Madras High Court
Elanjiyum vs The State Of Tamilnadu on 20 April, 2023
W.P.(MD)No.10706 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.10706 of 2014
and M.P.(MD)Nos.2 and 3 of 2014
1. Elanjiyum
2. Arunprasad
3. V.Parameswaran ... Petitioners
versus
1. The State of Tamilnadu
Rep. by the Secretary,
Revenue Department,
Secretariat,
Fort St. George,
Chennai – 600 009.
2. The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
3. The Tahsildar,
Tiruchirappalli East,
Tiruchirappalli.
4. The Revenue Divisional Officer,
Tiruchirappalli. ... Respondents
(R4 is impleaded vide order dated 09.01.2018
in M.P.(MD)No.4 of 2014)
1/16
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W.P.(MD)No.10706 of 2014
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Certiorarified Mandamus, to call for
the records pertaining to the order passed by the 3rd respondent vide his
order Na.Ka.A1/8688/2014 dated 24.06.2014 issued to the petitioners 2
and 3 herein, quash the same and consequently direct the respondent to
renew the lease of the land to an extent of 0.0202 sq.m. at Survey No.7,
Ward F, Block -26, Tiruchirappalli in favour of the petitioner.
For Petitioners : Mrs.AL.Ganthiammal
Senior Counsel
for M/s.D.Geetha
For Respondents : Mr.S.Shaji Bino,
Special Government Pleader
ORDER
The first petitioner's husband P.Kathaperumal approached the
Government in the year 1984 that there is no place for physical
activities and a school for physical education at Tiruchirappalli and
requested for allotment of a land for running a fitness centre or a
School for physical education at Tiruchirappalli. The Government has
also considered the request of the petitioner and allotted a land, having
an extent of 202 square meters, situated in Town Survey No.7, Ward F,
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W.P.(MD)No.10706 of 2014
Block -26, Tiruchirappalli, by order dated 17.01.1986 with certain
conditions. The allotment was made only for a period of 10 years
commencing from 07.11.1985 subject to certain conditions. The
relevant conditions are as under:
(i) The grant is liable to be cancelled, if it is found that it was
grossly inequitable or was made under a mistake of fact or owing to
misrepresentation or fraud or that there was irregularity in the
procedure.
(ii) In the event of such cancellation of the grant, the grantee shall
not be entitled to compensation for any loss caused to him by the
cancellation.
(iii) The grantee shall use the land for the purpose of running the
Gymnasium only and shall not be use for any other remunerative
purposes.
2. Admittedly, the grantee P.Kathaperumal died on 20.04.1987
and thereafter, his wife one Elanjiyum, who is the first petitioner
herein, was running the Gym. Therefore, she made a request to the
second respondent/the District Collector, Tiruchirappalli, on
21.09.1993 to change the grant in her favour. The Tahsildar,
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W.P.(MD)No.10706 of 2014
Tiruchirappalli, has also made a recommendation for change of grant in
favour of the petitioner, to the District Collector, Tiruchirappalli, on
31.12.1993. However, the District Collector, Tiruchirappalli, has
issued a show cause notice on 23.04.1999 that the grantee
Kathaperumal died on 20.04.1987 and the first petitioner has also put
up two shops against the condition of grant and therefore, they are
inclined to cancel the grant and also provided an opportunity to offer an
explanation for the show cause notice. The petitioner has also
submitted her explanation on 27.10.1999. The Tahsildar,
Tiruchirappalli and the Revenue Divisional Officer have conducted a
spot inspection and filed a report before the District Collector,
Tiruchirappalli. The District Collector, Tiruchirappalli, finally
cancelled the order of grant on 08.04.2002, which was challenged by
the first petitioner before this Court in W.P.No.13347 of 2002 and the
same was dismissed by this Court on 19.04.2002. Challenging the
same, the first petitioner has preferred a Writ Appeal in W.A.No.1261
of 2002 and a Division Bench of this Court, by Judgment dated
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W.P.(MD)No.10706 of 2014
22.01.2007, has passed the following order.
“9. According to the learned counsel for the
appellant, as per the said order of the Division Bench,
she is using the property in question. Taking note of the
information furnished in her writ petition, we are of the
view that ends of justice would be met by permitting the
petitioner/appellant to make a fresh
application/representation to the first respondent
mentioning all the details within a period of three weeks
from the date of receipt of a copy of this order. If any
such application/representation is made within the time
mentioned above, the first respondent is directed to
consider and pass appropriate orders in accordance with
law within a period of 12 weeks from the date of receipt
of a copy of such application. It is made clear that if the
Government decides to accept her request, they are free
to fix reasonable rent and impose appropriate conditions.
In view of the direction of the Division Bench dated
29.04.2002, the petitioner/appellant is permitted to use
the property in question till final decision being taken by
the Government as directed above.”
