Madras High Court
K.Venkateshwaran vs The Additional Chief Secretary / on 3 October, 2023
W.P.(MD)No.3754 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.10.2023
CORAM
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
W.P.(MD)No.3754 of 2020
and
W.M.P.(MD)No.3184 of 2020
K.Venkateshwaran .. Petitioner
Versus
1.The Additional Chief Secretary /
The Commissioner of Land Administration,
Chepauk,
Chennai – 600 005.
2.The District Collector,
O/o. the District Collector,
Theni.
3.The Revenue Divisional Officer,
O/o. the Revenue Divisional Officer,
Periyakulam,
Theni District.
4.The Tahsildar,
O/o. the Tahsildar,
Periyakulam,
Theni District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue a Writ of Certiorarified Mandamus, calling for the records of the third
respondent's impugned order in R.O.C.No.2321/98, dated 28.07.1998, quash
the same and further direct the respondents to cancel the classification of the
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W.P.(MD)No.3754 of 2020
land as Government vacant land in respect of Survey No.1233, situated at
Vadaveeranayackenpatti Village, Periyakulam Taluk, Theni District and to
issue Patta in favour of the petitioner.
For Petitioner : Mr.K.Anandan
For Respondents : Mr.A.K.Manickam
Special Government Pleader
ORDER
This Writ Petition has been filed challenging the proceedings of the
third respondent in R.O.C.No.2321/98, dated 28.07.1998, and for a direction
to the respondents to cancel the classification of the land with respect to
Survey No.1233, situated at Vadaveeranayackenpatti Village, Periyakulam
Taluk, Theni District.
2. Heard Mr.K.Anandan, learned counsel for the petitioner and
Mr.A.K.Manickam, learned Special Government Pleader for the respondents.
3. The background of this case has been captured in the earlier order
passed by this Court in W.P.(MD)No.14331 of 2015, dated 23.01.2015 and for
proper appreciation, the relevant portions are extracted hereunder:-
''2.The brief facts that are necessary for the disposal of this
Writ Petition are as follows:
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2.1.An extent of 1.41 acres in Survey No.1233 in
Vadaveeranaickenpatty Village, Periyakulam Taluk, Theni District
was in the holding of one Navaneethan, S/o.Thangam Asari. Though
the petitioner states that the property belong to the said Navaneethan
by inheritance, it is stated that an assignment was made in favour of
Navaneethan in the year 1970.
2.2.The said Navanatheen sold the land to Mrs.Shakunthala
Arunagiri, W/o.Arunagiri under registered sale deed dated
28.04.1982. Thereafter, the said Shakunthala Arunagiri through her
Power of Attorney Agent entered into an agreement of sale with one
Rajangam, S/o.Ponnaiah Thevar, on 05.11.1988. It is admitted that
the said Rajangam filed a suit for specific performance in O.S.No.104
of 2007 and obtained a decree for specific performance. It is also
stated that the decree was executed in E.P.No.124 of 2007 before the
Sub Court, Periyakulam and the sale deed was executed by the
learned Subordinate Judge in favour of the said Rajangam on 31 st
July, 2008 before the Sub Registrar, Theni. The petitioner states that
he purchased the property from the said Rajangam by a registered
sale deed dated 14.09.2012. Though the petitioner's sale deed was
produced before the respondents for mutation of revenue records, it
appears that the respondents have not considered the representation
of the petitioner. The petitioner thereafter filed a Writ Petition in
W.P.No.5821 of 2014 and this Court, by order dated 04.04.2014
directed the sixth respondent to consider the petitioner's
representation dated 16.09.2013 on merits within a stipulated time.
The representation of the petitioner was thereafter rejected on the
ground that the property in Survey No.1233 has been classified in the
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W.P.(MD)No.3754 of 2020
village record as Government vacant land. The sixth respondent
advised the petitioner to submit a representation before the District
Revenue Officer/fourth respondent herein to get an order to cancel
the classification as Government vacant land in the village records.
The petitioner admit that the fifth respondent has cancelled the
assignment in favour of Navaneethan by proceedings dated
28.07.1998 as the assignee had violated the terms and conditions of
the assignment. Some of the purchasers of the land from the assignee
appears to have filed a suit in respect of Survey No.1232 and obtained
a decree in a batch of suits filed against the State. Though the decree
was challenged subsequently by filing appeals before the Sub Court,
Periyakulam, the appeals were dismissed and the respondents 2 and 3
herein preferred Second Appeal in S.A.No.1129 of 2011 and this
Court dismissed all the Second Appeals filed by the respondents 2 and
3 confirming the judgment and decree passed by the Courts below.
