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2000 DIGILAW 809 (MAD)

Dhanalakshmi v. The District Revenue Officer

2000-08-11

A.S.VENKATACHALA MOORTHY, K.GNANAPRAKASAM

body2000
Judgment :- A.S. VENKATACHALAMOORTHY, J. 1. The writ appeal has been directed against the order of the learned single Judge in W.P.3158 of 1993 dated 12.10.1999. The unsuccessful petitioner in the Writ Petition is the appellant herein. 2. The facts necessary for the disposal of the writ appeal can be stated as under: Appellant purchased an extent of 1.77 acres comprised in Survey No. 76/4 in Ariyamangalam Village, Trichy Taluk and District from Pangajathammal and Renganayagi Ammal under a registered sale deed dated 27.1.1982. According to the appellant, as the 4th respondent attempted to interfere with the peaceful possession and enjoyment of the said property, filed a suit for permanent injunction in O.S. 159 of 1983 on the file of the Sub Court, Trichy. The 4th respondent resisted the said suit. During the pendency of the suit, 4th respondent approached the Tahsildar/Record Officer, Trichy in T.R. No. 22 of 1983 under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (hereinafter referred to as “Act”) obviously claiming to be the tenant and also in possession of the property. The appellant herein filed her counter in the said tenancy proceedings on 24.8.1983, on 26.10.83 the learned Subordinate Judge, Trichy dismissed the suit. Being aggrieved by that, appellant filed appeal in A.S. 341 of 198 3 on the file of the District Judge, Trichy. By Judgment dated 24.4.1984, the learned District Judge set aside the Judgment of the Subordinate Judge and decreed the suit. Thereafter, 4th respondent filed S.A.454 of 1984 on the file of this Court, but however the same was also dismissed on 24.8.1984. The 4th respondent claiming that on 4.9.1985 he was dispossessed, filed a petition for restoration before the Tahsildar/Record Officer, Trichy on 1.10.1985. Subsequently on 4.10.1988, the Tahsildar/Record Officer dismissed the petition in T.R. No. 22 of 1983. 4th respondent filed Appeal No. 11 of 1988 before the second respondent herein. The second respondent by order dated 6.5.1991 remanded the matter back to the third respondent by way of giving opportunity to examine certain witnesses by parties for the reasons stated in the said order. The appellant, being aggrieved by this, filed a revision before the first respondent viz. District Revenue Officer, Trichy. The second respondent by order dated 6.5.1991 remanded the matter back to the third respondent by way of giving opportunity to examine certain witnesses by parties for the reasons stated in the said order. The appellant, being aggrieved by this, filed a revision before the first respondent viz. District Revenue Officer, Trichy. The first respondent herein by order dated 12.1.1993 in Revision No. 3 of 1992 set aside both the orders and directed the third respondent to record the name of the 4th respondent as cultivating tenant. Being aggrieved by that order, appellant herein filed W.P.3158 of 1993. 3. Learned single Judge came to the conclusion that when a revision is filed against the order of remand of the appellate authority, the revisional authority has power to decide the case on merits while deciding the correctness of the order of remittance. Learned single Judge also came to the conclusion that from the observation of this Court in S.A.454 of 1984 it cannot be concluded that this Court had already held that 4th respondent was in possession entitling him to be registered as cultivating tenant in total derogation of the powers of the competent authorities conferred under the Act. This Court further came to the conclusion that the revisional authority after considering the materials available on record came to the conclusion that the 4th respondent is the cultivating tenant and the Courts exercising writ jurisdiction under Article 226 cannot go into the factual findings. In this view of the matter, the learned single Judge dismissed the Writ Petition. 4. The grievance of the appellant is that this Court in S.A.454 of 1984 gave a clear finding that on the date of institution of the suit viz. O.S. No. 159 of 1983 on the file of Sub Court, the appellant was in possession of the property, but however, the first respondent/revisional authority while considering the claim of the 4th respondent failed to consider and take note of this relevant fact and that vitiates the order. 5. The learned counsel appearing for the 4th respondent would inter alia contend that the revisional authority did in fact took note of the findings in S.A.454 of 1984 and this is evident from the last paragraph of his order dated 12.1.1993. That being so, according to the 4th respondent, the appeal is only liable to be dismissed. 6. 5. The learned counsel appearing for the 4th respondent would inter alia contend that the revisional authority did in fact took note of the findings in S.A.454 of 1984 and this is evident from the last paragraph of his order dated 12.1.1993. That being so, according to the 4th respondent, the appeal is only liable to be dismissed. 