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Judgment
K.P. Sivasubramaniam, J.—These two writ petitions are directed against the orders passed by District Revenue Officer, Nagapattinam, in
the revision under the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, (hereinafter called ""the Tenancy
Act""), setting aside the order of the Revisional Authority and the Appellate Authority.
Though the impugned orders relate to proceedings under the Tenancy Act, the main dispute centres around the tussle between on the one side
the two writ petitioners herein being Ex-servicemen and on the other side, the fourth respondent claiming that he was a cultivating tenant under the
original land owner Meenambal, whose holdings were declared as excess under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act,
(hereinafter called ""the Ceiling Act"". While the petitioners are claiming assignment of the land in their favour declared as excess land, the fourth
respondent claiming to have been cultivating tenant under the original owner, claimed preferential right of assignment being a cultivating tenant as
provided under the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules. As on date the proceedings for assignment under the said Rules
is stated to have been concluded in favour of the fourth respondent/cultivating tenant on the ground that his name stands entered in the Record of
Tenancy and therefore, he is entitled to preference in terms of the said Rules. According to the petitioners, recognition of the fourth respondent as a
cultivating tenant under the original owner was erroneous and they hope that if the said entry in the Record of Tenancy is set aside, then there
would be consequential entitlement for assignment. Therefore, they initiated proceedings u/s 5 of the Tenancy Act for modification of the entry
which recognises the fourth respondent as the tenant. The petitioners succeeded before the original authority and also the Appellate Authority.
However, the revision petitions filed by the fourth respondent were allowed in his favour. Hence, the above two writ petitions by the two Ex-
servicemen.
It may be pointed out at this stage that in the order of the Revisional Authority which is impugned herein, the merits of the disputes were not
gone into. The Revisional Authority had allowed the revision only on the ground that in the circumstances of the case, petitions for modification of
entries as sought for by the petitioners herein, were not maintainable. The said issue arises under the following circumstances.
In the earlier round of litigation in the proceedings initiated by the fourth respondent u/s 4(1) of the Tenancy Act for entry of his name as a
cultivating tenant, the Original Authority allowed the petition directing entry of his name in the Tenancy Record. On that basis, the Authorised
Officer under the Ceiling Act after conducting an enquiry, ordered assignment of the excess land in favour of the fourth respondent. The petitioners
herein filed appeals contending that the fourth respondent was not a cultivating tenant. The Appellate Authority (D.R.O.) rejected the appeal. The
Land Commissioner on revision went into the merits of the claims of the fourth respondent and held that he has not established himself as a
cultivating tenant and therefore, was consequentially not entitled to assignment since he cannot claim priority for assignment of the excess land.
The fourth respondent aggrieved by the same filed W.P.No.5349 of 1981 and the said Writ Petition was allowed by S.Ramalingam,J. on
31.10.1989 holding that as long as the entry in the tenancy records continued in favour of the fourth respondent the Land Commissioner cannot
overrule the same. The following is the operative portion of the order of this Court:-
The Land Commissioner may not agree with the claim of the petitioner that he was a cultivating tenant. If an opportunity had arisen for the Land
Commissioner to go into that question in appropriate proceedings under Act 10/69 he might have come to a different conclusion and reversed the
orders of the prescribed authority under the Record of Tenancy Act recording the petitioner as an cultivating tenant. But that has not occasioned.
The order made by the Authorised Officer under the Record of Tenancy Act in April 1974 had become final and no appeal or revision had been
filed. No application for the modification of that order has been filed by any person. Therefore, the Land Commissioner was duty bound to abide
by the earlier order made in 1974 and he cannot go behind that order and come to a different conclusion. That jurisdiction was not available to
him. Therefore the order of the Land Commissioner that the petitioner herein is not entitled to claim any priority under Rule 5(1)(1) of the Rules is
not correct and in this view, the writ petition is allowed.
It is based on these observations, the petitioners herein had filed application u/s 5 of the Tenancy Act. According to the Revisional Authority, the
said petition was not maintainable and the petitioners could have filed only appeals against the order of the Recording Officer, recording the fourth
respondent as a cultivating tenant and not a petition for modification u/s 5. Therefore, the issue to be considered in these two writ petitions is
restricted to the scope of Section 5 of the Tenancy Act which is as follows:-
Modification of entries in the approved record of tenancy rights. - (1) Where any person claims that in respect of any land already included in the
approved record of tenancy rights any modification is required in respect of the entries in such record either by reason of the death of any person
or by reason of the transfer of interest or by reason of any other subsequent change in circumstances, he shall make an application to the record
officer for the modification of the relevant entries in the approved record of tenancy rights.
