IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.07.2011 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.No.1275 of 2006 Vishwas Footwear Company Ltd A-2 Third Phase, Guindy Industrial Estate Chennai 600 032 rep.by Director V.Ravi ..Appellant/Petitioner -vs- 1. The District Collector Kancheepuram 2. The Revenue Divisional Officer Kancheepuram 3. The Tahsildar Sriperumbudur 4. E.Kumar 5. K.Anbalagan ..Respondents/Respondents Appeal filed under Clause 15 of the Letters Patent against the order dated 30.06.2006 made in W.P.No.25026 of 2005 Petition filed under Article 226 of the Constitution of India praying for the Issuance of writ of certiorarified Mandamus calling for the records of the 2nd respondent in P.Dis.3227/2005/A, and to quash the order dated 16.7.2005 made therein and consequently to direct the respondents to forbear from interfering with the petitioner's right, title and interest in its holdings being 51 cents in Survey No.93/3A and 57 cents in Survey No.93/4A Thandalam Village, Sriperumbudur Taluk, Kancheepuram District. For Appellant :: Mr.T.M.Hariharan For Respondents:: Mr.M.C.Swamy Special Government Pleader for R1 to R3 Mr.P.Wilson Senior Counsel for Mr.G.Sankaran for R4 R5-No appearance https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT D.MURUGESAN, J. The writ appeal is directed against the order dismissing the writ petition filed by the appellant herein. Facts giving rise to the present writ appeal are as follows. The appellant company claims to have purchased an extent of 51 cents in Survey No.93/3 and 57 cents in Survey No.93/4 of Thandalam village, Sriperumbudur Taluk, Kancheepuram District from one Tmt.Shoba Ramalingam by way of a registered sale deed dated 30.10.92 in Document No.4673 of 1992 registered on the file of Sub Registrar, Sriperumbudur. According to the appellant, the said Tmt.Shoba Ramalingam in turn acquired an extent of 80 cents of land in Survey No.93/3 from one Thiru K.Palani Achari under a registered sale deed and the said Thiru.Palani Achari in turn acquired his holdings in the said survey number from one Thiru.T.Balarama Pillai and others in the year 1964 by way of a registered sale deed. 2. The appellant company’s holding in Survey No.93/3 was sub- divided as Survey No.93/3A and the holding in Survey No.93/4 was sub- divided as Survey No.93/4A. The appellant company had been paying kist regularly and the same was made upto Fasli 1414 as on 19.3.2005. In respect of the land, Patta No.459 was issued in favour of Tmt.Shoba Ramalingam, the vendor of the appellant company. Ever since the date of purchase in the year 1992, the appellant company had been in possession of the property and had developed the same by spending over Rs.11 lakhs. An extent of 0.163 square metres of land in Survey No.93/4 was acquired by the Highways Department and the appellant was also paid the compensation therefor. 3. The appellant was served with the proceedings of the Revenue Divisional Officer, Kancheepuram dated 8.6.2005 requiring them to appear before him for an enquiry on 10.6.2005. That proceeding relates to an enquiry, whereby one Thiru.E.Kumar claimed patta in Survey No.93/3 in an extent of 1.32 acres. The appellant was directed to produce the document relating to title, which they did. In spite of the same, by the proceedings of the Revenue Divisional Officer, Kancheepuram dated 16.7.2005, the patta granted in favour of the appellant was cancelled in respect of 80 cents of land in Survey No.93/3 with a further direction to issue patta in favour of one Thiru E.Kumar, the fourth respondent in this writ appeal. 4. Being aggrieved by the above, the appellant was constrained to file the writ petition. The learned Judge, placing reliance upon the Division Bench judgment of this Court in Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai and others, 1995 (1) MLJ 426 and the judgment of a learned single Judge (DMJ) in Chockkappan and two others v. The State of Tamil Nadu rep.by the Special Commissioner and Commissioner of Land Administration, Chennai and two others, 2004 (1) CTC 136, held that in the event a dispute relating to the title is involved, the writ Court cannot entertain the writ petition and adjudicate the same. Consequently, the learned Judge dismissed the writ petition. Further the learned Judge held that the appellant has got a remedy of appeal before the District Collector https://hcservices.ecourts.gov.in/hcservices/ and accordingly, the appellant was given liberty to file appeal in a period of four weeks. This order is put in issue in this writ appeal. 5. We have heard Mr.T.M.Hariharan, learned counsel for the appellant, Mr.M.C.Swamy, learned Special Government Pleader for the respondents 1 to 3 and Mr.P.Wilson, learned senior counsel for the respondent no.4. 6. The writ appeal was resisted on the ground that the appellant being the writ petitioner should have availed the remedy of appeal instead of filing the writ petition. In this context, we may refer to the fact that in the event the act of the revenue authority is without jurisdiction, particularly for the reasons stated hereunder, the writ petition is certainly maintainable. See M.P.State Agro Industries Development Corporation Limited and another v. Jahan Khan, (2007) 10 SCC 88. Hence, on the facts of this case, we hold that the writ petition is maintainable. 