Case: The Tahsildar, Taluk Office, Thanjore &amp; Others Vs. G. Thambidurai &amp; Another

5. According to the respondent No. 1/plaintiff, the suit property bearing Survey Field No. 199/2Ac. 4.59 cents and located at Village Pillayarpatti, Thanjavur Taluk belonged to hisKailasam Sanaiyar and after his demise, he eventually being the only legal heir had been enjoying the same. It is his pleaded case that this land was taken over by the Tahsildar, Thanjavur for the government in the year 1935 vide fasli 1343 Order No. 18431/35 A3 dated 31.12.1935 forof land tax and was converted into "bought in" land. This land was later converted into "Punjai Tharisu" (Government Dry) fallow land vide orderdated 1.3.1945 of the R.D.O., Thanjavur. Subsequent thereto, by Order L.R 158 dated 31.12.1958 of the Special Tahsildar (Loan) and Taluk 8A order videthe Survey Field No. 199/2 wasing Ac. 2.23 cents and S.F. No. 199/2BAc. 2.36 cents. Following furtherThis authority, on remand, again cancelled the assignment in favour of the Sanaiyars vide order dated 2.2.1980, whereupon they unsuccessfully appealed against the same before the Commissioner of Land Administration, Chennai, who refused to intervene by his order dated 1.4.1991. Thus, the litigation qua the assignment of the suit land in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar culminated on 1.4.1991 with the rejection of their appeal by the Commissioner of Land Administration, Chepauk, Madras, as aforementioned.8. It was at this stage that the respondent No. 1/plaintiff vainly pleaded with the Tahsildar, Thanjavur for restoration of the suit land to him in the capacity of being the only legal heir of the erstwhile owner with the offer to pay the arrears of land tax. However, as this request fell in deaf ears, he preferred an appeal before the higher revenue authority which also was of no avail. Instead, the land was handed over to the Sericulture Development Department and Bharat Petroleum Corporation Limited. Situated thus, the respondent No. 1/plaintiff returned to the civil court for redress.9. In the plaint, the respondent No. 1/plaintiff has pleaded that in terms of Revenue Standing Orders (for short, hereinafter to be referred to as "RSO") 45(4), the lands taken from a person forof arrears of land tax ought to bereassigned to himor his legal heirs in preference to the others, on payment of the dues. He alleged that no notice of any kind was given to him by the concerned revenue authorities before assigning the suit land in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar in violation of the prescriptions of RSO 45(4). His further remonstrance was that in case, under RSO 45(4), "bought in" land for kist due was not to be restored to the original occupant or his legal heirs, the same was required to be auctioned and that the assignment in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar was arbitrarily made even without following this course as mandated. He also impeached the lease of the suit property in favour of the Sericulture Development Department and the Bharat Petroleum Corporation Limited on the cancellation of the assignment of the Sanaiyars as well in contravention of the imperatives of RSO 45(4). The following are the reliefs prayed for in theThe Honble Court might be ordered to the defendants that the suit property must be assigned to the plaintiff, if not so, themight be executed by this Honble Court.2. The possession of the suit property should be handed over by the defendants to the plaintiff, if no so, the Honble Court execute the above.The appellants/defendants in their written statement, denied the allegations more particularly pertaining to the alleged violation of RSO 45(4), as highlighted in the plaint. While admitting that the patta with regard to the suit property, as mentioned therein, originally stood in the name of Kailasam Sanaiyar, the land, for arrears of land tax, was "bought in" by the government. They denied the possession thereof subsequent thereto by the respondent No. 1 or any other heir of Kailasam Sanaiyar. They pleaded that the respondent No. 1 did never offer to pay the arrears tax/dues within a period of two years seekingon the basis thereof, as contemplated under RSO 45(4). According to them, the assignment of the suit land in favour of the Sanaiyars having been cancelled by the concerned revenue authorities in the proceedings pertaining thereto, it was duly leased out to the Sericulture Development Corporation and Bharat Petroleum Corporation Limited. It was averred in clear terms that after the suit land was "bought in" by the government, it was converted into "Punjai Tharisu" land. They reiterated that the land tax due notice was sent to the owners and as they failed to respond thereto, the suit land was "bought in" by the government, whereafter as well, theremained passive for which eventually the same was converted into "Punjai Tharisu" land.11. In the suit, amongst others, the parties adduced oral and documentary evidence. Whereas the