Madras High Court
N.K.Surana vs The Special Commissioner And on 23 September, 2021
W.P.No.13674 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.13674 of 2012
N.K.Surana ... Petitioner
Vs
1.The Special Commissioner and
Commissioner for Land Administration,
Chepauk, Chennai - 600 005.
2.The Principal Secretary and
Commissioner for Survey & Settlement,
Survey House,
Chepauk, Chennai - 600 005.
3.The Settlement Officer,
Chepauk, Chennai - 600 005.
4.The Assistant Settlement Officer,
Chepauk, Chennai - 600 005.
5.The Tahsildhar,
Sriperumbudur Taluk,
Kanchipuram District.
6.B.Jayaraman
(R6 impleaded as per order dated
12.06.2012 in MP.No.3 of 2012 in
WP.No.13674 of 2012) ... Respondents
1/20
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
PRAYER:- Writ Petition is filed under Article 226 of Constitution of India,
praying to issue a Writ of Certiorari calling for the records of the first
Respondent in his proceedings dated 23.01.2012 bearing
ROC/K1/13765/2009 and quash the same in so far the petitioner is
concerned.
For Petitioner : Mr.V.Ramesh
for Mr.Sundar Narayanan
For Respondents
R1 to R5 : Mr.Richardson Wilson
Government Advocate
For R6 : No appearance
ORDER
The writ petition has been filed to issue a Writ of Certiorari calling
for the records of the first Respondent in his proceedings dated 23.01.2012
bearing ROC/K1/13765/2009 and quash the same in so far the petitioner is
concerned.
2. The case of the petitioner is that the land comprised in survey
No.312/1 part admeasuring 3 acres 71 cents situated at Beemanthangal
Village, Nemili Mathura, Sriperumbudur Taluk, Kanchepuram was
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
purchased by the petitioner by the registered sale deed dated 06.10.2005
registered vide document No.9498 of 2005 from one Mr.M.Sathyanarayana
Reddy and four others. They traced out the title by the sale deed dated
29.02.1936 registered in the name of his ancestors and the title to owners by
the proceedings of the fourth respondent dated 26.07.2000 and the
proceedings of the fifth respondent dated 30.06.2003. After the sale deed,
the petitioner approached the fifth respondent for grant of patta for the said
land and also for the lands purchased by his son admeasuring 7 acres 40
cents. At that juncture, the petitioner came to understand about the suo motu
revision taken by the second respondent as against the order passed by the
fourth respondent as directed by the first respondent dated 30.04.2010. The
second respondent after conducting enquiry issued ryotwari patta by
proceedings dated 26.04.2011 as contemplated under Section 11(a) of the
Tamil Nadu Estates(Abolition and Conversion into Ryotwari) Act 1948
(hereinafter called as 'the Act'). After the order passed by the second
respondent dated 26.04.2011, the same is not taken up for suo motu revision
by the first respondent.
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
3. The learned counsel for the petitioner would submit that already
the second respondent by the order dated 30.04.2010, delegated his power
of revision to the second respondent and directed to review the order passed
by the fourth respondent dated 26.07.2000. Once, the power of the first
respondent delegated in favour of the second respondent, the order passed
by the second respondent would amount to order passed by the first
respondent. Therefore, the first respondent cannot revise his own order on
suo motu or by any application. There is no power vested with the first
respondent to review the order passed by the second respondent. Powers
and functions of various respondents are governed by Sections 4, 5 and 7 of
the Act. After vesting of land under Section 3 of the Act, the Settlement
Officer is the person competent to grant ryotwari patta to various categories
of ryots under Sections 11 to 18 of the Act. The Order passed by the
Settlement Officer is subject to review or revised by the Director of Survey
and Settlement under Section 5 of the Act. At the same time, the order of
the Director of Survey and Settlement can be cancelled or revised under
Section 7 (d) of the Act. Here, by virtue of power of delegation, the powers
and functions of the first respondent is delegated to the second respondent.
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
The second respondent is not subordinate to the first respondent. Therefore,
once the power delegated in favour of the second respondent to revise the
order passed by the fourth respondent as contemplated under Section 5(2) of
the Act, therefore the power having been recognised by the first respondent
cannot be subject to further review by the first respondent as against the
order passed by the second respondent from whom the power was already
delegated. Therefore, the show cause notice issued by the first respondent
dated 23.01.2012 is bad in law. In support of his contention, he relied upon
the judgment in the case of State of Orissa and others Vs. Commissioner
of Land Records and Settlement, Cuttack and others reported in (1998) 7
SCC 162.
