IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.04.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.Nos.12613 and 24522 of 2001 1. N.Adikesavan 2. Chinnayan 3. Jayaraman 4. Mangaliammal 5. Paneerselvam *(Deleted) 6. Doss 7. Muthian *(Deleted) 8. Muthulakshmi *(Deleted) 9. Kannan *(Deleted) 10. Parvathiammal 11. Ravi 12. Rukmani 13. Gowri 14. Mohan 15. Valmurthy *(Deleted) 16. Dilipkumar *(Deleted) 17. Neelakandan *(Deleted) 18. Logammal 19. Sakunthala Deceased 20. Ravayammal 21. Santhanammal Deceased 22. Saraswathi 23. Omprakash 24. Sundararaj 25. Sivaraj 26. Kalaivani 27. Murugesh 28. Lingaganapathy All Rep. by the General Power of Attorney B.Balakrishnan .. Petitioners in W.P.No.12613 of 2001. (P22 to P26 are proposed parties as legal heirs of deceased P19) (P27 & P28 are proposed parties as legal heirs of deceased P20) (P5, P7 to P9, P15, P16 & P17 were deleted as per order of this Court dated 17.02.2011) https://hcservices.ecourts.gov.in/hcservices/ 1. Thirunavukkarasu 2. Killiammal 3. Madurai Muthu 4. Karunakaran 5. Mahalingam 6. Ramadoss .. Petitioners in W.P.No.24522 of 2001. Vs. 1 The Commissioner of Land Administration, Chepauk, Chennai - 600 005. 2 The Commissioner and Director of Survey and Settlement, Chennai – 600 005. 3 The Settlement Officer, Thanjavur 4 The Assistant Settlement Officer, Tiruvannamalai 5 Sri Krishna Tiles Potteries (Madras) Private Limited, No.25, 4th Street, Abirama Puram, Chennai – 600 018. .. Respondents 1 to 5 in W.P.Nos.12613 and 24522 of 2001 6.Thirunavukkarasu 7.Killiammal 8.Madurai Muthu 9.Karunakaran 10.Mahalingam 11.Ramadoss 12.M/s. Ozone construction Pvt. Ltd., Balgalore. .. Respondents 6 to 12 in 12613/01 Balakrishnan .Respondent No.6 in W.P.No.24522/2001. (R6 to R11 impleaded as per order of this Court dated 10.09.2003 in W.P.M.P. 35559/2001) (R12 impleaded as per order dated 16.12.2010 by this Court in W.P.M.P.2174 of 2007 in w.P.12613/2001) https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.12613/2001: Writ petition is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorari, calling for the records in respect of the 1st respondent's proceedings in R.Dis.(K1) RP5/2000 dated 14.05.2001 and quash the same. Prayer in W.P.No.24522/2001: Writ petition is filed under Article 226 of Constitution of India for the issuance of certiorarified Mandamus to call for the proceedings of the 1st respondent in No.R.Dis.(K1) RP5/2000 dated 14.5.2001 and quash the same and direct the respondents 1 to 4 to issue patta in the name of the petitioners in respect of the property in S.No.229/1A and 230/7A situated at Koyambedu Village to an extent of 2.52 acres. Writ Petition Name of the counsel for the Petitioners Name of the counsel for the Respondents W.P.No.12613/ 2001 Mr.R.Thiagarajan, S.C. For Mr.Krishna Moorthy & Mr.M.Jaiganesh For R1 to R4: Mr.B.Vijay, G.A. For R5: Mr.A.R.L.Sundaresan, S.C., For M/s.Rank Asso. *For RR6 to 11 Mr.R.Malaichamy W.P.No.24522/ 2001 1. Mr.V.Manohar 2. Mr.N.Thiyagarajan 3. Mr.Gurunathan For R1 to R4: Mr.B.Vijay, G.A. For R5: Mr.A.R.L.Sundaresan, S.C., For M/s.Rank Asso. * For R6:1. Mr.Krishna Moorthy 2. Mr.M.Jaiganesh For R12: Mr.R.Krishnamoorthy, S.C., and Mr.G.Masilamani, S.C. For Mr.R.Swaminathan C O M M O N O R D E R This judgement shall dispose of the following two writ petitions, viz., https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Case No. Name of the Petitioner 1 W.P.No.12613 of 2001 1. N.Adikesavan 2. Chinnayan 3. Jayaraman 4. Mangaliammal 5. Paneerselvam 6. Doss 7. Muthian 8. Muthulakshmi 9. Kannan 10. Parvathiammal 11. Ravi 12. Rukmani 13. Gowri 14. Mohan 15. Valmurthy 16. Dilipkumar 17. Neelakandan 18. Logammal 19. Sakunthala 20. Ravayammal 21. Santhanammal 22. Saraswathi 23. Omprakash 24. Sundararaj 25. Sivaraj 26. Kalaivani 27. Murugesh 28. Lingaganapathy 2 W.P.No.24522 of 2001 1. Thirunavukkarasu 2. Killiammal 3. Madurai Muthu 4. Karunakaran 5. Mahalingam 6. Ramadoss as the common question of law and facts are raised in these two writ petitions. For the sake of brevity, facts are being taken from W.P.No.12613 of 2001. 