IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18 - 8 - 2010 CORAM THE HON'BLE MR.JUSTICE ELIPE DHARMA RAO AND THE HON'BLE MR.JUSTICE K.K.SASIDHARAN W.A. No. 1374 of 2008 1. T. Tirumalai Gounder 2. T. Periasamy .. Appellants/Petitioners Versus 1. The State of Tamil Nadu Rep. by its Secretary to Government Land Administration Fort St. George, Chennai 2. The Special Commissioner and Commissioner of Land Administration Chepauk Chennai 3. District Revenue Officer Villupuram 4. Revenue Divisional Officer Kallakurichi 5. Angamuthu .. Respondents/Respondents For Appellants : Ms. P.T. Asha For RR 1 – 4 : Mr. G. Desinghu, Spl. GP For R5 : Mr. E. Vijay Anand Writ Appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single Judge dated 12.8.2008 in W.P. No. 36842 of 2004. Writ Petition Praying to issue a Writ of Certiorarified Mandamus calling for the records of the 2nd Respondent dated 16.09.2004 bearing Rc.No.G1/13539/2001 and quash the same and direct the Respondents to re-assign the lands measuring an extent of 5 acres comprised in S.No.120/3 and 120/6 of Nallathur village, Kallakurichi Taluk to the Petitioners. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Delivered by ELIPE DHARMA RAO, J.) The unsuccessful petitioners challenge the order dated 12.8.2008 passed by the learned single Judge dismissing the writ petition in W.P. No. 36842 of 2004 filed to quash the proceedings passed by the Special Commissioner and Commissioner of Land Administration, Chennai. 2. The brief facts leading to the filing of the Writ Appeal are: 2.1. As per the proceedings of the Special Deputy Tahsildar, Kallakurichi in DKT 1522/1367 dated 18.10.1959, land in S. No. 120/2B measuring 5.00 acres in Nallathur village of Kallakurichi Taluk was assigned to one Ramasamy, son of Ayyan and the same was sold in favour of one Dhanabackiam, who, in turn sold the property to one Kandasamy under registered Sale Deed dated 16.3.1966. Subsequently, the writ petitioner Thirumalai Gounder purchased the land under registered Sale Deed dated 16.5.1967. On the petition filed by the fifth respondent Angamuthu and three others claiming right over the assigned land, the Revenue Divisional Officer, Villupuram, after giving opportunity to the parties, by proceedings dated 31.12.1990 cancelled the assignment. The appeal filed by the first petitioner as against the said order was rejected by the District Revenue Officer, South Arcot, by his proceedings dated 29.10.1991. However, considering the eligibility and request of the petitioner, the Revenue Divisional Officer, Virudhachalam was directed to assign the land on collection of land cost. Aggrieved by the same, the fifth respondent filed Revision Petition before the second respondent / Special Commissioner and Commissioner of Land Administration on 05.8.1992 and during the pendency of the Revision, the Tahsildar, Kallakurichi assigned 1.20.0 Hectares in favour of the first writ petitioner on free of cost and 0.82.5 hectares in favour of the second petitioner on collection of market value after deducting the reclamation charges from the land cost. 2.2. Subsequently, the second respondent Special Commissioner, by his proceedings dated 14.12.1995, dismissed the Revision Petition filed by the fifth respondent observing that there is no provision for transferring the assigned land to legal heirs as against which the fifth respondent filed a petition before the Government and the same was directed to be considered by the Collector, Villupuram treating it as a representation. 2.3. It is stated that based on the representation dated 09.7.1996 made by the writ petitioners requesting to confirm the assignment made to them by the Tahsildar, Kallakurichi, the Special Commissioner vide letter dated 22.7.1996 issued certain directions https://hcservices.ecourts.gov.in/hcservices/ to the District Revenue Officer, Villupuram with an observation that since the original assignment has been cancelled due to violation of condition and the subsequent assignment has not been cancelled, the same holds good. As against the observation of the Tahsildar, Kallakurichi, in his proceedings dated 14.10.1997 that the writ petitioners and the fifth respondent can continue the cultivation on the lands assigned to them, the fifth respondent filed Review Petition before the second respondent and the second respondent, in turn, by his proceedings dated 08.6.1999, remitted the matter to the District Revenue Officer for consideration and he set aside the assignment of land made by the Tahsildar, Kallakurichi in favour of the writ petitioners and ordered to resume the land with a further direction to the Tahsildar to take appropriate action on the same. 2.4. Aggrieved by the order passed by the District Revenue Officer, the writ petitioners filed a petition before the Special Commissioner and by proceedings dated 16.9.2004, the orders passed by the District Revenue Officer was confirmed thereby vacating the stay granted on 23.3.2001. Challenging the said order, the writ petition was filed. 3. The learned single Judge, after hearing the learned counsel for the parties and on consideration of the materials available on record, dismissed the writ petition with a direction to the writ petitioners and the fifth respondent to appear before the Tahsildar, Kallakurichi so as to enable the said authority to dispose of the matter after hearing the parties. Aggrieved by the same, the unsuccessful writ petitioners have preferred the present appeal. 4. Heard the learned counsel appearing for the parties and perused the records. 5. Learned counsel appearing for the appellants contended that the fifth respondent has no locus standi to maintain an application to disentitle the appellants, who purchased the property by sale deed from the original assignee in the year 1967 and had been in possession and enjoyment of the same continuously. She submitted that when the Revision Petition filed by the fifth respondent was dismissed by the Special Commissioner, there was nothing to consider afresh. It is also submitted that even today, the petitioners are cultivating the lands. 