.2304/1417 passed by the respondents 1 to 3 respectively, to quash the same and to consequently direct the respondents 1 to 3 to remove the name of the 4th respondent in patta Nos.324 and 411 in respect of S.F.No.426/1 and 427/1, Sowripalayam Village, Coimbatore District. For Petitioner : M/s.R.Venkatavaradhan For Respondents : Mr.P.Subramanian for R1 to R3 Mr.D.Raja for R4. O R D E R The writ petition is filed for against the orders dated 18.01.2010, 30.07.2008 and 13.11.2007 passed by the respondents 1 to 3 respectively to quash the same and to consequently direct the respondents 1 to 3 to remove the name of the 4th respondent in the Joint patta in question and to replace the petitioner name in respect of 1.9 acres in S.No.426/1 and 427/1 Sowripalayam Village, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2. Though the relationship between the 4th respondent and one Radhakrishnan who was the original owner of the property in question as father and son is admitted by the contesting parties the legality of the relationship between the petitioner and the said Radhakrishnan as husband and wife is not admitted on the side of the 4th respondent. It is suffice to say for the purpose of disposing of the instant case that the petitioner/Savithri who is the divorced w/o B.Narendran had been living with the original owner of the property as husband and wife at one point of time. During that period Radhakrishnan executed settlement deed in respect of the property in question in favour of one Vikram who is according to the petitioner the son of the petitioner born through the said Radhakrishnan according to the 4th respondent he is the son born to the petitioner through her ex- husband. Be that as may, the said Vikram has in turn executed settlement deed in respect of the same property in favour of the petitioner who is his mother and the petitioner has in pursuance of the same approached the 3rd respondent/Tahsildar for including her name in the joint patta having numbers 324 and 411 respectively, in respect of the lands in question and her name was included along with other joint patta holders in respect of both the survey numbers. While so, the said Radhakrishnan left the petitioner and rejoined his son 4th respondent and has been living with his son. While so, he executed deed of revocation of the settlement executed in favour of Vikaran and has further executed settlement deed in respect of the same property in favour of his son/4th respondent. The 4th respondent has on the strength of the settlement has approached the Tahsildar for transfer of patta in his name and the Zonal Tahsildar has passed an order on 13.11.2007 thereby, directing the name of the 4th respondent to be jointly included in both patta in respect of the lands in question. 3. Aggrieved against the same, the petitioner herein preferred an appeal before the 2nd respondent. The 2nd respondent has passed the final order on 30.07.2008 to the effect that during the pendency of O.S.No.24 of 2008 filed by the 4th respondent no final decision can be taken in this regard and the petitioner is advised to renew her application subject to the outcome of O.S.No.24 of 2008. Aggrieved against the same the petitioner filed further appeal to the District Revenue Officer/first respondent and the District Revenue Officer has confirmed the order of the second respondent and the correctness and validity of the order passed by all the three authorities is now challenged in this writ petition. 4. The learned senior counsel appearing for the petitioner has challenged the correctness of the order on the following grounds (1) the settler Radhakrishnan who executed the settlement deed in favour of Vikram has no right to unilaterally revoke the settlement deed and to settle it in favour of the 4th respondent (2) the Zonal Tahsildar has transferred the patta from the name of the petitioner to the name of the 4th respondent, without any notice, and any personal hearing to https://hcservices.ecourts.gov.in/hcservices/ the petitioner, as such the order impugned herein is in violation of well laid down procedure and the principles of natural justice (3) the orders of the appellate and the revisional authority directing the parties to settle the issue regarding the title before the civil forum and thereafter, to approach the revenue authorities for correction in the revenue entry. According to the petitioner, the impugned orders passed without considering the fact, that they are the competent authority to deal with the issues relating to patta transfer are totally erroneous and outcome of total non application of mind. 5. The learned senior counsel for the petitioner has also cited the following authorities in support of his contention as above referred to (1) 1998 LW 167 Madras Jayalakshmi and others Vs. Kaliyaperumal (2) 2004 (1) CTC 136 Chokkappan and two others V. State of Tamil Nadu rep. by the Special Commissioner and Commissioner Land Administration, Chepauk, Chennai-5 and two others (3) order of the learned single judge dated 12.04.2007 in Kamaruddin Saheb Vs. K.Palaniappan Nadar and others(4) 2009 (2) LW 247 G.D.Subramaniam Vs. The Sub Registrar, Office of Konur Sub Registrar, SIDCO Nagar, Chennai-49 and others (5) 2009 (5) CTC 558 in S.Ganesan Vs. Bharathirajan. 