respondent No. 1 examined himself as PW1 and testified in endorsement of the averments made in the plaint, one P. Muthukumaran, assistant in the Taluk Office, Thanjavur, acquainted with the facts of the case, was offered as the witness on the side of the appellants/defendants. As would be patent from the deposition of the respondent No.1/plaintiff, he admitted on oath that the suit land, which originally stood mutated in the name of hisKailasam Sanaiyar and thereafter of his father was "bought in" by the government for arrears in land tax and subsequent thereto was converted into "Punjai Tharisu" in the years 1935 and 1945 respectively. He admitted to have questioned the assignment of the land in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar and that the proceedings in connection therewith did eventually end on 01.04.1991 in his favour. It is indeed apparent from his testimony as well that it was thereafter that he applied to the revenue authorities for assignment of the land in his favour offering to pay of the arrears. Referring to the RSO 45(4), he emphasized that in terms thereof he being the legal heir of the previous owner/occupant was entitled to a preference in the matter of such assignment and that the denial thereof in the facts and circumstances was illegal and arbitrary. He, to be specific, was critical of the omission on the part of the revenue authorities to issue a notice to him before assigning the suit land in favour of the Sanaiyars.12. As would be evident from the testimony of the witness of the appellants, the suit land, in the year 1935, was "bought in" by the government forof land tax, whereafter in 1945 it was classified as "Punjai" bare land. The witness deposed that even after taking over of the suit land by the government forof tax, the respondent No.1/plaintiff did not apply for restoration of the possession by offering the arrears of tax, for which the same was classified as "punjai" bare land" and was thereafterand assigned to the Sanaiyars. He, however admitted that this assignment in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar was cancelled at the instance of the respondent No.1/plaintiff. According to this witness, it was only in the year 1981, when the proceedings were still pending with the concerned revenue authorities that the respondent No.1/plaintiff for the first time gave an offer to pay the arrears tax for restoration of the land to him.13. The Trial Court, on a consideration of the pleadings of the parties and the evidence adduced, decreed the suit and directed restoration of the suit land on payment of the tax due. This conclusion was principally based on the finding that before the assignment of the suit land in favour of the Sanaiyars in the year 1958, no notice had been given to the respondent No.1/plaintiff and that no auction prior to such assignment had also been conducted. The Trial Court held the view that in the factual backdrop, the appellants/defendants ought to have issued a notice to the respondent No.1/plaintiff and on realising the tax dues, should have restored the land to him.14. As aforementioned, the First Appellate Court reversed the decree on the ground that though admittedly the suit land was "bought in" by the government in the year 1935 for arrears of land tax, it was only in the year 1981 that the respondent No.1/plaintiff approached the government for reassignment. It also dismissed his claim of being in possession of the suit land since 1935 till 1958. The Appellate Court was thus of the clear opinion that the respondent No.1/plaintiff from 1935 to 1958 did not approach the revenue authorities with the offer to pay the land arrears and instead did so after a lapse of almost 30 years and claimed reassignment. The Appellate Court thus held the view that the respondent No.1/plaintiff was not willing to pay the land arrears at the earliest opportunity and, therefore the course adopted by the appellants/defendants in the facts of the case could not be denounced as illegal or in violation of RSO 45(4).15. The High Court in the decision impugned, ruled that prior to the conversion of the land as "Punjai Tharisu" (government dry land), a notice to the original owner of the land ought to have been given and the failure to do so has resulted in violation of the principles of natural justice. It also found fault with the appellants/defendants for taking over of the land forof land tax. According to it, the leasing out of the portions of the suit land to the Sericulture Development Department and the Bharat Petroleum Corporation Ltd. was also unsustainable in law. It noted as well that documentary proof on behalf of the appellants/defendants in support of the fact that the suit land had been "bought in" by the government was lacking. In this context, it favourably recorded the offer made by the respondent No.1/plaintiff to pay the arrears of land tax for securing the restoration of the suit land. The suit was thus decreed with the directions as heretofore mentioned.