4. Per contra, the learned Government Advocate submitted that the
first respondent is the higher authority and the second respondent is next to
the first respondent under Section 5(2) of the Act. The second respondent
has jurisdiction to revise the order passed by the fourth respondent. At the
same time, the order passed by the second respondent can be reviewed by
the first respondent under Section 7 (d) of the Act. In the case on hand, the
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
first respondent found some irregularities in the order passed by the fourth
respondent dated 26.07.2000 and directed the second respondent to correct
the mistakes committed by the fourth respondent under Section 5(2) of the
Act. It would not amount to delegation of any power and jurisdiction of the
first respondent in favour of the second respondent. Therefore, under the
power and jurisdiction conferred under Section 5(2) of the Act, the second
respondent issued notice and passed order on 26.04.2011, thereby issued
patta in favour of the petitioner and the sixth respondent. Therefore, the first
respondent being the appellate authority has power to review the order
passed by the second respondent as contemplated under Section 7(d) of the
Act. In support of his contention, he relied upon the judgment in the case of
The Special Commissioner and Director of Survey and Settlement
Chepauk, Chennai 5 Vs. M.Arumugam reported in 2007-3-LW 988.
5. Heard, Mr.V.Ramesh, the learned counsel for the petitioner and
Mr.Richardson Wilson, Government Advocate appearing for the
respondents 1 to 5.
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
6. The petitioner purchased the property and applied for patta along
with land purchased by his son. On the request, the fourth respondent by
order dated 26.07.2000, changed the land from 'Punjai Anadhinam' to 'Riat
Punja' and ordered to issue patta in favour of the petitioner. However, the
first respondent found some irregularities in the order passed by the fourth
respondent and on receipt of the petition filed by the sixth respondent
herein, directed the second respondent to review and cancel the order
passed by the fourth respondent dated 26.07.2000 after giving notice,
hearing and pass order in accordance with the rules as contemplated under
Section 5(2) of the Act. It is relevant to extract the provisions under Section
5(2) of the Tamil Nadu Estates(Abolition and Conversion into Ryotwari)
Act, 1948 hereunder:
5(2) Every Settlement Officer shall be subordinate to the
Director and shall be guided by such lawful instructions as he
may issue from time to time; and the Director shall also have
power to cancel or revise any of the orders, acts or proceedings
of the Settlement Officer, other than those in respect of which an
appeal lies to the Tribunal.
7. Accordingly, the fourth respondent is subordinate to the second
respondent and the second respondent has power to cancel or revise any
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
order passed by the fourth respondent. Accordingly, the second respondent
conducted detailed enquiry after issuance of notice to the petitioner and the
sixth respondent and passed order on 26.04.2011, thereby issued patta in
favour of the petitioner to an extent of 14.82 acres in the land comprised in
survey No.312/1 in favour of the petitioner in respect of the land comprised
in survey No.346/4, 347/1 and 347/5 admeasuring 2.30 acres, 6.48 acres
and 5.67 acres respectively in respect of the sixth respondent herein.
Therefore, the second respondent passed order on the power conferred
under Section 5(2) of the Act under revision as against the order passed by
the fourth respondent. It would not amount to any delegation of power by
the first respondent to revise the order passed by the fourth respondent. As
against the order passed by the second respondent, the first respondent
issued show cause notice as power conferred on the first respondent under
Section 7(d) of the Act dated 23.01.2012.
8. It is revealed from the impugned show cause notice dated
23.01.2012, during the settlement the subject land was classified as 'grazing
ground poramboke'. Therefore there are some material irregularities
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
appeared on the facts of the records and the first respondent initiated suo
motu revison under section 7(d) of the Act on certain grounds. Therefore,
the grounds raised in this writ petition is that the first respondent delegated
his power of revision in favour of the second respondent and therefore the
order passed by the second respondent is equivalent to the order passed by
the first respondent. As such the first respondent has no jurisdiction to
revise his own order. In this regard, the learned counsel for the petitioner
relied upon the judgment in the case of State of Orissa and others Vs.
Commissioner of Land Records and Settlement, Cuttack and others
reported in (1998) 7 SCC 162, wherein it is held as follows:
25. We have to note that the Commissioner when he
exercises power of the Board delegated to him under section
33 of the Settlement Act, 1958, the order passed by him is to
be treated as an order of the Board of Revenue and not as that
of the Commissioner in his capacity as Commissioner. This
position is clear from two rulings of this Court to which we
shall presently refer. The first of the said rulings is the one
decided by the constitution Bench of this Court in Roop Chand
vs. State of Punjab [1963 Suppl. (1) SCR 539]. In that case, it
was held by the majority that where the State Government
had, under section 41(1) of the East Punjab Holdings
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
(Consolidation and Prevention of Fragmentation) Act, 1948,
delegated its appellate powers vested in it under section 21(4)
to an 'officer', an order passed by such an officer was an order
passed by the State Government itself and "not an order
passed by any officer under this Act" within section 42 and
was not revisable by the State Government. It was pointed out
that for the purpose of exercise of powers of revision by the
State under section 42 of that Act, the order sought to be
revised must be an order passed by an officer in his own right
and not as a delegate of the State. The State Government was,
therefore, not entitled under section 42 to call for the records
of the case which was disposed of by an officer acting as its
delegate.
