IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2011 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.18489 of 2009 S. Viswanathan .. Petitioner Vs 1. The District Collector, Tiruvannamalai District, Tiruvannamalai – 606 601. 2. The Revenue Divisional Officer, Cheyyar – 604 407 Tiruvannamalai District. 3. The Tahsildar, Vandavasi Taluk, Vandavasi, Tiruvannamalai District. 4. Sengunthar Samudhaya Nala Sangam Reg. No.32/2008, rep. by its President M. Kandasamy, S/o. Marakalingam Mudaliar Kannikapuram, Keelkodungalur Village Vandavasi Taluk, Tiruvannamalai District. 5. K.R.P. Vijayapalani .. Respondents Writ Petition filed under Article 226 of the Constitution of India seeking for the issuance of a Writ of Certiorari to call for the records relating to the order dated 26.08.2009 passed by the 2nd respondent in his Office Ref.NA.KA.A2.2123/2009 and quash the same. For Petitioner : Mr. P. Mani For Respondents : Mr. P.S. Sivashanmugasundaram, for R1 to R3 Additional Government Pleader Mr.S.Doraisamy, for R4 & R5 Senior Counsel for Mr.V.R.Appaswamee O R D E R This writ petition has been filed seeking to quash the order dated 26.08.2009 passed by the 2nd respondent viz., the Revenue Divisional Officer, Cheyyar, Tiruvannamalai District in proceedings No.Ref. NA.KA.A2.2123/2009 whereby, orders have been issued to delete the name of S.Viswanathan from patta No.445 and register the name of Sengunthar Samudhaya Nala Sangam, the 4th Respondent https://hcservices.ecourts.gov.in/hcservices/ herein, in patta No.445 in respect of Survey No.181/1 in Keelkodungalur Village, Vandavasi Taluk, Tiruvannamalai District, of an extent of 3.65.0 Hectares and consequent to the said order, the third Respondent viz., the Tahsildar, Vandavasi, has carried out the changes in patta No.445 on 1.9.2009. 2. According to the petitioner, he is a Member and Representative of Keelkodungalur Sengunthar Samudhaya Marabinar (in short 'Samudhayam'), Keelkodungalur Village, Vandavasi Taluk, Tiruvannamalai District. Dry land measuring an extent of 9.02 Acres comprised in Survey No.181/1 of Keelkodungalur Village is being enjoyed by the petitioner Samudhayam for more than 100 years and the members of the Samudhayam are all along paying kist to the Revenue Department. The live fence trees growing in the said lands are being sold and the amount is being utilized for various social welfare activities like construction of a public well for drinking purpose, Marriage Community Hall etc. The 3rd Respondent/Tahsildar, Vandavasi, discreetly issued patta in respect of the said land in favour of the local temple during the implementation of the UDR Scheme and the Assistant Commissioner of Hindu Religious and Charitable Endowment, Vellore (hereinafter referred to as the 'HR & CE Department') auctioned the live fence trees in the said lands. Knowing the fact that the petitioner Samudhayam represented by S. Viswanathan filed a suit in O.S.No.749 of 1991 on the file of the Principal District Munsif Court, Arni against the Respondents 1 and 3 viz., the District Collector, Tiruvannamalai District and Tahsildar, Vandavasi Taluk and the Assistant Commissioner of HR & CE Department, Vellore for declaration that the auction of the live fence trees by the HR & CE Department is illegal and also for a mandatory injunction directing the respondents 1 and 3 to issue patta in favour of the petitioner Samudhayam and for permanent injunction restraining the HR & CE Department from interfering with the possession and enjoyment of the petitioner Samudhayam in the said lands. The said suit was decreed in favour of the petitioner Samudhayam on 25.11.1997. 2a. While so, the petitioner Samudhayam represented by the deponent Mr.S.Viswanathan pursuant to the civil suit decree, submitted an application to the third Respondent Tahsildar for issuance of patta in their favour. Thereafter, the third Respondent in his proceedings Ref.NA.KA.A5.707/98 dated 07.04.1998 issued patta in favour of the petitioner Samudhayam. The petitioner has been paying kist in respect of the said lands for the past 11 years on behalf of their Samudhayam and the income derived from the sale of live fence tress in the said lands are being utilized for various social activities and it has also requested the Government to construct a Hospital in a portion of the said lands. The petitioner has been protecting and safeguarding the lands by instituting suit, obtaining patta and paying kist. In order to grab the said lands by illegal methods, few persons formed a group under the banner of "Sengunthar Samudhaya Nala Sangam" in the year 2008, submitted a representation to respondents 1 to 3 herein to transfer the patta in respect of the said lands in favour of the newly formed "Sengunthar Samudhaya Nala Sangam" Reg. No.32/2008 https://hcservices.ecourts.gov.in/hcservices/ (hereinafter referred to as "Nala Sangam') as if the patta in respect of the said land was issued in the individual name of the deponent of the affidavit (S. Viswanathan). 