N BALAKRISHNAN Vs. DISTRICT REVENUE OFFICER

JUDGEMENT

(1.) THE writ petition has been filed challenging the order of the first respondent-District Revenue Officer (DRO) dated 6. 11. 1994, allowing the revision petition filed by the fourth respondent-Natesan, since deceased, now represented in this writ petition by the respondent Nos. 5 and 6, who are the sons of the fourth respondent. THE first respondent, by the impugned order dated 6. 11. 1994, cancelled the Award no. 831/72-73 issued on 29. 12. 1973.

(2.) FACTS leading to the filing of the writ petition are as hereunder: (a) One Rajammal, the wife of Rangasamy Servai was assigned land of an extent of 0. 03 cent in r. S. No. 130/3-7, Manapparavi Village of Nannilam Taluk for "kudiyiruppu" by the Joint Special Deputy Collector (Kudiyiruppu)under Section 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of ownership) Act (XL of 1971) (hereinafter referred to as "the Act" ). (b) Rajammal and her husband rengasamy Servai were living in "kudiyiruppu" land and the said rajammal died in the year 1987 and in 1991, Rengasamy Servai died and there were no issues to them. During the lifetime of Rengasamy Servai, he executed a "will" on 19. 7. 1987 in favour of his eldest brother Ganapathy Servai and in this Will, he bequeathed the "kudiyiruppu" land assigned to his wife Rajammal. (c) It is the case of the petitioner that on 2. 12. 1991, Ganapathy Servai entered into an agreement for sale with the writ petitioner for a sum of Rs. 1,500/- and he received a sum of rs. 500/- as advance. On 25. 10. 1991, the fourth respondent (since deceased) made a representation to third respondent-Tahsildar, stating that "kudiyiruppu" land, measuring 0. 03 cent inherited by him and that the same was assigned to the said Rajammal by the Government under the Act in Award no. 831/72-73 dated 29. 12. 1973. He further stated in that representation that both Rengasamy and his wife Rajammal lived in the said property in a thatched house and that they did not have any issues and they were living by receiving old age pension from the Government. (d) It was represented by the fourth respondent in his representation that both Rajammal and Rengasamy expired and that some other person who is not connected to Rajammal and rengasamy, is living in the said property. The fourth respondent in his representation, requested the third respondent-Tahsildar to vist the property in question and vacate the person living in that place so as to enable him to gain access to his agricultural land through the house-site property, which is the subject matter of issue in this writ petition. The fourth respondent further represented that he did not receive any compensation in respect of the property which was given as "kudiyiruppu" land to the said Rajammal. (e) Based on the said representation of the fourth respondent, the third respondent-Tahsildar, after enquiry, passed an order dated 19. 8. 1992, stating as follows : "rajammal and her husband Rengasamy holding "kudiyiruppu" patta in S. No. 130/3-7 are the recipients of old age pension. The contention that the person receiving old age pension, has executed a Will, is not acceptable. The Will has not been registered. Only the thumb impression is affixed on the Will. However, the said rengasamy who is said to have affixed thumb impression, has executed a document by affixing his signature. Hence, there is a doubt regarding the "will". The person who is residing is not the legal heir of the recipient of "kudiyiruppu patta". Hence, till the Government arrives at a final decision in respect of S. No. 130/3-7, "kudiyiruppu patta", the petitioner or the respondent or anybodyelse should not enter into the said property. &quot ; (f) In the said proceedings of the Tahsildar, the writ petitioner participated as opposite party. (g) Aggrieved by the order of the third respondent-Tahsildar, the fourth respondent-Natesan, claiming to be the original owner of the land, filed Appeal No. 1 of 1992 before the appellate authority-Revenue Court, Tiruvarur, and the writ petitioner was arrayed as respondent in the appeal. (h) The main ground of attack in the said appeal is that the order granting patta to Rajammal is erroneous, improper, illegal and liable to be quashed, that no notice was issued to the land owner, the fourth respondent herein, at the time of granting patta by the Special Officer i. e. of the year 1973 and that Rajammal, the recipient of "kudiyiruppu patta", was receiving the old age pension, and hence not entitled to the said patta. (i) It was also contended in that appeal that the said Rajammal and her husband died without heirs, that the respondent in that appeal, the writ petitioner before this Court, is making a false claim over the land and is not the heir of Rajammal and the fourth respondent herein prayed for setting aside the order granting patta. (j) Second respondent -Special Deputy Collector, by his order dated 28. 3. 