26. A like question came up for consideration before a
Bench of this court in Behari Kuni Sahari Awas Samiti &
Another vs. State of U.P. & Others [1997 (7) SCC 37] to
which one of us (Majmudar,J.) was a party. In that case the
Custodian General under the Administration of Evacuee
Property Act, 1950 acting under section 55 could delegate his
powers to the Deputy or Assistant Custodian General. The
Custodian passed an order on 11.11.1982 and submitted the
same for approval of the Assistant Custodian - the delegated
authority. The latter approved the same. Against the said
order of approval passed by the delegate, the State of U.P.
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
filed a revision under section 27 of the Act before the
custodian General. The Custodian General held that he could
not pass any order as the impugned order was one passed by
his delegate. The High Court disagreed with that view and
remanded the case to the Custodian General. This Court
allowed the appeals and held the Custodian General was right
in holding that the revision to him under section 27 was
incompetent. It was held that if a revision were to be
entertained, it would tantamount to exercising a power of
review which did not flow from section 27. In that case, this
Court followed Roop Chand vs. State of Punjab (supra).
27.The basis of the above cases is that the order of the
delegate is to be treated, for all intents and purposes, as an
order of the principal itself here, the Board of Revenue and
hence the Board cannot revise an order passed by the
delegate, the Commissioner.
Can the Board review an order passed by its delegate, the
Commissioner?
28.It may be argued that if the order of the delegate is
tantamount to the order of the principal, then the principal
can review such an order of the delegate. This appears to be
plausible at first blush but is. in our opinion, not correct
because of the intervention of another fundamental principle
relating to 'review' of orders. The important principle that has
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
to be kept in mind here is that a review application is to be
made only to the same Judge or if he is not physically
available to his successor.
30. In the light of the above, it is therefore clear that the
Board of Revenue which never heard the case cannot review
the order of the Commissioner, its delegate, passed under
section 15 of the 1958 Act. In fact, if it does so, that will
amount to the exercise of an indirect power of revision by the
Board which is not permissible in the light of the ruling sin
Roop Chand's case and case in Behari Kunj Sahakari Awas
Samithi referred to above.
The Hon'ble Supreme Court of India held that the Board of Revenue which
never heard the case cannot review the order of the Commissioner, its
delegate, passed. If it does so, that will amount to the exercise of an indirect
power of revision which is not permissible. No doubt, if the order passed by
one authority delegate, such authority cannot exercise power to review.
9. As stated supra, the first respondent never delegated his power of
revision in favour of the second respondent. By the communication dated
30.04.2010, the first respondent directed the second respondent to revise the
order passed by the fourth respondent under revisional power contemplated
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
under Section 5 (2) of the Act. Therefore, the above judgment is not helpful
to the case on hand.
10. The learned Government Advocate relied upon the judgment in
the case of The Special Commissioner and Director of Survey and
Settlement Chepauk, Chennai 5 Vs. M.Arumugam reported in 2007-3-LW
988, wherein the Full Bench of this Hon'ble Court held as follows:
12. In M.Veeraswamy's case, cited supra, the Division
Bench repelled the contention that the Board has no
jurisdiction to suo motu exercise its revisional power under
Section 7(c) and 7(d) of the Act and held as follows:
''7. It is next contended that the Board has no
jurisdiction to suo motu exercise its revisional powers under
S.7(c) and S.7(d) of the Act. The argument proceeds that the
Board could exercise such powers only if there is an
application before it for revising the order of lower
authority. There is no substance in this contention also. The
Section does not contemplate any specific application being
filed under Section 7(c) and 7(d) of the Act. The Section
confers powers on the Board to cancel or set aside any
orders passed by the lower authority and certainly it is open
to the Board to exercise the said power suo motu whenever
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
it is found necessary."
