Madras High Court
Mahakavi Bharathiyar Nagar vs The Special Commissioner And on 5 July, 2023
W.P.No.19523 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2023
CORAM :
THE HON'BLE MR. JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE K.RAJASEKAR
W.P.No.19523 of 2002
Mahakavi Bharathiyar Nagar
Residents Welfare Association
rep.by its Secretary P.Chinnasamy
No.156, M.G.R.Nagar, Karaikudi
Sivagangai District .. Petitioner
v.
1. The Special Commissioner and
Commissioner of Land Administration
Chepauk, Chennai 600 005
2. The Commissioner and Director of
Survey and Settlement
Chepauk, Chennai
3. The Assistant Settlement Officer
South, Office of the Commissioner
and Director of Survey and Settlement
Chepauk, Chennai
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W.P.No.19523 of 2002
4. The Settlement Officer
Tanjavoor
5. The Assistant Settlement Officer
Karaikudi, Madurai
Sivagangai District
6. The Tahsildar
Karaikudi Taluk
Sivagangai District .. Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records relating to proceedings R.Dis (K1) 53178/95 dated 14.03.2002 of
the Special Commissioner and Commissioner for Land Administration,
Chepauk, Chennai 600 005, the first respondent herein and quash the same
and confirm the order passed by the Director of Survey and Settlement
passed in his proceedings No.D2/12742/95 dated 03.08.1995 granting
ground-rent patta under Section 19A of the Act 26/1948 and consequential
proceedings of Assistant Commissioner, Madurai in S.R.63 Karaikudi/95
dated 09.08.1995.
For Petitioner :: Mr.D.Govinda Reddy
For Respondents :: Mr.V.Selvendran
Special Government Pleader
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W.P.No.19523 of 2002
ORDER
(Order of the Court was made by S.S.SUNDAR,J.)
This writ petition is filed by a welfare association by name Mahakavi
Bharathiyar Nagar Residents Welfare Association praying to quash the
impugned order dated 14.03.2002 of the Special Commissioner and
Commissioner for Land Administration, the first respondent herein and to
confirm the order passed by the Director of Survey and Settlement dated
03.08.1995 and the consequential proceedings of the Assistant Settlement
Officer, Madurai granting ground rent patta under Section 19-A of the Tamil
Nadu Act 26 of 1948 to the members of the petitioner Association.
2. It is the case of the petitioner that the Assistant Settlement Officer,
Madurai, on the basis of a letter of Director of Survey and Settlement dated
27.06.1995 and on the basis of a petition given by Mahakavi Bharathiyar
Nagar Committee represented by its Secretary, has recommended the grant
of ground rent patta accepting their case that 200 houses are located at
Mahakavi Bharathiyar Nagar in Town Survey No.297. It is the further case
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W.P.No.19523 of 2002
of the petitioner that the members are entitled to get patta, as the members
are living in that area for more than 70 years. They also challenge the
classification of the said land as “Veerian Kanmoi”, by referring to the
recommendation dated 03.08.1995 made by the Director of Survey and
Settlement permitting the members of the petitioner Association to remain in
possession of the land measuring about 25 acres occupied by them on
payment of ground rent to be fixed by the Assistant Settlement Officer under
Section 19-A of the Tamil Nadu Act 26 of 1948. On the basis of
recommendation made by the Director of Survey and Settlement, the
Assistant Settlement Officer, Madurai, by order dated 09.08.1995, granted
ground rent patta to the persons who were in occupation of the dwelling
houses. The grievance of the petitioner in the writ petition is that the
Tahsildar, Karaikudi filed a revision petition before the Special
Commissioner of Land Administration, Chennai challenging the grant of
patta to the individuals and that by the impugned order, the Special
Commissioner set aside the order of the Assistant Settlement Officer
granting ground rent patta in favour of the members of the petitioner.