2b. Further, the petitioner's case is that after knowing the illegal move of respondents 4 and 5, their Samudhayam instituted a suit in O.S.No.68 of 2009 on the file of the Principal District Court, Vandavasi, against respondents 1 to 3 for permanent injunction restraining them from transferring the patta in the name of the petitioner's Samudhayam represented by the deponent of the affidavit. In the said suit, an application in I.A.No.155 of 2009 was also filed for interim injunction restraining the respondents 1 to 3 from effecting any transfer pending the said suit. In the said Interim Application, notice was ordered to the respondents on 06.04.2009 and respondents 1 to 3 entered appearance in the said suit and application on 12.06.2009 through the Government Pleader and sought time for filing counter and subsequently, time was extended for filing counter. The petitioner's Samudhayam also sent a legal notice dated 23.03.2009 to respondents 1 to 3 and the Village Administrative Officer, Keelkodungalur, not to effect any patta transfer in respect of the said land on any application without issuing notice to the petitioner's Samudhayam and conducting proper enquiry and the said notice was duly acknowledged by them. 2c. When the petitioner was expecting notice of enquiry, to their shock, they received the impugned order dated 26.08.2009 passed by the 2nd Respondent effecting transfer of patta in the name of the 4th respondent. It is the claim of the petitioner that the said impugned order has been passed at the behest of the ruling political bigwig flouting the principles of natural justice, that too during the pendency of the civil suits. Therefore, the impugned order passed by the 2nd Respondent has been challenged on the ground that the order has been passed without giving an opportunity to the petitioner's Samudhayam and in violation of the principles of natural justice, also in violation of Articles 14 and 19(1)(g) of the Constitution of India and that it is contrary to the Patta Passbook Act and Rules and Board Standing Orders. Hence, the same is liable to be quashed. 3. Respondents 1 to 3 have filed counter affidavit and it is stated that the lands in Survey No.181/1 classified as dry lands to an extent of 3.65.0 Hectares were in the name of Sri Agatheeswaran Temple, Sri Karya Manicka Perumal Temple, Muthamman Temple and Ponnyamman Temple as per Village records. There was a dispute between Keelkodungalur Sengunthar Samudhaya Marabinar and H.R & C.E Department with regard to the said land. The petitioner S. Viswanathan, S/o. Shanmuga Mudaliar as main member on behalf of Keelkodungalur Sengunthar Samudhaya Marabinar had filed a civil suit in O.S.No.749 of 1991, S. Viswanathan had applied to Tahsildar, Vandavasi for transfer of patta in respect of the lands in Survey No.181/1 to an extent of 3.65.0 Hectares of dry land. The Tahsildar, Vandavasi in his proceedings in B5/707/98, dated 07.04.1998 had ordered patta transfer in respect of the above said https://hcservices.ecourts.gov.in/hcservices/ lands in favour of S.Viswanathan, main member on behalf of the Sengunthar Samudhaya Marabinar. Subsequently, on 24.10.2008, S. Viswanathan had obtained patta transfer order from Taluk Office in which the lands in Survey No.181/1 (3.65.0 Hectares) of dry land had been transferred in the name of the Petitioner S.Viswanathan. 3a. In the counter, it is further stated that the patta for the lands owned by Sengunthar Samudhaya Marabinar was transferred in the name of individual i.e. the petitioner S. Viswanathan. The Sengunthar Community people had formed Sengunthar Samudhaya Nala Sangam and presented an objection petition dated 23.03.2009 through their President M. Kandasamy regarding the above patta transfer. The Tahsildar, Vandavasi enquired into the issue and submitted a report in B5/3274 dated 03.04.2009 and he has recommended for cancellation of patta issued in the name of private individual viz., S. Viswanathan and to transfer the patta in the name of Sengunthar Samudhaya Nala Sangam. Based on the report of the Tahsildar, Vandavasi, a report was submitted by the Revenue Divisional Officer, Cheyyar to the Collector, Tiruvannamalai in A2.2123 of 2009 dated 06.07.2009. The Collector, Tiruvannamalai District in his letter M3.30777 of 2009 dated 22.08.2009 has issued instructions in this regard. Accordingly, an order was passed by the Revenue Divisional Officer, Cheyyar in proceedings A2.2123 of 2009 dated 26.08.2009, by which it has been ordered to tranfer patta which is in the name of the petitioner, S.Viswanathan to Sengunthar Samudhaya Nala Sangam, the 4th Respondent. 