Srila Sri Sivagnana Balaya Swamigal Madalayam, Mailam and Bommayyapalayam vs The State of Tamil Nadu by the Secretary to Government, Revenue Department and Others

K.S. Palaniswamy, J.—Old S.No. 221/1-A, in Mailam Village, Tindivanam Taluk, South Arcot District, measuring 13.47 acres originally

belonged to one Thirumudi Ghettiar and two others of Pondicherry. The entire land was subject to a usufructuary mortgage in favour of the

petitioner in these two cases, namely, Srila Sri Sivagnana Balaya Swamigal Madalayam, Mailam. The mortgage was of the year 1933. In the year

ig4i, an extent of 31 cents out of the total extent of 13.47 acres was sub-divided as 221/1A/1A, and the remaining extent was sub-divided as

221/1A/1B. For the purpose of constructing a public well, the said extent of 31 cents was acquired under the provisions of the Land Acquisition

Act, 1894 (hereinafter referred to as the Act) in the year ig4i. The compensation amount was paid to the petitioner-mutt as usufructuary

mortgagee. The petitioner purchased the remaining property from the previous owner by a registered document dated i4th September, 1947.

Though the extent of 31 cents was acquired for the purpose of constructing a bore-well, the idea was given up. On coming to know of this

abandonment of the idea, the previous owners applied to the Sub -Collector, Tindivanam, to re-assign the land to them on receipt of the

compensation amount. The Sub-Collector informed them on 31st March, 1947, that their claims would be considered after the site was trauferred

as assessed waste.

In the meanwhile, the third respondent in these two cases, Ramaswami, an ex-police constable, encroached upon the said extent of 31 cents

and put up a thatched building. The Revenue Divisional Officer, Tindivanam, after following the prescribed procedure under tire Land Eicroachmer

t Act directed eviction of the third respondent out of the land which was then classified as well-poramboke. Against that order, the third

respondent filed an appeal to the District Revenue Officer, Cuddalore. That officer agreeing with the Revenue Divisional Officer, stated that the

encroachment was objectionable. Even before these proceedir gs were started, the petition r-mutt had become the owner of the adjacent

property. The mutt made applications to the Sub-Collector for assigning the sad extent of 31 cents to it, for the purpose of Tamil College which it

is running. In disposing of the appeal, the District Revenue Officer stated that the mutt-authorities had rsked. for assignment in their favour and that

their request deserved sympathetic consideration. Against the order of dis-nrssal, the third respondent preferred a revision to the Board of

Revenue. The Biard agreeing with the District Revenue Officer, found the encroachment objectionable and dismissed the revision. Against that

order, the third respondent preferred a revision to the Government. The Government, by order dated c""6th April, 1968, rejected the revision

holding that they saw no reason to interfere. The third respondent thereupon made further representations to the Government for reconsideration of

their previous orders. By order dated 26th April, 1969, the Government reversed their earlier decision and stated that the third respondent''s case

was a fit case for consideration and directed assignment to be given in his favour. It is to quash this order that the mutt had filed W.P. No. 3546 of

1969.

Alleging that its application filed for assignments of the land remains undisposed of in spite of several remainders and that by directing assignment

of the land in question in favour of the third respondent, the State Government violated all the provisions of the Board''s Standing Order and that

the order of assignment is, therefore, invalid, the mutt has filed W.P. No. 3460 of 1969, praying for the issue of a writ of mandamus to the State of

Tamil Nadu and the Sub-Collector of Tindivanam directing them to consider its claims and to grant patta.

The respondents oppose these petitions contending that the petitioner is not an aggrieved person and that the assignment in favour of the third

respondent has been made only in accordance with the relevant rules.

Mr. Venkatachari, appearing for the petitioner-mutt put forward two contentions in support of the prayers in these two writ petitions, and they

are:

Under the relevant Board''s Standing Orders, the lard before it was assigned to the third respondent, should have been offered to the petitioner-

mutt after the laud was found to be no longer require for the public purpose for which it was acquired. The non-compliance with the relevant

provisions in this behalf vitiates the assignment; and

Even if the petitioner is not entitled to get such a priority, the petitioner-mutt having applied for assignment of the. land long before the

encroachment made by the third respondent, the application of the mutt should have been considered in accordance with the provisions of the

Board''s Standing Orders. The application is still pending without any orders having been passed upon that. The Government themselves assumed

jurisdiction to assign the land it disregard of the relevant provisions of the Board''s Standing Orders which confer jurisdiction upon the subordinate

revenue officials to assign with the hierarchy of officers to hear appeals and revisions against such orders of assignment. The assignment made by

the Government themselves straightaway is opposed to the relevant provisions of the Board''s Standing Orders and the assignment deprived the

petitioner of its right to put forward its claim to the several authorities.