(2) An application under sub-section (1) shall contain such particulars as may be prescribed and shall be accompanied by the documents, if any,
relied on by the applicant as evidence in support of his claim.
(3) (a) Before passing an order on an application under sub-section (1) the record officer shall follow such procedure as may be prescribed and
shall also give a reasonable opportunity to the parties concerned to make their representations either orally or in writing. If the record officer
decides that any modification should be made in respect of the entries in the approved record of tenancy rights he shall pass an order accordingly
and shall effect he modification and make such incidental and consequential changes in the approved record of tenancy rights, as appear to him to
be necessary, for giving effect to his order.
(b) If the record officer decides that there is no case for effecting any modification in the entries in the approved record of tenancy rights he shall
reject the application.
(c) An order under clause (a) or clause (b) shall contain the reasons for such order and shall be communicated to the parties concerned in such
manner as may be prescribed.
A perusal of the above provision shows that modification is possible only under the following three grounds:-
(i) Death of any person; (ii) transfer of interest; and (iii) any other subsequent change in the circumstances.
I have heard both sides and I am inclined to conclude that though the first two grounds are not satisfied in this case, the third ground is satisfied
namely, subsequent change in the circumstances, as explained below:-
A perusal of the order of the Original Authority/Recording Officer dated 26.3.1993 brings out the following facts which are relevant for the issue
stated chronologically:-
(i) 28.3.1973 - Excess land declared and is vested with the Government.
(ii) 3.5.1974 - Entry of the fourth respondent''s name as cultivating tenant ordered.
(iii) 11.9.1974- Revision under Ceiling Act of the land owner allowed and possession handed over to the land owner.
(iv) 1.2.1975 - Land taken over by the Government again from the land owner and the standing crops were harvested by the land owner at the
time of handing over possession.
There can be no dispute over the consequences and the legal position resulting from the declaration of excess land under the Ceiling Act and the
vesting in favour of the Government u/s 18 of the Ceiling Act. u/s 18, the land thus declared excess will be deemed to have been acquired for
public purpose and vested in the Government free from all encumbrances with effect from date of such publication and all the rights, title and
interest of all persons in such land, shall vest with effect from the said date and be deemed to have been extinguished. Therefore, the vesting shall
be free from all encumbrances including the claims of the cultivating tenants also. Such rights are also deemed to have been extinguished. The land
is deemed to have been taken over for public purpose free of all encumbrances. It is only thereafter the cultivating tenant can move the application
before the appropriate authority under the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965, by filing a petition under Rule 5(1)
of the said Rules, for assignment. Admittedly, the fourth respondent has not taken any steps under the said Rules.
Therefore, the above mentioned chronological details reveal that possession was taken over by the Government on 28.3.1993 itself and
vesting has also taken place. The fourth respondent cannot be heard to contend that he was remaining in possession in view of Section 18 of the
Act even assuming that he was in physical possession of the land. It is not necessary to go into the legality of the order passed by the Recording
Officer on 3.5.1974 after such vesting. Apart from the legal consequences of the deeming provision, on facts also, the land appears to have been
put in the possession of only the land owner on 11.9.1974 and not to the fourth respondent. This is substantiated by the subsequent event that it is
only from the land owner, possession of the land was taken over by the Government on 1.2.1975, after he was allowed to harvest the crops.
The outcome of the above discussion is that even ignoring the legal consequences of vesting with the Government on 28.3.1993, after
3.5.1974, on which date, the entry was ordered in favour of the fourth respondent, there has been series of change of circumstances, both legal
and factual as stated above rendering the order dated 3.5.1974 reviewable in terms of Section 5(1) of the Tenancy Act and the aforesaid facts are
sufficient to form the basis for ""any other subsequent change in the circumstances."" There is no reason why Section 5 could not have been invoked
by the petitioners in the said circumstances. Therefore, the conclusions of the Revisional Authority cannot be sustained. However, as the revisional
authority has not gone into the merits of the mutual claims, it is necessary to remit the matter for reconsideration on merits.
In the result, both the writ petitions are allowed and the finding that the petitions for modification are not maintainable, is set aside. The
revisional authority is directed to reconsider the rival contentions on merits and pass appropriate orders within a period of three months from the
date of receipt of a copy of this order after giving a hearing to both the parties. No costs.