Madras High Court
M.Sivasakthi vs The District Collector on 7 March, 2022
W.A.No.6992 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.03.2022
CORAM
The Hon'ble Mr. Justice T.RAJA
and
The Hon'ble Mr. Justice SATHI KUMAR SUKUMARA KURUP
W.P.No.6992 of 2020
and
W.M.P.No.8339 of 2020
M.Sivasakthi .. Appellant
Vs
1.The District Collector,
Salem District,
Salem.
2.The Tahsildar,
Attur Taluk,
Salem District.
3.The Block Development Officer,
Thalaivasal Panchayat Union,
Attur Taluk,
Salem District.
4.The President,
Deviakurichi Village Panchayat,
Deviakurichi and Post,
Attur Taluk,
Salem District. ..Respondents
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W.A.No.6992 of 2020
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records
pertaining to the orders of the third respondent in
Na.Ka.1060/2019/The2, dated 04.11.2019 and the consequential
orders of the fourth respondent in proceedings Nil, dated 09.03.2020
and quash the same and further direct the respondents 1 and 2 to
consider the representation dated 13.06.2019 and 28.06.2019 for the
grant of house site Patta in respect of Natham land in SF No.263/6 of
Deviakurichi Village, Attur Taluk, Salem District.
(Prayer amended vide order dated 28.10.2020 made in WMP No.18588
of 2020 in W.P.No.6992 of 2020 by NAVJ)
For Petitioner : Mr.S.Kamadevan
For Respondents 1 to 3 : Mr.A.Selvendran
Special Government Pleader
For Respondent 4 : No appearance
ORDER
(Order of the Court was made by T.RAJA, J.)
Mrs.M.Sivasakthi, W/o.C.Mani, residing at Boyar Street,
Deviakurichi & Post, Attur Taluk, Salem District, claiming to be a
person belong to Boyer Community and doing pottery work making
mud pot and other clay vessels/works for her livelihood, has come to
this Court seeking issuance of Writ of Certiorarified Mandamus for
quashing the order of the third respondent dated 04.11.2019 and the
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W.A.No.6992 of 2020
consequential orders of the fourth respondent dated 09.03.2020 and
consequential direction to consider her representation for grant of
house site patta in respect of Natham land in SF No.263/6 measuring
an extent of 0.01.33 Ares situated at Deviakurichi Village, Attur Taluk,
Salem District.
2.Learned Counsel for the petitioner would submit that the
petitioner belongs to Boyer community doing mud pot and clay works
for her livelihood. Her family is classified as MBC by the State of Tamil
Nadu. The petitioner's family also does not possess any land including
any house site of her own and settled down at Natham SF No.263/6
situated at Deviakurichi Village, Attur Taluk, Salem District, and
adjacent to the said land, a public well is also classified in the revenue
records. The total extent of the land covered in SF No.263/6 is 0.01.33
Ares which is less than 3½ cents and in a portion of the said land, one
Maruthai, has constructed a house under Group Housing scheme.
Since the petitioner has been in possession of a portion of the land
measuring less than 2 cents in SF No.263/6, an application has been
made for grant of patta. But this was refused by the second
respondent overlooking the fact that the petitioner belongs to Boyer
community and eking out her livelihood by making mud pot and other
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W.A.No.6992 of 2020
clay works for more than several decades. In addition thereto, one
Maruthai is also living in a portion of the same survey number.
Therefore, it is not open either to the fourth respondent or to the
respondents 2 and 3 to say that the petitioner is disqualified to get the
benefit of patta.
3.Continuing his argument, learned Counsel for the petitioner
would submit that once the land in question is admitted as Natham
poramboke, the Government or the Panchayat cannot have any legal
claim over the said land. In support of his argument, he would rely
upon a judgment of this Court in the case of T.S.Ravi -vs- The
District Collector, Thiruvarur District [W.P.Nos.26234 and
26237 of 2018, dated 11.10.2018] wherein it has been held that if
a land classified as a Grama Natham, the same does not vest in the
Government and the Government is not a paramount owner. The
relevant portions are extracted hereunder:
“21. The question whether the land is classified as Grama
Natham is communal land belonging to the entire villages or not
was considered by this Court in Palani Ammal v. L.Sethurama
Aiyangar, reported in AIR (36) Madras 814. While considering
the said question the learned Single Judge of this Court after
referring to the Judgment of Wadsworth J. in Chinnathambi
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W.A.No.6992 of 2020
Goundan v. Venkatasubramania Iyer, reported in AIR (26) 1939
Mad, 409, had observed as follows:
“Gramanatham is not communal property in the sense in
which thrashing floor or burning grounds or other property
is communal, that is property reserved for the use of the
community. Gramanatham if it is unoccupied is assigned
from time to time by the proprietor whether it is in
zamindari area or in an inam village; and this practice was
referred to by the learned Judge (Wadsworth J.) in
Chinnathambi Goundan v. Venkatasubramania Iyer, AIR
(26) 1939 Mad 409. This, if I may say so with respect, is
the practice obtaining in the zamindari area and also in
inam villages.”
22. The question as to whether the provisions of the Tamil Nadu
Land Encroachment Act, 1905, would apply to the lands that are
classified as Grama Natham was considered by a learned Single
Judge of this Court in S.Rengaraja Iyengar and another v.
Achikannu Ammal and another, reported in 1959 (II) MLJ 513.