6. As noted supra, the suit O.S. 159 of 1983, on the file of the Sub Court, Trichy was filed by the appellant wherein a relief for Permanent injunction was sought for against the 4th respondent. Though the suit was dismissed by the trial Court, the appellant succeeded before the lower appellate Court and before this Court. This Court in paragraph 5 of the Judgment observed thus: “From the documents Ex.A1 to A5 filed in this case, it is clear that the plaintiff was in possession of the suit property on the date of suit. The appellate Judge has gone into the question as to whether the defendant is a cultivating tenant. It appears to me that only those authorities appointed under the Tamil Nadu Record of Tenancy Rights Act, 1969 alone are competent to decide the question as to whether a person is a cultivating tenant. Therefore that question has to be left open and the finding of the appellate Judge that the defendant has not established that he is a cultivating tenant has to be set aside and is hereby set aside.” From the above it has to be understood that (a) The appellant who was plaintiff in that suit was found to be in possession of the suit property on the date of the suit; (b) The Civil Court did not give any finding as to whether the 4th respondent is a cultivating tenant and that question was left open to be decided by the proper authority under the Tamil Nadu Record of Tenancy Rights Act, 1969; (c) The finding of the appellate Court that the 4th respondent has not established that he is a cultivating tenant was vacated. 7. 7. Now the question is whether such a finding of the Civil Court viz., that the appellant was in possession of the property in question on the date of filing of the suit is binding on the authorities acting under the Act or that it should be considered by the authorities acting under the said Act while deciding whether the 4th respondent is a cultivating tenant or not. 8. A Full Bench of this Court in Periathambi Gounder v. District Revenue Officer, Coimbatore and others, 1980 (2) M.L.J. 89 = 93 L.W. 169, considered the scope of Section 16A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (Act 10 of 1960). In that case the Full Bench held thus, “A civil suit is not barred in respect of the relief which cannot be granted by the authorities under the said Act and that if the land owner filed a suit for injunction, the question that has to be decided will be, whether the plaintiff (land owner) was in possession of the suit property on the date of the suit or not and no other question will arise.” In that case the Full Court ruled thus: “After the perusal of the records, it became clear that the petitioner herein had prominently placed reliance on such decree and yet the first respondent had not considered the said fact at all. We are of the opinion that the fact that the learned District Munsif, Udumalpet, had passed a decree for permanent injunction as against respondents 4 and 5, though that decree was an ex parte one, will have a considerable bearing on the question as to who among petitioner and the fifth respondent was the cultivating tenant in respect of the lands in question and in as much as the first respondent has not considered this relevant fact, his order is vitiated and is liable to be quashed.” Again in paragraph 46 of the Judgment, the Full Court held thus: “Under these circumstances, we are of the opinion that the order of the first respondent is liable to be quashed by the issue of a writ of certiorari on the ground that the first respondent has failed to consider a very relevant fact having a definite bearing on the matter to be determined. Accordingly we allow the Writ Petition and set aside the order of the first respondent dated 22nd November, 1975 made in B.P. No. 7 of 1975 on his file and direct him to dispose of the said revision petition afresh, after taking into account all the relevant facts including the fact that O.S. No. 261 of 1973 on the file of the Court of the District Munsif of Udumalpet, instituted by the petitioner herein was decreed, though ex parte. There will be no order as to costs in the Writ Petition. 9. From the above it is abundantly clear that the authorities acting under the Act should consider the finding of the Civil Court, which is a relevant fact in deciding the claim of a tenant. 10. The next question is whether in this case, first respondent/revisional authority considered the finding of the Civil Court. All that is stated in the order is, Tamil 11. Let us now proceed to understand the meaning of the word “consider” by referring various dictionaries. The Concise Oxford Dictionary, 8th Edition (1990) gives the meaning of the word “consider” as: ‘examine the merits of; take into account.’ The New Oxford Illustrated Dictionary, gives the meaning of the word “consider” as, ‘weigh the merits of.’ Chambers 20th Century Dictionary, New Edition 1983 explains the term “consider” as, ‘look at attentively or carefully; to think or deliberate on; to take into account; to think seriously or carefully.’ The Lexicon Webster Dictionary, Volume I (1978 Printing) explains the term “consider” as, ‘to view attentively; to take into view or account, or have regard to, in examination or in forming an estimate; to judge to be; to think seriously, maturely, or carefully.’ In Standard Dictionary, International Edition the word “consider” is defined as, ‘to think about or deliberate upon; to take into account; have a regard for.’ Words and Phrases (Permanent Edition) published by West Publishing Co., Volume 8A gives the meaning of the term “consider” as, ‘to fix the mind upon with a view to careful examinations; think or reflect with care.’ 12. It will be relevant to some extent to refer to two rulings of the Supreme Court in this context. In AIR 1975 SC 2216 (Divisional Personnel Officer v. T.R. Chellappan), the Supreme Court was considering the scope of the word “consider” occurring in Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968. It will be relevant to some extent to refer to two rulings of the Supreme Court in this context. In AIR 1975 SC 2216 (Divisional Personnel Officer v. T.R. Chellappan), the Supreme Court was considering the scope of the word “consider” occurring in Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968. The concerned portion of the rule runs thus, “the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.” The Supreme Court explained the meaning of the word “consider” in that context in the following terms, “.The word “consider” merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge, . In other words, the term “consider” postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved persou.” (emphasis supplied) In Ram Chander v. Union of India, (1986) 3 SCC 103 the Apex Court had occasion to consider as to what exactly the meaning of the term “consider”. In that case, one Ram Chander, who was a Shunter at Loco Shed, Ghaziabad was removed from the service on certain charges. He preferred appeal under Rule 18(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968. But however, the Railway Board rejected the appeal. Having lost even before the High Court, Ram Chander moved the Supreme Court. The Supreme Court held that the impugned order of the Railway Board was just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part of the Board either to marshal the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. Rule 22 (2) of the Railway Servants Rules is to the effect that the appellate authority shall consider (a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice, and (b) whether the findings of the disciplinary authority are warranted by the evidence on record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe, and pass orders confirming, enhancing, reducing or setting aside the penalty, etc. In that context, the Supreme Court ruled that the word “consider” has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies giving of reasons for its decisions. 13. To sum up the meaning of the word “consider” has to be understood as ‘to examine carefully with total application of mind’. 14. As far as the present case is concerned, if the first respondent considers the findings in the Judgment of this Court in S.A.454 of 1984 and comes to the same conclusion as that of the Civil Court, then he need not further discuss about it. But however, if first respondent desires to take a different view from the one taken by the Civil Court, he has to sufficiently indicate by adducing reasons why he is taking such a view. 15. In this view of the matter, this Court has no hesitation to come to the conclusion that the first respondent/revisional authority has simply stated the finding of this Court in S.A.454 of 1984 in his order and certainly he has not considered the relevant fact in arriving at a finding. 16. By the conclusion reached above, we make it clear that we are not expressing any opinion as to what would be the consequences if the finding of the Civil Court had been taken note of. In as much as there is an omission on the part of the first respondent to consider the implication of the decision of the Civil Court, we are constrained to interfere in this writ jurisdiction. In as much as there is an omission on the part of the first respondent to consider the implication of the decision of the Civil Court, we are constrained to interfere in this writ jurisdiction. Consequently, we allow the writ appeal by setting aside the order of the first respondent and direct the first respondent to consider the matter afresh, assessing the implication and relevancy of the findings rendered in S.A.454 of 1984 and pass proper orders in accordance with law. Needless to mention that the first respondent shall also look into other evidence or in other words he is not precluded from looking into other evidence placed by the parties b this case for rendering a final decision. The first respondent shall also consider the submissions, if any made, on the scope and applicability of the Act in question so also provisions in any other act with reference to the facts of this case. The revisional authority shall complete the enquiry and pass orders within four months from the date of receipt of the order. 17. In the result the writ appeal is allowed the order of the first respondent dated 12.1.1993 made in Appeal No. 3 of 1992 and that of the learned single Judge in W.P.3158 of 1993 dated 12.10.1999 are hereby set aside. However there is no order as to costs. Consequently, C.M.P. No. 890 of 2000 is closed.