2. The petitioners have invoked the extra-ordinary supervisory jurisdiction of this Court under Article 226 of the Constitution of India, with the prayer for issuance of writ in the nature of certiorari for quashing the order dated 14.05.2001, passed by the Commissioner of Land Administration, Chepauk, Chennai - 600 005. 3. The facts pleaded in support of the petition by B.Balakrishnan, S/o. R.D.Baskar, the Power of Attorney Agent of the petitioners, are that; i) Koyambedu Village in Chingleput District was originally an Inam Estate. It was notified under the provisions of the Estates Abolition and Conversion into Roytwari Act (Act 26 of 1948) vide https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.2302 Revenue Department dated 01.09.1951 and taken over on 01.10.1951. ii) An adjacent village i.e. Thirumangalam was Zamin Estate, which was notified vide G.O.Ms.No.3157 Revenue Department dated 09.12.1950 was taken over on 09.01.1951. Survey was effected and Ryotwari Settlement was introduced in Fazli 1369. iii) One R.Chandrasekar, a Power of Attorney Agent of Sri Elumalai and others made a claim for patta. The basis of the claim is that the lands covered by the proceedings before the respondents originally belonged to one Tmt.Vedammal. In the year 1914, one Alavattan, S/o. Amavasai and others purchased these lands from her and patta was issued in favour of the legal heirs of the deceased pattadars. iv) The Commissioner and Director of Survey and Settlement, Chennai examined the claim and remanded the case to the Assistant Settlement Officer, Tiruvannamalai for a detailed enquiry. v) When the matter was pending before the Assistant Settlement Officer, Tiruvannamalai, the petitioners made an application alleging that the lands originally belonged to Alavattan and Amavasai by virtue of the purchase in the year 1914 and 1915. After the death of Alavattan and Amavasai, their legal heirs executed a Power in favour of Thiru R.D.Baskar, father of B.Balakrishnan and after his death, a Power of Attorney was executed in favour of B.Balakrishnan. The petitioners made a claim for patta in the name of the legal heirs of the deceased Alavattan ana Amavasai. vi) The Assistant Settlement Officer, Tiruvannamalai, vide order dated 31.07.1998, rejected the claim and held that patta already stood granted to one Sri. Renganathan, Ex-Zamindar of Thirumangalam Village under Sections 12(a)(i) and 12(b)(ii) of the Act, by the Assistant Settlement Officer, Chittor vide order dated 31.07.1952. vii) The petitioners, being aggrieved by the order of the Assistant Settlement Officer, Tiruvannamalai dated 31.07.1998, filed Writ Petition No.14267 of 1998 in this Court. The writ petition was dismissed on 22.09.1998, on the ground of alternative remedy of appeal, before the Settlement Officer, Thanjavur. The appeal filed by the petitioners was dismissed by the appellate authority on 10.11.1998, holding it to be time barred and that the appellate authority had no power to condone the delay. viii) The petitioners, being aggrieved by the order of the appellate authority dated 10.11.1998, filed revision before the Commissioner and Director of Survey and Settlement, who accepted the revision and allowed Roytwari patta, in favour of B.Balakrishnan, as Power of Attorney Agent, though it should have been in favour of https://hcservices.ecourts.gov.in/hcservices/ petitioners. ix) It is the case of the petitioners that before the Commissioner and Director of Survey and Settlement, specific contention was raised, that in terms of G.O.Ms.No.714 Commercial Taxes and Religious Endowment dated 23.06.1987, the Settlement Officer is empowered to condone the delay of 30 days beyond the period of limitation prescribed. x) The Commissioner and Director of Survey and Settlement held that under the rules, the Settlement Officer had the power to condone the delay. The revisional authority also held, that Section 12 of the Act deals with grant of patta to Zamindars in respect of private and pannai lands, while Section 13 of the Act deals with grant of patta to Inamdars for private and pannai lands. xi) It was further held that the dispute was with respect to S.No.229/1A and 230/7A and certain old paimash number connected with these. xii) The case of the petitioners is that it was after considering the entire documents that revisional authority held that the order