6. Learned counsel appearing for the fifth respondent submitted that the fifth respondent is the brother of the original assignee Ramasamy and since he had no legal heirs, the fifth respondent made an application for assignment of the land. According to him, there is a specific condition restraining the original assignee from transferring the property. In any case, https://hcservices.ecourts.gov.in/hcservices/ the matter was only remitted to the authorities. Therefore, the learned Judge was correct in directing the authority to consider the matter for disposal on merits. 7. It is not in dispute that the petitioners purchased the land assigned to one Ramasamy in the year 1967 and ever since the date of purchase, they have been in continuous possession of the land. It was only on the basis of the complaint made by the fifth respondent, claiming to be the brother of the original assignee Ramasamy, on 18.01.1988, assignment was cancelled by order dated 31.12.1990 as it was against the conditions of assignment. Thereafter, the matter was taken up before the higher officials and ultimately, it was remanded to the District Revenue Officer, who, in turn, directed the Tahsildar to consider the case of the writ petitioners and the fifth respondent afresh. 8. The issue is as to whether the matter should be considered afresh once again directing the appellants to face the ordeal of a statutory proceeding. 9. The land in dispute was originally assigned to Thiru. Ramasamy as per proceeding dt. 18.10.1959. It is true that there was a condition in the deed of assignment that the land should not be transferred for 10 years without the permission of the revenue authorities. Disregarding the said condition, the assignee sold the property to Mrs. Dhanapakkiyam and it was further assigned in favour of Thiru Kandasamy as per Regd. Document dt. 16.3.1966. It was only from the said Kandasamy, the first appellant purchased the property on 16.5.1967 as per Regd. document No.1585/67. 10. The trouble started only after the 5th respondent filed a petition before the Revenue Divisional Officer on 08.01.1988 claiming right over the assigned land. Though the 5th respondent claimed himself to be the brother of the original assignee, not even a scrap of paper was produced before the authorities to prove his relationship with Thiru. Ramasamy in whose favour the assignment was given on 18.10.1959. Even before this court, the 5th respondent has not produced any document to prove his identity. 11. The Revenue Divisional Officer, Virudhachalam without considering the factual position that the property was in the possession and enjoyment of the first appellant, set aside the assignment solely on the ground that the sale was within the prohibited period of 10 years and as such, it was in violation of condition No.12 of the order of assignment. However, the District Revenue Officer conveniently omitted to consider the fact that by the time he considered the petition filed by the 5th respondent, the revenue records were already mutated and the first https://hcservices.ecourts.gov.in/hcservices/ appellant was shown as the owner of the property and the person in possession of the land. 12. The proceedings dated 14.12.1995 on the file of the Commissioner of Land Administration gives a clear indication about the mutation of records and the possession of the property by the appellants. The relevant observations reads thus:- "5. The Revision petitioner has filed the copy of Adangal relating to 1401 fasli during the equality. The name of the aforesaid petitioner has been mentioned in it. Hence, the District Revenue Officer, Villupuram Ramasami Padayachi was required relating to the survey as to whether it is panjama barren land and to send report. Besides that it was asked how much land that Thiru.Thirumalai Gounder is having. 6. In the report of the District Revenue Officer, Vizhupuram Ramasami Padayachiar third cited, it has been stated that Thiru. Thirumalai Gounder has cultivated this land in the aforesaid fasli 1401 and has sent the copy of adangal in this regard. Further, it has been stated that this land has not been published as panjagam barren land and the lands already assigned alone is belong to Thiru. Thirumalai Gounder and Periyasami" 13. There is no dispute that the property could be transferred with the permission of the revenue authorities. When the Revenue authorities own their own motion and by accepting the sale deed dt. 16.5.1967 endorsed the ownership of the first appellant and mutated the revenue entries in his name, such transfer should be considered to be an act of permission for assigning the land. The revenue authorities having passed orders for mutation of revenue records, cannot be permitted subsequently to cancel the very assignment on the ground that there was no prior permission from the revenue authorities for transfer of assignment. Therefore, the Revenue Divisional Officer Virudhachalam was not justified in cancelling the assignment in favour of the first appellant. 14. The Order passed by the Revenue Divisional Officer was confirmed by the District Revenue Officer as per order dt. 29.10.1991. While confirming the said order, the District Revenue Officer opined that the property was in the possession of first appellant and as such, considering the investment made by him and his continuous possession, the land should be assigned to him after collecting necessary cost. Subsequently, the Tahsildar, Kallakurichi as per proceedings dt. 19.4.1993 assigned 1.20.0 Hect. of property in favour of the first appellant and 0.82.9 Hect. in https://hcservices.ecourts.gov.in/hcservices/ favour of the 2nd appellant as per proceedings dt. 19.4.1993. Though these assignments were subsequently cancelled at the instance of the fifth respondent, the fact remains that the first appellant has been cultivating the land eversince his purchase in the year 1967 and till date, it is not resumed by the authorities. 