Pursuant to the order of this Court, the petitioner has submitted a
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W.P.(MD)No.10706 of 2014
representation to the Government on 02.03.2007 and the same was
rejected vide G.O.Ms.No.167, Revenue Department, dated 19.05.2011
on the ground that the condition of grant has been violated by the first
petitioner. Based on this GO and other proceedings of the Revenue
Divisional Officer, the Tahsildar, Tiruchirappalli, has issued eviction
notice on 24.06.2014, which is under challenge in this writ petition.
3. This writ petition is filed by one Elanjiyum,
W/o.P.Kathaperumal and one Arun Prasath, Proprietor of M/s.Suriya
Electricals, Tiruchirappalli and one V.Parameswaran, Managing
Partner, Annai Abirami Traders, Tiruchirappalli.
4. The learned Senior Counsel appearing for the petitioners
submits that the land was granted to the first petitioner's husband
P.Kathaperumal for the purpose of running a Gymnasium with an
intention to develop physical activities at Tiruchirappalli. The first
petitioner, wife of P.Kathaperumal, is running the Gym without any
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W.P.(MD)No.10706 of 2014
deviation, however, put up two shops to meet out the expenditure for
running the Gym. She further submits that this Court in W.A.No.1261
of 2002, by order dated 22.01.2007, has permitted the petitioner to
submit a representation to the Government and also directed the
Government to consider the representation. While so, the Tahsildar,
Tiruchirappalli, has issued the impugned notice, directing the
petitioners to evict the premises and the Government has not taken any
decision on the representation of the petitioner. The 3rd
respondent/Tahsildar, Tiruchirappalli, who was also a party to W.A.No.
1261 of 2001, has failed to comply with the directions issued by this
Court and the permission granted by this Court to use the property till
the final decision is taken by the Government and when the
Government has not taken any final decision, the 3rd respondent ought
not to have issued this impugned eviction notice.
5. The learned Special Government Pleader disputed the
contention of the petitioners that the Government has already taken a
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W.P.(MD)No.10706 of 2014
decision vide G.O.Ms.No.167, Revenue Department, dated 19.05.2011,
wherein, the grant made in favour of the first petitioner's husband was
cancelled for violation of terms and conditions and this is a
consequential eviction notice issued by the Tahsildar, Tiruchirappalli
and that too based on the said G.O.Ms.No.167, dated 19.05.2011.
Therefore, the petitioners cannot maintain this writ petition as against
the consequential eviction notice without challenging the Government
Order in G.O.Ms.No.167, Revenue Department, dated 19.05.2011.
The learned Special Government Pleader has also relied upon a
decision of the Hon'ble Supreme Court in Edukanti Kistamma (dead)
through LRs and others vs. S.Venkatareddy (dead) through LRs and
others, reported in 2010 1 SCC 756, wherein, it has been held as
follows:
“22. It is a settled legal proposition that challenge
to consequential order without challenging the basic
order/statutory provision on the basis of which the order
has been passed cannot be entertained. Therefore, it is a
legal obligation on the part of the party to challenge the
basic order and only if the same is found to be wrong,
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W.P.(MD)No.10706 of 2014
consequential order may be examined (vide
P.Chitharanja Menon v. A.Balakrishnan, H.V.Pardasani
v. Union of India and Govt. of Maharashtra v. Deokar's
Distillery).
23. Undisputedly, the grant of a right or a
permit/licence under any statutory provision requires
determination of rights and entitlement of the parties.
Once such a right is determined, the issuance of the order
on the basis of such determination remains a ministerial
act.
24. In Kundur Rudrappa v. Mysore Revenue
Appeallate Tribunal, this Court examined the provisions
of the Motor Vehicles Act, 1939, wherein Section 64
provided for an appeal against the grant or refusal of the
grant of a permit on a route. In the said case, the appeal
was filed only against the order of issuance. This Court
held that such an appeal was not maintainable for the
reason that issuance of permit was only a ministerial act,
necessarily following the grant of the said permit and as
no appeal was maintainable against the order of issuance.
The order of the Tribunal was a nullity for want of
competence. The Court further held that in such an
eventuality, the permit granted to the other party could
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W.P.(MD)No.10706 of 2014
not have been cancelled and directed for issuance of the
permit. Same view has been reiterated by this Court in
Sharif Ahmad v. RTA.
25. In A.P.SRTC v. STAT, this Court observed
that actual issue of permit cannot be equated to the grant
thereof, as both are separate things and issuance will be
consequential to the grant of the permit. In fact, it is the
grant and not issuance of the permit, which requires to be
challenged.”
6. The learned Senior Counsel appearing for the petitioners
submits that the Government Order in G.O.Ms.No.167, Revenue
Department, dated 19.05.2011, has not been served upon the
petitioners. Therefore, she requested time to get instructions as to
whether the Government Order in G.O.Ms.No.167, dated 19.05.2011
has been served upon the petitioners or not.
7. This Court considered the rival submissions made and perused
the materials available on record.
