IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2009 C O R A M: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.A.No.1349 of 2002 and W.A.M.P.No.2434 of 2002 1. N.Sastha (died) 2. N.Kumaraswamy 3. N.Ganesan 4. N.Paramasivam 5. M.Rajakumar 6. M.Ramkumar 7. S.R.Kumar 8. S.R.Sekar 9. S.R.Kishore (Substituted the Legal Representatives of the deceased 1st appellant (N.Sastha) as appellants 7 to 9 vide order dated 24.06.04 made in W.A.M.P.No.194/04) .. Appellants vs. 1. The State of Tamil Nadu, rep. By District Collector, Kanniyakumari District at Nagercoil. 2. The Revenue Divisional Officer, Nagercoil. 3. The Thasildar, Thovalai Taluk, Boothapandi and Post, Kanyakumari District. 4. The Revenue Inspector, Azhagiapandiapuram Firka, Azhagiapandiapuram Post, K.K.Dist. .. Respondents Writ Appeal filed under Clause 15 of the Letters Patent Act against the order of this Court in W.P.No.11495 of 1998 dated 15.11.2001. W.P.No.11495/98:- This Petition presented to this Court under Article 226 of Constitution of India to issue to writ of mandamus directing the respondents to forbear from interferring with the petitioners possession and enjoyment of the lands comprised in Old.S.No.1080 and 1081 (Rs.No.426, 427, 428, 429, 430, 431) as https://hcservices.ecourts.gov.in/hcservices/ declared in O.S.No.25 of 1994 on the file of the Principle District Munsif Court, NAgrcoil under the provision of the Tamil Nadu Land Encorachment Act 1905. For Appellants : Mr.V.Selvaraj For Respondents : Mr.G.Desinghu Special Government Pleader J U D G M E N T (Judgment of the Court was made by F.M.IBRAHIM KALIFULLA, J.) The appellants are aggrieved against the order of the learned Single Judge dated 15.11.2001, in and by which, the claim of the appellants for issuance of a writ of Mandamus forbearing the respondents from interfering with the appellants possession and enjoyment of the lands comprised in old S.Nos.1080 and 1081 (R.S.Nos.426, 427, 428, 429, 430 and 431) of Thovalai Village, Kanyakumari Taluk and District, as declared in O.S.No.25 of 1994, on the file of the Principle District Munsif Court dated 07.03.1996, came to be rejected. 2. The appellants are stated to have been in possession of 100 acres of land prior to reorganisation of Travancore-Cochin State under the 1956 Act. According to the appellants, the lands were given to them for cultivation purposes by the erstwhile Travancore- Cochin Government under the rules for Kuthagapattom or under the rules of Kandukrishi Pattom system. The rules relating to Kuthakapattom came to be repealed by the State of Tamil Nadu in G.O.Ms.No.3369, Revenue Department, Dated 12.12.1972. Thereafter, the State Government issued G.O.Ms.No.947, Revenue Department, dated 02.03.1973, for assignment of lands of small holdings by some of the Kuthakapattom holders. Since the holdings of the appellants and their forefathers were 100 acres, the assignment provided for under G.O.Ms.No.947, dated 02.03.1997, was not applicable to the appellants. However, under the very same G.O., in paragraph 5 it was provided as under: "5. The Collector of Kanyakumari and Tirunelveli and the Board of Revenue are informed that separate orders will be issued on the question of resumption of the lands under Kuthakapattom which cannot be assigned to occupiers under the above instructions." 3. The appellants with a view to safeguard their possession, approached the Civil Court namely the Principle District Munsif Court, Nagercoil by filing O.S.No.25 of 1994 for declaration and https://hcservices.ecourts.gov.in/hcservices/ injunction. The declaration was to the effect that their possession of the tax assessed Tharisu poromboke lands having an extent of about 100 acres in the suit property be declared as such and the State Government be directed by means of a mandatory injection to issue orders of assignment in their favour and also restrain them by way of a permanent injunction from taking any steps for assignment of such lands in favour of strangers. 4. In the plaint, the appellant however referred to the order of this Court dated 20.12.1991, passed in W.P.Nos.5352 & 12112 of 1987 and 17987 & 17988 of 1991 for grant of patta in their favour and for quashing the orders of the Revenue authorities for excess collection of 'B' memo charges and also for assignment of lands. 5. In the said order, this Court has noted the stand of the appellants' counsel for direction to the respondents to consider their claims for assignment and pass appropriate orders within a time bound programme. This Court directed the District Collector before whom the representations were pending to dispose of those representations and pass appropriate orders within three months from the date of receipt of a copy of that order. 