K. Vedavalli Ammal v. Rajamanickam Pillai — 1977 DIGILAW 364 (MAD)

Judgment :- VARADARAJAN, J.: 1. This Writ Appeal is directed against the order of Mohan, J. dated 14th December 1976, dismissing W.P. No. 2575 of 1976 which had been filed for the issue of a Writ of Certiorari calling for the records of the second respondent, the District Revenue Officer, Tanjore, in R.P. 18 of 1976 L.A. dated 4th May 1976, and quashing that order. 2. We are concerned in this Writ Appeal with the following lands lying in No. 109 Thenampadugai vattam, Thenampadugai village, Kumbakonam taluk— R.S. No. Extent 59/1 wet 1 A. 94 C. 59/2 do 1 94 59/2 do 1 34 60/1 do 0 44 61/1-A do 2 70 100/2B do 1 00 47/1-A do 0 92 47/5-A do 0 04 0 08 Total 8 46 3. The first appellant, Vedavalliammal appears to have filed an application in about September 1971, before the Record Officer, Kumbakonam, for a declaration that the aforesaid lands were under her pannai cultivation. The Additional Record Officer, Kumbakonam, had by his order dated 29th September 1971, declared that the lands were under her pannai cultivation. Subsequently, Rajamanickam Pillai, the first respondent filed an Application No. 198 of 1974 in Form V appended to the Tamilnadu Agricultural Lands Record of Tenancy Rights, Rules, 1969 saying that he was a cultivating tenant of those lands and requesting that his name may be included as a tenant in the approved record of tenancy rights prepared for the village, as per the provisions of the Act. The appellants opposed the petition contending that though the first respondent was previously cultivating the lands as a tenant, he had surrendered possession of the lands in 1971, and they are in their pannai cultivation since then and that he was not entitled to have his name included as a tenant of those lands in the approved record of tenancy rights. On a perusal of the evidence, oral and documentary, the Additional Record Officer found that the first respondent was not a cultivating tenant in possession of the lands and the lands were under the pannai cultivation of the appellants. He also found that the first respondent was aware of the Form III proceedings and had purposely avoided the enquiry and had failed to get the draft record of tenancy rights amended by filing an application in Form III. He also found that the first respondent was aware of the Form III proceedings and had purposely avoided the enquiry and had failed to get the draft record of tenancy rights amended by filing an application in Form III. He further found that the question whether the lands were in the cultivation of any tenant had not been considered in the enquiry in Form III proceedings and that the application filed by the first respondent in Form V was, therefore, maintainable. On these findings, he dismissed the first respondents application by order dated 2nd August 1975, confirming his original order dated 29th September 1971, and holding that there was no need to change the entry made in Form No. III. 4. The first respondent filed an appeal before the Sub-Collector, Kumbakonam, the 3rd respondent, in A.P. 16 of 1975. The 3rd respondent, by his order dated 1st December 1975, held that the lands were not under the pannai cultivation of the appellants and he allowed the appeal and ordered inclusion of the first respondents name in Form III as a tenant of the lands, observing that the failure of the first respondent to participate in the Form III proceedings need not be made much of by reason of the fact that his application in Form V had been held by the Additional Record Officer to be maintainable and was disposed of by him on merits. 5. In the revision petition No. 18 of 1976 filed by the appellants against the 3rd respondents order before the District Revenue Officer, Tanjore, the second respondent, by order dated 4th May 1976, considered the two questions urged before him, namely, whether the application in Form V filed by the first respondent before the Additional Record Officer, was maintainable and whether the first respondent had surrendered possession of the lands in 1971 and was or was not cultivating the lands as a tenant even after 1970. It was contended before the second respondent that the application in Form V was not maintainable on the ground that the first respondent did not claim that the tenancy right put forward by him came into existence subsequent to the publication of the approved record of tenancy rights. It was contended before the second respondent that the application in Form V was not maintainable on the ground that the first respondent did not claim that the tenancy right put forward by him came into existence subsequent to the publication of the approved record of tenancy rights. The second respondent held that the application in Form V was maintainable even though the tenancy had not come into existence after the publication of the approved record of tenancy rights, on the ground that the particulars of the lands had not been included in the draft record of tenancy rights. Declining to place any reliance on the letter, Ex. R. 7, alleged to have been written by the 1st respondents son to the husband of one of the appellants, the second respondent on the basis of the letter Ex. P-9, dated 16th February 1974, written by the second appellant K.S Rangarajulu, to the effect that the first respondent was in arrears to the extent of five bags of paddy in addition to the current dues, rejected the appellants case of surrender of possession of the lands by the 1st respondent in 1971, and agreed with the 3rd respondent that the 1st respondent was a tenant in respect of the lands entitled to have his rights, as such, recorded in the approved record of tenancy rights. R.W. 1 had admitted in his evidence that the 1st respondent was not present at the time of the Form III enquiry. In these circumstances, the second respondent held that the fact that the first respondent claimed tenancy rights in respect of some other lands in the enquiry and failed to make a similar claim in respect of these lands in the Form III enquiry does not debar him from seeking his remedy by filing an application in Form V. On these findings, the second respondent confirmed the 3rd respondents order and dismissed the revision petition. 