of the appellate authority was not sustainable and ordered grant of patta for 1.76 acres of lands in S.No.229/1A and 3 Acres in S.No.230/7A, in favour of the petitioners under Section 11 (a) of the Tamil Nadu Estates Abolition and Conversion into Ryotwari Act. It was also held that the pattas standing in the name of M/s.Krishna Tiles and Potteries, in respect of these survey numbers and the sub- division records be revised and modified suitably. xiii) Aggrieved by the order, M/s. Krishna Tiles and Potteries (Madras) Pvt. Ltd filed a Revision Petition before the Commissioner of Land Administration, Chepauk, Chennai, which stood accepted vide impugned order. xiv) The impugned order has been challenged by the petitioners on the ground that the Commissioner of Land Administration, wrongly held that the Commissioner and Director of Survey and Settlement, had no power or authority to reopen the case in 1996, which was settled in the year 1952, by exercising the powers under G.O.Ms.No.1400 CT & RE Department dated 21.11.1975, on the ground that as per G.O.Ms.No.714, the Settlement Officer had the power to condone the delay in filing appeal / revision before him. xv) The ground is also taken that under Section 5(2) of the Tamil Nadu Estates Abolition and Conversion into Roytwari Act, 1948 (hereinafter referred to as the 'Act'), the Settlement Officer is subordinate to the Director and is bound by the lawful instructions, issued by him from time to time, and that the Section further empowers the Director to cancel or revise any of the orders, acts or https://hcservices.ecourts.gov.in/hcservices/ proceedings of the Settlement Officer, other than those in respect of which appeal lies to the Tribunal. xvi) It was in exercise of power under Section 5(2) of the Act that the case was earlier remanded back to the Assistant Settlement Officer, Tiruvannamalai, to make a fresh enquiry. It is also the ground that the Commissioner of Land Administration failed to appreciate that the order dated 31.07.1952, resulting in the grant of patta in favour of A.K.Renganathan, did not have binding effect, since he had failed to establish the claim for patta in 1952, in respect of the properties, nor the provisions of Section 12(a)(i) and 12(b)(ii) of the Act, authorized the Assistant Settlement Officer for grant of patta. xvii) The ground is also taken that the Commissioner of Land Administration, wrongly held that the Commissioner and Director of Survey and Settlement had no jurisdiction to entertain appeal or revision after 29.07.1987, by virtue of G.O.Ms.No.714 dated 29.06.1987. xviii) The other ground of challenge pleaded in the petition is, that the finding recorded by the Commissioner of Land Administration that A.K.Renganathan, Ex-Zamindar and his wife Karpagambal had settled the properties in favour of their sons in 1944, which is subsequent to 1944, is erroneous as neither Renganathan nor his wife had any subsisting claim for patta in the year 1952. It is also pleaded that the Commissioner of Land Administration wrongly held that the Commissioner and Director of Survey and Settlement had no locus standi to question the order of the Assistant Settlement Officer, Chittoor, passed on 31.07.1952. xix) The ground is also taken that the finding recorded by the Commissioner of Land Administration is contrary to the facts established in the case, therefore, not sustainable. 4. In the counter filed on behalf of respondenet no.1, it has been stated as under: 3. It is submitted that Koyambedu and Thirumangalam villages in erstwhile Chengalpattu (now Chennai district) district. Koyambedu was an Inam Estate and Thirumangalam was a Zamin Estate. Koyambedu village was notified in G.O.Ms.No.3157, Revenue Department dt. 9.12.1950 and taken over on 09.01.1951 under the provision of T.N.Estates (A & CR) Act XXVI/48. These villages were surveyed as a single unit and called as Koyambedu village Paimash Nos. of Koyambedu village were given survey members 1 to 206 and Paimash Numbers of Thirumangalam village were given Survey Nos.207 to 322, The Assistant Settlement Officer, Chithoor by his order dated 31.7.1952 in Dis.S.No.28/Zamin/1951, https://hcservices.ecourts.gov.in/hcservices/ allowed ryotwari patta