6. In the suit, the respondents resisted the claim by filing a written statement. In paragraph 6 of the written statement, it is pointed out that after the repealing of the Kuthagipattom Rules in the year 1972, 'B' memos were issued under the Land Encroachment Act, 1905 for unauthorised enjoyment of Government lands against the appellants; that the appellants were not entitled to get any assignment in their favour and that in the light of the G.O.Ms.No.377, Revenue Department, dated 13.05.1993, rejecting the request of the appellants, they are liable to be evicted from the lands in question. The suit came to be disposed of by the Civil Court on 07.03.1996 and the Civil Court held that the appellants are in possession of 100 acres of Government poromboke lands. The prayer for mandatory injunction was rejected and it was further held that the respondents were entitled to evict the appellants in accordance with law. The Civil Court also directed the appellants not to alienate the properties. 7. In pursuance to the order of this Court dated 20.12.1991, passed in different writ petitions preferred by the appellants, the State Government issued G.O.377, Revenue Department, dated 13.05.1995, reiterating the position that the appellants were not governed by the Kuthakapattom Rules, that the lands which were in possession of the appellants have been declared as Government poromboke lands, governed by the provisions of Land Encroachment Act, 1905. The G.O. also made it clear that the lands were treated as poromboke lands and appropriate 'B' memos were duly issued treating the appellants as encroachers. The claim of the appellants https://hcservices.ecourts.gov.in/hcservices/ for assignment in their favour was rejected and the District Collector was directed to communicate such rejection under the said G.O. to the appellants. 8. It is in the above stated background, the appellants came forward with the present writ petition. The learned Judge after a detailed reference to the earlier proceedings and after taking note of the Government Order in G.O.Ms.No.377, dated 13.05.1993, has held that the appellants were not entitled to seek for assignment of the lands and that they were not qualified to get any such assessment. The learned Judge also noted that the appellants having been admittedly assessed by way of 'B' memo from 1972 onwards, their occupation of the lands being unauthorised namely as encroachers, the State Government is entitled to proceed against the appellants for eviction under the provisions of the Land Encroachment Act, 1905. 9. The above conclusion of the learned Judge are found in paragraphs 6, 7 and 8 of the impugned order, which reads as under: "6. Though a copy of the said Order (G.O.Ms.No.465, dated 20.07.95) has been filed, from the written statement filed by the District Revenue Officer in O.S.No.25/94, it is seen that the petitioners herein have filed earlier W.P.No.5301/92 for a direction to the Government to assign the lands in R.Sy.No.626/1 of Arumanallor Village. After holding an enquiry as directed by this Hon'ble Court, the Government have passed G.O.Ms.No.377, Revenue Department, dated 13.05.93, rejecting the request of the petitioners on the ground that he is rich pattadar, Income tax assessee etc. According to the said order, the land is required for Government purpose and hence the Government have passed orders to evict the plaintiff from the land. Thereafter, the petitioners herein filed a suit in O.S.No.25/94 praying for a declaration and permanent injunction. The learned District Munsif in his considered judgment dated 07.03.1996, found on issues No.1 to 3 with reference to declaration that the petitioners cannot seek for assignment of lands. He considered the Government Order in G.O.Ms.No.947, dated 02.03.73 and found that the petitioners are not entitled for assignment. The learned Munsif also found that the petitioners did not question the order passed by the Government rejecting the assignment. Therefore, the very question of eligibility of the petitioners to get the benefit of the Government Order was considered by the learned District Munsif in paragraph No.12 of the Judgment and the same was negatived. On the other issues, whether the petitioners can seek for a permanent injunction and a mandatory https://hcservices.ecourts.gov.in/hcservices/ injunction. While dismissing the plea of the petitioners that till such time the Government is entitled to evict the petitioners in accordance with law they can continue in possession. Ultimately a decree was passed holding that these 100 acres of land are Government poramboke lands and they are in possession of lands. However, the prayer for permanent injunction and mandatory injunction was refused, and thirdly it was decreed that till such time they are evicted in accordance with law, these lands will not be transferred to third parties. The said decree has become final and no appeal has been preferred. 