6. In the writ petition it was contended before Mohan, J. that there was no necessity for the 2nd respondent to write the letter Ex. P. 9, and that the letter Ex. R. 7, alleged to have been written by the first respondents son, would show that the first respondent had surrendered possession of the lands which he was originally cultivating as a tenant of the appellants. P. 9, and that the letter Ex. R. 7, alleged to have been written by the first respondents son, would show that the first respondent had surrendered possession of the lands which he was originally cultivating as a tenant of the appellants. The learned Judge declined to go into that question of fact and dismissed the writ petition by his order dated 14th December 1976 holding that there was no merit in the petition. 7. We agree with Mohan, J. that the question whether the letter, Ex. P. 9, had not been written by the second appellant calling upon the first respondent to pay the arrears of five bags of paddy together with the current rent and whether the letter, Ex. R. 7, alleged to have been written by the first respondents son to the husband of one of the appellants showing that the lands had been surrendered by the first respondent, could not be gone into in these proceedings as they relate to questions of fact which had been gone into by respondents 2 and 3 who have found the letter, Ex. P. 9, to be genuine and had not placed any reliance on the letter, Ex. R. 7. 8. Though the question of maintainability of the application in Form V which had been filed by the first respondent before the Record Officer, had not been urged before Mohan, J., we are inclined to go into that question having regard to the fact that it is important. 9. S. 3(1) of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act 1969, provides for the Government by notification directing the preparation of a record of tenancy rights for such village or villages as may be specified in the notification, and for the preparation, maintenance and revision of record in accordance with the provisions of the Act and the Rules made thereunder. Cl. (2) of that section lays down the particulars which the aforesaid record, referred to in Sub-S. (1), should contain. One of those particulars is the survey number or sub-division number, extent and local name, if any, of the land. Cl. (2) of that section lays down the particulars which the aforesaid record, referred to in Sub-S. (1), should contain. One of those particulars is the survey number or sub-division number, extent and local name, if any, of the land. ‘Land’ has been defined in S. 2(4) of the Act as meaning— “A land used for purposes of agriculture or horticulture, or for purposes or ancillary thereto, and includes any building or any waste vacant or forest land appurtenant thereto and any house-site belonging to the land-owner and let to the tenant under the same tenancy agreement.” Sub-S (3)(a) of S. 3 says— “As soon as may be after the publication of a notification under Sub-S. (1), the Record Officer shall publish a notice in the village informing the public that a record of tenancy rights is to be prepared for that village, and that the land-owner, tenant or intermediary of every land which has been let for cultivation shall intimate in writing to him of his interest in such land.” Sub-S. (3)(b) of S. 3 provides for the contents of such notice and lays down that the notice shall be published in such manner as may be prescribed in the Act and the Rules. Sub-S. (4) of S. 3 lays down that— “On the basis of the intimation given under Cl. (a) of Sub-S. (3) or on the basis of information obtained by the Record Officer under S. 9 or in such other manner as may be prescribed, the Record Officer shall, after giving a reasonable opportunity to the parties concerned to make their representations either orally or in writing, prepare a draft record of tenancy rights for the village.” Under Sub-S. (5) of S. 3, the draft record has to be published in the District Gazette of the district in which the village is situate, as soon as may be after the completion of the preparation thereof. Sub-S. (6) of S. 3 lays down that— “Any person aggrieved by such draft record either on the ground that the entry in respect of particulars relating to him is incorrect or on the ground that his name or other particulars relating to the land which has been let for cultivation and in which he has interest either as land-owner, intermediary or tenant have been omitted to be included in such draft record, may, within such period as may be prescribed, make an application to the Record Officer for the rectification of such entry or for the inclusion of such name or particulars in the draft record of tenancy rights.” 10. Rule 7 of the Tamilnadu Agricultural Lands Record of Tenancy Rights Rules 1969, provides a period of limitation for making an application under S. 3(6) of the Act, and lays down that such an application for rectification of entries in the draft record or for inclusion of particulars in it, shall be in Form IV and be filed before the Record Officer within 60 days of the date of publication of the draft record in the District Gazette, in the case of a person on whom an extract of the record hat not been served, and within 30 days from the date of service in the case of persons on whom the extract of the record has been served. 