for various Survey Numbers. During the settlement paimash Nos. 1,3,5 to 12, 27, 28, 30 to 32, 34 to 36, 40, 41, 44 to 47, 49 to 57, 62 to 70, 88, 299 and 300 were clubbed in New S.No.230/7 with an extent of 24.69 acres and paimash Nos.71 to 80, 82, 83, 93 to 95, 100, 104 to 107 were clubbed together as S.No.229/1 with an extent of 10.78 acres. According to the provision of the Tamil Estate (Abolition and Conversion into Ryotwari) Act 1848 – Act XXVI/48, against the ryotwari patta granted u/s. 12 of the said Act next appeal should be preferred before the Estate Abolition Tribunal. But in this case, no appeal was preferred by any one against the order of the Assistant Settlement Officer, Chithoor and that therefore, it has become final. 4. It is submitted that in the year 1996, Thiru Elumalai and 20 other represented by their Power Agent Thiru R.Chandrasekaran filed a petition to Commissioner and Director of Survey and Settlement claiming patta for an extent of 2.28 acre in S.No.229/1 and for 2.06 acre in S.No.230/7 stating that the lands are under their possession and enjoyment since 1914 and Tvl.A.K.Ranganathan and A.R.Rajagopalan have no rights over the land. The Commissioner and Director of Survey and Settlement condoned delay citing the G.O.Ms.No.1400, Revenue Department dated 21.11.74 and directed the Assistant Settlement Officer to take up this petition for enquiry. At this juncture, Thiru B.Balakrishnan joined the fray by filing application for grant of patta for the above lands. The Commissioner and Director of Survey and Settlement by his letter No.D2/11749/96 dated 1.10.96 directed the Assistant Settlement Officer, Tiruvannamalai to consider his petition also when he takes up enquiry. The Said B.Balakrishnan had obtained directions from the High Court, Chennai in W.P.No.13186/99, W.P.8643/98 to dispose his petition within 8 weeks. The Assistant Settlement Officer after enquiry, dismissed the petition of Tvl.R.Chandrasekaran and B.Balakrishnan as they were ineligible to get patta u/s. 11 (a) of Tamil Nadu Act XXVI/48. Aggrieved, Thiru B.Balakrishnan filed a writ petition before the High Court on 14.9.98 and the Hon'ble High Court by their order dated 22.9.98 dismissed the writ petition stating that the petitioner has a remedy by way of filing an appeal. He filed an appeal to the Settlement Officer, Thanjavur who by his order dt. 10.11.98 dismissed the appeal as barred by limitation. Thiru R.Chandrasekaran filed an appeal before the Settlement Officer, Thanjavur on 14.9.98 which was not pursued by the Settlement Officer for want of certain documents from the petitioner and this appeal was closed on 2.6.99. https://hcservices.ecourts.gov.in/hcservices/ 5. It is submitted that aggrieved by the order of Settlement Officer, Thanjavur Tvl.B.Balakrishnan and R.Chandrasekaran filed revisions to the Commissioner and Director of Survey and Settlement. At this time also, Thiru B.Balakrishnan filed W.P.no.1880/99 before the Hon'ble High Court by the order dt. 9.2.97 the Hon'blel High Court directed the Commissioner and Director of Survey and Settlement to dispose of the Revision petition within a period of 5 months. The Commissioner and Director of Survey and Settlemenet by his order dated 5.7.99 in proc.RP.1/99 (Rc.D2/19575/98) set aside the orders of Assistant Settlement Officer, Tiruvannamalai and Settlement Officer, Thanjavur and allowed ryotwari patta for the suit lands in favour of Thiru B.Balakrishnan as the power holder of the said suit property. Against the orders of Commissioner and Director of Survey and Settlement Tvl.Krishna Tiles & Potteries (Madras) Pvt. Ltd. filed Revision petition to the Commissioner of Land Administration. Thiru Chandrasekaran who was the petitioner before the Commissioner and Director of Survey and Settlement also filed a petition challenging the order of Commissioner and Director of Survey and Settlement. Tmt.Kiliammal and 12 others, who revoked the power of attorney given in favour of Thiru Balakrishnan, earlier have also filed a petition as they are the legal heirs of Amavasai. (It is a land covered by Section 15 of the Act and passed by the Assistant Settlement Officer, Chithoor allowing patt u/s.12 to 14 of Act XXXVI/1948 cannot