K. M. A. Abdul Wahab v. The Tahsildar, Needamangalam Taluk, Thanjavur District and others
1993-10-06
RAJU
body1993
DigiLaw.ai
Judgment : The above writ petition has been filed for the issue of a writ of certiorari to call for and quash the proceedings of the first respondent in Na.Ka.No.8925/84-A5, dated 9. 1984 and the Form of Assignment dated 10. 1984. Under the impugned proceedings, the second respondent, the wife of the third respondent has been assigned an extent of 500 sq.ft. in R.S.No.268/1 which is said to be a Natham Jari of Ramanathan Koil Village , Needamangalam Taluk, Thanjavur District. The relevant facts necessary for the purpose of adjudicating the claim now made before this Court are that the predecessor of the petitioner put up a house in the property, that the petitioner is continuing as the owner and that the same was leased out to one Tharamu Ammal and R.Chandrasekaran who in turn appear to have sub-let the said property in favour of the third respondent. Since the lessees of the petitioner committed wilful default and also unauthorised by sub-let the property, the petitioner appears to have filed R.C.O.P.No.51 of 1982 on the file of the Rent Controller (District Munsif), Mannargudi. By an order dated 14. 1984, the Rent Controller sustained the application both on the ground of wilful default as well as unauthorised sub-letting and ordered eviction. The third respondent appears to have filed R.C.A.No.9 of 1984 before the Appellate Authority (Sub Judge), Pattukottai. The learned counsel for the petitioner invited my attention to the description of property as given in the memo of grounds of appeal filed in the rent control appeal by the 3rd respondent herein and points out that the third respondent, the husband of the second respondent has himself specified the Survey No. to be R.S.267/1. Natham Jari about 500 sq.ft. with boundaries given therefor. It is the case of the petitioner that not only his predecessor had put up the superstructure in the place in question but the petitioner is continuing as the owner and he is also being assessed to house tax by the local panchayat and he has been regularly paying the tax also.
with boundaries given therefor. It is the case of the petitioner that not only his predecessor had put up the superstructure in the place in question but the petitioner is continuing as the owner and he is also being assessed to house tax by the local panchayat and he has been regularly paying the tax also. On the said averments, it is contended that prior to the assignment said to have been made in favour of the second respondent, the mandatory procedure as laid down under Board Standing Order 21(2) now renamed as permanent Revenue Standing Orders, no public notice whatsoever has been made or published as contemplated and there was denial of an opportunity to the petitioner not only to object but to stake his claims for assignment of the property in the light of the building owned by him already in the site. 2. The second respondent/assignee has not filed any separate counter affidavit. The first respondent- Tahsildar has filed a counter affidavit with very bald averments in the following terms: “The Revenue Inspector, Koothanallur who was directed to submit House site Assignment proposals, sent house site assignment proposals after observing the usual formalities as contemplated in B.S.O.21 and also causing proper publication of notice in the village, inviting objections to the proposed house site assignment. No objections were received from the villagers for the proposed house site assignment.” If either any date nor any specific particulars worth appreciating is mentioned and instead only a mere general assertion has been made. No records have also been produced to substantiate the claim as to the actual date of issue of the notice, or their publication and as to the compliance with the formalities prescribed under Standing Order 21(2). The relevant procedure for publication is laid down in Standing Order21(2) (iv) in the following terms: “Publication: The fact that an application has been made for a particular site shall be published in the village by beat of tom-tom and a notice in the form given in Appendix XV posted up in the village choultry and on the site applied for a period of 15 days.
A copy of the notice shall also be sent to the panchayat board if there is one for the village.” According to the learned counsel for the petitioner, the failure to comply with the above provisions goes to the root of the matter and vitiates the order of assignment not only on the ground of violation of the mandatory procedure, but also on account of the denial of an opportunity to the petitioner not only to object, but also to make a claim for assignment. It is stated that this procedure constitutes violation of the principles of natural justice also. The Government Advocate appearing for the first respondent contended on the basis of the statement referred to above that all usual formalities as contemplated have been observed. The other contention that has been raised is that when in the appeal filed by the third respondent before the Appellate Authority in the Rent Control proceedings the third respondent wanted to produce the order of assignment, an objection has been taken by the writ petitioner, that the said proceedings do not relate to the property in question and therefore ought not to have been entertained, that according to him, the property formed part of R.S.No.208/1 and that therefore he cannot have any objection for the assignment of the land in R.S.No.268/1. .3. Mr.K.Srinivasan. learned counsel appearing for the second respondent contended that the second respondent has been assigned only a small extent of 500 sq.ft. and that in view of the claim made for the first respondent that all the usual formalities prescribed have been complied with, there is no infirmity in the order of assignment warranting the interference of this Court. A specific question has been put to the learned counsel for the second respondent to state positively as to what is the property that she got assigned, whether it was the very property that was the subject matter of lease and the one covered by the eviction proceedings before the Rent Control Court to which the husband of the second respondent namely the third respondent was a party or was it some other item of property in the survey number in question. The learned counsel fairly stated that he cannot assert either way.
The learned counsel fairly stated that he cannot assert either way. The conduct of the third respondent, the husband of the petitioner in the court below, gives a reasonable impression that the item in respect of which assignment was obtained was the very property which was in dispute in the Rent Control Proceedings; otherwise the third respondent would not have filed the copy of the assignment order before the Appellate Authority to non-suit the claim of the writ petitioner who was figuring as respondent before the said Appellate Authority. 4. I have carefully considered the respective submissions of the learned counsel on either side. In my view, the grievance about the non-compliance with the mandatory procedure prescribed to be observed before an order of assignment is granted as in Standing Order 21(2)(iv) has not been followed. A vague and meaningless assertion without any details of dates or other particulars in the counter-affidavit about such compliance cannot help the respondents to effectively answer the objection of the writ petitioner. In the light of the above. I am of the view that the grievance of the writ petitioner about the non-compliance with the mandatory procedure as well as the violation of the principles of natural justice merits acceptance and the impugned order of assignment cannot be sustained. 5. The objection raised by the Government Advocate with reference to the identity of the property pales into insignificance in the light of the very conduct of the second respondent who got the assignment. That apart, in the absence of production of the relevant records to demonstrate the fact that the property assigned in favour of the second respondent is not really the property that was the subject matter of the Rent Control Proceedings or the property comprised in the superstructure said to have been put up by the predecessor of the writ petitioner and assessed to tax by the local panchayat, the objection cannot be sustained. .6. A hesitant plea about the availability of the alternate remedy has also been raised. The Supreme Court as well as this Court has often held that though the availability of alternate remedy may be a good ground to reject the writ petition at the stage of admission, the same cannot be used as a ground to reject the writ petition which is pending for a long time. In this case, as early as on 21.
In this case, as early as on 21. 1985 the writ petition has been admitted and it was kept pending all along. That apart, the irregularity pleaded is not only violative of the principles of natural justice, but constitutes contravention of the mandatory procedure prescribed by the standing orders. 7. For all the reasons stated above, I do not consider it just and reasonable to throw this writ petition out on the ground of availability of alternate remedy, at this stage. In the light of my conclusions on the non-compliance with the mandatory provisions to be observed before the grant of assignment, the impugned order is hereby quashed The Tahsildar, the first respondent herein, shall restore the proceedings to his file and shall issue notice to the writ petitioner and also follow the formalities prescribed under the Standing Orders once over again before proceeding further in the matter of assignment, if he so desires. The petition shall stand allowed in the above terms. No costs.