IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.04.2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.10356 OF 1999 1.V.Chinnachamy (deceased) 2.Guruvammal 3.Jayalakshmi 4.Bose 5.Gandhimathi 6.Indira 7.Vijayalakshmi 8.Bharathi 9.Alagarsamy .. Petitioners Petitioners brought an record as LRs the deceased as per Order of this Court dated 20.11.2000 petitioner in wmp 25372of 2000. vs. 1.The District Revenue Officer Virudhunagar District Virudhunagar. 2.The Revenue Court Special Deputy Collector Madurai. 3.The Record Officer and Tahsildar, Srivilliputhur. 4.K.Periasamy .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records of the first respondent in ROC B3/36508/97 and quash the order dated 06.04.99. For petitioners : Mr.T.Srinivasa Raghavan For respondents : Mr.V.Senthilkumar Government Advocate for R.1 & 3 Mr.S.Thankasamy for R.2 https://hcservices.ecourts.gov.in/hcservices/ ORDER This writ petition is filed challenging the order of the first respondent dated 06.04.1999, under which the first respondent while confirming the order of the second respondent dated 20.01.1997, has rejected the revision filed by V.Chinnachami, the original writ petitioner. 2. Pending disposal of the writ petition, the sole writ petitioner died and his legal representatives have been brought on record as petitioners 2 to 9. One of the sons of the writ petitioner, viz., Bharathi, who has been impleaded as 8th petitioner, has sworn to the affidavit filed in support of the above writ petition wherein it is stated that the land measuring 1 acre and 40 cents comprised in Survey No.722 in Kansapuram Village was leased out to his father V.Chinnachamy in the year 1970 by one Palpandi @ Sadaiyandi and the said Chinnachamy has been cultivating from the date of lease and therefore, he is a cultivating tenant as per the Tamil Nadu Agricultural Cultivating Tenants' Protection Act,1955, and the third respondent has recorded his name as a tenant under the said Act after following the procedure prescribed under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (X of 1969) (in short, "Act X of 1969). 2(a). Further, it is stated that the land owner was well aware of the above said fact, since he also received notice from the third respondent. It is also stated that the land owner Palpandi @ Sadayandi Moopanar has never cultivated the land and the said Chinnachamy contributed his physical labour in cultivation. The 4th respondent is stated to have purchased the land from Palpandi @ Sadayandi Moopanar in the year 1991. After purchase, he has filed a petition under Section 5 of Act X of 1969 before the third respondent to delete the name of Chinnachamy from the record of tenancy. That was contested by Chinnachamy on the basis that under Act X of 1969, there is no provision for deletion. However, the third respondent by his order dated 30.12.1994, has allowed the said petition filed by the 4th respondent. 2(b). It was against the said order of the third respondent, an appeal was filed in Appeal No.62 of 1995 on the file of the second respondent. The second respondent has confirmed the order of the third respondent on 20.01.1997, against which Chinnachamy filed a revision before the first respondent, which was dismissed by the first respondent on 06.04.1999, against which the present writ petition is filed. 2(c). It is also stated that once the third respondent after following the procedure under Act X of 1969 has recorded the name of Chinnachamy as a tenant, petition filed by the 4th respondent under https://hcservices.ecourts.gov.in/hcservices/ Section 5 of Act X of 1969 for modification of the order is not maintainable. According to Mr.Srinivasa Raghavan, learned counsel for the petitioners that Section 5 of Act X of 1969 contemplates certain contingencies under which the modification is possible, viz., due to death of any person, due to transfer of interest or by reason of any subsequent change in the circumstances and in the absence of any of such contingencies mentioned under Section 5 of Act X of 1969, removal of the name of Chinnachamy, by the third respondent, Record Officer, is not valid. 2(d). Further, originally when the name of the petitioners' father was recorded by the third respondent, notice was given to the land owner. While so, the claim of the 4th respondent as if he was not given notice is not maintainable, especially when the third respondent has not chosen to examine the original owner Palpandi @ Sadayandi Moopanar, who has not chosen to object when the third respondent recorded the name of Chinnachamy as tenant. According to the learned counsel for the petitioners, the 4th respondent being the subsequent purchaser from Palpandi @ Sadayandi Moopanar, having stepped into his shoes cannot go beyond the conduct of his vendor Palpandi @ Sadayandi Moopanar. 3. In the counter affidavit filed by the 4th respondent it is stated that he is a bona fide purchaser for valuable consideration from his vendor Sadayandi, S/o.Karuppasamy Moopanar under a registered deed, numbered as 1029/91. According to the 4th respondent, the name of Chinnachamy was wrongly entered as tenant under the Record of Tenancy Rights Act and even before his purchase, he has been in possession as lessee and subsequent to the purchase as owner and the said Chinnachamy has clandestinely recorded his name by producing bogus records without notice to the real owner. In those circumstances, the 4th respondent has filed a petition to modify the wrong entry and the third respondent, after giving reasonable opportunity to both parties, has ordered to delete the name of Chinnachamy, which was confirmed by the second respondent, appellate authority and also the first respondent, revisional authority under the impugned order. 