11. It was contended by Mr. Kumaraswami Pillai, the learned counsel for the appellant, that the first respondent should have filed an application only in Form IV under S. 3(6) of the Act within the prescribed period of limitation and he was not entitled to file an application in Form V under S. 4(2) of the Act, We are unable to accept this contention having regard to the fact that it was the admitted case of the appellants themselves that the lands were in their pannai cultivation, which could not, therefore, fall within the definition of ‘land’ in S. 2(4) of the Act, and these lands were admittedly not included in the draft record of tenancy rights published under S. 3(5) of the Act. S. 3(10) lays down that as soon as may be after the preparation of the final record of tenancy rights, it shall be published in the Fort. St. George Gazette and that the record so published shall be called the approved record of tenancy rights. S. 3(10) lays down that as soon as may be after the preparation of the final record of tenancy rights, it shall be published in the Fort. St. George Gazette and that the record so published shall be called the approved record of tenancy rights. The said Sub-section requires the approved record of tenancy rights being published also in the District Gazette of the district in which the village is situate and in such other manner as may be prescribed. 12. An attempt was made by the learned counsel for the appellants to show that one of the items of these lands, namely, one acre in S. No. 61/1 of Thenampadugai Village was included in the draft record of tenancy rights of the village. A perusal of the draft record of tenancy rights published in the District Gazette dated 11th February 1972, as required by S. 3(5) of the Act, and of the final record of tenancy rights published as required by S. 3(10) of the Act in the District Gazette, dated 11th October 1972, shows that only two portions of that survey number measuring 1.30-1/3 acres each which were in the separate possession of one Rangaswami Pillai and R. Singaravelu of Papadayoor and Thenpadugai Villages respectively, out of the total extent of 4.61 acres comprised in S. No. 61/1 had been included in the draft record of tenancy rights and final record of tenancy rights. Therefore, it is not possible to agree with the learned counsel for the appellants that the one acre of land in S. No. 61/1, which it one of the lands involved in these proceedings, was also included in the draft record and final record of tenancy rights, especially having regard to the fact that the case of the appellants was that that land as well as the other seven items of land were under their pannai cultivation and those lands could not, therefore, have been included (sic) in the draft record of tenancy rights which could have be en prepared only in respect of land felling within the definition of ‘land’ in S. 2(3) of the Act. 13. 13. S. 4(1)(a) of the Act provides for inclusion of lands in the approved record of tenancy rights and lays down that— “where subsequent to the publication of the approved record of tenancy rights and land has been let for cultivation, the landowner, intermediary or the tenant having interest In such land shall make an application to the Record Officer for inclusion of particulars relating to such land in the approved record of tenancy rights” The first respondent could not have made an application under S. 4(1)(a) of the Act as it is not his case that he became a tenant of the lands after the date of the publication of the final record of tenancy rights. S. 4(1)(b) of the Act lays down that— “Where any land has been let for cultivation before the publication of the approved record of tenancy right, but the particulars thereof have not been included in the approved record of tenancy rights for any reason, the landowner, the intermediary or the tenant shall make an application to the Record Officer for inclusion of particulars relating to such land in the approved record of tenancy rights”. Sub-S. (2) of S. 4 lays down that— “An application under sub-Sec (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”. S. 5(2) of the Act provides for an application being filed for modification of entries in the approved record of tenancy rights by reason of the death of any person or of the transfer of interest or of any subsequent change of circumstances. Applications under Ss. 4(2) and 5(2) of the Act have to be made in Form V. 14. We do not agree with the learned counsel for the appellant that S. 4(1)(b) would apply only to a case where the land had been let for cultivation after the date of preparation or the final record of tenancy rights and before the date of its publication. We do not agree with the learned counsel for the appellant that S. 4(1)(b) would apply only to a case where the land had been let for cultivation after the date of preparation or the final record of tenancy rights and before the date of its publication. Having regard to the scheme of the Act, we are of the opinion that S. 3(6) of the Act applies to cases where any land has been included in the draft record of tenancy rights, and any person is aggrieved by such draft record, either on the ground that the entry in respect of particulars relating to him are incorrect or on the ground that his name or other particulars relating to the land such as extent, survey number or sub division number have been omitted. S. 4(1)(a) would apply to cases where any land has been included in the approved record of tenancy rights, and the land has been let for cultivation to any other person, subsequent to the publication of the approved record of tenancy rights, There is no difficulty in construing S. 3(6), 4(1) (a) and 5(2) of the Act. We are of opinion that an application for relief under S. 4(1)(b) as provided for by S. 4(2) of the Act in Form V could be made only in respect of lands which were in the possession of any person as a tenant on the date of the notification made by the Government under S. 3(1) of the Act directing the preparation of the record of tenancy rights in respect of the village in which lands are situate where the particulars in respect of the lands, such as the survey number, or sub-division number, extent of the lands and the name and address of the tenant cultivating the land and the lands themselves had not been included at all in the draft record of tenancy rights prepared as per S. 3(4) of the Act and published as required by S. 3(5) of the Act for any reasons. Otherwise, no harmonious construction of the several provisions of the Act is possible. In these circumstances, we are of the opinion that the first respondents application under. S. 4(2) of the Act in Form V was maintainable, as his case fell within S. 4(1)(b). 15. The writ appeal fails and it is dismissed with costs. Counsels fee Rs. 250.