Chapter VII of the Board''s Standing Order, contains provisions dealing with classification of land for public purposes. Paragraph 32 of the

Board Standing Order go deals with the disposal of land no longer required for the public purpose for which it was acquired. Sub-paragraphs 2

and 3, on which reliance is placed on behalf of the petitioner read:

2(a). Where the land is useless to anyone but the adjacent owner, or

2(b) where its possession by any person other than the adjacent owner would interfere with the full enjoyment of the adjoining property by its

owner, it should first be offered to the adjacent owner at full market value.

(3) In cases where the circiimstances described in 2(a) and 2(b) do not exist, or where the adjacent owner does not, after due notice, accept the

offer, the land should be offered at cost price to the parties to whom the proprietary right and the right of occupancy, if any, in the land originally

belonged or to their heirs.

The foregoing provision has been invoked in two ways. Firstly, it is contended that the petitioner-mutt had right of occupancy as usufructuary

mortgagee at the time of acquisition and is, therefore, entitled to be given in opportunity to purchase the land in preference to others. Secondly, it is

contended that the land is adjacent to the mutt''s land a id being useless it should have been offered to the petitioner-mutt. I am untble to accept

any of those two contentions. From the facts stated in paragraph 1 supra it would be seen that at the acquisition of this land for the purpose of a

bore-well the mutt was not the owner. It was only after the acquisition that the mutt purchased the remaining extent from the previous owners. No

doubt, at the time of acquisition, the mutt had usufructuary mortgage right and was in possession of the entire extent including the acquired land.

But that right of possession did not create a right of occupancy within the meaning of the aforesaid Board''s Standing Order. It cannot be said that

the extent of 31 cents is useless to anyone as contemplated in paragraph 2 (a) referred to above. The extent is 31 cents and is undoubtedly useful

for purposes, such as cultivation, house-construction, etc. Paragraph 2(a) would apply only to a case where the land acquired for public purpose

and found to be no longer required for public purpose is such either on account of its extent or on account of its location that it would be useful

only to the adjacent owner and not to anybody else. It to such a case that paragraph 2 (a) would apply. The instant case does not fall under that

category. Therefore, the aid sought on behalf of the petition from the said sub-paragraphs 2 and 3 or paragraph 32 of Board''s Standing Order 90

does not stand scrutiny.

The next contention urged on behalf of the petitioner-mutt is that even as early as 1947 the mutt had applied for assignment of the land, after it

was found that the laud was not going to be utilised for the purpose for which it was acquired and that the land was asked to be re-assigned for the

purpose of a Tamil G allege which is being run by the petitioner-mutt. The petitioner''s contention is that this request for assignment was being

renewed from time to time as no reply was received from the Sub-Collector, Tindivanam. The petitioner-mutt was not aware of the order passed

by the Government in favour of the third respondent. In ignorance of that fact, the petitioner-mutt addressed the District Revenue Officer,

Guddalore, on 12th August, 1969, pointing out that no reply was received from the department to the application made for assignment. To that

communication the District Revenue Officer sent a reply to the petitioner-mutt on 14th August, 1969, stating that the matter was pending before the

Tindivanam Tahsildar in connection with assignment in favour of the third responder. t on getting the value of the laid. Thereafter, the petitioner-

mutt sent a common judication to the Government on 7th September, 1969, setting out the history of the case relating to the land and stating that

the mutt was entitled to priority in the matter of assignment, the the assignment made in favour of the third respondent was illegal as the occupation

of the third respondent was unauthorised and that the Government should, therefore, reconsider the matter and direct the re-assigement to be

made in favour of the mutt. To this, the petitioner-mutt received a reply from the Government dated 21st October, 1969, stating that the

Government saw no ground to reconsider the orders already passed in the matter.

That the petitioner-mutt has applied for assignment of the land question and has been reminding the officials concerned from time to time is rot

disputed. As a matter of fact, even as early as November, 1966, the District Revenue Officer, while dismissing the appeal filed by the third

respondent, observed that the mutt-authorities had asked for assignment of the land in their favour and that request of the mutt-authorities deserved

sympathetic consideration. Presumably, the Government were aware of this fact when they first rejected the revision petition filed by the third

respondent. No step appears to have been taken to find out what had happened to the application made by the petitioner-mutt before the

Government passed the revised order by which assignment was directed to be made in favour of the third respondent.

The petitioner''s contention is that the order passed by the Government is in utter disregard of the several provisions of the. Board''s Standing

Order dealing with assignment of laid. Board''s Standing Order No. 15 deals with grant of lands for occupation subject to payment of assessment.

