Madras High Court
The District Colloctor vs Kary Ellapa on 3 August, 2023
W.A.Nos. 1195 of 2017 and 642 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2023
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
AND
THE HONOURABLE MR.JUSTICE P. B. BALAJI
W.A.Nos. 1195 of 2017 and 642 of 2019
and
CMP.Nos. 18620/2016, 16898 & 13440 of 2017 and 10937 of 2018
W.A.No.1195 of 2017
1.The District Colloctor,
Dharmapuri District,
Dharmapuri.
2.The Special Tahsildar,
(ADW) Krishnagiri,
Dharmapuri District. ..Appellants
Vs
1.Kary Ellapa
S/o. Kempaiya
2.Timmakka
D/o.Kempaiya
3.Muniyammal
D/o.Kempaiya
4.Savithiriamma
1/10
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W.A.Nos. 1195 of 2017 and 642 of 2019
D/o.Kempaiya
5.K.Venkatesh
S/o.Kempaiya Respondents
W.A.No. 642 of 2019
1.Rani
W/o.Sekar
2. Manjula
W/o.Murugesh
3.Akkaiyamma
W/o.Nanjappa
4.Kemmamma
W/o.Chinnamuthappa
5.R.Padma
w/o.Ramesh
6.Krishnamma
W/o.Thimmarayappa
7.Giriyamma
W/o.Kenchappa
8.Chinnamma
W/o.Murugesh
9.Rammakka
W/o.Thimmarayappa
Thippamma W/o.Chennarayappa(deceased)
10.Sembamma
W/o. Muniraj
11.Munithai
W/o. Sathappa
12.Devamma
W/o.Chikkanna
13.Santha
W/o.Ashok
14.Jayamma
W/o. Madhanagiriyappa
15.Dhairamma
2/10
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W.A.Nos. 1195 of 2017 and 642 of 2019
W/o.Krishnappa
16.Munirathana
W/o.Thimmarayappa
17.Periyamunirathnamma
W/o.Muniyappa
18.Neelamma
W/o.Venkatesappa
19.Maramma
W/o.Thimmarayappa
20.Jeyamma
W/o.Muniraj
21.Padma
W/o.Narayanappa ..Appellants
Vs
1.Kempaiya (died)
S/o.Mukitappa Kempaiya
2.Kary Ellapa
S/o.Kempaiya
3.Timmakka
D/o. Kempaiya
4.Muniyammal
D/o.Kempaiya
5.Savithiriamma
D/o.Kempaiya
6.K.Venkatesh
W/o.Kempaiya
7.The District Collector,
Dharmpauri
Dharmapuri District.
8.The Special Tahsildar
ADW, Krishnagiri,
Dharmapuri District. ..Respondents
3/10
https://www.mhc.tn.gov.in/judis
W.A.Nos. 1195 of 2017 and 642 of 2019
Prayer in W.A.No.1195 of 2017: Writ Appeal is filed under Clause 15 of
Letter Patent to set aside the order made in W.P.No.39709 of 2006, dated
25.11.2015.
Prayer in W.A.No.642 of 2019: Writ Appeal is filed under Clause 15 of
Letter Patent to set aside the order dated 21.12.2017 passed in Review
Application No. 18 of 2017.
For Appellants
in W.A.No. 1195 of 2017 : Mrs.Geethathamarai Selvan, Spl.GP
in W.A.No.642 of 2019 : M/s. Karl Marx
For Respondent :
in W.A.No. 1195 of 2017 : Mr.G.M. Anantha Kumar, R1 to R5
in W.A.No. 642 of 2019 : Mrs.Geethathamarai Selvan,Spl.GP
-R7 &R8
Mr.G.M.Ananthakumar -R2 to R6
(Vakalath not filed)
----
COMMON JUDGMENT
(Judgment of the Court was made by D.KRISHNAKUMAR, J.)
Challenging the order passed in W.P.No. 39709 of 2006, dated
25.11.2015, the District Collector has filed instant Writ Appeal in W.A.No.
1195 of 2017.
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W.A.Nos. 1195 of 2017 and 642 of 2019
2. Challenging the said order of this Court, the beneficiaries have
preferred Review Application No. 18 of 2017 and the same was dismissed
by the learned Single Judge by order dated 21.12.2017. Challenging the
same, the beneficiaries have filed present writ appeal in W.A.No. 642 of
2019.
3. The learned Special Government Pleader appearing for the
appellants has submitted that the 4(1) Notification in Na.Ka.47073/1998
was published in Dharmapuri District on 08.01.1999. Challenging the said
notification, one Kariellapa has filed a writ petition in W.P.No. 2800 of 2000
before this Court. This Court by order dated 26.06.2000 dismissed the said
writ petition by observing as follows:
“9. From the file, I am able to see that when enquiry was held
on 19.03.1999, the petitioner's father did not reveal the said
fact that there was a partition in the property and the
property was alloted to the petitioner. Only subsequently the
second respondent received a representation on 20.03.1999
to the effect that there was a partition in the family and the
petitioner got land in question to his share. But the second
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W.A.Nos. 1195 of 2017 and 642 of 2019
respondent passed an award on 22.03.1999. Now I am not
dealing with the said question as the petitioner has not
challenged the award.”