6. Per contra, the learned counsel for the 4th respondent, has by relying upon the reported and unreported judgments of our High Court and Supreme Court (1) 1995 1 MLJ 425 Division Bench of High Court Kuppuswami Nainar V. The District Revenue Officer and others (2) 2003 4 SCC 557 in Canara Bank and others Debasus Das and others (3) order dated 30.10.2009 in WP.13708/1999 A.Raju Vs. Karruppiah and others (4) order dated 18.10.2008 in K.V.Sathyanarayanan and others V. District Revenue Officer and others contended that the irregularity, if any, in not issuing any notice and in not giving any personnel hearing to the petitioner by the original authority is cured at the appellate and the revisional stage and the revenue authorities are not competent to go into and to decide the serious dispute regarding title involving bundle of disputed facts and evidence, and the petitioner is hence rightly directed to renew her application subject to the out come of the suit filed by the 4th respondent. 7. I have considered the submissions made on both sides and perused the records available herein. 8. Though the legality of the marital status between the petitioner and one Radhakrishnan who was the original owner of the property and the paternity of one Vikram, as that of the son born to the petitioner through the said Radhakrishnan are denied on the side of the 4th respondent, this court is not required to go into such issues in this writ petition. Likewise, the contention raised by the learned counsel for the petitioner, as to whether Radhakrishnan who executed settlement deed on earlier occasion in favour of Vikram and https://hcservices.ecourts.gov.in/hcservices/ who executed the second settlement deed in favour of the 4th Respondent which is the cause of action for the dispute relating to patta between the parties has any right to unilaterally revoke the earlier settlement deed executed in favour of Vikarm need not also be gone into as such the authorities cited on the side of the petitioner reported in(1) 1998 LW 167 Madras Jayalakshmi and others Vs. Kaliyaperumal (2) 2009 (5) CTC 558 in S.Ganesan Vs. Bharathirajan and unreported judgment dated 12.4.2007 for the legal proposition, that duly registered irrevocable settlement deed cannot be unilaterally cancelled or revoked is not applicable to the controversy in issue herein. 9. The core issue involved herein is relating to the inclusion of the name of the party concerned in the respective joint patta the basis of which inclusion are the two settlement deeds executed by the original owner Radhakrishnan. 10. The orders regarding patta transfer and the copy of pattas in the name of both the petitioner and the 4th respondent are enclosed at pages 24 to 26 and 38 to 40 in the typed set of papers filed by the petitioner. The perusal of the same reveals patta bearing 411, 324 in respect S.Nos. 426 and 427 are joint patta in the names of more than one person and the name of the petitioner in pursuance of the order dated 28.01.2004 and the name of the 4th respondents in pursuance of the order dated 13.11.2007 are only included along with the other pattadars in the respective joint patta. It is needless to say that originally the name of petitioner is included by removing the name of Radhakrishnan and the name of the 4th respondent is subsequently included by removing the name of the petitioner and the change is effected on both occasions without notice and personal hearing to the current patta holders, during the relevant period of time. 11. Be that as it may, the original authority/3rd respondent herein has admittedly removed the name of the petitioner and included the name of 4th respondent in both the pattas without notice to the petitioner herein. However, the 2nd respondent/appellate authority has, before disposing of the appeal filed against the original order, given due notice and effective opportunity to the petitioner and others to raise their objections and has thereafter, proceeded to dispose of the appeal on the basis of available records. The perusal of the order of the 2nd respondent/appellate authority enclosed at pages 81 to 83 of the typed set of papers filed by the petitioner would reveal that the petitioner and the 4th respondent were also represented by their respective advocates in the appeal. Similar opportunity is also given by the revisional authority. The revisional authority has held the enquiry in the revision on various date of hearings in the course of which the petitioner and the 4th respondent are permitted to appear and submit their statement and points for arguments in writing and the revisional authority has also disposed of the revision after considering the contentions raised on https://hcservices.ecourts.gov.in/hcservices/ both sides before the same. 12. Though as per the standing orders of board of revenue, any fresh entry or correction in the register of holding shall be after due notice to the parties concerned and though the petitioner, who was the current patta holder on the date of the impugned order passed by the Zonal Thasildar on 13.11.2007 is not admittedly given any notice, or hearing such procedural defect is as rightly argued by the 4th respondent rectified by the appellate and revisional authority though they are not statutorily required to do so. One such opportunity, which is, though post decisional in nature obliterates the procedural deficiency of pre decisional hearing as held by the judgment of the Supreme Court cited on the side of the 4th respondent in the judgment reported in 2003 4 SCC in Canara Bank V. Debasis das and others. Though the case decided by the Supreme Court arises under different context the legal principle laid down in the same is squarely applicable to the facts of the present case which are identical to that of the case dealt with by the Supreme Court. Wherein also, the petitioner was denied due hearing by the original and disciplinary authority and she was given personal hearing by the appellate authority and she was permitted to file written statement and document and the appellate authority has disposed of the appeal after considering all the available materials