It contains a number of paragraphs dealing with several aspects of the matter arising for consideration in the matter of grant of lands. Ordinarily, the

application for assignment should be made either to the village officers, Firka Revenue Inspector or to the Tahsildar. Procedure is laid down

regarding the disposal of the application. The application should be published in the village by beat of tom tom and the notice should be published

in the village country and on the concerned land for 15 days. This procedure is laid down for the purpose of inviting objections if any. After the

expiry of the prescribed time, the Tahsildar is required to send a memorandum with an illustrative sketch showing the position and classification of

the land and various other details. The assigning authority is the Revenue Divisional Officer in case of valuable lands subject to a maximum limit of 2

acres if the land is irrigable land and to a maximum limit, of 5 acres if the land is dry. Tahsildars and Independent Deputy Tahsildars having

separate jurisdiction have power to assign non-valuable lands subject to a maximum limit of 5 acres. An appeal is provided against an order of

assignment. A revision is also provided. Suo motu powers of revision have been conferred upon the Collector, the Board of Revenue and the

Government in certain cases.

Board''s Standing Order 21 deals with assignment of house sites in villages and towns. This also contains similar provisions regarding the

authority to whom the application should be made, the procedure to be followed on receipt of the application etc. etc. There are also further

provisions regarding appeals and revisions. All the provision? regarding appeal and revision contained in Board''s Standing Order 15 apply to

orders in Board''s Standing Order 21 also.

Mr. Venkatachari, appearing for the petitioner-mutt, contends that the Government, in the instant case, while directing the assignment of the

land to the third respondent flagrantly violated the several provisions under which procedure has been prescribed for dealing with the application

for assignment and that the Government in passing the order by themselves deprived the petitioner-mutt of its right of appeal and revision even if

the assignment had been made by such authority in favour of the third respondent. This contention is well-founded. It is true that before the

assignment is made, the applicant for assignment has r>o present interest in the land which he asks the assignment of. But he is certainly entitled to

expect his application to be disposed of in accordance with the rules prescribed in that behalf. In the hierarchy of authorities prescribed in the

Board''s Standing Orders, the highest authority is the State Government. If such an authority itself were to act as the original authority, as in the

instant case, not in a proceeding relating to assignment but in a proceeding relating to eviction on the ground of unauthorised occupation, then all

the rules prescribing the procedure, appeal and revision would become dead letters. The detailed procedure, is intended to find out whether the

assignment would be unobjectionable from the point of view of the public and whether who among the applicants is entitled to preference. The

Revenue Divisional Officer, the District Revenue Officer and the Board of Revenue all of whom are charged with the duty of protecting public

property from being encroached upon by trespassers, concurrently found that the occupation of the land in question by the third respondent was

objectionable. The Government also agreed with that view in the year 1968. But curiously, the passage of time by just one year appears to have

converted the objectionable occupation into a harmless occupation from the point of view of the Government. No reason is given by the

Government in their revised order as to how the occupation ceased to be objectionable. The fact that the third respondent through his wife was

having 11 cents of land fit only for cultivation and not fit for house construction would hardly convert the objectionable occupation into an

unobjectionable occupation. This is the only reason given for reversing the earlier order by which the Government affrmed the view of the three

lower authorities, that the occupation of the site by the third respondent was objectionable. The third respondent''s occupation was not for

residence tut for running poultry house. The contention of the petitioner that while the Government reversed their earlier order, consideration other

than those relevant to the facts at issue, had weighed with them does not appear to be without substance.

Applications of parties asking for assignment of lands at the disposal of the Government should be disposed of in accordance with the rules

contained in the Board''s Standing Order. It is not ah empty formality in providing a hierarchy of authorities in the matter of hearing appeals and

revisions. Applications regarding assignment of lands should be disposed of in a quasi-judicial manner and even the rules contained in the Board''s

Standing Order direct the disposal of the applications in such a manner. K.M. Adam, Madras Vs. Commissioner of Income Tax, Madras, . In the

instant case, the Government themselves took up the role of the original assigning authority without following the prescribed procedure and

depriving the petitioner of a right of appeal and revision. I do not find any justification whatsoever for this flagrant violation of the Standing Orders.

The petitioner is, therefore, justified in its contention that the order of the Government is vitiated.

The order is capricious and arbitrary and is a typical example of abuse of powers and actual disregard of the prescribed procedure.

In the result, the impugned order of the Government is quashed and W.P. No. 3546 of 1969 is allowed. In W.P. No. 3460 of 1969, it is

hereby ordered that the application of the petitioner-mutt shall be taken up and disposed of in accordance with law along with the application of

the 3rd respondent, if he has made one. No order as to costs.