3(a). According to the 4th respondent, the point which has been raised by the petitioners has already been considered by the authorities judiciously, which does not warrant any interference. It is the further case of the 4th respondent that even though the 4th respondent has purchased the land from Sadayandi S/o.Karuppasamy Moopanar, the said Sadayandi is not having any surname as Palpandi and therefore, the entry originally made by the third respondent by recording the name of Chinnachamy as cultivating tenant has been wrongly done, which necessitated the 4th respondent to file an application under Section 5 of Act X of 1969. 3(b). On enquiry by the third respondent, based on the https://hcservices.ecourts.gov.in/hcservices/ application filed by the 4th respondent under Section 5 of Act X of 1969, it was revealed that when originally the name of Chinnachamy was entered as a tenant, there was no enquiry conducted at all. It is the further case of the 4th respondent that the procedure under Section 3(5) of Act X of 1969 was not followed, when the name of Chinnachamy was recorded. 3(c). It is also stated that during pendency of the proceedings for modification of the entires in the approved record of tenancy rights before competent authority, viz., the third respondent, petitioners' father has filed a suit in O.S.No.427 of 1991 before the District Munsif's Court, Srivilliputhur against the 4th respondent and obtained an order of interim injunction in I.A.No.1241 of 1991, restraining the 4th respondent from interfering with possession and enjoyment of the said land and the matter is now pending in second appeal before this Court. After amendment to Act X of 1969, the civil Court's jurisdiction is ousted under Section 16A of the Act, and the said factum has not been disclosed by the writ petitioners. 4. Mr.Srinivasa Raghavan, learned counsel appearing for the petitioners would submit that in all these impugned proceedings as well as appellate authority's order, the authority went into the question of evidence, which is not permissible in law. It is also his submission that under Section 5 of Act X of 1969, if any case is pending, no deletion is permissible. He would also rely upon the judgement of this Court in Sri Thenpureeswaraswami Koil Devasthanam, Patteeswaram vs. The Court of the Revision Authority and District Revenue Officer, Thanjavur and others (1997 (1) Law Weekly 773), to substantiate his contention that under Act X of 1969, there is no provision to delete the name already recorded. 4(a). It is his further submission that the suit filed by the petitioners' father in O.S.No.427 of 1991 was decreed on 03.03.1997, which was however, reversed in the first appeal in A.S.No.46 of 1997 and the petitioners' father has filed second appeal in S.A.No.138 of 1998, which is pending before this Court, in which there is an interim order to the effect that the petitioners' father is in possession and deletion of his name on the application filed by the 4th respondent in 1992, is incorrect. 5. On the other hand, it is the contention of the learned Government Advocate that originally when the third respondent has recorded the name of Chinnachamy as tenant, the name of the owner was stated as Palpandi, while in the records the name of the owner is stated as Sadayandi S/o.Karuppasamy Moopanar, and it was after finding out that Palpandi is different from Sadayandi and having come to the conclusion that the previous enquiry was not properly conducted, the third respondent has deleted the name of Chinnachamy, which has been confirmed by the appellate authority as well as by the revisional authority. Further, it is the contention of the learned https://hcservices.ecourts.gov.in/hcservices/ Government Advocate that the petitioners have a right of appeal to the Special Commissioner (Land Administration) and without exhausting the appellate remedy, the writ petition is filed and therefore, according to him, in the presence of alternative remedy, the writ petition is not maintainable. He would also submit that regarding modification of the order passed under Section 5(3) of Act X of 1969, statutory appeal is provided. 6. It is seen that the 4th respondent even after service has not chosen to appear either himself or through counsel in spite of the fact that his name has been printed in the cause list even though he has filed a counter affidavit as elicited above. 7. I have heard learned counsel for the petitioners and learned Government Advocate for respondents 1 to 3 and perused the records. 8. A reference to the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (Act X of 1969) shows that the object of the said Act is to prepare and maintain record of tenancy rights in respect of the agricultural lands in the State and the said Act has received assent of the President on 10.07.1969 and published in the Tamil Nadu Government Gazette on 17.07.1979. Section 3 of the said Act provides for a detailed procedure to be followed for the preparation of record of tenancy rights. The preparation of record of tenancy rights as per Section 3 which contains an elaborate procedure is as follows: "3. Preparation of record of tenancy rights.