Madras High Court
Malleswari Nayagam vs The Collector on 13 August, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 W.P.(MD)NO.16593 OF 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 01.08.2024
PRONOUNCED ON : 13.08.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.16593 of 2024
Malleswari Nayagam ... Petitioner
Vs.
1. The Collector,
Dindigul District,
Thiagi Subramania Siva Malihai,
Velu Nachiyar Valaham,
Chettinaickenpatti,
Dindigul – 624 004.
2. The District Revenue Officer,
Dindigul District,
Thiagi Subramania Siva Malihai,
Velu Nachiyar Valaham,
Chettinaickenpatti, Dindigul – 624 004.
3. The Sub Collector / Revenue Divisional Officer,
Kodaikanal Circle,
Kodaikanal – 624 101. ... Respondents
Prayer: Writ petition filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified Mandamus, to call
for the records of the impugned order in Na.Ka.En.710/2023/A2 dated
08.07.2024 on the file of the third respondent, quash the same and
consequently direct the third respondent to restore the patta in the name
of the petitioner within a time frame fixed by this Court.
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1/13
2 W.P.(MD)NO.16593 OF 2024
For Petitioner : Mr.K.Sharath Chandran
For Respondents : Mr.P.Sasikumar,
Additional Government Pleader.
***
ORDER
Heard both sides.
2. The petitioner purchased the petition-mentioned property on
05.10.2001. Patta was issued in her favour. This was cancelled by the
Revenue Divisional Officer, Kodaikanal without notice. Challenging the
same, the petitioner filed an appeal before the District Revenue Officer,
Dindigul. The appeal was dismissed. Thereupon, the petitioner filed W.P.
(MD)No.11841 of 2023. The writ petition was allowed by me on
12.05.2023. The matter was remitted to the file of the Revenue
Divisional Officer, Kodaikanal. Pursuant to the direction given by this
Court, enquiry was conducted. The Revenue Divisional Officer,
Kodaikanal vide order dated 08.07.2024 held that the petition-mentioned
land is a Government land / assessed waste. The earlier proceeding dated
23.11.1994 issued by the Tahsildar, Kodaikanal for issuance of patta was
cancelled. The petitioner's appeal was dismissed.
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3. Questioning the same, this writ petition came to be filed.
The learned counsel appearing for the petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and
called upon this Court to set aside the impugned order and grant relief as
prayed for.
4. The respondents have filed counter affidavit and the learned
Additional Government Pleader took me through its contents. The first
contention urged by the respondents is that this writ petition is liable to
be dismissed for non-exhaustion of the appeal remedy before the Director
of Settlement and Survey, Chennai. It is strongly contended that the
foundational documents from which the petitioner traces her title are
forged / fabricated. The respondents have only acted in terms of the
circular dated 31.03.2022 issued by the Director of Survey and
Settlement. The respondents seek dismissal of the writ petition.
5. I carefully considered the rival contentions and went through
the materials on record.
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6. It is true that the case of the petitioner is that the property
was originally assigned in favour of one Vijayarajan vide DKT
No.172/82 dated 18.09.1978 and that the said Vijayarajan sold the same
in favour of M/s.Maxima Investments and Finance in the year 1995. The
stand of the respondents is that this assignment order is a piece of forgery
and that the patta could not have been directed to be issued in favour of
Vijayarajan in the year 1995. In the face of such a stand taken by the
respondents, the burden would have been on the petitioner to establish
her title. In this case, there is one vital difference. It is not as if the
petitioner herein purchased the property from Vijayarajan or
M/s.Maxima Investments and Finance. The financial establishment had
committed default and the High Court of Madras framed a scheme
vesting the administration and management of the Government in favour
of an Administrator. It was the said Administrator appointed by the High
Court who sold the property in favour of the petitioner vide registered
sale deed dated 05.10.2001. A copy of the sale deed has been enclosed in
the typed set of papers. In the said sale deed, the following recitals are
found:-
“AND WHEREAS apart from original sale deeds
executed in favour of Maxima Farms and Resorts Pvt. Ltd.
by Sriram, Vijayarajan and Bhavani, it is ascertained from
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the Collector and Tahsildar concerned that Vijayarajan was
issued patta on 23.11.1994 for land inclusive of the portion
sold to Maxima Farms and Resorts.