The learned Judge after referring to Section 2 of the Tamil Nadu
Land Encroachment Act, 1905, as well as the provisions of
Section 3(b) of the Madras Estates (Abolition and Conversion
into Ryotwari) Act, 1948, held that the Grama Natham land does
not vest in the Government and the Government is not the
paramount owner. While doing so, the learned Single Judge
observed as follows:
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W.A.No.6992 of 2020
“A house-site owned by a person in what is generally
known as gramanatham is not, under Madras Act III of
1905, property of the Government. Section 2 of Madras Act
III 1905 says, in regard to lands which are not covered by
Clauses (a) to (e) of Sub-section (1) of Section 2, that
those lands are and are hereby declared to be the property
of the. Government, save in so far as they are temple-site
or owned as house-site or backyard. In order that a land
may properly be described as house-site within the
meaning of that expression in Section 2 of Madras Act III
of 1905, it is not necessary that there should be a
residential building actually constructed and standing on
that site. A person may in a village habitation own a house
in a street and a site on the outskirts of the habitation but
within the limits of the gramanatham, which he uses for
the purpose of storing his hay and manure, if he is an
agriculturist, or as a smithy, if he is a smith, or as a brick-
kiln if he is a brick-maker or as a place for weaving if he is
a weaver. On such sites, buildings or sheds may when
necessary be constructed. But whether such buildings or
sheds are constructed or not, such sites are, in my opinion,
house- sites within the meaning of that expression
in Section 2 of the Madras Act III of 1905.”
The learned Judge also further observed as follows:
“A building in a gramanatham (or village habitation) is
protected from transfer of title to the Government both
under Section 18(1) of Madras Act XXVI of 1948 and under
the Madras Land Encroachment Act (III of 1905). The title
to a house site in a gramanatham is protected from
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W.A.No.6992 of 2020
transfer to Government by the operation of Madras Act III
of 1905.”
4.Referring to yet another judgment of this Court in the case of
The Executive Officer, Kadathur Town Panchayat -vs-
V.Swaminathan and other [2004 (3) CTC 270] learned Counsel
for the petitioner argued that this Court also in the afore said
judgment has clearly held that even the Panchayat has no jurisdiction
to pass resolution canceling patta with a view to evict persons who are
under occupation of Grama Natham land. The relevant portions of the
said judgment i.e., paragraphs 9 and 13 are extracted as under:
“9.A perusal of a combined reading of Section 3(b) and
Section 18 of Madras Estates (Abolition and Conversion into
Ryotwari) Act viz., Madras Act XXVI of 1948 and Section 2 of
the Madras Land Encroachment Act, 1905 disclose that the title
to a house site in a Grama Natham is protected from transfer to
Government.
13. In the light of the above and in view of the fact that
the admitted classification of the land being a 'Grama Natham',
it is obvious that the land was never vested with the
Government or the Town Panchayat. Inasmuch as the
petitioners and their ancestors were in exclusive possession of
the lands in question for the past 40 years, the impugned order
of the third respondent in canceling the pattas with a view to
evict them summarily at the instance of the resolution passed by
the Panchayat is not sustainable. Further such a summarily
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W.A.No.6992 of 2020
eviction is not permissible in law when the disputed question of
title is involved for adjudications as laid down by the Apex Court
in number of decisions.”
5.Again referring to the counter affidavit filed by the Block
Development Officer, Thalaivasal Panchayat Union/third respondent
herein, learned Counsel for the petitioner brought to our notice that
even the land in question covered in SF No.263/6 measuring 0.0133.0
Sq. Mts. is classified as Natham Poramboke in Deviakurichi Village,
Attur Taluk, Salem District. Therefore, when the land in question
occupied by the petitioner for years together is proved to be a Natham
poramboke, as the petitioner being the first user, the respondents
cannot dislodge the petitioner. Therefore, the impugned order is liable
to be set aside.
6.Mr.A.Selvendran, learned Special Government Pleader
appearing for the respondents 1 to 4 submitted that if the principle
relied by the petitioner is accepted, the Deviakurichi Panchayat is the
first user, as admittedly there is a well belonging to the Village
Panchayat which is now deserted because no water therein which was
dug by the Village Panchayat. Therefore, the land in question should
be allowed to be occupied by the Village Panchayat and a proposal has
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W.A.No.6992 of 2020
been made for building up a overhead water tank in the said land. In
support of his contention, an undated resolution has been shown to us.
7.In view of the above settled legal position and the petitioner
has made an application long time ago and as she belongs to Boyer
community eking out her livelihood only by making mud pot and other
clay works in the said place and the counter affidavit filed by the
second respondent also supports the case of the petitioner that the
land in S.F.No.263/6 is a Government Natham Poramboke, we satisfied
with the contentions raised by the petitioner. Accordingly, the Writ
Petition is allowed and the impugned orders are set aside. The
Tahsildar/second respondent herein is directed to issue patta to the
petitioner in respect of 700 sq. ft. in S.F.No.263/6 as she is not having
any house site or house in the village. No costs. Consequently, the
connected miscellaneous petition is closed.
(T.R., J) (S.S.K., J)
07.03.2022
Index:Yes/No
Speaking/Non-speaking order
srm
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W.A.No.6992 of 2020
T.RAJA, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
srm
To
1.The District Collector,
Salem District,
Salem.
2.The Tahsildar,
Attur Taluk,
Salem District.
3.The Block Development Officer,
Thalaivasal Panchayat Union,
Attur Taluk,
Salem District.
W.A.No.6992 of 2020
07.03.2022
https://www.mhc.tn.gov.in/judis