3b. It is further stated in the counter that orders in proceedings A2.2123 dated 26.08.2009 has been issued to delete the name of S.Viswanathan from patta No.445 and register the name of Sengunthar Samudhaya Nala Sangam in patta No.445. Consequent to the said order, the Tahsildar, Vandavasi carried out the changes in patta No.445 on 01.09.2009. The individual has been informed that if he is aggrieved by this order, he can file an Appeal before the District Revenue Officer, Tiruvannamalai, within 30 days form the date of receipt of a copy of the said order. But, the petitioner has approached this Court without exhausting the alternate remedy available unde law. 3c. According to the respondents, the petitioner is the individual namely, S. Viswanathan and not 'Samudhayam'. The petitioner has not enclosed any authorization for filing this petition on behalf of the Samudhayam. Therefore, the petitioner is put to strict proof of the averments in para 2. The lands belong to Sengunthar Samudhayam people and the petitioner cannot claim any right over the said land as his own land. The averments relating to suit proceedings are matters of record and the averments relating to the application for name transfer and transfer of patta are also matters of records. Necessary changes have been carried out in the Village account Chitta. But, in respect of transfer of patta in the name of S.Viswanathan, the present main member on behalf of Sengunthan Samudhaya Marabinar, the petitioner's name alone has been included in the Computer Chitta. https://hcservices.ecourts.gov.in/hcservices/ 3d. It is further stated in the counter that there is no doubt or any dispute that the said lands belong to Sengunthar Samudhaya people. The order passed by the second respondent namely Revenue Divisional Officer, Cheyyar is correct and it was passed after observing the procedures based on the circumstance of the subject matter and the allegations of the petitioner are not true. The petitioner has not co-operated for the enquiry when the officials contacted the petitioner on 02.04.2009. The petitioner has already filed a Civil Suit in O.S.No.68 of 2009 on the file of the Principal District Munsif Court, Vandavasi for the same prayer and the suit is pending trial. In the meantime, the petitioner has filed this writ petition and obtained an order of interim injunction in M.P.No.1 of 2009 in W.P.No.18489 of 2009. Therefore, the respondents pray for dismissal of the writ petition. 4. Mr.P.Mani, learned counsel appearing for the petitioner would strenuously contend that Keelkodungalur Sengunthar Samudhaya Marabinar (hereinafter referred to as the "Samudhaya Marabinar") are in possession and enjoyment of the land for more than 100 years and on behalf of the "Samudhaya Marabinar", the petitioner had approached the Civil Court and filed a suit in O.S.No.749/1991 and the same was decreed in favour of the Senguntha Samuthaya Marabinar and based on the said decree, he has applied for transfer of patta in the name of the Sengunthar Samudhaya Marabinar. Accordingly, patta has been issued. However, the respondents, without following any procedure and not even giving an opportunity of hearing to the petitioner, had passed an order contrary to the provisions of the Patta Passbook Act. It is also the contention of the learned counsel for the petitioner that the Revenue Divisional Officer in an Appellate Authority under Section 12 of the Act and the competent authority to look into the matter is the Tahsildar of the concerned jurisdiction under Section 10 of the Act and therefore, the order passed by the second respondent is without jurisdiction and in violation of the principles of natural justice. 5. On the other hand Mr.P.S.Siva Shanmugasundaram, learned Additional Government Pleader appearing for respondents 1 to 3 would contend that pursuant to the judgment and decree dated 25.11.1997 passed in O.S.No.749 of 1991 on the file of the District Munsif, Arni, the third Respondent viz., the Tahsildar, Vandavasi in his proceedings B5/707/98, dated 07.04.1998 had ordered patta transfer in respect of the above said lands in favour of S.Viswanathan, main member on behalf of the Sengunthar Samudhaya Marabinar. Subsequently, on 24.10.2008, S.Viswanathan had obtained patta transfer order from Taluk Office in which the lands in Survey No.181/1 (3.65.0 Hectares) of dry land has been transferred in the name of the Petitioner S. Viswanathan S/o. Shanmuga Mudaliar. Taking into account the objection from the community people, the Tahsildar has conducted enquiry and submitted a report to the second respondent and based on the said report, the second respondent has prepared a report and sent the same to the District Collector, Thiruvannamalai and the District Collector, Tiruvannamalai, in turn, sent instructions to the second respondent https://hcservices.ecourts.gov.in/hcservices/ to set right the same in transfer of patta. Accordingly, the second respondent passed the impugned order. He has pointed out that when the petitioner was called for enquiry on 02.04.2009, he did not