15. The 5th respondent got inspiration in the year 1988 and filed a petition before the Revenue Divisional Officer complaining of transfer of assignment in violation of the condition against such transfer. By the time the first appellant has cultivated the land for about 21 years. It was only in such circumstances, the District Revenue Officer directed the Revenue Divisional Officer to assign the land to the appellants. 16. The Revenue authorities having endorsed the transfer made by Thiru. Kandasamy in favour of the first appellant, should not have entertained the petition filed by the 5th respondent after a period of 21 years. The appellants are illiterate villagers and admittedly, they have no other property. They are eking their livelihood from the income which they receive by cultivation. The land has changed hands on many occasions and the final transfer was in favour of the first appellant. The possession of the property by the predecessor-in-interest of the first appellant and later by the first appellant, were known to the village officers. It was only in such circumstances, they have mutated the revenue records and the first appellant was shown as person in possession of the property doing cultivation. 17. The 5th respondent though claimed right in respect of the assigned land did not produce any evidence to show his right in the property. By the time he filed the petition in 1988, the property was transferred by Thiru. Ramasamy and it was the subject matter of two other assignments. Therefore, in such circumstances, the revenue authorities should have examined the bonafide of the complaint preferred by the 5th respondent. 18. Subsequent grievance of the 5th respondent relates to the manner in which assignments were given to the appellants. According to him, the statutory authorities have not complied with the mandatory procedure before passing the order of assignment. We are not inclined to accept the said submission for more than one reason. The first appellant has been in possession and enjoyment of the property right from the date of assignment in the year 1967. The second appellant, who is none other than the son of the first appellant, has been assisting his father in cultivating the land. Both the appellants were contributing their physical labour and as such, they were entitled to get assignment of the land. Therefore, it was only on the basis of their possession with effect from 1967, the District Revenue Officer directed the Revenue https://hcservices.ecourts.gov.in/hcservices/ Divisional Officer to assign the land in favour of the appellants. In fact, by the time the District Revenue Officer passed the order on 29.10.1991, the first appellant has completed 21 years of possession of the disputed land along with second appellant. Nothing more is necessary to assign the land in favour of the appellants. 19. We have perused the proceedings granting assignment in favour of the appellants. There was nothing illegal in the said proceedings. In fact, the continuous possession and enjoyment of the property by the appellants only weighed with the statutory authority to grant assignment in their favour. 20. The 5th respondent has been making untenable claims in respect of the subject land. Initially, he claimed the land on the strength of his relationship with the original assignee. Subsequently, when he found that the property was given assignment as a fresh case, he challenged the said assignment. In fact, 5th respondent has not stated any valid reasons to set aside the assignment. It is not open to him to assail the correctness of the order of assignment on flimsy reasons disregarding the factum of continuous possession of the property by the appellants with effect from 1967. 21. The original assignment was in the year 1959. The first appellant has purchased the property in 1967. The factual matrix indicates that the 5th respondent was not even born as on the date on which the assignment was given to Mr.Ramasamy. He was only 7 years old when the property was purchased by the first appellant. Therefore, it was not possible for the 5th respondent to say about the previous possession of the property by the appellants as well as their predecessor-in-interest. The idea of the 5th respondent appears to be to get a portion of the property by resorting to various proceedings and dragging the appellants from pillar to posts. 22. Therefore, we are of the view that the authorities were not justified in remanding the matter once again after cancelling the assignment given in favour of the appellants on the basis of their continuous possession and as such, no interference is warranted in the decision taken by the District Revenue Officer to grant assignment in favour of the appellants. 23. Accordingly, we set aside the impugned proceedings and restore the order passed by the Tahsildar, Kallakurichi dt. 19.4.1993. Consequently, the pending proceedings before the Tahsildar, Kallakurichi as per the direction issued by District Revenue Officer and indicated in paragraph 13 of the order dated 16.9.2004 on the file of the Special Commissioner and Commissioner of Land Administration, Chennai is quashed. https://hcservices.ecourts.gov.in/hcservices/ 24. In the result, the order passed by the Learned Single Judge is set aside. The Writ Appeal is allowed. No costs. gri Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Secretary to Government State of Tamil Nadu Land Administration Fort St. George, Chennai 2. The Special Commissioner and Commissioner of Land Administration Chepauk Chennai 600 005 3. The District Revenue Officer Villupuram 4. The Revenue Divisional Officer Kallakurichi Copy to: The Tahsildar, Kallakurichi. + 1 cc to M/s. Sarvabhauman Associates, Advocate SR No.61215 + 1 cc to Government Pleader, SR No.61342 GV(CO) SR/20.9.2010 W.A. No. 1374 of 2008 https://hcservices.ecourts.gov.in/hcservices/