L. Sabjan vs The District Collector

S. Vaidyanathan, J.—This writ petition has been filed seeking for a writ of certiorari calling for the records pertaining to the proceedings of the third respondent in Na.Ka. No. 4689/2011/B3 dated 16.4.2012 and to quash the same as illegal, incompetent and ultra vires. The brief facts which led to filing of this writ petition are as follows:

1.1. According to the petitioners, the 1st petitioner had purchased the property in dispute vide registered sale deed documents dated 27.2.2008 from Mangamma and Achamma, in whose favour the disputed property was settled by their mother by way of oral partition. It is also alleged that remaining properties were settled in favour of Venkateshappa, the brother of the 1st petitioner''s vendor. The said Venkateshappa died leaving behind the 5th respondent and other legal heirs and all the revenue records including patta stood separately in the name of Achamma and Mangamma.

1.2. On 7.7.2010, the 1st petitioner had settled the disputed property purchased from said Achamma and Mangamma in favour of his wife, i.e. the 2nd petitioner herein and the petitioners are in possession of the properties in dispute and the revenue records including the patta were transferred in the name of the petitioners. At this juncture, the 5th respondent has initiated proceedings before the 3rd respondent for cancellation of patta granted in favour of the petitioners claiming that the legal heirs of the said Venkateshappa has sold the disputed property to him in 2010.

1.3. It is stated that civil suit was filed by the vendors of the petitioners for partition and separate possession as well as a suit regarding the issue of title of the properties before the District Munsif Court, Hosur. In the mean time the 5th respondent has filed a petition before the 3rd respondent for change of patta in his favour. The third respondent while dealing with the said petition, has ordered the Tahsildar for cancellation of patta granted in favour of the petitioners, which is challenged in this writ petition.

A counter affidavit has been filed on behalf of the third respondent/Sub Collector, Hosur, wherein, while denying the averments made in the writ petition, it is stated that the third respondent conducted a detailed enquiry, wherein, it is found that the 5th respondent is the actual owner of the land in dispute and accordingly, orders were issued in proceedings D.Dis.4689/2011(B3), dated 16.4.2012 in favour of the 5th respondent on merits, as against which, the writ petitioners have appeal remedy to the District Revenue Officer, Krishnagiri and without exhausting the same, the petitioners have filed the present writ petition. It is also stated that the subject lands were originally belonging to one Venkatesappa of Bagalur village and after his demise, patta of the said lands were transferred in the names of his legal heirs Sankarappa, Suresh, Ramesh and Manjula and there are no records or documents to prove that the subject lands were gifted to Mangamma and Akkaiamma and therefore, the purchase made by the writ petitioners from the said Magarnma and Akkaiamma is not legally valid and there are other legal heirs and they have also got right over the disputed lands. Tmt. Akkaiamma, daughter of late Venkataseppa filed a suit in O.S. No. 131 of 1993 on the file of the District Munsif Court, Hosur, which came to be dismissed for default on 6.2.2009. The 3rd respondent has passed impugned order even prior to filing of the civil suits and after conducting a detailed enquiry and issued patta in favour of the 5th respondent and it is valid one. Therefore, the 3rd respondent sought for dismissal of the writ petition.

5th respondent has filed a counter affidavit, wherein, it is stated that the subject lands were belonged to Ramesh, Suresh and Manjula, who are the sons and daughter of original owner Venkatesappa, from whom, the 5th respondent purchased the lands by two sale deeds in Document Nos. l360 and 1362 of 2010 on 15.2.2010 and from the date of purchase, he has been in physical possession of the lands. The vendors of the petitioners, viz., Achamma and Mangamma had filed a civil suit in O.S. No. 131 of 1993 on the file of the District Munsif Court, Hosur claiming equal right over the subject lands against the vendors of the 5th respondent, viz., Venkatesappa and others, which came to be dismissed. However, while the said suit was pending, the said Achamma and Mangamma had sold the property to the first petitioner, who in turn, executed a gift deed in favour of his wife, the second petitioner herein. Therefore, pending the suit, the vendor of the petitioners had sold the property to the first petitioner and as subsequently, the said suit came to be dismissed on merits, the vendor of the first petitioner has no right to sell the property and hence, the first petitioner has no valid title or right over the property. Though the property stands in the name of the first petitioner, subsequently, on application by the 5th respondent, the 3rd respondent having conducted a detailed enquiry, issued patta in favour of the 5th respondent after cancelling the patta in favour of the first petitioner. With these averments, the 5th respondent sought for dismissal of the writ petition.

6th respondent also filed counter affidavit, wherein, while reiterating the averments mentioned in the counter affidavit filed by the 5th respondent, it is stated that after dismissal of the suit in O.S. No. 131 of 1993, the 6th respondent along with his brothers and sister, has jointly sold the property to the 5th respondent and the so-called purchase by the first petitioner from his vendors, Achamma and Mangamma is not valid and illegal since the vendors themselves have no right over the property. The 3rd respondent, after conducting a thorough enquiry into the matter, has rightly issued patta while cancelling the patta stands in the name of the petitioner. Therefore, there is no illegality in the orders passed by the third respondent which were challenged in the writ petition. Hence, the writ petition is liable to be dismissed.

Heard the learned counsel appearing for both parties.