7. This takes us to the next question as to whether the appellant would be entitled to succeed in this writ appeal. This Court is frequently called upon to consider the validity of the orders passed cancelling the patta already granted in favour of one person/persons and the grant of patta to other person/persons by the revenue authorities after entering into disputed questions, which can only be adjudicated in a civil Court. Hence, we are inclined to refer to the various provisions of the Tamil Nadu Patta Pass Book Act, 1983 while dealing with the issue. Section 2(1) of the Tamil Nadu Patta Pass Book Act, 1983 defines the term “agriculture” as including horticulture; the raising of crops, grass or garden produce; the use by an agriculturist of land held by him, or part thereof, for grazing; the use of any land for the purpose of raising manure crops; dairy farming; poultry farming; livestock breeding; growing of trees and “agricultural” shall be construed accordingly. In terms of Section 2(6) “owner” means any person holding land in severalty or jointly or in common under a ryotwari settlement or in any way subject to the payment of revenue direct to the Government, and includes a full owner or limited owner but does not include a mortgagee, lessee or a tenant. In terms of Section 2(8) “person” includes any company, firm, society or association of individuals, whether incorporated or not; or any private trust or public trust. In terms of Section 2(9), “registering authority” means the registering officer appointed under the Registration Act, 1908. In terms of Section 2(10), “Tahsildar” means the Tahsildar having jurisdiction over the area in which the land is situated or any other officer of the Revenue Department not below the rank of Deputy Tahsildar authorised by the Government, by notification, to exercise the powers conferred on , and discharge the duties imposed upon, the Tahsildar under this Act, for such area as may be specified in the notification. Thus, in terms of the above provisions, an owner of land defined under Section 2(6) or a person defined under Section 2(8) would be entitled to the grant of patta. The authority competent to grant patta is the Tahsildar having jurisdiction over the area in which the land is situated or any other officer of the Revenue department not https://hcservices.ecourts.gov.in/hcservices/ below the rank of Deputy Tahsildar authorised by the Government in this behalf. 8. Section 3 deals with the detailed procedure to be followed in issuance of patta and the said section reads as under:- “3. Issue of patta pass-book.—(1) The Tahsildar shall issue a patta pass-book to every owner in respect of land owned by him, on an application made by him in this behalf. Any application. Any application received under this section shall be acknowledged by the Tahsildar or any other officer authorised by him in this behalf. (2) A taluk shall be the unit for the issue of patta pass-book. (3) (a) As soon as may be, after the publication of the notification under sub-section (3) of section 1 bringing this section into force in an area and before undertaking the work relating to the issue of patta pass-book, the Tahsildar shall publish a notice in each village in such area informing the public that patta pass-book is to be issued under this Act to every owner and such owner shall apply for the issue of patta pass- book as provided under this section. (b) The notice shall contain such further particulars and shall be published in such manner, as may be prescribed. (4) The application under sub-section (1) shall be in such form, shall contain such declaration and particulars, and shall be made in such manner and within such time, as may be prescribed. (5) In cases where no application has been made by any owner within the time limit referred to in sub-section (4) in respect of any land, the Tahsildar shall, based on the entries made in the records available in his office, cause a notice to be served on the owner of the land concerned requiring him to furnish any information or produce any document for his inspection and also to make his representation, if any, in writing for making necessary entries in respect of the land concerned in the Register of Patta Pass-Book maintained by him and for the purpose of issuing the patta pass-book. (6)(a) Any owner on whom a notice has been served under sub-section (5) shall be bound to furnish or produce for the inspection of the Tahsildar within such time as may be specified in such notice or within such further time not exceeding thirty days as the Tahsildar may, in his https://hcservices.ecourts.gov.in/hcservices/ discretion, allow such information or documents, needed for making necessary entries in the Register of Patta Pass-Book in respect of the land concerned or for the purpose of issuing the patta pass-book, as may be within his knowledge or in his possession or power. (b) Where, any information is furnished or any document is produced in accordance with the notice under sub-section (5), the Tahsildar or any officer authorised by him in this behalf shall give a written acknowledgment thereof to the person furnishing or producing the same and shall endorse on such document a note under his signature stating the fact of its production and the date thereof. (7) On receipt of the application under sub- section (1) or on the basis of information obtained by the Tahsildar under clause (b) of sub-section (6), the Tahsidlar shall follow such procedure as may be prescribed and shall also give a reasonable opportunity to the persons having interest in the land to make their representations either orally or in writing. After considering the claims of the persons having interest in the land, the Tahsildar shall determine as to whom the patta passbook is to be issued and shall issue a patta pass-book accordingly to the owner of the land concerned: Provided that in the case of any owner who has not made an application under sub-section (1) and in respect of whom a notice has been served under sub-section (5), no patta pass-book shall be issued by the Tahsildar unless a declaration in the prescribed form is filed by the owner concerned before the Tahsildar: Provided further that in any case where the Tahsildar is satisfied that any person is not the owner of any land for which a