AND WHEREAS one Pathianathan, son of late
Michael Das of Kodaikanal filed a petition before the
Revenue Divisional Officer in NAKA 2749/2000 claiming
that his family is in enjoyment of 0.90 cents of land in
Ward 'C' Block 19, T.S.No.20/1 which was purchased by
Maxima Farms and Resorts Ltd., and the Revenue
Divisional Officer after perusing the revenue and
settlement records and after conducting enquiry with the
Tahsildar, Village Officers and Surveyor, dismissed
Pathianathan's petition on 29.11.2000 stating that the land
in question in T.S.No.20/1, is a patta land and that it is not
in the possession of Pathianathan.”
7. A copy of the proceedings bearing Na.Ka.No.A5/1749/2000
dated 29.11.2000 issued by the Revenue Divisional Officer, Kodaikanal
reads that the petition-mentioned land is the patta land of Vijayarajan. A
copy of the proceedings has been enclosed in the typed set of papers. If
the then Revenue Divisional Officer, Kodaikanal had not held out that
the land in question was the patta land of Vijayarajan, the Administrator
would not have invited tenders and subsequently sold the property in
favour of the petitioner herein. The petitioner has thus acted on the
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representation held out by the authorities. It is therefore not open to the
third respondent herein to now take a stand that the 1978 document relied
on by the petitioner is forgery and that the 1995 proceedings are liable to
be cancelled.
8. Admittedly, patta was issued in favour of Vijayarajan.
Vijayarajan sold the property in favour of financial establishment. From
the Administrator appointed by the High Court to manage the affairs of
the financial establishment, the petitioner has purchased the property in
the year 2001. She was also issued with patta. In these circumstances, it
is not open to the authorities to suo motu pass an order of cancellation.
9. The learned counsel appearing for the petitioner draws my
attention to the judgment of the Hon'ble Supreme Court reported in
(2015) 3 SCC 695 (Collector V. D.Narsing Rao). Paragraph Nos.31 and
32 of the said judgment read as follows:-
“31. To sum up, delayed exercise of revisional
jurisdiction is frowned upon because if actions or
transactions were to remain forever open to challenge, it
will mean avoidable and endless uncertainty in human
affairs, which is not the policy of law. Because, even when
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there is no period of limitation prescribed for exercise of
such powers, the intervening delay, may have led to
creation of third party rights, that cannot be trampled by a
belated exercise of a discretionary power especially when
no cogent explanation for the delay is in sight. Rule of law
it is said must run closely with the rule of life. Even in
cases where the orders sought to be revised are fraudulent,
the exercise of power must be within a reasonable period of
the discovery of fraud. Simply describing an act or
transaction to be fraudulent will not extend the time for its
correction to infinity; for otherwise the exercise of
revisional power would itself be tantamount to a fraud
upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to
be corrected is described as fraudulent, there is nothing in
the notice impugned before the High Court as to when was
the alleged fraud discovered by the State. A specific
statement in that regard was essential for it was a
jurisdictional fact, which ought to be clearly asserted in the
notice issued to the Respondents. The attempt of the
Appellant-State to demonstrate that the notice was issued
within a reasonable period of the discovery of the alleged
fraud is, therefore, futile. At any rate, when the
Government allowed the land in question for housing sites
to be given to Government employees in the year 1991, it
must be presumed to have known about the record and the
revenue entries concerning the parcel of land made in the
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ordinary course of official business. In as much as, the
notice was issued as late as on 31 st December, 2004, it was
delayed by nearly 13 years. No explanation has been
offered even for this delay assuming that the same ought to
be counted only from the year 1991. Judged from any angle
the notice seeking to reverse the entries made half a century
ago, was clearly beyond reasonable time and was rightly
quashed.”