be questioned before the Settlement forum. As regards grounds raised it is submitted that the order of the Director of Survey and Settlement which is unsustainable in law and out of his jurisdiction. It is misconstrued that the G.O.Ms.No.1400, CT & RE dated 1975 and G.O.Ms.No.714, CT & RE dated 23.6.87, have empowered the Director of Survey and Settlement to condone the delay to reopen the case in 1996 which was settled in the year 1952. It is pertinent to mention the judgment of the Division Bench of Hon'ble High Court of Madras reported in 328 MLJ 1974, wherein the Hon'ble Bench had categorically held that if the lower authority had no power to condone the delay, the appellate authority also cannot condone the delay occurring before the lower authority. When the application for grant of patta under the provision of the Abolition Act was made to Director of Survey and Settlement belatedly he should have summarily rejected it as barred by limitation instead of calling for report from the Assistant Settlement Officer. https://hcservices.ecourts.gov.in/hcservices/ As mentioned supra the Director of Survey and Settlement cannot condone the delay that occurred before the Assistant Settlement Officer, lower forums i.e. Assistant Settlement Officer and Settlement Officer and that too when there is a subsisting order of the Assistant Settlement Officer under Section 12. It is a settled matter before the Assistant Settlement Officer, Chithoor. It is evident from the proceedings of the Assistant Settlement Officer that the binami character of the Zamindar's wife and patta stood in the name of his sons were all considered by the Assistant Settlement Officer, Chithoor before allowing patta u/s. 12(a)(i) and 12(b)(ii) of the Act. Moreover, the ancestors of the petitioners had since alienated the lands, some 50 years ago, the petitioners cannot make their claim now. The explanations given in para 24 of order of Commissioner of Land Administration is the self explanatory for setting aside the irregular order passed by the Director of Survey and Settlement. The petitioners have stated that the 5th respondent had suppressed many material facts before the Assistant Settlement Officer, Chithoor. In this regard, it is submitted that the Assistant Settlement Officer, Chithoor granted ryotwari patta to the erstwhile Zamindar u/s.12(a)(i) and 12(b)(ii) of the Act XXVI/48. According to Section 15(2)(a) of the said Act any person aggrieved by such decision u/s.12, 13 or 14 may within two months from the said date of the decision appeal to the Tribunal. As such, the Director of Survey and Settlement has no jurisdiction to entertain any application against the grant of patta by the Assistant Settlement Officer u/s.12, 13 or 14. Notwithstanding this section, the Director of Survey and Settlement is barred from entertaining such application as per G.O.Ms.No.714 CT & RE Department, dated 23.6.87. Only after considering these rule provisions the Commissioner of Land Administration has set aside the order of the Director of Survey and Settlement, Chennai. The Assistant Settlement Officer, Chithoor considered all these aspects before allowing patta u/s. 12(a)(i) and 12(b)(ii) of the Act which is final. The order of the Director of Survey and Settlement is not only against the provisions of Act XXVI/48 but also unsustainable in law as the ryotwari patta granted https://hcservices.ecourts.gov.in/hcservices/ in favour of the power of Attorney. It is the settled law that power holder cannot go beyond his principals. The Director of Survey and Settlement has conveniently forgotten that by virtue of the ryotwari patta granted by the Assistant Settlement Officer, Chithoor, the 5th respondent had lawfully alienated large extent of land in these S.Nos. to TNHB of valuable consideration. The Director of Survey and Settlement without mentioning the above facts arbitrarily granted patta to the power holder, that too, without setting aside the order of Assistant Settlement Officer, Chithoor. The order of Director of Survey and Settlement has only unsettled the matter which was settled as early in the year 1952. It is necessary to point out that only after the Revision filed by the 5th respondent and the order of Director of Survey and Settlement was stayed by the then Special Commissioner and Commissioner of Land Administration on 28.9.99, the power holder of the petitioner in this W.P. filed a Revision petition against the order of Director of Survey and Settlement." 