patta pass-book is applied for or claimed, he shall for reasons to be recorded in writing reject the application or claim, for the issue of a patta pass-book in respect of such land. (8) The patta pass-book shall be in such form as may be prescribed and contain the following particulars, namely:- (a) the survey number or sub-division number, extent and local name, if any, of the land; (b) the name and address of the owner; (c) such other particulars as may be prescribed. (9) While issuing a patta pass-book under this section the Tahsildar shall cause all the entries https://hcservices.ecourts.gov.in/hcservices/ and particulars as contained in such patta pass- book, to be made in the Register of Patta Pass- Book maintained in the office of the Tahsildar for the purpose of record. The Register of Patta Pass-Book shall be in such form and maintained in such manner, as may be prescribed. (10) The patta pass-book shall be issued under this section on payment of such fee as may be prescribed.” Thus, issuance of patta in favour of an applicant is not automatic and it requires compliance of various procedures to be followed by the Tahsildar. After the Act was published, Tahsildar shall cause notice to be published in each village indicating the owner to apply for patta pass book. Once such notice is published, the owner shall produce documents/furnish information to the Tahsildar for making entries in respect of the land concerned in the Register of Patta Pass Book maintained by him and for the purpose of issuing patta pass book. Under sub-section (7) of Section 3, person interested in the land shall be given opportunity and the Tahsildar shall determine as to whom the patta pass book is to be issued. The entries in the patta pass-book and the certified copy of entries in the patta pass book shall be presumed to be true and correct, until the contrary is proved or a new entry is lawfully substituted therefor in terms of Section 4 of the Act. The entries in the patta pass-book issued by the Tahsildar under section 3 shall be prima facie evidence of title of the person, in whose name the patta pass-book has been issued to the parcels of land entered in the patta pass-book, free of any prior encumbrance, unless otherwise specified therein in terms of Section 6. 9. The Patta Pass Book scheme was introduced in order to ensure that all pattadars of land get pass books, giving up to date details of their holdings and that the patta pass book serves as an effective instrument for revenue administration. For obtaining such patta, an applicant has to prima facie satisfy with the documents or any other information relating to the land to the Tahsildar for his determination and on such determination, the Tahsildar not only makes necessary entries in respect of the land concerned in the Register of Patta Pass Book maintained in the office of the Tahsildar, but also for the purpose of issuing patta pass book to the owner or the person concerned. The entries in the patta pass book shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted. 10. The patta pass book relating to a particular land shall be produced before the registering authority as defined under sub- section (9) of Section 2 of the Act for the purpose of sale, gift, mortgage, exchange, settlement or otherwise. Unless the patta pass book is produced, the registering authority shall refuse to register the land in terms of Section 5 of the Act. In the event a document is registered after the patta pass book is produced and a certified extract of entries relating to such transfer is produced before the Tahsildar concerned in terms of sub-section (3) of Section 5, the Tahsildar shall cause necessary changes to be carried out in the https://hcservices.ecourts.gov.in/hcservices/ patta pass book already issued under Section 3 and issue a new patta pass book after sub-division is necessary. 11. A reading of the above provisions show that an owner or person who has been issued with the patta, if transfers the land by way of sale, gift, etc., and for that purpose registers the same before the registering authority, the person who is the beneficiary of that document can approach the Tahsildar for necessary entries relating to transfer in the patta pass book. In order to find out as to the jurisdiction of the Tahsildar under sub-section (3) of Section 5, we must read Rule 9 of the Tamil Nadu Patta Pass Book Rules, 1987 That rule contemplates that the Tahsildar shall carry out necessary changes in the Register of Patta Pass Books maintained by him within fifteen days from the date of receipt of the certified extracts or the entries of transfers under section 5(2) from the registering authority or a report under section 7 after satisfying himself as to the correctness of the particulars contained therein. Hence, the necessary changes would be only in respect of the registration of alienation or transfer in the patta pass book as enumerated in section 5, which does not contemplate making necessary entries by cancelling the patta without there being any transfer of sale, gift, mortgage etc., of the land in question by the parties in whose name the patta pass book stands registered. This provision does not empower the Tahsildar to cancel the patta pass book granted in favour of person/persons on an application by any other third party. 12. The only provision available for modification of the entries in the patta pass book is Section 10, which reads as under:- “10. Modification of entries in the patta pass- book.