IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.11.2011 Coram: THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P. Nos.26701, 26703 to 26707 of 2007 Nagalakshmi .. Petitioner in W.P.No.26701/07 S. Nedunchezhian .. Petitioner in W.P.No.26703/07 N. Ramadoss .. Petitioner in W.P.No.26704/07 Kadhirvel .. Petitioner in W.P.No.26705/07 Manikandan .. Petitioner in W.P.No.26706/07 Natajaran .. Petitioner in W.P.No.26707/07 vs. 1.The State of Tamilnadu, Rep. by the District Collector, Cuddalore. 2.The Special Deputy Collector, (Revenue Court), Cuddalore. 3.The Record Officer, (Thasildar) Kattumannar Koil, Cuddalore District. 4.The Special Thasildar, Adhi Dravida Welfare, Kattumannar Koil, Cuddalore District. .. Respondents in all Wps Prayer in W.P.No.26701 of 2007 Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari, to call for the records of the third respondent in proceedings dated 13.11.2006, Ni.Mu.Ku.pa.va. No. 13/2004 / Na.Ka.No.6/2006, quash the same. https://hcservices.ecourts.gov.in/hcservices/ Prayer: Writ Petitions filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari, calling for the records of the third respondent in proceedings dated 13.11.2006, KU.Pa.(A5) No.7/2004/NA.Ka.No.9/2006. KU.PA.(A5) NO.4018/2005/NA.Ka.No.8/2006 KU. PA (A5) No.6256/2005 / Na.KA.No.10/2006. KU.PA (A5)5/2006 and KU.PA(A5) No.6254/05 respectively quash the same. For Petitioner : Mr.R.Subramanian For Respondents : Mr.R.Lakshmi Narayanan GA for RR1-4 C O M M O N O R D E R Since the issue involved in all these writ petitions are identical, they were heard together and are disposed of by this common order. The prayer in all these writ petitions are identical, to quash the order dated 13.11.2006, passed by the third respondent, the Record Officer, under the provisions of the Tamil Nadu Agricultural Land Record of Tenancy Rights Act, 1969, (1969 Act). 2. The petitioners claim to be cultivating tenants in respect of specified extent covered in R.S.Nos.22/2, 88/1, 89, 62/2A, 82/3A, 83/3, 107/4, 107/5, 108/1, 108/2, 110/2, 111/2, 111/3, 111/4, 111/5, 46/1, 46/2A, 51/2, 51/3, 58/4B, 76/2, 96/5, 97/2C, 97/3, 99/4 and 99/5, Kooduvelichavadi village, Kattumanarkoil Taluk, Cuddalore District having taken the same on lease from the respective land owners and said to be cultivating the same for several years. At this stage it may be noted that the land owners have not made the parties to the writ petitions. 3. The petitioners claim to be entitled to protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955, and it is further stated that they did not take any proceedings to record their names as a tenants under the 1969 Act. During 2005/2006, the petitioners appear to have filed applications under Section 4 of the 1969 Act before the third respondent. The third respondent passed an order on 17.07.2006, directing that the petitioners' names should be recorded as a cultivating tenants in respect of the said lands. https://hcservices.ecourts.gov.in/hcservices/ The petitioners further state that though the land owners were served with notice in the proceedings before the third respondent, they did not choose to appear, but with a view to evict the petitioners, they executed Gift deed in favour of the Government during October 2006, thereby absolutely gifting the property in favour of the Government. Subsequently, the third respondent passed an order on 06.10.2006, setting aside the earlier order dated 17.07.2006 and subsequently, directed the petitioners to appear for an enquiry on 20.10.2006. On receipt of such notice, the petitioners appeared before the third respondent and stated their names have to be recorded as cultivating tenants. The third respondent after conducting an enquiry, by order dated 13.11.2006, cancelled the initial order dated 17.07.2006. Aggrieved by such order, the petitioners have filed these writ petitions. It is stated by the petitioners that as against the impugned order there is no appeal since an appeal would lie under Section 6 of the Act only against the orders made under Sections 3(8), 4(3) and 5(3) and the impugned order will not come under any of the said provisions. 4. Mr.R.Subramanian, the learned counsel appearing for the petitioners contended that there is no power for the third respondent either to cancel or review his own order, except in the manner and the circumstances prescribed under Section 5 and none of the circumstances stipulated under Section 5 have been satisfied in the present case. Further it is contended that the order dated 06.10.2006, passed by the third respondent setting aside the order dated 17.07.2006, was made without notice to the petitioners and in violation of principles of natural justice and consequently, the impugned order dated 13.11.2006, is liable to be set aside. 5. Per contra, the learned Government Advocate, by relying upon the counter affidavit, submitted that there are no records to show that the petitioners were cultivating tenants and if any such record is available nothing prevented the petitioners by producing such documents. Further, it is submitted that the earlier order passed by the third respondent dated 17.07.2006, was an ex-parte order and therefore the same was rightly set aside and thereafter opportunity was granted to the petitioners and they appeared for enquiry before the third respondent and after hearing them, the impugned order has been passed. Therefore, it is contended that there is no violation of principles of natural justice. It is further submitted that it is false to state that the petitioners are cultivating tenants and https://hcservices.ecourts.gov.in/hcservices/ contributing physical labour when infact the petitioners are wealthy persons owning cultivable lands and employing labourers for doing cultivation in their own lands. It is further submitted that the possession of the lands have been taken over and it is going to be utilised for construction of Government ITI and Polytechnic for the benefit of the Adi Dravida student and it is false to state that the petitioners are in possession of the lands. 