Madras High Court
A.Venkatachelam vs The Additional Chief Secretary ... on 11 September, 2023
W.P.Nos.12833 & 15312 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.09.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.12833 & 15312 of 2020
and
W.M.P.No.19141 of 2020
W.P.No.12833 of 2020:
A.Venkatachelam ... Petitioner
Vs.
1. The Additional Chief Secretary and
Commissioner of Land administration,
Chepauk, Chennai-600 005.
2. The District Collector,
Kallakurichi District.
3. The Thasildar,
Chinnasalem Taluk,
Kallakurichi District. ... Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorari, to call for the records on the
file of the 1st respondent proceedings under R.O.C. No.G1/ 37291/2010
dated 11.08.2020 and quash the same.
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For Petitioner : Mr.Avinash Wadhwani for
Mrs.V.Srimathi
For Respondents : Mr.R.Ramanlal,
Additional Advocate General, assisted by
Mr.T.Arun Kumar,
Additional Government Pleader
W.P.No.15312 of 2020
and W.M.P.No.19141 of 2020:
P.Shanmugam ... Petitioner
Vs.
1. The Commissioner of
Land Administration,
Chepuak, Chennai-5
2. The District Collector,
Kallakurichi District,
Kallakurichi.
3. K.Ramasamy ... Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus, calling for the
records relating to the impugned Notice made in Roc. Proceeding No.G1/
37291/2010 dated 11.8.2020 issued by the 1st respondent, quash the same
consequently forbear the respondents infringing petitioner right to property
in respect of the assigned lands measuring 2.04.5 Ares in S.F. No.376/10
and an extent of 0.82.0 Ares in S.F.No.376/11, Rayappanur Village,
Chinna Salem Taluk, Villupuram District.
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For Petitioner : Mr.N.Manokaran
For Respondents :
(for R1 & 2) : Mr.R.Ramanlaan,
Additional Advocate General, assisted by
Mr.T.Arun Kumar,
Additional Government Pleader
(for R3) : Mr.P.Sesu Balan Raja
COMMON ORDER
Both the writ petitions are filed challenging the order dated
11.08.2020, passed by the Commissioner of Land Administration,
cancelling the land assignment given to the writ petitioners under the
Revenue Standing Orders.
2. The petitioner in W.P.No.15312 of 2020 was assigned to an
extent of 2.34 acres comprised in S.F.No.376/11 in the year 1970. The
petitioner has stated in his affidavit that his father late Periya Gounder was
assigned a Government land to an extent of 5.00 acres in S.F.No.376/10 in
the year 1964. Thus, the father of the writ petitioner and the petitioner were
assigned government land to an extent of 7.34 acres in total.
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3. The petitioner in W.P.No.12833 of 2020 states that he was
assigned with the government land to an extent of 2.91 acres in Survey
No.376/1A in Royapponur Village. Though the petitioner has not stated
about the previous assignment made in favour of his mother, the learned
counsel appearing on behalf of the 3rd respondent in W.P.No.15312 of
2020 brought to the notice of this Court that the mother of the writ
petitioner A.Venkatachelam was assigned Government land to an extent of
5 acres prior to the assignment made in favour of the petitioner and the
petitioner Mr.Venkatachelam suppressed the said fact and secured
assignment of Government land from the authorities.
4. The mother of the petitioner in W.P.No.12833 of 2020 was
assigned 5 acres of land in Survey No.376/7 in the same village.
5. Several writ petitions, complaints and appeals filed before the
authorities. However, the common facts between the 2 writ petitioners are
that the writ petitioners in both the writ petitions were assigned
government lands to an extent of more than 2 acres and the father of
Mr.P.Shanmugam (petitioner in W.P.No.15312 of 2020) was assigned 5
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acres and the mother of Mr.A.Venkatachelam (petitioner in W.P.No.12312
of 2020) was assigned with the Government land to an extent of 5 acres.