4. Challenging the said order of the writ court, the said Kariellappa
has preferred a writ appeal in W.A.No. 1941 of 2000 before the Hon'ble
Division Bench of this Court and the same was also dismissed by by order
dated 27.07.2001 confirming the order of the writ Court. Thereafter, one
Kempaiya who is the father of the 1st respondent namely Kary Ellappa has
filed a writ petition in W.P.No.39709 of 2006, challenging the very same
4(1) notification dated 08.01.1999, contending that he is the original owner
of the property in question. This Court allowed the said writ petition on the
ground that without following the procedure under Section 4(3)(b) of the
Act, the respondent-department straightaway issued notification to the
petitioner, which cannot be stated to be a notice served under Section 4(2)
of the Act.
5. The learned Special Government Pleader appearing for the
appellants has further submitted that the acquired land was sub divided and
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W.A.Nos. 1195 of 2017 and 642 of 2019
house site pattas were issued to poor Adi Dravidars as per the Scheme on
31.03.1999 and the acquired land is with the beneficiaries and not with the
Government. The learned Judge without considering the said fact has
allowed the said writ petition, which according to the learned Special
Government Pleader is unsustainable in law and liable to be set aside.
6. The learned counsel appearing for the respondents/petitioners is
that the petitioner in W.P.No. 39709 of 2006 namely Kempiah is the original
owner of the property and his name also found in the 4(2) notification
issued under the Act. The writ Court has rightly concluded the writ petition
in favour of the writ petitioner and nothing warrants interference by this
Court.
7. It is seen from the records that both Kempiah(deceased) and Kary
ellappa ranked as 1st respondent in the present writ appeal in W.A.Nos.642
of 2019 and W.A.No.1195 of 2017 respectively. When the 1 st respondent in
W.A.No.1195 of 2017 namely Kariepplla being a party in the earlier
litigation and speaking order also been passed by this Court both in writ
petition and writ appeal, the same is binding on the parties.
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W.A.Nos. 1195 of 2017 and 642 of 2019
8. Admittedly, in an earlier litigation, the writ petition filed by the 1 st
respondent was considered by this Court and the same was rejected. On the
same ground, another writ petition was filed by his father came to be
accepted accepted. The grounds raised in both writ petitions are one and the
same. Apart from that after the death of his father, the deceased father was
shown as 1st respondent in the review application preferred by the
beneficiaries. Therefore, the order passed in the writ appeal squarely
binding on the first respondent, therefore we find some force on the
contentions raised by the learned Government Pleader.
9. According to us, when the 1st respondent in the present writ appeal
in W.A. No.1195 of 2017 was the appellant in W.A.No. 1941 of 2000 and
the said order has become final, the earlier order passed in the writ appeal
filed by him will bind him, therefore the contention of the respondent
cannot be accepted.
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W.A.Nos. 1195 of 2017 and 642 of 2019
10. Considering the submissions made by both the learned counsels
and the in view of the admitted fact that the 1st respondent in W.A.No. 1195
of 2017 is not a original owner of the property in question, the order passed
in W.P.No.39709 of 2006 is liable to be set aside. Accordingly, the appeal
preferred by the beneficiaries as against order passed in review application
in R.A.No. 18 of 2017 is also liable to be dismissed.
11. In the result, the writ appeal preferred by the District Collector,
Dharmapuri in W.A.No. 1195 of 2017 is allowed. The writ appeal preferred
by the beneficiaries in W.A.No.642 of 2019 is dismissed. No costs.
Consequently, the connected miscellaneous petitions are closed.
12. Liberty is granted to the private respondents in both writ appeals
to approach the authority concerned and seek compensation, if so
permissible under the law.
(D.K.K., J.) (P.B.B., J.)
03.08.2023
Index: Yes / No
Internet: Yes
ak
https://www.mhc.tn.gov.in/judis
W.A.Nos. 1195 of 2017 and 642 of 2019
D.KRISHNAKUMAR, J.
AND
P. B. BALAJI, J.
ak
To
1.The District Collector,
Dharmapuri District,
Dharmapuri.
2.The Special Tahsildar,
(ADW) Krishnagiri,
Dharmapuri District.
W.A.Nos. 1195 of 2017 and 642 of 2019
and
CMP.Nos. 18620/2016, 16898
& 13440 of 2017 and 10937 of 2018
03.08.2023
https://www.mhc.tn.gov.in/judis