1994, in Appeal No. 1 of 1992, held that "kudiyiruppu patta" was granted in the year 1972 and the old age pension was given to the said Rajammal in the year 1984. Second respondent-Special Deputy Collector rejected the contention on the ground that the said Rajammal was not in receipt of the old age pension at the time of grant of patta. Further, 22 years have lapsed since the patta had been issued and objections if any, against the grant of patta, should have been made within ninety days. No reason whatsoever had been given by the fourth respondent herein before the second respondent-Special Deputy Collector as to why there was such a long delay in seeking cancellation of patta. The second respondent further held that "kudiyiruppu patta" had been issued by the Joint special District Collector and as against the said order granting "kudiyiruppu patta", appeal will lie only to District Revenue Officer and therefore, the second respondent-Special Deputy Collector held that the memorandum of Appeal itself cannot be entertained. (k) Second respondent-Special Deputy Collector also accepted the contention of the respondent before him, the writ petitioner herein, that a person who is the recipient of the "kudiyiruppu patta" is entitled to sell, mortgage, lease or otherwise alienate the land in terms of Section 15-A (1) of the Act, subject to the prescription under the said Section. The second respondent-Special Deputy Collector, therefore held that the Memorandum of appeal is not maintainable in law and the same is without jurisdiction and therefore, the appeal was rejected. (l) The second respondent-Special Deputy Collector, while rejecting the appeal, held that he did not have the jurisdiction to interfere with the order dated 19. 8. 1992 passed by the third respondent-Tahsildar. (m) As against the order of the second respondent-Special Deputy Collector dated 28. 3. 1994, the fourth respondent herein filed a Revision Petition before the first respondent-DRO to set aside the order of the second respondent-Special Deputy Collector and to grant the necessary relief. The first respondent-DRO passed the impugned order on 6. 11. 1994 and ultimately, set aside the order dated 29. 12. 1973 granting the "kudiyiruppu patta" to Rajammal. (n) In the course of hearing of the Revision Petition, it was stated that both parties were given notice. The Revision Petitioner, namely the land owner, the fourth respondent herein, was represented by his counsel on 19. 9. 1994, i. e. the date of enquiry and though notice was issued on the respondent (the writ petitioner herein), he was not present and none represented him. (o) Before the first respondent-DRO, it was the contention of the fourth respondent herein that the writ petitioner had a close relationship with Rajammal and Rengasamy and that he was trying to get the land by using false documents and that is why, the fourth respondent had given a representation dated 25. 10. 1991 to the third respondent-Tahsildar. (p) First respondent-DRO, while passing the impugned order on the basis of the documents available on record, as the respondent before him was not present, observed as follows: "from the enquiry and the documents, it is clear that the patta-holder Rajammal pre-deceased her husband Rengasamy who is now deceased. From the fact that they were both receiving old-age pension, it is proved that they had no legal heirs. In these circumstances, this Court cannot decide on the validity of the illegal documents when neither the documents nor the sale deed have been registered nor the land has been purchased either from the assignee of the Kudiyiruppu, rajammal or from her husband. It is learnt that the revision petitioner has not received any compensation for the 3 cents of land for which Kudiyiruppu Patta was given. It is stated that the above mentioned land for which Kudiyiruppu patta was given is situated on the way to the Revision Petitioner's land. This land is now a vacant land. Hence the Award No. 831/72-73 dated 29. 12. 1973 passed by the Joint Special Deputy Collector granting Kudiyiruppu patta and order No. Ku. Ka. Ma. 1/92 dated 28. 3. 1994 passed by the Special Deputy Collector, Revenue Court, thiruvarur are hereby set aside. If any compensation had been granted to the revision Petitioner it may be recovered and deposited in the Government's account. " Challenging the abovesaid order of the first respondent-DRO dated 6. 11. 1994, the writ petition has been filed.

(3.) ON a consideration of the abovesaid materials, it is clear that the claim of the fourth respondent herein before the third respondent-Tahsildar on 25. 10. 1991, is only for formation of a passage to gain access to his agricultural land situated behind "village natham", Plot 130/3, measuring 0. 03 cents, which is the property granted by way of the "kudiyiruppu patta" to Rajammal. It is to be pointed out that at the earliest point of time, the claim of the fourth respondent is not for cancellation of "kudiyiruppu patta" assigned to Rajammal, but for pathway alone.