The ratio laid down above squarely applies to the case on hand. The
respondents have not stated as to when they discovered that the 1978
document is a piece of fraud.
10. The sale in favour of the petitioner had taken place 23 years
ago. The respondents effected mutation of revenue records in view of the
execution of the sale deed. It is not open to them to exercise the power of
cancellation on a suo motu basis after a lapse of close to three decades.
11. None of the reasons set out in the impugned order are
sustainable. No adverse inference can be drawn against the petitioner on
the ground that the 1978 document relied on by the petitioner cannot be
traced. In fact, the petitioner has not purchased the property from the
assignee directly. The title changed hands in the meanwhile and only
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from the Administrator appointed by the High Court, the petitioner
purchased the petition-mentioned property. The documents which are
now painted in dark colours by the third respondent were very much
produced before the High Court and based on them, sale was made in
favour of the petitioner. Having made the petitioner change his position,
the officials cannot do any U-turn. The doctrine of estoppel would clearly
operate in favour of the petitioner and against the respondents. The
petitioner is obviously a bonafide purchaser for valuable consideration.
The sale that took place under the aegis of the High Court cannot be
undone at this point of time.
12. The impugned order is also not in consonance with the
order passed by me in W.P.(MD)No.7050 of 2024 dated 21.03.2024. The
petitioner questioned the memo dated 28.12.2023 issued by the third
respondent calling upon the petitioner to produce the following
documents:-
“a) D.K.T.No.172/82 dated 18.09.1978 in the
name of Vijayarajan.
b) Order dated 18.06.1998 passed by the Madras
High Court in W.P.No.12437 of 1997 etc.
c) ASO communication bearing Na.Ka.No.
17264/94 on the file of ASO, Madurai.
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d) Communication bearing No.25211/1999/D1
dated 22.10.1999 on the file of the District Collector,
Dindigul.”
I held that calling upon the petitioner to produce the aforesaid documents
is a vexatious exercise because documents 3 and 4 are very much
available with the Revenue Divisional Officer, Kodaikanal and that there
is a reference to them in the earlier proceedings. I also held that the
petitioner cannot be called upon the produce the assignment document
dated 18.09.1978 because he purchased the property from the
Administrator and not from the assignee. I noted that since in the earlier
proceedings, there is a reference to issuance of patta in favour of
Vijayarajan, genuineness of the documents cannot be questioned. In the
face of such specific order passed by this Court, it was not open to the
third respondent to render a contra finding. It borders on contempt. Since
the third respondent has not been arrayed in person, I refrain from
passing any remark or awarding costs.
13. In this view of the matter, the impugned order is set aside.
The third respondent is directed to restore the patta in favour of the
petitioner. It is for the respondents to coordinate with the concerned
authorities including the Director of Settlement and Survey for making
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appropriate changes in the system. It is the duty of the Director of
Settlement and Survey to remove the block in the system. The entire
exercise shall be carried out by the respondents within a period of six
weeks from the date of receipt of a copy of this order. This writ petition
stands allowed. No costs.
13.08.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
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To:
1. The Collector,
Dindigul District,
Thiagi Subramania Siva Malihai,
Velu Nachiyar Valaham,
Chettinaickenpatti,
Dindigul – 624 004.
2. The District Revenue Officer,
Dindigul District,
Thiagi Subramania Siva Malihai,
Velu Nachiyar Valaham,
Chettinaickenpatti, Dindigul – 624 004.
3. The Sub Collector / Revenue Divisional Officer,
Kodaikanal Circle,
Kodaikanal – 624 101.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
13.08.2024
https://www.mhc.tn.gov.in/judis