6.The learned counsel for the petitioner Mr.P.Shanmugam mainly
contended that the third respondent K.Ramasamy had given a complaint on
personal vengeance since he is a neighbour to the writ petitioner. The
assignment was made 55 years back and the petitioner is cultivating the
land himself through his labour and therefore, the cancellation of the
assignment made by the Commissioner of Land Administration is
improper. It is contended that the petitioner has not violated any of the
assignment conditions and more so, the Odai i.e., watercourse was
prevailing even at the time of the assignment and the petitioner is not
encroaching upon the watercourse in the subject land and thus, there is no
other reason, whatsoever, to cancel the assignment granted 55 years back.
7. The learned counsel for the petitioner drew the attention of this
Court with reference to the assignment order and also the statement made
by the Deputy Tahsildar and the District Revenue Officer. Relying on the
report, it is contended that the petitioner has not violated any of the
conditions stipulated in the assignment order and the cancellation of the
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assignment was made merely based on the complaint given by the 3rd
respondent with some personal motive. The learned counsel for the
petitioner relied on the judgement of the Division Bench of this Court by
stating that the writ petitions were filed by the writ petitioners wherein the
Division Bench remanded the matter back to the Commissioner of Land
Administration for adjudication and to pass orders on merits. The
Commissioner of Land Administration has failed to consider the fact that
the petitioner has not violated any of the assignment conditions and merely
on the ground that Odai and a Burial ground are found in the subject land,
the assignment was cancelled. In fact, the petitioners are protecting the
watercourse and the burial ground, not causing any nuisance to them and
that being the factum, the order impugned is to be set aside.
8. The learned counsel appearing on behalf of the petitioner in
W.P.No.15312 of 2020 made a submission that absolutely there is no
reason to cancel the assignment. The assignment was made in accordance
with the revenue standing orders. There is no finding in the impugned
order to establish that the petitioner has violated the assignment conditions.
The petitioner is in peaceful possession and enjoyment of the government
land assigned for the past several years and is cultivating the same. The
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purpose for which the land was assigned has not been violated and
therefore, the order impugned is to be set aside. The learned counsel for the
petitioner relied on the findings made by the Commissioner of Land
Administration and contended that the assignment was cancelled without
any valid reason and by merely stating that there is an Odai and a burial
ground. Said facts are not disputed by both the petitioners and in fact the
petitioners are not causing any inconvenience to the people of that locality
who all are burying bodies in the burial ground. More so, the watercourses
are also protected and they are not causing any damage to the watercourse
and thus, the impugned order is to be set aside.
9. The learned Additional Advocate General, appearing on behalf of
the State mainly contended that the very assignment made in favour of the
petitioner is in violation of the Revenue Standing Order 15. RSO 15(38)(ii)
denotes “watercourse Poramboke”. It states that “great care should be
taken to preserve the margins of canals, channels, and streams. The transfer
and assignment of such watercourse source porambokes can be ordered
only by the Government in consultation with the Commissioner of Land
Administration and the Chief Engineer of Public Works Department.” In
view of the said Revenue Standing Order, the assignment made in respect
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of the watercourse Poramboke is untenable. The Hon’ble Supreme Court of
India and the High Court, in catena of Judgments held that the watercourse
and water bodies have to be preserved to protect the water resources in the
country. Assignments cannot be made in respect of the watercourse or
water bodies.
10. The learned counsel for the petitioners made a submission that
the said Government order in RSO 15 was inserted in the year 1997. In
such circumstances, the Commissioner of Land Administration or the
Government, is empowered to initiate suo motu review of the assignment
for the purpose of cancelling the assignment, if any, made in the water
bodies or objectionable Government Poramboke lands. This exactly is the
reason why the suo motu power has been conferred on the Commissioner
of Land Administration and the Government for the purpose of setting
right the errors if any occurred or based on the new policy decision taken
by the Government.
11. RSO 15(3) provides who are eligible for assignment.
Accordingly, “only landless and poor persons who are likely to engage
themselves in direct cultivation shall be eligible for assignment of land free
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of land value, subject to the conditions of assignment, imposed in the 'D'
Form patta.” Therefore, the landless poor persons are alone eligible for
assignment of Government land at free of cost for cultivation and power of
alienation has not been conferred on them.
12. In the present case, in respect of the writ petitioner
P.Shanmugam, his father was earlier assigned with the Government land to
an extent of 5 acres. By suppressing the said assignment made in favour of
his father, the petitioner got the assignment of the Government land at free
of cost to an extent of 2.34 acres.