7. In the light of the finality of the order passed by the Government in G.O.Ms.No.377 (Revenue) dated 13.05.93 and dismissal of the suit and decree and further order by the Government in Revision dated 15.07.1997, I hold that the petitioners cannot get any assignment of these lands and that they are not qualified to get assignment. 8. The petitioners are admittedly been assessed for 'B" memos from 1972 onwards. That is not in dispute. So long as the petitioners occupation is found to be unauthorised and that they have been assessed 'B' memos, they have no manner of right to claim once again that they must be assigned with lands. So long as their occupation continues to be unauthorised, the Government can proceed to evict the unauthorised persons after issuing Section 6 notice." 10. Mr.V.Selvaraj, learned counsel appearing for the appellants in his submissions stated that the G.O.Ms.No.377, dated 13.05.1993, has not been communicated to any of the appellants and that it is stated that the District Collector should communicate the rejection of the appellants prayer for assignment and that there is no communication in the G.O. as to service of the said G.O. on the appellants. 11. As far as the right of the appellants to make a claim in any other category other than what has been provided for in G.O.Ms.No.947, dated 02.03.1973, a perusal of the Civil Court decree as well as the representations pursuant to which the ultimate G.O.Ms.No.377, dated 13.05.1993, came to be passed disclose that while as per G.O.Ms.No.947, dated 02.03.1973, the appellants are admittedly not entitled for any assignment to be granted in their favour and under the very same G.O. they are liable to be proceeded against under any other law by the State Government. 12. When the appellants moved the Civil Court, the Civil Court also made it clear that there is no scope for any mandatory https://hcservices.ecourts.gov.in/hcservices/ injunction for assignment of lands in their favour based on G.O.Ms.No.947, dated 02.03.1973 or any other provision of law. On the other hand, the Civil Court has noted the possession of the appellants by virtue of 'B' memo issued in their favour right from the year 1972, which is in recognition of their status as encroachers of the Government poromboke land. When once that position emerges from the various proceedings placed before the Civil Court, as well as before this Court and since G.O.Ms.No.377, dated 13.05.1993, has come into existence, we can only hold that the appellants if are aggrieved against the order passed in G.O.Ms.No.377, dated 13.05.1993, they should work out their remedy in the manner known to law. 13. As far as the grievance expressed by the learned counsel for the appellants that there is no indication that G.O.Ms.No.377, dated 13.05.1993, was duly communicated to the appellants, as the G.O. itself sates that the District Collector should communicate the said order to the appellants. If such order had been communicated by the District Collector as per the directions of the State Government, there is no necessity for this Court to issue any further directions. If by any chance, the G.O.Ms.No.377, dated 13.05.1993, had not been communicated to the appellants, it is for the District Collector, Kanyakumari to communicate the same as expeditiously as possible in any case within two weeks from the date of receipt of a copy of this order. We make it clear that if the order had already been communicated as per the direction contained in the G.O. itself, the District Collector can ignore the direction issued in this Judgment. 14. As we are convinced with the reasons mentioned by the learned Single Judge in the impugned order, in particular the various reasoning which weighed with the learned Judge for passing the impugned order, we do not find any scope to grant any relief or interfere with the order of the learned Judge in this writ appeal. The writ appeal fails and the same is dismissed. The connected miscellaneous petition is closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kk https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Collector, Kanniyakumari District at Nagercoil. 2. The Revenue Divisional Officer, Nagercoil. 3. The Thasildar, Thovalai Taluk, Boothapandi and Post, Kanyakumari District. 4. The Revenue Inspector, Azhagiapandiapuram Firka, Azhagiapandiapuram Post, K.K.Dist. 1 cc to MR.V. Selvaraj, Advocate, Sr. 60156 1 cc to Government Pleader, SR. 60133 W.A.No.1349 of 2002 and W.A.M.P.No.2434 of 2002 AKR (CO) kk 25/11 https://hcservices.ecourts.gov.in/hcservices/