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W.P.(MD)No.10706 of 2014
8. The first petitioner's husband P.Kathaperumal has approached
the Government in the year 1984 that he is intending to promote
physical activities at Tiruchirappalli. This was considered by the
Government and the Government has also granted a prime property to
an extent of 202 sq. meters in Town Survey No.7, Ward F, Block No.
26 at Tiruchirappalli, in the year 1985, for a period of 10 years,
commencing the period from 07.11.1985, with certain conditions. The
first petitioner's husband P.Kathaperumal has also run a Gym for some
time and died on 20.04.1987. Thereafter, the first petitioner is running
the Gym with the help of her son. While so, she made a request for
extension of grant and also to change the grant in her name. The
respondents, who conducted inspection on her representation, found
that the first petitioner has utilized the land for commercial purpose by
putting up two shops. Based on that representation, the District
Collector, Tiruchirappalli, has issued a show cause notice to the first
petitioner in the year 1999 and thereafter, by order dated 08.04.2022,
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W.P.(MD)No.10706 of 2014
cancelled the order of grant and directed the first petitioner to evict the
premises, which was challenged by the first petitioner in W.P.No.
13347 of 2002 and the same was dismissed by this Court on
19.04.2002. Challenging the same, the first petitioner has also
preferred a Writ Appeal in W.A.No.1261 of 2002 and a Division Bench
of this Court by Judgment dated 22.01.2007, gave leniency to the first
petitioner to submit a representation for extension of lease and the same
shall be considered by the Government. Till such time, the first
petitioner was permitted to run the Gym.
9. The first petitioner has also submitted her representation
pursuant to the order of the Division Bench and the same was also
rejected by the Government vide G.O.Ms.No.167, Revenue
Department dated 19.05.2011. However, the petitioner, without
challenging G.O.Ms.No.167, dated 19.05.2011, has challenged the
consequential eviction notice issued by the Tahsildar, Tiruchirappalli
and also taken a ground that the Tahsildar, Tiruchirappalli, is not
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W.P.(MD)No.10706 of 2014
having any authority to issue such eviction notice, when the Division
Bench of this Court has permitted the first petitioner to run the Gym till
the disposal of her representation, which is pending with the
Government for consideration. But, the fact remains that the first
petitioner has deliberately suppressed the Government Order in
G.O.Ms.No. 167, Revenue Department, dated 19.05.2011.
10. Now, the learned Senior Counsel appearing for the petitioners
took a stand that G.O.Ms.No.167 dated 19.05.2011 was not served
upon the petitioners. The respondents have already filed a copy of the
Government Order in G.O.Ms.No.167, dated 19.05.2011 in the typed
set of papers along with the counter affidavit as on 14.10.2014 and that
was also received by the counsel on record on 07.10.2014. The
petitioners have not challenged the said G.O.Ms.No.167, dated
19.05.2011 till date.
11. This writ petition is pending from the year 2014. In view of
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W.P.(MD)No.10706 of 2014
the interim order granted by this Court in this writ petition, the
petitioners are also holding the property illegally. Therefore, this Court
is not inclined to grant any further time to ascertain as to whether the
Government Order in G.O.Ms.No.167 dated 19.05.2011 was served
upon the petitioners or not. The fact remains that the petitioners have
also suppressed the Government Order passed in G.O.Ms.No.167 dated
19.05.2011 and squatting on a prime property at Tiruchirappalli for
more than 10 years. The grant was originally granted in favour of
P.Kathaperumal in the year 1985 for a period of 10 years. The period
of original grant was also over in the year 1995. The grantee
P.Kathaperumal died on 20.04.1987 and the first petitioner, wife of
P.Kathaperumal, without any change of grant, is also squatting on the
property from the month of May 1987 without any authority and has
not taken any step to change the grant in her name.
12. The fact remains that the first petitioner has put up two shops
and also rented the same for an Electrical shop and also for a Finance
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W.P.(MD)No.10706 of 2014
company. The tenants are also parties to this writ petition. This writ
petition has been filed by the petitioners by suppressing the
Government Order in G.O.Ms.No.167, dated 19.05.2011, wherein, the
order of grant was cancelled on the ground that the condition of grant
has been violated. Further, the period of grant was also over.
Therefore, the petitioners are not having any locus to maintain this writ
petition.
13. Accordingly, the writ petition is dismissed. The respondents
are at liberty to recover the arrears of rent from the petitioners for
illegal occupation of the property, as per the market value, in the
manner known to law. No costs. Consequently, connected
miscellaneous petitions are closed.
20.04.2023
ogy
NCC : Yes / No.
Index : Yes / No.
Internet : Yes / No.
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W.P.(MD)No.10706 of 2014
B.PUGALENDHI, J.
ogy
To
1. The Secretary,
Revenue Department,
Secretariat,
Fort St. George,
Chennai – 600 009.
2. The District Collector,
Tiruchirappalli District,
Tiruchirappalli.
3. The Tahsildar,
Tiruchirappalli East,
Tiruchirappalli.
4. The Revenue Divisional Officer,
Tiruchirappalli.
W.P.(MD)No.10706 of 2014
20.04.2023
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