13. The petitioner Mr.A.Venkatachalam was assigned Government
land to an extent of 2.91 acres. However, he secured such assignment by
suppressing the fact that his mother was assigned with Government land to
an extent of 5 acres long back. Both the writ petitioners got assignment by
suppressing the fact that their father and mother respectively were assigned
Government lands to the extent of 5 acres each. Now, both the petitioners
are in possession of Government land to an extent of more than 7.5 acres
each. This, very fact would be sufficient to form an opinion that the
petitioners are not entitled for the assignment which was made in their
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name subsequently after the assignment of their father and mother
respectively. Thus, the conditions of assignments are violated, pertinently
the eligibility criteria fixed in the revenue standing order has been violated
even at the time of initial assignments of Government lands.
14. The learned counsel appearing on behalf of the third respondent
in W.P.No.15312 of 2020 relied on the judgment of the Hon’ble Supreme
Court of India, in the case of case of Meghmala and others vs. G.
Narasimha Reddy and others, 2010(8) SCC 383, has held as follows:
“Fraud/Misrepresentation : -
20. It is settled proposition of law that where an
applicant gets an order/office by making
misrepresentation or playing fraud upon the competent
Authority, such order cannot be sustained in the eyes of
law. "Fraud avoids all judicial acts ecclesiastical or
temporal." (Vide S.P. Chengalvaraya Naidu (dead) by
L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC
853). In Lazarus Estate Ltd. Vs. Besalay 1956 All.
E.R. 349), the Court observed without equivocation that
"no judgment of a Court, no order of a Minister
can be allowed to stand if it has been obtained by
fraud, for fraud unravels everything."
21. In Andhra Pradesh State Financial Corporation
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Vs. M/s. GAR Re-Rolling Mills & Anr. AIR 1994 SC 2151;
and State of Maharashtra & Ors. Vs. Prabhu (1994) 2
SCC 481. this Court observed that a writ Court, while
exercising its equitable jurisdiction, should not act as to
prevent perpetration of a legal fraud as the courts are
obliged to do justice by promotion of good faith. "Equity
is, also, known to prevent the law from the crafty evasions
and sub-letties invented to evade law."
22. In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers.
AIR 1992 SC 1555, it has been held as under:-
"Fraud and collusion vitiate even the most solemn
proceedings in any civilised system of jurisprudence. It is
a concept descriptive of human conduct."
23. In United India Insurance Co. Ltd. Vs. Rajendra
Singh & Ors. AIR 2000 SC 1165, this Court observed that
"Fraud and justice never dwell together" (fraus et jus
nunquam cohabitant) and it is a pristine maxim which has
never lost its temper over all these centuries.
24. The ratio laid down by this Court in various
cases is that dishonesty should not be permitted to bear the
fruit and benefit to the persons who played fraud or made
misrepresentation and in such circumstances the Court
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should not perpetuate the fraud. (See District Collector &
Chairman, Vizianagaram Social Welfare Residential
School Society, Vizianagaram & Anr. Vs. M. Tripura
Sundari Devi (1990) 3 SCC 655; Union of India & Ors.
Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100; Vice
Chairman, Kendriya Vidyalaya Sangathan & Anr. Vs.
Girdharilal Yadav (2004) 6 SCC 325; State of
Maharashtra v. Ravi Prakash Babulalsing Parmar (2007)
1 SCC 80; Himadri Chemicals Industries Ltd. Vs. Coal Tar
Refining Company AIR 2007 SC 2798; and Mohammed
Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8 SCC
751).
25. Fraud is an intrinsic, collateral act, and fraud of
an egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud is an act of
deliberate deception with a design to secure something,
which is otherwise not due. The expression "fraud"
involves two elements, deceit and injury to the person
deceived. It is a cheating intended to get an advantage.
(Vide Dr. Vimla Vs. Delhi Administration AIR 1963 SC
1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd.
(1996) 5 SCC 550; State of Andhra Pradesh Vs. T.
Suryachandra Rao AIR 2005 SC 3110; K.D. Sharma Vs.
Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481;
and Regional Manager, Central Bank of India Vs.
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Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC 170).
26. An act of fraud on court is always viewed
seriously. A collusion or conspiracy with a view to deprive
the rights of the others in relation to a property would
render the transaction void ab initio. Fraud and deception
are synonymous. Although in a given case a deception may
not amount to fraud, fraud is anathema to all equitable
principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable
doctrine including res judicata. Fraud is proved when it is
shown that a false representation has been made (i)
knowingly, or (ii) without belief in its truth, or (iii)
recklessly, careless whether it be true or false.
Suppression of a material document would also amount to
a fraud on the court. (Vide S.P. Changalvaraya Naidu
(supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar
Family Trust & Ors. AIR 1996 SC 2202; Ram Chandra
Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan
Deen Vs. Preeti Lal AIR 2002 SC 33; Ram Preeti Yadav
Vs. U.P. Board of High School & Intermediate Education
AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs. State of
Tamil Nadu & Anr. AIR 2004 SC 2836).
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27. In kinch Vs. Walcott (1929) AC 482, it has been
held that "....mere constructive fraud is not, at all events
after long delay, sufficient but such a judgment will not be
set aside upon mere proof that the judgment was obtained
y perjury."
Thus, detection/discovery of constructive fraud at a
much belated stage may not be sufficient to set aside the
judgment procured by perjury.
15. In the present case, misrepresentation has been explicitly
established and the assignment of the Government land in favour of the
father and mother of the respective petitioners are not denied by the writ
petitioners. In fact, they are enjoying the said Government land also, and
that being the factum established under the eligibility criteria fixed in the
Revenue Standing Orders, both the petitioners are ineligible to get
assignment in their favour.
16. The very purpose of assigning the Government land at free of
cost is to protect the livelihood of the landless poor people of this County.
When the Revenue Standing Orders are stipulating certain eligibility
conditions for the purpose of assignment of government land at free of
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cost, the authorities competent are bound to verify the eligibility
scrupulously before assigning the land. In the present case, the authorities
who granted the assignment also committed lapses, negligence and
dereliction of duty by not verifying the fact that the Government lands to
an extent of 5 acres were granted to father and mother of the respective
petitioners. Thus, the authorities have committed a serious lapse in
assigning the Government lands in favour of the writ petitioners.
17. As far as the assignment conditions are concerned, Condition
No.18 stipulates that if the assigned lands are required for the
Government/public purpose, the same will be resumed without paying any
compensation. In the present case, the authorities found that the
watercourse passes through to the assigned lands and a portion of the lands
has been utilised as a burial ground by the people of that village.
Therefore, such portions of the lands are to be resumed by the Government
as it is required for public use. The said proposition has been laid down by
the Hon’ble Full Bench of this Court, in the case of T.K. Shanmugam v.
State Of Tamil Nadu [(2015) 5 LW 397]
“40. As noticed above, the Division Bench while adding a
word of caution that they are not advocating a general
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principle to regularise all encroachments or encourage
them observed that if the State Government takes a
‘conscious decision’ to regularise certain encroachments
and if the land is not required for any public purpose, the
State Government would be well within the jurisdiction to
do so. Thus, the question would be as to what is a
‘conscious decision’ and what would be the manner in
which the appropriate authority will come to a conclusion
that the land is not required for public purpose. In our
view a ‘conscious decision’ in such cases with particular
reference to encroachment in water bodies should be in
consonance with the public trust reposed on the
Government in respect of such lands (water bodies). The
State being a trustee of these natural resources such as
tanks, lakes etc., has to necessarily act consistent with the
nature of such trust. The vesting of these lands and water
bodies with the Government is to benefit the public and
any attempt made by the Government to act in a manner
derogatory to the object for which the land was vested, has
to held to be illegal. The underlying fundamental principle
being that such rights are public rights are in a higher
pedestal than private rights. We may take a look of the
matter from a different perspective. The Government has
considered that water bodies, which have fallen into dis-
use and have been encroached upon could be declared as
not required for any public purpose and the
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encroachments could be regularised. What the
Government has failed to see is the cause as to why these
water bodies, lakes, tanks have fallen into dis-use. If this
aspect is analysed, it would come to light that in several
cases the disuse was man-made and there appears to be a
cartel, which systematically works with a view to grab
Government property. In such scenario while taking a
‘conscious decision’, the Government cannot ignore the
fiduciary duty of care and responsibility cast upon it and
simultaneously analyse as to why such dis-use has
occurred. The plethora of decisions on the point elucidate
the basic principle of the public trust doctrine when the
water bodies vest with the Government, placing the
Government in the capacity of a trustee, there is little
option except to strictly adhere to the trust and faith
reposed and if the Government has failed to protect these
water bodies, it amounts to breach of the public trust and
in such cases, the duty of the Government is more onerous
to restore the land back to its original position and thereby
restore the trust reposed on it. Therefore, we are not
inclined to accept the proposition that merely because a
water body has put to dis-use that by itself would be a
good ground to regularise the encroachments.”