Court's reasoning:
21. It would thus be evident that to avail the preference in the matter of assignment of "bought in" lands, the obligatoryis the absence of willful default in the payment of land tax by the original owner. Further the default, if any, was due to circumstances beyond his control and that assignment to him again is otherwise unobjectionable. It is only when theseexist and the assigning authority is satisfied that the original owner was not a willful defaulter and that the default was due to circumstances beyond the defaulters control and that such assignment is otherwise unobjectionable that the original owners or the undisputed heirs would have to be preferred to the outsiders. If it is not proved to the satisfaction of the assigning authority that the original owner was neither a willful defaulter nor was the default due to circumstance beyond his control and that the assignment proposed is otherwise not objectionable, the subsequent steps as outlined in RSO 45(4) with regard thereto in favour of such assignment would be wholly impertinent. As a matter of fact, as the provision predicates, the procedure prescribed for the assignment of the "bought in" lands in favour of the original owners or their undisputed heirs distinctlythese contingencies. In absence thereof, the concerned authority is under no obligation to issue notice either to the original owners or their undisputed heir(s) informing him/them that the land would beem if he/they pay the arrears, back assessment, back balance of loan, if any etc. on their application to the Tahsildar to the said effect. The eventuality of a fresh sale would occur in case, in response to such notice, no application for reassignment is received from the original owner or his undisputed heir or if he/they inform the Tahsildar that he/they do not desire to have the land back. Here again, the Revisional Divisional Officer, at his discretion and if he is satisfied that the fresh sale would not fetch more than Rs. 10 per acre, would refrain from undertaking that exercise and instead direct that the land be struck off in the Taluk Register No.18A and classed as ordinary village waste.22. In the face of such clear and unambiguous method of disposal of "bought in" lands, as prescribed by RSO 45(4), there is no semblance of doubt that for an original owner or his undisputed heir to claim preference in the matter of assignment thereof to him/them, the above threewould have to be essentially complied with. In absence of such compliance, any plea of preference in the assignment of "bought in" lands under RSO 45(4) is patently fallacious and untenable. As a corollary, even if such an assignment has been made, as in the instant case in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar, which ultimately had been cancelled, the same would not per se either indicate that the aforementionedwere satisfied or would render the respondent No.1/plaintiff automatically eligible to avail the preference in the matter of such assignment under RSO 45(4). In our view, it would be incumbent upon the respondent No.1/plaintiff in order to prove his entitlement for such preference, to establish that the original owner, when the land was "bought in" by the government, was not a willful defaulter of the land tax and that the default was due to circumstances beyond his control and that the assignment is otherwise unobjectionable to the satisfaction of the assigning authority. In the absence of the discharge of this otherwise statutorily prescribed obligation, it would be idle for him to contend that he was, even sans the same, entitled to be preferred in the matter of assignment of the "bought in" land merely on the cancellation of the previous assignment in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar.23. As the enumerated facts culled from the pleadings and the documents on record would proclaim, no evidence is forthcoming of any endeavour made by respondent No.1/plaintiff to this effect or the satisfaction of the assigning authority on these three otherwise inalienable aspects so as to render him preferable to others for the assignment of the "bought in" land. Contrary thereto, it is the specific stand of the appellants/defendants that admittedly the land was "bought in" in the year 1935 for the failure of the original owner/the respondent No.1 to pay the land tax in 1935, whereafter till 1958, he did not either object to such take over or offer to pay the arrears. It was only in 1958, when the "bought in" land was assigned in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar that he questioned the same on the ground of want of prior notice to him. This challenge, to reiterate, was focused only on the assignment of the "bought in" land to the Sanaiyars without prior notice to him and is not qua the process by which the land had been bought in by the government. Noticeably, the proceedings before the revenue authorities initiated on this challenge by the respondent No.1/plaintiff to the assignment of the "bought in" land to the Sanaiyars were also confined to the grievance of want of notice to the respondent No.1/plaintiff prior to such endowment to them. There is no shred of evidence to demonstrate that the default in the payment of land tax, which resulted in the taking over of the land by the government was not willful and that the same was due to circumstances beyond the defaulters control and further that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable in the facts and circumstances of the case. Significantly, the respondent No.1/plaintiff admits that the land was "bought in" by the government in the year 1935 in view of the failure to pay the land tax. To reiterate, this process had not been objected to until the suit was filed in the year 2005. In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also establish that such default was not willful and was due to circumstances beyond his control and that the assignment to him was otherwise not objectionable, as obligated by RSO 45(4). The belated willingness of respondent No.1/plaintiff to clear the arrear land tax post 1958 also does not further his case in this regard. On the other hand, it would be permissible to deduce that the inactive, casual and passive disposition of the respondent No.1/plaintiff to offer payment of the arrears due immediately after 1935, till at least 30 years hence, demonstrates not only a willful default in that regard but also a persistent unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the "bought in" lands.24. It is the foundational principle of law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all and all other methods of performance are necessarily forbidden. This pristine legal postulation is traceable to the decision in Taylor v. Taylor [1875] 1 Ch. D. 426 which was followed in Nazir Ahmed v. The King Emperor L.R. 63 Ind Ap 372 and in a plethora of pronouncements thereafter. Tested on this anvil as well, the preference in the matter of reassignment of the suit land in favour of the respondent No. 1 sans the adherence to the mandatoryengrafted in RSO 45(4) could not have been extended to him.25. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of "bought in" lands being contingent on the compliance of the essentialtherefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the "bought in" land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 and that the same was cancelled in the related revenue proceedings. The apparent huge delay on the part of respondent No.1/plaintiff in offering to clear off the arrears and in the institution of the suit are as well formidable factors weighing against him. RSO 45(4) being of binding dispensation, any assignment in departure therefrom, cannot receive judicial imprimatur.