extend any co-operation to conclude the enquiry. Therefore, there is no other option for the respondents to proceed in the matter and pass the impugned order. It is his further contention that when a mistake is pointed out and an error has been made in transfer of patta, it is incumbent on the part of the competent authority to look into the matter and cancel the same. Instead of granting patta transfer in favour of Keelkodungalur Sengunthar Samudhaya Marabinar, it has been granted in favour of an individual. Therefore, the order passed by the second respondent deleting the name of the petitioner S. Viswanathan in patta No.445 and registering the name of Sengunthar Samudhaya Nala Sangam in patta No.445 is perfectly valid in law. 6. Mr.K.Doraisamy, learned Senior Counsel appearing for respondents 4 and 5 would contend that the individual has acted against the interest of the community, while the Civil Court decree is in the name of Keelkodungalur Sengunthar Samudhaya Marabinar and he obtained transfer of patta in his name as individual capacity which was objected by respondents 4 and 5 to the competent authority viz., Tahsildar, Vandavasi, who in turn sent a report to the second respondent viz., the Revenue Divisional Officer, Cheyyar. The second respondent sent a report to the District Collector, Thiruvannamalai and the District Collector Thiruvannamalai, after investigating the same, has instructed the Revenue Divisional Officer, Cheyyar to set right the mistake and accordingly, the Revenue Divisional Officer, Cheyyar has passed the impugned order and therefore, the order is valid in law. 7. I have heard the learned counsel on either side and perused the relevant material documents annexed in the typed set of papers and also the provisions of law. 8. A circumspection of the facts would reveal that Keelkodungalur Sengunthar Samudhaya Marabinar is in occupation of the dry land to an extent of 3.65.0 Hectares comprised in Survey No.181/1 and there was a dispute over the said land in respect of the possession and enjoyment between the "Samudhaya Marabinar" and H.R.& C.E. Department as the land is claimed to have stood in the name of Sri. Agatheeswaran Temple, Sri Karya Manicka Perumal Temple, Muthamman Temple and Ponnyamman Temple as per Village records. Therefore, Keelkodungalur Sengunthar Samudhaya Marabinar represented by S. Viswanathan, had filed a civil suit in O.S.No.749 of 1991 before the District Munsif Court, Arni and the said suit was decreed on 25.11.1997. As per the decree, respondents 1 and 3/defendants in the said suit have been directed to transfer patta in the name of the plaintiff namely, Keelkodungalur Sengunthar Samudhaya Marabinar and based on the said decree and judgment, one Mr.S.Viswanathan on behalf of the "Samudhaya Marabinar" made an application to the Tahsildar, Vandavasi on 22.01.1998 for grant of patta and considering the said application, the competent authority namely, Tahsildar, Vandavasi has passed an order transferring patta https://hcservices.ecourts.gov.in/hcservices/ in the name of Sengunthar Samudhaya Marabinar vide proceedings in Na.Ka.B5.707/1998 dated 07.04.1998. 8a. While so, the petitioner S.Viswanathan subsequently obtained patta transfer in his individual capacity from the Taluk Office, by an order dated 24.10.2008. When the 4th respondent came to know about this fact, immediately on behalf of the Sengunthar Community, their President M.Kandasamy, filed an objection petition to the Tahsildar, Vandavasi viz., the third respondent on 23.03.2009. Based on that objection, the Tahsildar, Vandavasi conducted an enquiry and submitted a report to the second respondent viz., the Revenue Divisional Officer, Cheyyar on 03.04.2009. Pursuant thereto, a report was submitted by the Revenue Divisional Officer, Cheyyar to the District Collector Thiruvannamalai vide proceedings A2.2123 of 2009 dated 06.07.2009 and in turn the Collector, Tiruvannamalai, in his letter dated 22.08.2009 issued instructions in this regard to the Revenue Divisional Officer, Cheyyar to transfer patta which is now in the name of the petitioner S.Viswanathan to Sengunthar Samudhaya Nala Sangam, the 4th Respondent herein. Thereafter, the second respondent, vide his proceedings A2.2123 of 2009 dated 26.08.2009, has ordered to delete the name of S.Viswanathan and register the name of Sengunthar Samudhaya Nala Sangam for patta No.445. Consequent to the said order, the Tahsildar, Vandavasi has carried out the changes in patta No.445 on 01.09.2009 and accordingly the individual (S.Viswanathan) has been informed that if he is aggrieved, he may prefer an appeal before the District Revenue Officer, Thiruvannamalai within 30 days from the date of receipt of the order. However, the petitioner without exhausting the alternate remedy available under law, has approached this Court challenging the said order and this Court has granted interim injunction and the same is in force till date. 9. On an analysis of the entire issue and on a perusal of the impugned order, the question that arises for consideration is: Whether the order passed by the Revenue Divisional Officer, Cheyyar, the second respondent herein, is without jurisdiction or is he competent to pass such an order and at the same time is the order in accordance with the Civil Court decree which has been issued in the name of the plaintiff? 