13. In the case of R.Ramadoss (supra) the Divisions
Bench (consisting of Nainar Sundaram and Thanikachalam,
JJ) held that with reference to the exercise of power under
Section 5(2) of the Act, there has been a delineation of the
same by the rules framed pursuant to the power under
Section 67(2)(b) of the Act. It must be taken that it is the
only way and method in which the power of revision under
Section 5(2) of the Act could be exercised by the Director
and he has no power to act suo motu. It was held that the
rules framed under the statute must be treated for all
purposes of construction of powers or obligations, as if they
are in the statute itself, and are to be of the same effect as if
adumbrated in the statute itself. We are unable to agree with
the view taken by the learned Judges of the Division Bench
in the aforesaid case. It is no doubt true that the rules could
be used as aid to interpretation of the provisions of the
Parent Act, but only where the meaning of the Act is
ambiguous (see Hanlon v. Law Society, 1980 (2) ALL E.R
199). The provisions of Sections 5 and 7 of the Act confer
extremely broad powers on the Director and the Board
respectively for correcting the mistakes committed by the
lower authorities and for the purpose of effectuating the
Scheme of the Act and implementing the purpose behind the
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
Act. We are inclined to agree with the view taken in David
Pillai's case and M.Veeraswamy's case (supra) that the
Director of Settlement as well as the Board of Revenue have
suo motu powers to interfere with the orders passed by the
lower authorities. The reference is answered accordingly.
11. This Hon'ble Court held that Section 7(d) of the Act confers
powers on the Board to cancel or set aside any orders passed by the lower
authority and certainly it is open to the Board to exercise the said power suo
motu whenever it is found necessary. Here, the first respondent is the
Revenue Board and the second respondent is the Director of Settlement.
Therefore, the first respondent has got power and jurisdiction as
contemplated under Section 7 (d) of the Act to revise the order passed by
the second respondent. Therefore, the above judgment is squarely
applicable to the case on hand.
12. The learned counsel for the petitioner also submitted that Section
5(2) and Section 7(c) of the Act are one and the same i.e. the power of
revision as against the order passed by the fourth respondent. Originally the
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
petitioner was granted patta on 26.07.2000 and after period of 10 years, the
first respondent delegated his power to revise the order passed by the fourth
respondent in favour of the second respondent. Therefore, there is limitation
to revise the order passed by the fourth respondent to revise on suo motu on
any application. However, the second respondent passed order in favour of
the petitioner and the sixth respondent. Again, it cannot be revised by the
first respondent since already he delegated power in favour of the second
respondent. The learned counsel for the petitioner raised another ground
that the first respondent delegated his power to revise the order passed by
the fourth respondent after period of 10 years.
13. On perusal of communication dated 30.04.2010, revealed that the
first respondent found some irregularities in the order passed by the fourth
respondent and even then, the first respondent failed to take by revision and
also in view of the petition submitted by the sixth respondent seeking for
patta as the subsequent purchaser of the subject land and directed the
second respondent to revise the order passed by the fourth respondent.
Thereafter, by the representation dated 19.02.2011, the petitioner also
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
requested the second respondent to grant patta. Therefore, the petitioner
having been requested the second respondent to issue patta and also having
been accepted the direction issued by the first respondent appeared before
the second respondent and after detailed enquiry, the second respondent
passed order dated 26.04.2011, thereby issued patta in favour of the
petitioner and the sixth respondent herein. Therefore, the petitioner never
challenged the order issued by the first respondent and also the order passed
by the second respondent since the order was passed in his favour.
Therefore, now in the present writ petition, the petitioner cannot raise the
ground that the first respondent directed the second respondent to revise the
order of fourth respondent after period of 10 years from the date of issuance
of patta in his favour.
14. In view of the above discussion, this Court finds no infirmity or
illegality in the show cause notice issued by the first respondent and the
writ petition is devoid of merits and the same is dismissed. However, the
first respondent is directed to issue fresh notice to the petitioner and the
sixth respondent within a period of two weeks from the date of receipt of
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
copy of this order. Thereafter, the first respondent is directed to give
opportunity of hearing to the petitioner and the sixth respondent herein and
pass orders on merits and in accordance with law within a period of twelve
weeks thereafter. No order as to costs.
23.09.2021
lok/ham
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
To
1.The Special Commissioner and
Commissioner for Land Administration,
Chepauk, Chennai - 600 005.
2.The Principal Secretary and
Commissioner for Survey & Settlement,
Survey House,
Chepauk, Chennai - 600 005.
3.The Settlement Officer,
Chepauk, Chennai - 600 005.
4.The Assistant Settlement Officer,
Chepauk, Chennai - 600 005.
5.The Tahsildhar,
Sriperumbudur Taluk,
Kanchipuram District.
https://www.mhc.tn.gov.in/judis/
W.P.No.13674 of 2012
G.K.ILANTHIRAIYAN, J.
lok/ham
W.P.No.13674 of 2012
23.09.2021
https://www.mhc.tn.gov.in/judis/