The petitioner, citing the judgment of Civil Court, submitted that the
title of petitioner's predecessor-in-interest has been upheld by this
Court in the civil suit and that the classification of the land as
Government vacant land should be cancelled in view of the Civil
Court's decree.
3.The learned Counsel appearing for the petitioner relied upon
paragraph 15 of the judgment of this Court in the second appeal
which was decided on 11.01.2012. Since paragraph 15 of the
judgment is relevant, the same is extracted below for convenience:
''15.The sale deed alleged to have been executed by
Navaneethan in favour of Sakunthala has been marked as
Ex.A1, wherein it has been clearly stated that the suit survey
number is the ancestral property of the vendor Navaneethan.
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W.P.(MD)No.3754 of 2020
The sale deed which stands in the name of Dhanalakshmi has
been marked as Ex.A2 and patta which stands in the name of
the said Dhanalakshmi has been marked as Ex.A3. Except the
assignment order dated 20.11.1970, on the side of the
defendants 1 and 2, no document has been filed for the
purpose of showing that prior to 20.11.1970, the suit survey
number belonged to the Government. Therefore, considering
the recitals found in Ex.A1 and also considering the fact that
no document has been filed prior to assignment order dated
20.11.1970 on the side of the defendants 1 and 2, the Court
can unflinchingly come to a conclusion that the plaintiffs are
the absolute owners of the suit properties since they
purchased the same from its rightful owner viz.,
Dhanalakshmi.''
4.No doubt it is true that in the batch of Civil Suits and the
appeals, some of the purchasers, who also derived title from
Navaneethan, contented that the property is the property of
Navaneethan not by virtue of the assignment but by virtue of his prior
title through proper source. In other words, the title of the said
Navaneethan was projected as if the property is the ancestral property
of Navaneethan. Relying upon the said portion of the judgment of
Civil Court, the learned Counsel appearing for the petitioner
contended that the suit property is not the property of Navaneethan by
virtue of the assignment made in favour of the Navaneethan in the
year 1970 but by virtue of the title of the ancestors of the said
Navaneethan. The petitioner admitted in the affidavit filed in support
of the petition that the property in Survey Nos.1232 and 1233 was
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W.P.(MD)No.3754 of 2020
assigned in favour of Navaneethan, S/o.Thangam Asari. The
petitioner himself has produced before this Court the proceedings of
the Special Tahsildar assigning the lands in favour of Navaneethan,
S/o.Thangam Asari. Having claimed title on the basis of the
assignment, the petitioner also pleaded that the title of assignee was
upheld by this Court in S.A.(MD)Nos.1121 to 1129 of 2011. The
learned Counsel appearing for the petitioner admit that the property
in Survey No.1233 measuring an extent of 1.41 acres in
Vadaveeranaickenpatty village is not the subject matter of the
previous suit and that therefore, the order of this Court in the Second
Appeals may not have any relevance. Insofar as the property in
Survey No.1233 is concerned, no record is produced before this Court
except the assignment and other documents to show that the
assignment of land in favour of Navaneethan was acted upon. No
other document is produced in this case to suggest that the said
Navaneethan got the property through some other source. In the said
circumstances, the judgment and decree in S.A.(MD)Nos.1121 to 1129
of 2011 has no relevance to the present case.
5.The petitioner himself has admitted before this Court that
proceedings were initiated for cancellation of assignment and
resumption of land from the petitioner way back in 1998. The
petitioner has not challenged the cancellation of assignment so far by
filing any independent Writ Petition. In such circumstances, this
Court is unable to entertain this Writ Petition which is filed to cancel
the classification of the land as Government vacant land. When the
assignment relied upon by the petitioner is already cancelled, the
petitioner is not entitled to any relief without challenging the order
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W.P.(MD)No.3754 of 2020
cancelling the assignment. In that view of the matter, this Writ
Petition is devoid of any merits and accordingly, dismissed. However,
liberty is given to the petitioner to challenge the cancellation of
assignment made in favour of the petitioner's predecessor-in-interest
by name Navaneethan in the year 1970. No costs.''
4. Pursuant to the above order, the present Writ Petition has been filed
before this Court challenging the impugned proceedings of the third
respondent, dated 28.07.1998.