10. To examine the above question, it is to be seen that the respondents 1 and 3 namely, the District Collector, Tiruvannamalai District and the Tahsildar, Vandavasi were defendants in the civil suit and any decree passed by the civil Court is binding on them including the other defendants in the suit. It is clear from the records that after the decree passed by the competent civil Court in O.S.No.749/1991 on 25.11.1997, an application was made to the competent authority namely, Tahsildar, Vandavasi, the third respondent herein and he has perused the decree of the Civil Court and issued patta transfer in the name of Sengunthar Samudhaya Marabinar on 07.04.1998 itself. While so, the said transfer has https://hcservices.ecourts.gov.in/hcservices/ been subsequently made in the name of an individual namely, S. Viswanathan on 24.10.2008. 11. A perusal of the impugned order would reveal that three of the proceedings referred in the said order are (i) the objection made by the 4th respondent on 23.03.2009, (ii) proceedings of the District Collector dated 03.04.2009 and (iii) the letter from the District Collector dated 26.08.2009. It is strongly contended by respondents 1 to 3 in their counter that after the objection was made by the 4th respondent, enquiry was conducted by the Tahsildar, Vandavasi, viz., the third Respondent and thereafter a report was submitted to the Revenue Divisional Officer, Cheyyar viz., the second respondent and based on the said report, the Revenue Divisional Officer, Cheyyar has sent a report to the District Collector, Tiruvannamalai District and in turn, the District Collector, Thiruvannamalai has issued instructions to the Revenue Divisional Officer, Cheyyar to transfer the patta which is in the name of the petitioner S.Viswanathan to Sengunthar Samudhaya Nala Sangam, the 4th respondent herein. Accordingly, the impugned order has been passed. 12. Section 10 of the Patta Passbook Act (hereinafter referred to as the 'Act') provides for modification of entries in the patta passbook which is extracted hereunder:- "(1) Where any person claims that any modification is required in respect of any entry in the patta passbook already issued under section 3 either by any 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 passbook. (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 passbook, he shall pass an order accordingly and shall make such consequential changes in the patta passbook, as 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 passbook, he shall reject the application. (c) An order under clause (a) or clause (b) shall contain the reasons for such order and shall be https://hcservices.ecourts.gov.in/hcservices/ communicated to the parties concerned in such manner as may be prescribed." Further, appeal is provided under Section 12 of the Act: "Any person aggrieved by an order made by the Tahsildar under this Act may, within such period as may be prescribed, appeal to such authority as may be prescribed and the decision of such authority on such appeal shall subject to the provisions of Section 13, be final." Then as per Section 13 of the Act provides for Revision:- "Any officer of the Revenue Department' now below the rank of District Revenue Office authorized by the Government, by notification in this behalf for such areas as may be specified in the notification, may of his own motion or on the application of a party call for and examine the records of any Tahsildar or appellate authority within his jurisdiction in respect of any proceeding under this Act and pass such orders as he may think fit: Provided that no such order prejudicial to any person shall be made unless he has been given a reasonable opportunity of making his representation." 13. From a reading of the above provisions, it is clear that the competent authority to make any entry in the patta passbook is the Tahsildar and thereafter, the Appellate Authority viz., the Revenue Divisional Officer may look into the matter of any decision of the Tahsildar and further against the decision of the Appellate Authority, revision would lie. In the instant case, instead of exercising jurisdiction under Section 10 of the Act, the Tahsildar prepared a report after enquiry and subsequently submitted the same to the Revenue Divisional Officer, who in turn, sent a report to the District Collector and the District Collector further passed an order directing the Revenue Divisional Officer to make transfer