- (1) The Government may, by notification, direct the preparation of a record of tenancy rights for such village of villages as may be specified in the notification and such record shall be prepared, maintained and revised in accordance with the provisions of this Act and the rules made thereunder. (2) The record referred to in sub-section (1) shall 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 landowner; (c) the name and address of the intermediary, if any; (d) the name and address of the tenant cultivating the land; and (e) such other particulars as may be prescribed. (3)(a) As soon as may be, after the publication of a notification under sub section(1), 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 that the landowner, tenant, or intermediary of every land which has been let for cultivation shall https://hcservices.ecourts.gov.in/hcservices/ intimate in writing to him of his interest in such land. (b) The notice shall contain such further particulars, and shall be published in such manner, as may be prescribed (4) On the basis of the intimation given under Clause (a) of sub-section(3) or on the basis of information obtained by the record officer under Section 9(or on the basis of information and particulars furnished or recommendation made by the Advisory Committee under section 5-A) or in such other manner as may be prescribed, the record officer shall 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. (5) As soon as may be after the completion of the preparation of the draft record of tenancy rights for a village, such draft record shall be published in the District Gazette of the District in which the village is situated and in such other manner as may be prescribed. An extract of the entries in the draft record relating to any survey number or sub-division number of the land shall also be served on the landowner, intermediary, if any, and the tenant concerned. (6) Any person aggrieved by such draft record either on the ground that the entry in respect of particulars relating to him is incorrect or on the ground that his name or other particulars relating to the land which has been let for cultivation and in which he has interest either as landowner, intermediary or tenant have been omitted to be included in such draft record, may, within such period as may be prescribed make an application to the record officer for the rectification of such entry or for the inclusion of such name or particulars in the draft record of tenancy rights. (7) An application under sub-section(6) 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 (8) (a) before passing an order on an application under sub-section(6) the record officer 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 record officer decides that any rectification or inclusion should be made, he shall pass an order accordingly. (b) If the record officer decides that there is no case for effecting the rectification or inclusion in the draft record of tenancy rights, 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 https://hcservices.ecourts.gov.in/hcservices/ parties concerned in such manner as may be prescribed. (9) After the disposal of all the applications under sub-section(6) in respect of any village, the record officer shall make necessary alterations in the draft record of tenancy rights in accordance with the orders passed under sub-section (8) and shall prepare the final record of tenancy rights for the village. (10) As soon as may be, after the completion of the preparation of the final record of tenancy rights for a village such final record shall be published in the Fort St.George Gazette and the record so published shall be called the approved record of tenancy rights. The approved record of tenancy rights shall also be published in the District Gazette of the District in which the village is situated and in such other manner as may be prescribed." 9. While Section 4 enables any tenant having interest in the land or intermediary, who has been let for cultivating can apply to the Record Officer for inclusion of the said land after the publication of approved tenancy rights under Section 3 of the Act. It is also seen that under Section 4-A, the Record Officer has also suo motu power to conduct enquiry, who shall pass orders to the effect that the particulars of the land should be included in the draft or approved record of tenancy and necessary entries can be made. Section 5 of the Act deals with the modification of entries in the approved tenancy rights, which is as follows: " 5. Modification of entries in the approved record of tenancy rights.- (1) Where any person claims that in respect of any land already included in the approved record of tenancy rights any modification is required in respect of the entries in such record either by reason of the death of any person or by reason of the transfer of interest or by reason of any other subsequent change in circumstances, he shall make an application to the record officer for the modification of the relevant entries in the approved record of tenancy rights. (2) An application under sub-section(1) shall contain such particulars as may be prescribed and shall be accompanied by the documents, if any, relief 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 record officer 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 record officer decides that any modification should be made in respect of the entries in the approved record of tenancy rights he shall pass an order accordingly and shall effect https://hcservices.ecourts.gov.in/hcservices/ the modification and make such incidental and consequential changes in the approved record of tenancy rights, as appear to him to be necessary for giving effect to his order. (b) If the record officer decides that there is no case for effecting any modification in the entries in the approved record of tenancy rights 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." 10. Considering the scope of the said Act X of 1969, especially relating to the preparation of record of tenancy rights under Section 3, a Division Bench consisting of K.A.Swami,CJ. (as he then was) and AR.Lakshmanan,J.