Yoshonand Enterprises, Madras, a Partnership firm rep. by its Partner v. The Sub-Collector of Chengalpattu, Chengalpattu
1993-02-22
JANARTHANAM
body1993
DigiLaw.ai
Judgment :- 1. Messrs. T.G. Krishnamurtuy, Venkataramanujam and Kuppusamy, as landless poor, were each assigned an extent of five acres of land in S, Nos. 80/7, 80/8 and 80/9 of Thazhambur village, Chengalpattu Taluk and District, by the Tahsildar, Chengalpattu Taluk, Chengalpattu (Respondent 4) in his proceedings D.K.T. No. 34/74 dated 25-3-1965. Yoshonand Enterprises, has a partnership firm, located at Madras (Petitioner) was staled to have purchased the said lands from each of the assignees for valuable consideration under registered sale deeds dated 30-7-1976, 21-7-1976 and 22-7-1976 respectively. On and from the date of the purchases, the petitioner, it is said, entered into possession and had been cultivating those lands. 2. While so, the Sub-Collector, Chengalpattu (respondent 1) in his proceedings Rc. No. 747/80/dated 9-5-1981 ordered cancellation of the assignments made in favour of the respective original assignees, while considering review of past cases of assignments on the ground that those assignees have sold the lands in question within ten years from the date of assignments. 3. On coming to know of the cancellation of those assignments in favour of the original assignees, the petitioner filed an appeal before the District Revenue Officer, Chengalpattu District at Kancheepuram (respondent 2), who, in turn by his order in Rc. No. 3003/82-B4 dated 4-6-1982 dismissed the appeal. 4. Without leaving the matter there, the petitioner further agitated by filing a revision before the Commissioner of Land Administration, Chepauk, Madras-5 (respondent 3). The Commissioner, as a matter of fact, found that the condition not to dispose of the lands in question within ten years has not been included either in the ‘D’ Form patta or in the proceedings of assignment and above all. the impugned sales had taken place in the year 1976, that is, after ten years of assignment in the year 1965. So sa ying, he would observe that there is no violation of any condition in this case and therefore, the order of the District Revenue Officer. Chengalpattu District at Kancheepuram (respondent 2) directing cancellation of the assignments on this ground alone is not correct. He would, however, affirm the order of cancellation of assignment in favour of the original assignees on a different ground that the Tahsildar, who passed the orders of assignment, was not having the requisite jurisdiction to pass necessary orders therefor, in as much as there was a ban imposed for such assignment of lands in G.O.Ms.
He would, however, affirm the order of cancellation of assignment in favour of the original assignees on a different ground that the Tahsildar, who passed the orders of assignment, was not having the requisite jurisdiction to pass necessary orders therefor, in as much as there was a ban imposed for such assignment of lands in G.O.Ms. No. 1135, Revenue, dated 17-3-1962. This sort of a reasoning is couched in paragraphs 6 and 7 of his order, dated 28-3-1984 in D. Dis. E. 33310/82 (RP. No. 23/82) which runs as under;— “6. In this connection, it is seen that in G.O.Ms. No. 1135, Revenue, dt. 17-3-62, the Government have imposed a ban on assignment of lands, other than encroachments by huts “and sivojama occupation within a radius of 20 miles, around Madras City. Thazhambur village in this case is one of the village, within the belt area. Hence the assignment made in this case is contrary to Governments orders and without jurisdiction and hence irregular- 7. The assignment has been ordered by the Tahsildar, Chengalpattu, when he has not jurisdiction to do so and he has exceeded his powers in ordering the assignment as per B.S.O. 15(18). In the circumstances, though the order of the District Revenue Officer, confirming the orders of Sub Collector, cancelling the assignment on different grounds, without proper examination and without proper notice to assignees and to the successors in title is improper one, as explained in para 6 above, the assignment give n should be cancelled on the sole ground that the Tahsildar, Chengatpattu has no jurisdiction to assign the land as per G.O.Ms. No. 1135, Revenue, dt. 17-3-62. The Revision petition preferred by Yoshonand Enterprises is rejected accordingly. The stay granted in this Office E2/RP, 23/82 dt. 2-8-82 is also vacated.” 5. Aggrieved, the petitioner resorted to the present action under Article 226 of the Constitution praying for issue of a Writ of Certiorarified Mandamus to quash the aforesaid proceedings of respondents 1 to 3 and to forbear them from interfering with the petitioners ownership, possession and enjoyment of the lands in question. 6.
2-8-82 is also vacated.” 5. Aggrieved, the petitioner resorted to the present action under Article 226 of the Constitution praying for issue of a Writ of Certiorarified Mandamus to quash the aforesaid proceedings of respondents 1 to 3 and to forbear them from interfering with the petitioners ownership, possession and enjoyment of the lands in question. 6. Learned Counsel appearing for the petitioner would first and foremost contend that the original indictment in the show cause notice issued to the original assignees that the assignments made in their favour are liable to be cancelled, for the reason of the alienations of the assigned properties within a period of ten years from the date of assignment, on which the initial authority set aside the order of assignment, followed it up by confirmation of such an order by the appellate authority not having been approved by the revisional authority, who, however, on a different ground of the assignments having been made by the authority, without having requisite jurisdiction, in exercise of the suo motu powers of revision, under the salient provisions adumbrated under paragraph 18 of BSO 15 serting aside the assignments behind the back of either the original assignees or their successor-in-title by his order dated 28-2-84—is not sustainable in law, as a consequence of the same being barred by limitation, as such an action has been initiated beyond the period of three years from the date of the original assignments, besides suffering from the violation of the primordial requisite of the non-observance of the principles of natural justice, in the sense of not giving him adequacy of opportunity to meet such a ground. He would next contend that persons similarly situated had been favoured with the reassignment of lands, by the Government, by setting aside the orders of cancellation earlier made and the consideration of the case of either the original assignees or their sucessor-in-title, on a different footing, in the sense of refusing to set aside the earlier order of cancellation of assignments is nothing but the arbitrary exercise of power tantamounting to hostile discrimination, coming within the tentacles of Article 14 of the Constitution. In support of such a submission, implicit reliance is sought to be placed on G.O.Ms.