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18. Condition No.1 in the assignment order stipulates that if any
inequality has been identified after assignment of land or a mistake of fact
has been noticed, then the assignment is liable to be cancelled.
19. In the present case, it is not only inequality but misrepresentation
and fraud committed by the petitioners by not revealing the fact regarding
the earlier assignments made in favour of their respective father and
mother. More so, watercourse / Odai is also passing through the land and a
portion of the land has been utilised as a burial ground by the village
people.
20. Assignment of Government lands are made to ensure that
landless poor people and their livelihood are protected. Once such people
are considered as not eligible, then under the constitutional ideologies, the
Government has to step in by exercising the suo motu powers and cancel
such assignments and re-assign the Government lands to the eligible
persons. The principles of social justice initiated in the constitution is a
dynamic mechanism wherein the Government has to periodically ascertain
the eligibility and accordingly cancel the assignment and re-assign the
Government land to the poor people.
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21. In the present case, the lands were assigned 55 years ago and the
petitioners have suppressed the fact and secured assignment to an extent of
more than 7.5 acres of land each in total. Therefore, the lands resumed are
to be assigned for landless poor persons in order to achieve the
constitutional goal of “social justice”. It is not as if the assigned land is to
be permanently granted to the family of the original assignee. If the family
of the original assignee does not fall under the eligibility criteria as
contemplated under the Revenue Standing Order, then the Commissioner
of Land Administration or the Government, as the case may be, are
empowered to exercise suo motu powers and accordingly, cancel the
assignment and to re-assign the lands to the eligible persons.
22. It is not only the violation of assignment conditions that is to be
considered. It is the eligibility that is also to be considered with reference
to the constitutional mandates. Violation of conditions are grounds to
cancel the assignment of the land. However, due to inequality or if not
falling within the eligibility criteria under the Revenue Standing Order,
then the Government authorities are empowered to conduct an inquiry and
cancel the assignment of land and re-assign the same in favour of other
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eligible persons who all are longing to secure assignment of the
Government land at free of cost. This exactly is the process through which
the principles of social justice can be achieved and it is not as if the rich
alone will become richer and poor will become poorer. The concept of
equality lies by eradicating inequality in the matter of assigning
Government land to the landless poor people. The principles in this regard
must be scrupulously followed by the authorities.
23. Even in the case of no violation of conditions, the assessment of
eligibility have to be made periodically by the competent authorities. If any
inequality is noticed, actions are to be initiated. In the event of failure, the
same would result in unconstitutionality or causing deprivation of an
opportunity to the persons who all are still remaining as landless poor
people.
24. In view of the facts and circumstances, this Court do not find any
infirmity in respect of the order impugned passed by the first respondent-
Commissioner Of Land Administration.
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25. Accordingly, the writ petitions are dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
11.09.2023
Index : Yes
Speaking Order
Neutral Citation : Yes
(sha)
To
1. The Additional Chief Secretary and
Commissioner of Land administration,
Chepauk, Chennai-600 005.
2. The District Collector,
Kallakurichi District.
3. The Thasildar,
Chinnasalem Taluk,
Kallakurichi District.
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S.M.SUBRAMANIAM. J.,
(sha)
W.P.Nos.12833 & 15312 of 2020
11.09.2023
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