5. The learned counsel for the petitioner submitted that the cancellation
of assignment was done by an authority, who did not have the power and
jurisdiction and it is opposed to Revenue Board Standing Order No.15. It was
also contended that the cancellation of assignment was done without affording
an opportunity to the assignee and it is in violation of principles of natural
justice. In the alternative, the learned counsel for the petitioner also submitted
that the property in Survey No.1233 originally stood in the name of one
Veerasamy Naicker and it never belonged to the Government and hence, the
Government could not have assigned the land in favour of one Navaneethan in
the year 1970. Thus, the learned counsel for the petitioner touched upon the
very right and title of the property and questioned the jurisdiction of the
assignment order.
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W.P.(MD)No.3754 of 2020
6. The third respondent has filed a counter affidavit in this case. The
relevant portions in the counter affidavit are extracted hereunder:-
''4. The brief history of the case is submitted hereunder:-
It is submitted that the lands measuring an extent of 3.51
acres in S.No.1232 and also an extent of 1.41 acres in S.No.1233
which are classified as ''Government Assessed Waste Dry" (AWD)
lands in Vadaveeranaickanpatti Village, Periyakulam Taluk, was
assigned in favour of one Thiru.Navaneethan, S/o. Thangan Asari, a
landless poor person on free of market value subject to the usual
conditions and special conditions stipulated vide proceedings of the
Special Tahsildar (Assignment), Periyakulam, in D.K.T.No.1017/80
dated 20.11.1970. The special conditions as laid down in Revenue
Standing Order in Order 15. Clause (I) of Sub Paragraph (3) of
Paragraph 12 states as follows:-
"(3) Special Conditions: The assigned lands
shall not be alienated for a period of ten years from
the date of assignment. In the event of the assignee
wishes to dispose of the land after the above period,
he should got prior permission either the Tahsildar
or the Revenue Divisional Officer, who should give
permission only if the sale is to one of the
categories eligible for assignment
Government/Waste lands for cultivation purposes."
5. It is submitted that the assigned land in S.No.1233 measuring
an extent of 1.41 Acres situated in Vadaveeranaickanpatti Village was
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W.P.(MD)No.3754 of 2020
not brought to cultivation from the date of assignment and the said
lands are needed for the bonafide public purpose of the construction
of the Master Plan complex for the newly formed Theni District on
01.01.1997 bifurcating the composite Madurai district. Hence after
observing the due formalities, the land in question which remain
uncultivated for years together was resumed to the Government for
the violation of the land assignment conditions vide this office
proceedings in Roc.No.2321/98/A3 dated 28.07.1998 and necessary
changes were carried out and the land restored to its original
classification of land as "Government Assessed Waste Dry" in the
Revenue records. The Master plan complex with its building has been
constructed and the same is put into public usage. Aggrieved against
the said cancellation of assignment patta, the petitioner herein who is
the subsequent purchaser of the assigned lands has filed this writ
petition after a lapse of 24 years which is not legally sustainable.
6. It is submitted that the original assignee Navaneethan sold
the land in S.No.1233 measuring an extent of 1.41 acres in
Vadaveeranaickanpatti Village, Periyakulam Taluk vide a registered
sale deed dated 28.04.1982 to one Tmt.Sahunthala, W/o.Arunagiri.
Thereafter, the said Sahunthala through her power of Attorney
entered into an agreement of sale with one Rajangam on 15.11.1988.
It is submitted that the said Rajangam filed a suit for specific
performance in O.S.No.184 of 2007 and obtained a decree for specific
performance and the decree was executed in E.P.No.124 of 2007
before the Sub Court, and the sale deed was executed by the learned
Sub Judge in favour of said Rajangam on 31.07.2008 before the Sub
Registrar, Theni. The writ petitioner herein states that he purchased
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W.P.(MD)No.3754 of 2020
the property from the said Rajangam by a registered sale deed dated
14.09.2012 and he applied for the mutation of the patta in his name.
But the same was rejected by the Revenue authorities. Aggrieved
against the same, the petitioner filed a writ petition in W.P.No.5821 of
2014 and this Hon'ble Court by order dated 04.04.2014 has directed
the Tahsildar to consider and pass order on merits. The Tahsildar
concerned has rejected the claim stating that the lands stands
classified as Government Assessed Waste Dry lands in the records.
7. It is submitted that the petitioner has averred that in respect
of land in S.No.1232, some of the purchases have obtained a decree in
a batch of suits, filed against the State. The first appeals filed before
the Sub Court Periyakulam, were also dismissed and the second
appeal in S.A.No.1129 of 2011 filed before this Hon'ble Court was
also dismissed. Citing the judgment of the civil court, the petitioner
claims that the classification of the Government land should also be
cancelled. It is submitted that the impugned land in S.No.1233
measuring an extent of 1.41 acres is not the subject matter of the
previous suit and hence the order of this Hon'ble Court in the second
appeals do not have any relevance to the present case. However, the
petitioner filed W.P.(MD)No.14331 of 2015 on the file of this Hon'ble
Court praying for the issue of patta in favour of him. This Hon'ble
Court by its order dated 23.01.2015 in W.P.(MD)No.14331 of 2015
has dismissed the writ petition.