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W.P.No.19523 of 2002
3. The learned counsel appearing for the petitioner submitted that the
Special Commissioner failed to go through the records perused by the
Director of Survey and Settlement and ought to have confirmed the order of
the Director of Survey and Settlement. The counsel further stated that the
Special Commissioner erroneously held that the members of the petitioner
Association have encroached the land which is part of Veerian Kanmoi and
that the findings are against the principles of natural justice and common
law principles. It is contended by the counsel that the members are entitled
to patta on the basis of their long possession and enjoyment by putting up
construction, even if they are not eligible to ground rent patta under Section
19-A of the Tamil Nadu Act 26 of 1948. The learned counsel then
submitted that the decision of the first respondent is contrary to the well
settled principles.
4. We have heard the learned Special Government Pleader appearing
for the respondents.
5. It is not in dispute that the land in Survey No.297 in Ward No.16,
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W.P.No.19523 of 2002
Block No.VII of Karaikudi Town is a water body and registered as “Veerian
Kanmoi” and the entire land was taken over by the Government under Act
26 of 1948, namely, Tamil Nadu Estates (Abolition and Conversion into
Ryotwari) Act, 1948 on 01.07.1949. After a survey was conducted, an
extent of 47 acres and 65 cents was registered as “Kanmoi Poramboke”, on
the basis of the previous record, where the entire land is shown as “Veerian
Kanmoi”. However, the Assistant Settlement Officer, Madurai appears to
have granted ground rent patta under Section 19-A of Act 26 of 1948, on the
basis of proceedings of the Director of Survey and Settlement dated
03.08.1995. By proceedings dated 03.08.1995, the Director of Survey and
Settlement has noted the fact that the land in T.S.No.297 is “Government
Poramboke – Veerian Kanmoi”. Based on the representation of the
encroachers, the Director of Survey and Settlement recorded that such
encroachers are in physical possession and enjoyment of a substantial
portion of the land by constructing houses and that it is not possible to
change the classification after a lapse of nearly 50 years from the date of
introduction of settlement. Referring to a few facts, which are not borne out
from records, the Assistant Settlement Officer, in exercise of the power
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W.P.No.19523 of 2002
vested in him under Section 19-A of the Tamil Nadu Act 26 of 1948,
permitted the members of the petitioner Association to be in possession of
the land on payment of ground rent. It is on that basis, later, the Assistant
Settlement Officer passed an order on 09.08.1995 granting ground rent patta
under Section 19A of the Tamil Nadu Act 26 of 1948.
6. Section 19-A of the Tamil Nadu Estates (Abolition and Conversion
into Ryotwari) Act, 1948 reads as follows:-
“S.19-A. (1) Except where the Government otherwise direct, no
person admitted by a landholder into possession of any
communal land or forest or other land which is not a ryot land,
shall be entitled to any rights in, or to remain in possession of
such land:
Provided that nothing contained herein shall apply to
lands for which the landholder is entitled to ryotwari patta
under section 12, 13 or 14.
(2) A direction under sub-section (1) allowing any person
to remain in possession of any such land may specify--
(i) the assessment or ground-rent payable to the
Government on the land for each fasli year commencing with
the fasli year in which the estate is notified, and
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W.P.No.19523 of 2002
(ii) such special terms and conditions including the
period for which such person may remain in possession of the
land as the Government may consider necessary in the public
interest.
Explanation.--In this section, 'communal land' means any
land of the description mentioned in section 3, clause (16), sub-
clause (a) or sub-clause (b) of the Estates Land Act.”
7. As per Section 19-A, no person admitted by a landholder into
possession of any communal land shall be entitled to any rights or to remain
in possession of such land. Communal land for the purpose of Section 19-A
of the Act means any land of the description mentioned in Section 3, clause
(16), sub-clause (a) or sub-clause (b) of the Estates Land Act. Beds and
bunds of tank and irrigation channels are specified in sub-clause (a) of
clause (16) of Section 3 of the Estates Land Act. Even though Section 19
enables a person who was admitted into possession of any ryoti land by a
landholder for a non-agricultural purpose can remain in possession of a ryoti
land on payment of ground rent, Section 19-A specifically states that no one
shall remain in possession of tank. However, this provision is not applicable
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W.P.No.19523 of 2002
to a land for which the landholder is entitled to ryotwari patta under Sections
12, 13 or 14. The power conferred on the Government under Section 19-A
in certain cases cannot be exercised by the Director of Survey and Settlement
or the Assistant Settlement Officer. It is to be noted that Section 19-A can be
invoked only when a person is admitted by a landholder into possession of
any communal land. In this case, it is not the case of the petitioner that they
got the right from the landholder from whom the lands were taken under the
Inam Abolition Act. Under Section 3 of the Tamil Nadu Estates (Abolition
and Conversion into Ryotwari) Act, 1948, the entire estate including all
communal lands; porambokes; other non-ryoti lands; waste lands; pasture
lands; lanka lands; forests; mines and minerals; quarries; rivers and streams,
vest with the Government free from all encumbrances.
