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2008 DIGILAW 4711 (MAD)

Palanivelu v. The District Collector & Another

2008-12-17

R.BANUMATHI

body2008
Judgment : 1. Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorati calling for the records of the first Respondent dated 18. 2008 in Proceedings No.6097/B2/Rev/2008 in No.10059/B2G/Rev/2006 and quash the same. Petitioner seeks Writ of Certiorari to quash the Proceedings of the 1st Respondent in No.6097/B2G/Rev/2008 in No.10059/B2G/Rev/2006 dated 12.08.2008 and to issue appropriate directions. 2. Briefly stated case of the Petitioner is as follows:- (i) The dispute relates to the property Punja land in Cad No.1387 part and 1375 part, R.S.No.65/1B in No.38, Pakkumudiyanpet, Saram Revenue village, Oulgaret Commune Panchayat limits, Puducherry of an extent of 48 Kuzhies with brick built RCC terraced building thereon. The said property originally belonged to one Chinnathambi Gramany and by virtue of a Gift deed dated 15.09.1926, donee Ramalinga Gramany became the absolute owner. The said Ramalinga Gramany had executed a Will dated 02.04.1970 and bequethed his properties in favour of his daughter Govindammal. The said Govindammal had executed a sale deed dated 30.04.1979 and is said to have sold the property to Petitioners mother Mangaiyarkarasi. It is the further case of the Petitioner that his mother Mangaiyarkarasi executed a settlement deed dated 26.02.1984 and settled the property in favour of the Petitioner. Mutuation was also effected and the Petitioner claim to be in possession and enjoyment of the property. (ii) Petitioner has further averred that 2nd Respondent has no right or interest in the subject property and is attempting to get change of revenue registry in his name with the collusion of the officials. Petitioner had also filed civil suit in O.S.No.110/2008 on the file of PDM, Puducherry. On 13.02.2008, Petitioner came to know about certain proceedings on the file of the 1st Respondent. Under Right to Information Act, sought information that in Proceedings No.10059/B2-G/Rev/2006 dated 21.01.2008, certain orders came to be passed. (iii) Alleging that Petitioner was not heard, Petitioner has filed W.P.No.6097/2008 seeking to quash the said Proceedings No.10059/B2-G/Rev/2006 dated 21.01.2008. The said Proceedings was set aside with a direction that 1st Respondent to issue notice to the Petitioner and to the 2nd Respondent and after hearing their objections to pass fresh orders. 3. Case of the 2nd Respondent is that the transactions referred by the Petitioner have no legal basis and are void ab-initio and inoperative. The said Proceedings was set aside with a direction that 1st Respondent to issue notice to the Petitioner and to the 2nd Respondent and after hearing their objections to pass fresh orders. 3. Case of the 2nd Respondent is that the transactions referred by the Petitioner have no legal basis and are void ab-initio and inoperative. Case of the 2nd Respondent is that the lands were taken in the auction on 18.01.1898 by Meenakshiammal through Court. The said Meenakshiammal became the absolute owner and she had been in possession and enjoyment of the property. By a settlement deed, Meenakshiammal and her husband Namashivaya Mudaliyar have settled the properties in favour of their legal heirs. Thangavelu Mudaliyar to whom half of the properties were given died on 02.05.1953. Second Respondents father Narayanaswamy Mudaliyar died on 29.03.1985. According to the 2nd Respondent, he being the legal heir of Narayanaswamy Mudaliyar is the only person entitled to inherit the estate of Thangavelu Mudaliyar and Narayanaswamy Mudaliyar and is entitled to the property. 4. After the disposal of W.P.No.6097/2008 filed by the Petitioner and his brother Thenmozhi, 1st Respondent issued notice to the parties and taken up for enquiry. During the proceedings, Petitioner and his brother filed three applications before the authority on the following issues:- =To grant permission to cross examination of the 2nd Respondent. =To give direction to the 2nd Respondent to elect his option for appearance either by himself or by his recognised agent. =To give directions to the 2nd Respondent to pursue his remedies in the suit in O.S.No.215/2008 or to order staying the Proceedings No. No.10059/B2-G/Rev/2006 dated 21.01.2008 until the disposal of the Civil Suits. 5. Upon consideration of the submissions, on the first question, 1st Respondent has held that it is for the Petitioner to adduce evidence and therefore, question of grant of permission to examine the 2nd Respondent does not arise. Insofar as, second question, 1st Respondent held that 2nd Respondents agent Tamizhmani and other men of 2nd Respondent are not debarred from being present in the Chamber of the authority; but they are debarred from taking participation in the proceedings. Insofar as, third issue, 1st Respondent held that the matter has to be disposed of in accordance with the direction by the High Court in W.P.No.6097/2008. 6. On behalf of the Petitioner, Senior Counsel Mr.R.Yashod Varadhan contended that the Collector cannot act as a Settlement Officer. Insofar as, third issue, 1st Respondent held that the matter has to be disposed of in accordance with the direction by the High Court in W.P.No.6097/2008. 