However, liberty was given to him to challenge the cancellation of
assignment made in favour of the petitioner's predecessor in interest
by name Navaneethan in the year 1970. Accordingly the petitioner
herein has filed this writ petition, which is not legally tenable.''
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W.P.(MD)No.3754 of 2020
7. This Court has carefully considered the submissions made on either
side and the materials available on record.
8. Even at inception, it has been made clear that the petitioner cannot be
allowed to blow hot and cold by taking two diametrically opposite stands.
Either the petitioner has to trace his right by virtue of the assignment made by
the Government or the petitioner has to question the title of the Government in
assigning the land. The petitioner cannot be allowed to raise both the grounds.
Insofar as the assignment of land is concerned, Survey No.1233, measuring an
extent of 1.41 Acres, was classified as ''Government Assessed Waste Dry'' and
through the proceedings dated 20.11.1970, it was assigned in favour of one
Navaneethan. As per the condition imposed, the land in question must not
remain uncultivated. Since the subject land in Survey No.1233 was not put to
cultivation and was not utilized, the Government have decided to resume the
land and hence, through the proceedings, dated 28.07.1998, the assignment
was cancelled and it was restored to its original position in the revenue records
as ''Government Assessed Waste Dry''. This land was sold by Navaneethan
through a registered sale deed, dated 28.04.1982 to one Tmt.Sakunthala. The
said Sakunthala entered into an agreement of sale with one Rajangam and the
said Rajangam filed a suit for specific performance in O.S.No.104 of 2007
against Sakunthala and the said suit was decreed and consequently, a sale deed
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W.P.(MD)No.3754 of 2020
was executed in favour of the said Rajangam. The petitioner had purchased
the property from the said Rajangam through a registered sale deed, dated
14.09.2012. Even after the sale, the petitioner made an application for
mutation of revenue records and the same came to be rejected. Therefore, it is
clear that the petitioner had come into the scene much after the assignment was
cancelled in the year 1998. In fact, the sale in favour of the said Rajangam had
taken place much after cancellation of the assignment in the year 1998 and the
petitioner is the subsequent purchaser from the said Rajangam. Hence, this
Court is of the considered view that the petitioner cannot be allowed to
question the cancellation of the assignment that took place in the year 1998
and the petitioner has no locus standi to question the same.
9. Insofar as the alternative submission that was made by the learned
counsel for the petitioner touching upon the title of the Government with
respect to property in Survey No.1233, the same cannot be gone into in a Writ
Petition. The proceedings under Article 226 of the Constitution of India
cannot be converted into a proceeding for determination of title to the
property. The said exercise can only be done before the competent Civil
Court. According to the Government, the property in Survey No.1233 was
classified as ''Government Assessed Waste Dry'' and therefore, the
Government had the power and jurisdiction to assign the land. On the
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W.P.(MD)No.3754 of 2020
contrary, the petitioner claims that the property originally stood in the name of
Veerasamy Naicker and therefore, the Government did not have any right to
assign this land. This issue requires appreciation of evidence, consideration of
relevant documents and determination of title and it is only a Civil Court,
which can go into this issue. The question of title cannot be decided in a Writ
Petition. Hence, the alternative submission that was made by the learned
counsel for the petitioner is also rejected.
10. In the light of the above discussion, this Court does not find any
merits in the Writ Petition. Accordingly, the Writ Petition stands dismissed.
No costs. Consequently, connected Miscellaneous Petition is closed.
Index : Yes/No 03.10.2023
Internet : Yes
smn2
To
1.The Additional Chief Secretary /
The Commissioner of Land Administration,
Chepauk,
Chennai – 600 005.
2.The District Collector,
O/o. the District Collector,
Theni.
3.The Revenue Divisional Officer,
O/o. the Revenue Divisional Officer,
Periyakulam,
Theni District.
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W.P.(MD)No.3754 of 2020
4.The Tahsildar,
O/o. the Tahsildar,
Periyakulam,
Theni District.
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W.P.(MD)No.3754 of 2020
N.ANAND VENKATESH, J.
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W.P.(MD)No.3754 of 2020
and
W.M.P.(MD)No.3184 of 2020
03.10.2023
https://www.mhc.tn.gov.in/judis