5. In order to appreciate the controversy in these writ petitions, it would be necessary to consider the orders passed by the authorities, under the Act. Vide order dated 13.10.1952, the Assistant Settlement Officer, Chittoor, entertained application, filed by A.K.Ranganathan, under Section 12 of the Act for grant of Ryotwari Patta of the lands mentioned in schedule to those proceedings. It was held that the lands were situated in Thirumangalam Village of Thirumangalam Estate, which was notified by the Government under Section 1(4) of the Act, and taken over by the District Collector on 03.01.1951. 6. A notice under Rule 3(1) of the Rules was issued vide G.O.272b Rev. Dated 12.10.1950 and duly published in the village on 08.03.1951 for holding enquiry on 24.12.1951. The notice was also affixed on the office of the Assistant Settlement Officer, Chittoor with a copy to A.K.Ranganathan. The claim was rejected by the Manager of Estate, Maduranthagam, for paimash numbers 583 to 641. The numbers were found to be Nattam Jari lands for which, it was observed that A.K.Renganathan, was not entitled to Ryotwari patta. 7. On the objection, the claim for paimash numbers 583 to 641, was given up. It was held in the order, that A.K.Ranganathan was Zamindar of Thirumangalam, who acquired the Zamin rights in the village, by the registered document No.2946 of 1929. The document was registered in his name vide registered sale deed No.137 dated 12.12.1929. He purchased the private Kambatham lands measuring 200 acres in his wife's name, at consideration of Rs.32,000/- (Rupees Thirty Two Thousand only). It was also held that all other lands https://hcservices.ecourts.gov.in/hcservices/ applied for in the application, was covered by sale deeds during the year 1930 to 1945, wherein, the Kudivaram rights were purchased from the ryotes for consideration, which were in his wife's name as binami. 8. On the death of wife of A.K.Ranganathan, the only daughter acknowledged that her mother was a binamidar, and executed a release document dated 19.07.1950, declaring that she has no interest in the private lands in the Estate. After the death of his wife, A.K.Ranganathan issued patta with respect to all these lands, in the name of 3 sons on 26.03.1949 and the lands were registered in the name of 3 sons. The authority explained that this was done just to keep a distinction between zamin rights and the private interest for assisting the procedure followed by him from the very beginning. 9. The claim of the landholder was that all these lands were his private lands and in his possession for personal enjoyment. His wife was only a binamidar, which was duly acknowledged by the sons and daughters. 10. A positive finding was recorded that A.K.Ranganathan, was the registered landholder for the village of Thirumangalam, and the Documentary evidence covered the Kambatham rights in lands applied for, which were shown to be in the personal enjoyment of A.K.Ranganathan from 1929 onwards. The other lands were purchased from the ryots and were also in continuous possession of binamidar since 1931 since 1941 to June, 1945. 11. The Assistant Settlement Officer, therefore, held that the only point for consideration with regard to the issue of patta, comprising of lands, belonging to his sons. It was further held that the application correctly fell under Section 12, for the following reasons: i) The patta has been issued only on 25.03.1949 which is after 1945; ii) The 3 sons have not paid a single paise towards rent for these lands which are registered in their name; iii) The sons have never been in personal cultivation of these lands which is looked after by the father of the applicant. iv) Three sons have given a joint statement that patta may be issued in the name of their father. From the above points, it can be seen that the 3 sons are not ryots which is defined in Estate Land Act as a person who holds for the purpose of the agriculture ryoti land in