6. Heard the learned counsels for the parties and perused the materials available on record. 7. Act 10 of 1969, was enacted to provide for the preparation and maintenance of record of tenancy rights in respect of agricultural lands in the State of Tamilnadu. Section 2(4) defines 'land', Section 2(5) defines 'Land Owner' and Section 8(i) defines 'tenant' in respect of any area in the State other than Kanniyakumari District. In terms of Section 3 of the Act, the Government may by notification direct the preparation of a record of tenancy rights for such village as may be prescribed in the notification. In terms of Section 3(3)(a) after the publication of the notification under Sub-Section 1 of Section 3, the Record Officer shall publish a notice in the village, informing the public that a record of tenancy rights is to be prepared for that village and information has to be given by the tenant or intermediary and the landlord. In terms of Sub-Section 4 of Section 3, the Record Officer on the basis of the intimation given under Sub-Section 3 of Section 3 or on the basis of information obtained under Section 9 or recommendations made under Section 5(A), the Record Officer after giving a reasonable opportunity to the parties concerned to make their representations either orally or in writing prepare a draft record of tenancy rights for the village. In terms of Sub-Section 5 of Section 3 such draft record of tenancy rights, shall be published in the District Gazette and in such other manner, as may be prescribed and the extract of the entries in the draft record shall also be served on the land owner, intermediary, if any, and the tenant concerned. Any person aggrieved by such draft record, can make an application to the Record Officer under Sub-Section 6 of Section 3 for rectification of any entry. If such application is received under Sub-Section 6, the Record Officer shall follow the procedure and after giving reasonable opportunity to the parties concerned, decide that any rectification or inclusion should be made. In any event, in terms of clause (c) of Sub-Section 8 of https://hcservices.ecourts.gov.in/hcservices/ Section 3, such order shall contain reasons. It is only thereafter under Sub-Section 9 of Section 3, the final record of tenancy rights shall be prepared, which shall be published in the Gazette as required under Sub-Section 10 of Section 3. Section 4 of the Act deals with inclusion of lands in the approved record of tenancy rights. In terms of Sub-Section 3 of Section 4, the procedure is akin to the procedure under Section 3 (3) (a) and the Record Officer shall give reasonable opportunity to the parties concerned to make their representations either orally or in writing. Further, the order is also required to be communicated to the parties concerned. Section 5 of the Act deals with modification of entries in approved record of tenancy rights. From the language used in Section 5(1), it is manifest that modification in the records of tenancy is permissible when there is transfer of interest, by reason of death of any person or any subsequent change in the circumstances necessitating modification in the revenue records. 8. The case of the petitioners is that they are cultivating tenants and were entitled to protection even under the 1969 Act. Further they would state that though Act 10 of 1969, came into force, they did not choose to avail the benefit of the Act and for the first time, they made the applications before the Record Officer during 2006. This applications are purported to have been made under Section 4 of the Act. The third respondent had passed an order on 17.07.2006, stating that the applicants appeared for the hearing and though notice was sent by Registered post to the land owners, they did not appear. However, in the order, it has not been stated whether the notice of enquiry was served on the lands owners. Thereupon, the third respondent stated that on perusal of the documents, it is established that the applicants are cultivating tenants. However, what are the nature of documents produced by the applicants, have not been mentioned in the order dated 17.07.2006. 9. As noticed above, in terms of clause (c) of Section 4 (3) an order was passed by the Record Officer, shall contain in the reasons and shall be communicated to the parties concerned. A bear perusal of the impugned order, shows that it is devoid of reasons. It appears that the land owners on coming to know about the ex-parte order dated 17.07.2006, filed an application before the Record Officer, to set aside such order and an afford them an opportunity. It cannot be stated that a statutory authority such as the Record Officer who has been given power to adjudicate upon tenancy rights https://hcservices.ecourts.gov.in/hcservices/ does not have the power to re-call an ex-parte order, moreso when such order could be treated as a quasi judicial order. 