In support of such a submission, implicit reliance is sought to be placed on G.O.Ms. No. 34, Revenue Department, dated 9-1-1989, wherein the Government reassigned to one Rajalakshmi, the legal heir of late Nainiappan, a freedom fighter, three acres of land in S. No. 163/3 of Thazhambur village, Chengalpattu Taluk, after setting aside the cancellation of the assignment earlier made. 7. Learned Additional Government Pleader representing the respondents would, however, repel those submissions. 8. There is no pale of controversy that the basis on which the cancellation of the assignments by the initial as well as the appellate authority was made was not at all sustained by the revisional authority, who would however confirm the order of cancellation on a different ground that the authority, who passed the order of assignment in favour of the original assignees, was not having the requisite jurisdiction. It is not as if such a suo motu power of revision cannot at all be exercised by the revisional authority and this aspect of the matter is made clear by the sanguine provisions contained in paragraph 18 of BSO 15. According to the said paragraph, the Board of Revenue or the Government may set aside, cancel or in any way modify the decision of any authority subordinate to them within three years, if they are satisfied that the decision was grossly inequitable. It is further provided that they may exercise similar powers without any limit of time, where there has been material irregularity in the procedure or where the decision exceeded the powers of the Officer, who passed it or where it was passed under a mistake of fact or owing to fraud or misrepresentation. 9. In the instant case, as already stated, suo motu power had been invoked on the ground of the authority, who passed the order of assignments, was not having the requisite jurisdiction. Such a power is capable of being exercised without any limit of time and therefore it is, to say that the suo motu exercise of powers by the revisional authority in setting aside the order of assignments in favour of the original assignees far beyond the period of three years from the date of the original assignments is not sustainable, cannot at all be countenanced. 10. G.O.Ms.
10. G.O.Ms. No. 1135, Revenue Department, dated 17th March, 1962 imposes a ban for assignment of lands within a radius of twenty miles, excluding the encroachments of the porambokes by way of residential huts for considerably long time and assessed waste land occupied by Sivoijama occupation. The relevant file relatable to the said G.O. has been produced for perusal of this Court and what emerges from such a perusal is that the said G.O. had not at all been gazetted; but what had been done was that copies of the said G.O. had been communicated to all the officers concerned, in a bid to give them adequate information as respects the ban of assignment. It is further revealed that a list of villages situate within the radius of twenty miles, as indicated in the G.O. had been communicated to all those officers, Thazhambur is one of the villages situate within the ban area, as per the annexed list. The fact that certain extent of lands had been reassigned, situate within Thazhambur village to a specified individual, as stated in G.O.Ms. No. 34 dated 9-1-1989, after setting aside the earlier orders of cancellation of assignment cannot at all be relied on by the petitioner for invoking to its aid as a piece of hostile discrimination in violation of the provisions of Art. 14 of the Constitution of India. The reason is obvious. One wrong cannot make right another wrong. The fact that one wrong had been committed by the Government in making the assignment of lands within the banned area does not justify for this Court to make an order that the Government should repeat the same wrong, in the sense of reassignment of the lands in question in favour of the original assignees, after setting aside the cancellation of the assignment earlier made. If done so, it would tantamount to perpetuation of commission of wrongs or illegalities by the Government under the authority of the Court. The position of law is so settled that the sanguine provisions of Art. 14 of the Constitution cannot be sought in aid to perpetuate the continuance of the wrong or illegality, on the ground of hostile discrimination or arbitrary exercise of power. 11.
The position of law is so settled that the sanguine provisions of Art. 14 of the Constitution cannot be sought in aid to perpetuate the continuance of the wrong or illegality, on the ground of hostile discrimination or arbitrary exercise of power. 11. No doubt true it is that while exercising the suo motu power of revision, in refusing to set aside the earlier order of cancellation of assignments made in favour of the original assignees, predecessors-in-title of the petitioner, on the ground of want of jurisdiction on the part of the authority, who made the assignment, no opportunity had been given to the petitioner, to meet such a ground and this is sought to be attacked on the ground of violation of the principles of natural justice, in the sense of the petitioner not being heard on such a ground. Only on this short ground, the order of the revisional authority cannot at all be sustained and therefore such an order deserves to be set aside and is accordingly set aside and the matter is however remitted back to the revisional authority for passing appropriate orders in accordance with law, after giving a adequacy of opportunity to the petitioner to meet the new ground stated to have been invented by the revisional authority whilst disposing of the revision. The Writ Petition is ordered accordingly. No costs.