8. It is not in dispute that the land was taken over by the Government
by a notification on 01.07.1949 and therefore the entire land vest with the
Government. The petitioner has no semblance of right derived from the
landholder. First of all, the land classified as river or stream, cannot be part
of lands, which could be in the hands of landholder to be transferred or
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W.P.No.19523 of 2002
assigned in favour of anyone. Secondly, though the case of the petitioner is
that the members are in possession of the lands for 40 years, they have not
produced any records to show that they were in enjoyment of those lands at
the time of settlement. The Settlement Officer has no jurisdiction or power to
issue patta in respect of lands which are classified as tank or oorani. Even a
private tank cannot be assigned. After Tamil Nadu Act 26 of 1948 was
enacted in the year 1948, an amendment was introduced by way of Section
14-A, which specifically prohibits patta being granted even in respect of
private tank or oorani. Even in case where ryotwari patta is granted in
respect of private tank or oorani, sub-section (2) of Section 14-A mandates
cancellation of such patta. Therefore, from the object behind the enactment
and the subsequent amendment under Section 14-A, this Court finds that the
scheme of the Act does not contemplate grant of patta in respect of tank or
tank poramboke.
9. The Hon'ble Supreme Court and this Court in several judgments
have repeatedly held the responsibility of a welfare State to protect the tanks.
Therefore, this Court is of the view that the petitioner's claim is neither
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W.P.No.19523 of 2002
justified nor acceptable. The Director of Survey and Settlement, who has no
power under the Act to permit encroachments in a water body, has passed
the order permitting the encroachers to be in possession of the property in
1995. This Court finds no material to show that the enjoyment by the
members of the petitioner Association was anytime prior to their claim that
was registered in 1990's. Therefore, this Court is unable to find any merit in
any of the submissions of the petitioner's counsel. In the affidavit filed in
support of the writ petition, the petitioner has come forward with a false case
without any materials. Assuming that the members of the petitioner
Association are in possession for few decades prior to the impugned order,
that does not confer any right as against the public and the State.
10. In view of the above conclusions which we have reached, this
Court finds no merits in the writ petition. Accordingly, the writ petition is
dismissed. Since the petitioner has now come forward on the basis of the
proceedings of the Director of Survey and Settlement, who has passed the
order by assuming jurisdiction erroneously and the petitioner has made an
attempt to encroach the water body consciously, this Court further directs
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W.P.No.19523 of 2002
the respondents to initiate appropriate action either under the Tamil Nadu
Land Encroachment Act, 1905 or under the Tamil Nadu Protection of Tanks
and Eviction of Encroachment Act, 2007, as the case may be, within a
period of six months from the date of receipt of a copy of this order. No
costs.
(S.S.S.R.,J.) (K.R.S,J.)
Index : yes/no 05.07.2023
Neutral citation : yes/no
ss
To
1. The Special Commissioner and
Commissioner of Land Administration
Chepauk, Chennai 600 005
2. The Commissioner and Director of
Survey and Settlement
Chepauk, Chennai
3. The Assistant Settlement Officer
South, Office of the Commissioner
and Director of Survey and Settlement
Chepauk, Chennai
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W.P.No.19523 of 2002
4. The Settlement Officer
Tanjavoor
5. The Assistant Settlement Officer
Karaikudi, Madurai
Sivagangai District
6. The Tahsildar
Karaikudi Taluk
Sivagangai District
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W.P.No.19523 of 2002
S.S.SUNDAR,J.
AND
K.RAJASEKAR,J.
ss
W.P.No.19523 of 2002
05.07.2023
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