6. On behalf of the Petitioner, Senior Counsel Mr.R.Yashod Varadhan contended that the Collector cannot act as a Settlement Officer. Learned Senior Counsel would further submit that it was at the behest of the 2nd Respondent, proceedings was initiated and therefore, 1st Respondent ought to have granted an opportunity to the Petitioner to cross examine the 2nd Respondent. It was further argued that 1st Respondent ought to have stayed the proceedings pending disposal of the suits O.S.Nos.110 & 215/2008 and the impugned order passed by the 1st Respondent is unsustainable. 7. Mr. T.Murugesan, learned Government Pleader (P) contended that Indian Evidence Act has no application to the enquiry conducted by the 1st Respondent and therefore, there was no question of chief or cross examination of witnesses. Learned Govt. Pleader (P) would further submit that notwithstanding the pendency of suits, the proceedings need to be proceeded with. Learned Govt. Pleader (P) further submitted that when the parties already taken recourse to legal remedy, the Writ Petition is not maintainable. 8. Learned counsel for the 2nd Respondent submitted that the District Collector is yet to pass final orders and has not decided the issues finally and while so, it is too premature to move the High Court. Learned counsel for the 2nd Respondent further submitted that three applications filed by the Writ Petitioner and his brother were rightly negatived by the District Collector. 9. As per G.O.Ms.No.38 Home Dept. Puducherry dated 211. 1998, a Special Cell to deal with the Land Grab cases was constituted under the Chairmanship of the Secretary (Revenue)-cum-Collector and subsequently amended vide G.O.Ms.No.60 dated 110. 2004. The terms of reference for the Cell are:- i. to receive complaints of land grabbing/land dispute or of usurping locked houses; ii. to jointly examine the allegations; iii. to cause field enquiry; .iv. to arrange to register appropriate case under Cr.P.C. and other relevant Codes/Acts wherever required; .v. to ensure speedy remedial action; vi. to compile and consolidate the report after enquiry; and to send the report to the Administration at the earliest. .10. Second Respondent laid complaint before the Committee alleging that his properties situated in Saram Revenue Village are sought to be grabbed from him. to compile and consolidate the report after enquiry; and to send the report to the Administration at the earliest. .10. Second Respondent laid complaint before the Committee alleging that his properties situated in Saram Revenue Village are sought to be grabbed from him. Committee went into the issue by summoning the concerned parties. Earlier, 2nd Respondent had filed W.P.Nos.13175/2007 and 18127/2007 which were disposed of by the High Court to consider the complaint of the 2nd Respondent and to pass appropriate orders. 11. First Respondent went into the matter and conducted the enquiry by constituting a team of Asokan, Revenue Officer; Vedagiri, Asst. Director of Survey and Land Records and Ramesh, Tahsildar. Committee was directed to make field inspection and collection of particulars as to the extent of lands, pattadars as per the revenue records. After getting the report from the team and after conducting of enquriy, 1st Respondent has passed the proceedings No.10059/B2G/Rev/2006 dated 21. 2008. As pointed out earlier, in W.P.No.6097/2008, the order was set aside with a direction to the 1st Respondent to hold fresh enquiry. .12. Request to cross examine the 2nd Respondent:- .Petitioner has filed application seeking permission to cross examine the 2nd Respondent. Observing that as per Or.XVII CPC, the party on whom the onus probandi lies must begin and therefore, Petitioner should let in evidence first and therefore, question of grant of permission to cross examine the 2nd Respondent does not arise. 13. Learned Govt. Pleader (P) submitted that Indian Evidence Act has no application to the enquiry conducted by the Committee which functions under the executive order of the Government and in such circumstances, there is no question of chief or cross examination and therefore, the committee rightly rejected the request for cross examination of the 2nd Respondent. 14. Approach of the 1st Respondent does not appear to be correct. 1st Respondents Committee constituted as per G.O.Ms.No.38 Home, Puducherry dated 211. 1998 and is competent to receive complaint of land grabbing and to register appropriate case under Cr.P.C. and other relevant Acts wherever required. The Committee is also competent to hold field enquiry. The Committee is vested with powers to enquire into the complaint of land grabbing and pass orders. 1st Respondents Committee constituted as per G.O.Ms.No.38 Home, Puducherry dated 211. 1998 and is competent to receive complaint of land grabbing and to register appropriate case under Cr.P.C. and other relevant Acts wherever required. The Committee is also competent to hold field enquiry. The Committee is vested with powers to enquire into the complaint of land grabbing and pass orders. When the Committee is competent to pass orders affecting the rights of the parties, the parties will have to be given an opportunity of adducing evidence and also to cross examine the opposite party. 15. Application to cross examine the 2nd Respondent was disallowed mainly on the ground that Proceedings No.10059/B2G/Rev/2006 dated 21. 2008 was set aside by the High Court and as such nothing relate to the said properties survives in the record of proceedings. Notwithstanding setting aside of the Proceedings No.10059/B2G/Rev/2006 dated 21. 