and against the dismissal of the appeal the employee filed writ petition before the High Court and the learned Single judge allowed the writ petition by holding that the failure to give opportunity to the employee to file his written briefs when one such opportunity was given to the presenting officer amounts to violation of principles of natural justice. The said order was challenged before the Hon'ble Division Bench and the Hon'ble Division Bench has also dismissed the appeal with the conclusion that regulation 6(18) is mandatory in nature and the failure to give an opportunity to the employee to file his brief before the enquiry officer prejudiced him and such patent unfair trial cannot be cured by fair appeal and quashed the proceedings. The order of the Hon'ble Division Bench confirming the order of the learned single judge was challenged by the management before the Supreme Court. The Hon'ble Supreme Court has after finding that regulation 6(18) does not even speak of granting such opportunity observed that the employee had such an opportunity to meet the stand of the bank and also for personal hearing and the question of prejudice does not arise and there was no material placed by the employee to show as to how he has been prejudiced and is pleased to observe that post decisional opportunity can obliterate the procedural deficiency of pre-decisional hearing. The Supreme Court has in para 22 of its judgment referred to the earlier judgment of the Supreme Court reported in 1999 6 SCC 237 in MC.Metha Vs. Union of India, wherein the Supreme Court has observed "we may however point out that in cases were the facts are not all admitted or not beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion refuse certiorari, prohibition, mandamus, or injunction even though natural justice is not followed. https://hcservices.ecourts.gov.in/hcservices/ We may also state if there is yet another line of cases as in State Bank of Patiala V. SK.Sharma (1996) 3 SCC 364; Rajendra singh V. State of M.P. (1996) 5 SCC 460" that even in relation to statutory provisions requiring notice, a distinction is to be made between case where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived". By following the observation as above referred to the Supreme Court has in para.23 of the case cited herein observed "unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this court may refuse to exercise the said jurisdiction. It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the appellate authority, though not statutorily prescribed. In a given case post- decisional hearing can obliterate the procedural deficiency of a pre- decisional hearing." 13. In my considered view, the observation of the Supreme court as referred to above is applicable to the facts of the present case with all force. As a matter of fact the combined reading of the relevant standing orders of the Board of Revenue and Sec.10 of Tamil Nadu Patta Pass Book Act and the relevant rules would reveal that what is contemplated under rule is to give notice calling for objections and opportunity to submit objections orally or in writing and no opportunity of personal hearing is contemplated. As rightly observed by the Supreme Court the requirement of statutory notice is fulfilled at the appellate and the revisional stage. Further, though the petitioner has questioned the action of the 3rd respondent in effecting the change without notice to the petitioner on the ground that it is in violation of principles of natural justice and prescribed procedure, the petitioner has no where averred that the same caused prejudice to the petitioner. That being so, the contention that the impugned order of the Zonal Tahsildar is vitiated for violation of principles of natural justice, is in the given case devoid of any substance. 14. On merits, it is true that both the appellate authority and the revisional authority did not go into the correctness of the order of the Tahisildar on merits. Both the authorities below have in view of the pendency of the Civil suit filed by the 4th respondent herein in O.S.No.24 of 2008 declined to cancel the order of the Tahsildar so as to restore status quo prior to his order dated 13.11.2007, in respect of the patta entry but adviced the petitioner to approach the revenue authority for any correction subject to the outcome of O.S.No.24 of 2008. As already referred to the Civil dispute among the parties is about the legality of the marital status between the petitioner and Radhakrishnan and the paternity of Vikram as claimed by the petitioner and the 4th respondent who is admittedly the legitimate son of Radhakrishnan has filed comprehensive suit for https://hcservices.ecourts.gov.in/hcservices/ declaratory and consequential reliefs in respect of the suit property. 15. While it is seriously argued by the learned counsel for the petitioner that pending determination of the suit on serious issue involving bundle of disputed facts and evidence the status quo before the inclusion of the name of the 4th respondent is to be necessarily maintained, the learned counsel for the respondents would seriously oppose the said contention on the ground that in the event of the status quo as on date being maintained pending serious issue regarding the right title and interest of the parties, no serious prejudice is likely to be caused to any of the parties. Both the learned counsel for the petitioner and the contesting respondent would attempt to seek support of the following authorities in support of their respective contentions (1) 2004 (1) CTC 136 Chokkappan and two others V. State of Tamil Nadu rep. by the Special Commissioner and Commissioner Land Administration, Chepauk, Chennai-5 and two others (2) 1995 1 MLJ 425 Division Bench of High Court Kuppuswami Nainar V. The District Revenue Officer and others (3) order dated 30.10.2009 in WP.13708/1999 A.Raju Vs. Karruppiah and others (4) order dated 18.10.2008 in K.V.Sathyanarayanan and others V. District Revenue Officer and others. In the judgment cited on the side of the petitioner the High Court was pleased to set aside the order of inclusion of the name of the 3rd respondent without affording due opportunity to the petitioner therein with liberty given to the 3rd respondent to work out her remedy in Civil court as to her title over the land and then to approach revenue authorities for inclusion of name in patta in case decree has been granted by Civil Court and the party is directed so mainly on the ground that the inclusion of the name of the 3rd respondent is based on decision on title given in favour of the 3rd respondent by revenue authority. It is observed in para 5 of the judgment "when the patta stands in the name of particular person inclusion of others in the patta is not permissible that too on consideration of title by the revenue officials.... In this context the impugned order cannot be sustained as the 3rd respondent name has been included only after the decision rendered by the revenue officials regarding the title of the 3rd respondent". 16. As a matter of fact, the High Court has in para 3 of its order referred to want of notice to the writ petitioner only while narrating the grievance as raised in the petition by the petitioner. But our High Court has in the discussion para 5 no where observed that the inclusion of the name of 3rd respondent without affording opportunity is legally impermissible. The entire discussion was on the point as to whether the inclusion of the name of the 3rd respondent on the basis of decision on title by the revenue official is proper or not and impugned order is set aside by deciding it in the negative. 17. Coming to the authority cited on the side of the 4th respondent, the observation made in the same by the Hon'ble Division https://hcservices.ecourts.gov.in/hcservices/ Bench and the learned single judge following the Division Bench judgment do support the manner of disposal of the issue in hand by the appellate and revisional authorities. The learned counsel for the 4th respondent has drawn the attention of this court to the observation of the Hon'ble Division Bench in para 4 of its judgment which is as follows : "Even if we are to interfere with the order under appeal it is the other party who has to go to a civil court and establish title. As far as exercise of jurisdiction under Article 226 of the constitution is concerned it does not matter whether A party goes to civil court or B party. Therefore, we are of the view that the question of title has to be decided without reference to the order under question". By observing so the court declined to interfere with the order impugned therein. The learned single judge has in the judgment dated 30.10.2009 while dealing with the validity of the proceedings of the Revenue Divisional officer in deleting the name of the writ petitioner as the cultivating tenant of the land or in issuing patta in the name of temple and poosaries, decided the issue mainly on the basis of civil court decree and by applying the principles laid down by the Hon'ble Dvision Bench in Kuppusamy case to the effect that ultimately it is the ciivl court which has to adjudicate the question as to whether the person claiming title is the title holder of the land or not. The learned single judge in para 11 of its order in the other case decided on 18.12.2008 under similar circumstances in the light of the decision of Supreme Court and this court and the availability of alternate remedy of filing civil suit as per G.O.Ms.No.409 Revenue SSI(I) Department dated 02.07.2008 is pleased to hold that the writ petitioners are not entitled to challenge the order by way of writ petition and they can only establish there right through civil court and has dismissed the writ petition with liberty given to the petitioner to approach the ciivl court to get the grievance redressed. 18. In this context, the learned counsel for the 4th respondent has produced the copy of G.O.Ms.No.409, dt.02.07.2008 referred to in the judgment dated 18.12.2008. The Government in and under the G.O. above referred to has withdrawn the second revision power vested upon the Special Commissioner and Commissioner of Land Administration against the order of first revisional authority in respect of patta transfer cases and the Government has under the G.O. directed all the cases, pending before the Special Commissioner in this regard where enquiries are not commenced, to be returned back to the parties concerned with direction to approach the competent court of law. The learned counsel of the 4th respondent has by relying upon the judgments and the G.O. above referred to sought to defend and justify the correctness and validity of the orders passed by the authorities below on the ground that validity of patta entry has to be ultimately decided subject to the decision on title by the appropriate civil forum and as already comprehensive civil suit is pending the petitioner is rightly advised to establish her right before the ciivl court and then to approach the revenue authority. https://hcservices.ecourts.gov.in/hcservices/ 19. This courts finds considerable force in the argument so advanced on the side of the 4th respondent in view of the observation of the Hon'ble Division Bench in 1995 1 MLJ 425 in Kuppuswami Nainar V. The District Revenue Officer and others and the observation of the learned single Judge W.P.No.2041 of 2008. In both the cases the Hon'ble Division