(as he then was) in Sri Thenpureeswaraswami Koil Devasthanam, Patteeswaram vs. The Court of the Revision Authority and District Revenue Officer, Thanjavur and others (1997 (1) Law Weekly 773) held that the said Section 3 of Act X of 1969 has provided sufficient safeguards and a detailed procedure has been formulated under the Act and that the Act and Rules, if read together, are sufficient to come to the conclusion that every person interested in the land is bound to know about the proceedings relating to preparation of record of tenancy rights. The Bench has ultimately held that the provisions of Act X of 1969 cannot be compared to Section 4 of Wakf Act,1954 and that Act X of 1969 is a self contained code. The relevant portion of the judgement of the Division Bench dealing with the Rules framed under Act X of 1969 is as follows: " 21. In addition to the detailed provisions contained in the Act, affording sufficient opportunity to the landowner, intermediary or tenant cultivating the land, the Rules framed under the Act, known as "Tamil Nadu Agricultural Lands Record of Tenancy Rights Rules, 1969 (hereinafter referred to as "the Rules") also prescribe a detailed procedure. Rule 4 of the Rules provides as to in what manner the public notice under S.3(3)(a) of the Act should be published. It prescribes the Form of Notice as Form No.11 and further provides that such notice shall be affixed in the village chavadi or other public place in the village, on the notice board of the village or town panchayat; on the notice board of the office of the Record Officer; and also by beat of tom tom and by publication in important local dailies for two days alternatively. A copy of the notice is also required to be furnished to the Members of the Committee. The landowners, intermediaries, tenants and other persons having interest in the land are entitled to send intimation to the Record Officer in Form No.III regarding the interest held by them within one month from the date of publication of the notice under sub-rule (1) of Rule 4 of the Rules. It is also open to the Record https://hcservices.ecourts.gov.in/hcservices/ Officer to accept such intimation received even after the expiry of one month, if sufficient cause is shown. Rule 5 provides that the Record Officer after expiry of the period mentioned in Form No.II, shall cause necessary for verification to be made with reference to the village records and by such local enquiries as may be considered necessary after getting the required information and after due verification the Record Officer is required to fix a date for enquiry and has to give notice for the same to the villagers. Such notice shall have to be published by affixture in the village chavadi, other public place in the village; by affixture on the notice board of the office of the Record Officer and also by beat of tom tom in the village. On holding such enquiry, as may be considered necessary on the date fixed for enquiry after giving reasonable opportunity to the parties concerned, the Record Officer has to record in writing if any evidence is tendered and obtain the signature of the deponent. The draft record of tenancy rights prepared under sub-section (4) of S.3 of the Act apart from publishing in the District Gazette, it shall have to be published by affixture in the village chavadi or other public place in the village; by affixture in the notice board of the village or town panchayat and by affixture on the notice board of the office of the Record Officer. Rule 7 of the Rules further provides for filing of application for rectification or inclusion in draft record under S.3(6). On considering such applications, after giving due opportunity to the applicants and the persons having any interest in the land mentioned in the application and recording the evidence, if any, adduced by the parties, the Record Officer has to prepare the approved Record of Tenancy Right and publish the same by affixture in the village Chavadi or other public place in the village; by affixture on the notice board of the village or town panchayat; by affixture on the notice board of the office of the Record Officer. Rules 10,10-A,11 and 11-A provide for the making of the application and the procedure to be followed for the purpose of S.4.4-A, and 5 of the Act. It is, thus, clear that not only the Act consists of elaborate procedure, but the Rules also prescribe detailed procedure and mode of publication. The mode of publication is so elaborate that every person interested in the land is bound to come to know of the proceedings relating to preparation of Record of Tenancy Rights. Such an elaborate procedure is not found in the Wakf Act. When the statute provides an elaborate procedure to safeguard the rights of the persons having interest in the land and affords an opportunity to put forth their claims, it will not be permissible to read something else into it and introduce the principle of https://hcservices.ecourts.gov.in/hcservices/ natural justice. The very procedure and the mode of publication prescribed themselves are in quite conformity with the principles of natural justice. Therefore, there is no question of issuance of individual notices when the preparation of individual Records of Tenancy Rights throughout the State has to be undertaken and when all the interested parties in the land have been given an opportunity to put forth their cases at the time of preparing the Draft Record of Tenancy Right and even after the publication of the approved Record of Tenancy Rights." 11. It is also relevant to point out at this stage that Section 16-A, which was added by Tamil Nadu Act 34 of 1972 imposes a bar on jurisdiction of civil Court including any order of injunction in respect of action taken or to be taken by any Officer under Act X of 1969. The said Section 16-A reads as under: " 16-A. Bar