2008, the statement of 2nd Respondent continues to hold good. It is not as if when the order was set aside, the entire statement of 2nd Respondent stood eschewed. Even if effaced, 2nd Respondent must be examined and his statement is to be recorded afresh and an opportunity is to be given to Petitioner to cross examine the 2nd Respondent on the statement made by him. In fact, that is the purport of the order in W.P.No.6097/2008. Insofar as the first issue, the impugned order of the 1st Respondent cannot be sustained. .16. Application seeking direction to the 2nd Respondent to elect his option for appearance either by himself or by his recognised agent:- Second Respondents recognised agent Tamizhmani was present during the proceedings. Petitioner therefore raised objection on the ground that 1st Respondent should prohibit simultaneous appearance of the 2nd Respondent, his Power of Attorney and his men. Petitioner insisted that the 2nd Respondent must elect to continue the proceedings either by himself or through his authorised agent and 2nd Respondent has to seek permission of the authority as per the law and procedure. 17. First Respondent disallowed the application observing that Tamizhmani and other men of the 2nd Respondent are not debarred from being present in the Chamber of the 1st Respondent. However, first Respondent held that Tamizhmani was debarred from taking participation in the proceedings, evidence and examination in the absence of seeking permission as per the procedural law. 18. 17. First Respondent disallowed the application observing that Tamizhmani and other men of the 2nd Respondent are not debarred from being present in the Chamber of the 1st Respondent. However, first Respondent held that Tamizhmani was debarred from taking participation in the proceedings, evidence and examination in the absence of seeking permission as per the procedural law. 18. Having regard to the nature of complaint received by the Committee and power of the Committee to hold enquiry into the land grabbing, proceedings before the Committee are construed to be proceedings of Civil nature. 19. Clear intendment of Or.3, R.1 CPC is that an appearance, application or act may be made or done by a party either by himself or by his recognised Agent or Pleader. An Agent/Pleader can appear and be present in the proceedings. But agent can participate in the proceedings only on obtaining necessary permission from the authority. Merely because agent is present in the proceedings, it does not mean that the appearance of the party is not precluded. Tamizhmani is the authorised agent of the 2nd Respondent. Proceedings before first Respondent being a public proceeding, authorised agent of the 2nd Respondent cannot be prevented from appearing during the proceedings. Merely because, recognised agent is appearing, it does not mean that the party cannot appear. The order of the first Respondent holding that Tamizhmani and other men of the 2nd Respondent are not debarred from being present does not suffer from any infirmity. .20. To give directions to the 2nd Respondent to pursue his remedies in the suit in O.S.No.215/2008 and order of stay of proceedings till the disposal of the Civil suits. As pointed out earlier, Petitioner has filed suit O.S.No.110/2008 on the file of Prl. District Munsif, Puducherry for Permanent Injunction. Second Respondent has also filed suit O.S.No.215/2008 on the file of II Addl. District Munsif, Puducherry. Petitioner averred that as per Rule 28 of Puducherry Settlement Rules, first Respondent has to wait for orders of the Court and therefore, Petitioner prayed to give direction to the 2nd Respondent to persue his remedy in the civil suit and Petitioner also prayed for stay of proceedings till the disposal of the suits O.S.Nos.110 and 215/2008. 21. As pointed out earlier, as per G.O.Ms.No.38 Home Dept. Puducherry dated 211. 1998 the Committee was constituted to go into the land grabbing cases. 21. As pointed out earlier, as per G.O.Ms.No.38 Home Dept. Puducherry dated 211. 1998 the Committee was constituted to go into the land grabbing cases. It is for the authority to enquire into the matter and pass appropriate orders. When the enquiry is still pending, it would be too premature to direct the first Respondent to stay the proceedings and direct the parties to seek remedy before the Civil Court. Application filed by the Petitioner seeking stay of the proceedings till the disposal of the suit is unsustainable. Since two Civil suits are pending between the parties, it is needless to point out that the conclusion of the Civil suits will have the binding effect on the parties. 22. In the result, confirming the order of the 1st Respondent on two aspects, the Writ Petition is disposed of with the following directions:- "For the reasons stated in Para (16), first Respondent is directed to examine the 2nd Respondent and thereafter afford opportunity to the Petitioner to cross examine the 2nd Respondent on the statement made by him. "In respect of other aspects, the order of the 1st Respondent is confirmed. "First Respondent shall complete the enquiry proceedings and pass appropriate orders preferably within a period of three months from the date of receipt of copy of this order. "Both parties are directed to co-operate with the 1st Respondent for early disposal. "Interim stay already granted on 29. 2008 is vacated and M.P.No.1/2008 is dismissed. Consequently, M.P.No.2/2008 is closed.