10. In my view, the power to recall such ex-parte order, is inherent in the third respondent and such inherent power could be exercised after affording fair and reasonable opportunity to the aggrieved persons. In the instant case, though the third respondent did not afford an opportunity at the first instance, while passing the order dated 06.10.2006, thereafter issued notice to the petitioners for hearing their objections and to conduct an enquiry as contemplated under Section 4(3)(a) of the Act. At this stage, it is to be relevant to note that the petitioners without any demur participated in the fresh enquiry conducted by the third respondent in the presence of the land owners. Therefore, having participated in such enquiry, and having not raised any such contention before the third respondent, the petitioners should not be permitted to raise such a contention before this Court after having been unsuccessful before the third respondent. Further, no plea of prejudice was raised or pleaded by the petitioners before the third respondent on account of the order dated 06.10.2006, but willingly participated in the enquiry conducted by the third respondent on 20.10.2006. 11. At this stage, it would be relevant to take note of the decision of this Court in Jayarama Naidu Vs. Meenakshi Ammal and another 1995 (1) CTC 566. The substantial question of law which was framed in the said case was, when the order obtained from the Record Officer was obtained ex-parte and a collusive one without making the plaintiff a party, whether the party is entitled to the benefit of the Cultivating Tenants Protection Act. While answering the said question this Court held that such order made in violation of principles of justice, fraud or collusion and such entries of the Record Officer is nonest in the eye of law and it will not confer any right. Further this Court held the entries made by the Record of Tenancy Tahsildar behind the back of the real owner and persons interested renders it a nullity and non est . By applying the law laid down by this Court in the aforementioned decision, this Court has no hestitation to hold that the ex-parte order dated 17.07.2006, cannot confer any right on the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 12. The next issue which has to be seen is as to whether the petitioners were able to substantiate their claim before the Record Officer. As seen, no documents were produced by the petitioners to prove their claim. Therefore, the Record Officer rightly held that the claim to be not proved. That apart the contention raised by the land owners that the petitioners are wealthy persons owning vast extent of lands and they are cultivating their lands by employing labourers and one of the petitioner, namely Nagalakshmi's husband was employed in France and he had returned to India and receiving monthly pension of Rs.30,000/- and their claim was not bonafide remained uncontroverted before the Record Officer. Further, even in the writ petitions, no grounds have been raised in this regard. 13. That apart, the Record Officer took note of the fact that the land owner executed a gift deed in favour of the Government on 09.10.2006, which was registered as document No.481 of 2006 and pursuant thereto possession was taken and the patta maintained by the Tahsildar, Kattumannarkoil, has been directed to be changed in the name of the Adi Dravida Welfare Department, Chidambaram. Further, the third respondent recorded a finding of fact that the chitta and adangal stand in the name of the original land owners. That apart it is seen from the order that lands in question were gifted to the Government during 2001 and after compliance of formalities, the gift was accepted by the Government on 27.12.2005 and the gift deed was registered on 09.102.006. Therefore it is manifest that the petitioners having been aware of the entire transaction by adopting certain fraudulent means, during 2006, took steps to record their names alleging as if they are cultivating tenants. Therefore, the Record Officer rightly observed that if the claim of the petitioners was bonafide nothing prevented them from approaching the authority earlier and their attempt to record their name after the lands were gifted to the Government is not a bonafide transaction and their plea that they are cultivating tenants is unbelievable, moreso when no documents were produced by the petitioners before the Record Officer. 14. The land owners in a magnanimous manner have gifted the lands to the Government even during 2001, but it took nearly five years for the Government to accept the gift and ultimately it was registered in favour of the Government. Therefore, the plea raised by the petitioners that they were cultivating tenants is absolutely https://hcservices.ecourts.gov.in/hcservices/ false and not established before the Record Officer and there is no error in the decision making process by the third respondent and the ex-parte order obtained initially from the Record Officer on 17.07.2006, is exfaci illegal and non est in the eye of law and the petitioners having participated in the fresh proceedings conducted by the third respondent and having miserably failed to prove their claim, are not entitled for any indulgence before this Court. Further the allegation that the petitioners are wealthy landlords owning vast extent of lands and employing labourers to cultivate their lands have remained uncontroverted. Thus, the plea that the petitioners are cultivating tenants lacks bonafide and the Record Officer rightly rejected their claim. 15. In the result, the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. pbn To 1.The District Collector, State of Tamilnadu, Cuddalore. 2.The Special Deputy Collector, (Revenue Court), Cuddalore. 3.The Record Officer, (Thasildar) Kattumannar Koil, Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/ 4.The Special Thasildar, Adhi Dravida Welfare, Kattumannar Koil, Cuddalore District. 6 ccs to Mr.R. Subramanian, Advocate, Sr. 71807, 71809, 71813 1 cc to Government Pleader, Sr. 71957 W.P. Nos.26701, 26703 to 26707 of 2007 BKY (CO) kk 16/12 https://hcservices.ecourts.gov.in/hcservices/