—(1) Where any person claims that any modification is required in respect of any entry in the patta pass-book already issued under section 3 either by reason of the death of any person or by reason of the transfer of interest in the land or by reason of any other subsequent change in circumstances, he shall make an application to the Tahsildar for the modification of the relevant entries in the patta pass-book. (2) An application under sub-section (1) shall contain such particulars as may be prescribed and shall be accompanied by the documents, if any, relied on by the applicant as evidence in support of his claim. (3)(a) Before passing an order on an application under sub-section (1), the Tahsildar shall follow such procedure as may be prescribed and shall also give a reasonable opportunity to the parties concerned to make their representations either orally or in writing. If the Tahsildar decides that any modification should be made in respect of entries in the patta pass-book, he shall pass an order accordingly and shall make such consequential changes in the patta pass-book, as https://hcservices.ecourts.gov.in/hcservices/ appear to him to be necessary, for giving effect to his order. (b) If the Tahsildar decides that there is no case for effecting any modification in the entries in the patta pass-book, he shall reject the application. (c) An order under clause (a) or clause (b) shall contain the reasons for such order and shall be communicated to the parties concerned in such manner as may be prescribed.” By that provision, in the event any modification is required on an application by any person, it can be made either by reason of the death of any person or by reason of transfer of interest in the land or by reason of any subsequent change in the circumstances. This section also does not empower the Tahsildar to cancel the patta already granted, as the power of the Tahsildar to modify the entries in the patta pass book is limited only in case of death of the person who was holding the patta pass book or by reason of the transfer of interest in the land or by reason of any other subsequent change in the circumstances. In the event an application is made that the patta pass book has been wrongly issued in favour of any person and consequently claiming title over the land entitling such person to grant of patta, that person can only file a suit for declaration that the entries made in the patta pass book should be cancelled and consequently for a mandatory injunction for grant of patta. 13. Section 12 contemplates that any person aggrieved by an order made by the Tahsildar under the Act may within such period as may be prescribed appeal to such authority as may be prescribed. Rule 14 of the Rules empowers such an appeal to be filed before the officer in charge of Revenue Division in whose jurisdiction the property lies within a period of thirty days from the date of receipt of the order. In order to invoke the provisions of appeal, there must be an order passed by the Tahsildar either under section 3 or under section 5 or under section 10 of the Act and any person aggrieved by such order made by the Tahsildar could prefer appeal within a period of thirty days from the receipt of the order under Rule 14. If the above provisions of sections 3, 5 and 10 are read together with the rule 14, the only conclusion which could be arrived at by the Court is in the event an application is made for issuance of patta and if it is denied or if it is granted in favour of somebody, the person aggrieved, as the case may be, can file an appeal under section 12 of the Act. Hence, the provisions of section 12 must be read to empower the Revenue Divisional Officer to entertain an appeal challenging the grant of patta in favour of a person or persons and consequently seek for cancellation of the same. Nevertheless, such request must be made strictly in terms of the provisions of section 12 read with rule 14 of the rules, which prescribe a mandatory period of thirty days from the date when the entry was made. https://hcservices.ecourts.gov.in/hcservices/ 14. Keeping the above in mind, the issue is to be considered. The writ appeal raises two important questions. Firstly, whether the Revenue Divisional Officer would be competent to go into the disputed question of title while considering the application for cancellation of patta. In fact, the law on this is not res integra. As early as in the year 1995, a Division Bench of this Court in Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai and others, 1995 (1) MLJ 426 has observed as follows: “3. No provision is brought to our notice in the Standing Orders of the Board of Revenue taking away the jurisdiction of the civil court to adjudicate upon the question of title relating to immovable property. Revenue Officers in a patta proceeding may express their views on the question of title, but such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately, it is the civil court which has to adjudicate the question as to whether the person claiming patta is the title holder of the land. Even if the revenue authorities decide the question of title, that will not in any way affect the jurisdiction of the civil court, which has to decide the question without reference to the decision of the revenue authorities. 4. Now the question for consideration is, having regard to the fact that the District Revenue Officer has expressed his opinion on the question of title, whether the order under question should be interfered with. It may be pointed out here that in a petition under Article 226 of the Constitution, the question of title regarding immovable property cannot properly be gone into, because a mass of evidence may be required for adjudicating the question of title. 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 the exercise of jurisdiction under Article 226 of the Constitution is concerned, it does not matter to it 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 by the civil court without reference to the order under question. Hence, we decline to interfere with the order challenged in the writ petition. However, we make it clear that in