The grievance of the petitioners is that the third respondent has usurped the power of the Civil Court and decided the title of the parties over the disputed property. According to the petitioners, the third respondent/the Revenue Divisional Officer cannot go into the civil dispute, his order cancelling the patta by deciding the disputed question of title is without jurisdiction and hence, the impugned order is liable to be set aside. It is also contended that no remedy of appeal/revision is available as against the impugned order, the writ petition can be maintained inasmuch as the impugned order has been passed by the third respondent who is the appellate Authority and hence the order is one without jurisdiction. In support of his contentions, the learned counsel for the petitioners relied upon a decision of a Division Bench of this Court reported in Vishwas Footwear Company Ltd. Vs. The District Collector and Others , wherein, the order of the Revenue Divisional Officer cancelling the patta, came to be set aside on the ground that the authority has adjudicated the title of the parties and decided to cancel the patta, which is without his jurisdiction.

No doubt that when an authority acts without jurisdiction, the writ Court can interfere with the order of the said authority without relegating to alternative remedy of appeal. In this case, the original Authority has not passed the order. The Appellate Authority has passed the order and hence, it is bad in law. However, in this case, on a perusal of the records, it appears that the competent Civil Court has dismissed the suit in O.S. No. 131 of 2003 on merits by judgment and decree, dated 6.2.2009, holding that the vendors of the petitioners, viz., Atchamma and Mangamma had not established their case that they have a share over the disputed property and it is to be noted that pending disposal of the suit, the said vendors have sold the disputed property to the first petitioner. The relevant portion in the said judgment and decree, dated 6.2.2009 in O.S. No. 131 of 2003 is extracted as under:

Therefore, from the above it is clear that the vendors of the first petitioner had no title over the suit property and sold the same to the first petitioner. The 5th respondent has purchased the disputed property from the original owners against whom, the vendors of the first petitioner filed the suit and became unsuccessful. After purchase, the 5th respondent has made an application to the third respondent for cancellation of patta stood in favour of the first petitioner and issue fresh patta in his favour. Accordingly, by the impugned order, dated 16.4.2012, the third respondent issued favourable orders in favour of the 5th respondent by cancelling the patta issued in favour of the first petitioner. The 3rd respondent has acted in accordance with the declaration made by the competent Civil Court in its judgment and decree, dated 6.2.2009 in O.S. No. 131 of 1993. It is not the case of the petitioners that during pendency of the civil suit, the 3rd respondent cancelled by adjudicating title of the parties over the disputed property. Therefore, the order of cancelling the patta and issuing fresh patta in favour of the 5th respondent is perfectly justified, but unfortunately the order has been passed by the Appellate Authority.

However, the learned counsel appearing for the petitioner also contended that the 3rd respondent/Revenue Divisional Officer, being the appellate authority, has no jurisdiction since he has acted as original authority pursuant to the application made by the 5th respondent and cancelled the patta of the first petitioner and issued fresh patta in favour of the 5th respondent and therefore, on this ground, the impugned order is liable to be set aside. According to the learned counsel for the petitioner, the original authority to cancel or grant patta is the Tahsildar as per Section 10 of the Patta Pass Book Act, 1983 and as against the order of the Tahsildar, the Revenue Divisional Officer is Appellate Authority to hear the appeal to be preferred under Section 12 of the Act. Therefore, the third respondent has got no jurisdiction to cancel the patta.

Section 10, 12 and 13 of Patta Pass Book Act, 1983 are relevant and they are extracted hereunder:

"10. Modification of entries in the patta pass-book.-

(1) Where any person claims that any modification is required in respect of any entry in the patta pass-book already issued under section 3 either by reason of the death of any person or by reason of the transfer of interest in the land or by reason of any other subsequent change in circumstances, he shall make an application to the Tahsildar for the modification of the relevant entries in the patta pass-book.

(2) An application under sub-section (1) shall contain such particulars as may be prescribed and shall be accompanied by the documents, if any, relied on by the applicant as evidence in support of his claim.

(3) (a) Before passing an order on an application under sub-section (1), the Tahsildar shall follow such procedure as may be prescribed and shall also give a reasonable opportunity to the parties concerned to make their representations either orally or in writing. If the Tahsildar decides that any modification should be made in respect of entries in the patta pass-book, he shall pass an order accordingly and shall make such consequential changes in the patta pass-book, as appear to him to be necessary, for giving effect to his order.

(b) If the Tahsildar decides that there is no case for effecting any modification in the entries in the patta pass-book, he shall reject the application.

(c) An order under clause (a) or clause (b) shall contain the reason for such order and shall be communicated to the parties concerned in such manner as may be prescribed."

"12. Appeal.- Any person aggrieved by an order made by the Tahsildar under this Act may, within such period as may be prescribed, appeal to such authority as may be prescribed and the decision of such authority on such appeal shall subject to the provisions of section 13, be final. "

"13. Revision.- Any officer of the Revenue Department not below the rank of District Revenue Officer authorised by the Government, by notification in this behalf for such area as may be specified in the notification, may of his own motion or on the application of a party call for and examine the records of any Tahsildar or appellant authority within his jurisdiction in respect of any proceeding under this Act and pass such orders as he may think fit. Provided that no such order prejudicial to any person shall be made unless he has been given a reasonable opportunity of making his representation."

Also, Rules 12, 14 and 15 of the Tamil Nadu Patta Pass Book Rules, 1987 are relevant and they are extracted as under:

"12. Application for modification of entries in Patta Pass-Book.- (1) Application for modification of entries in the Patta Pass-Book under Section 10 of the Act shall be in Form - VI and shall be made within ninety days from the date of acquisition of right-

Provided that the Tahsildar may for just and sufficient reasons allow a further period of not exceeding ninety days for making an application for this purpose.

(2) The application under sub-rule (1) shall be affixed with court fee labels of Rs. 3 towards fee for this purpose."

14.Appeal. - An appeal against any order of the Tahsildar passed under the Act shall be filed before the officer in charge of Revenue Division in whose jurisdiction, the property lies within a period of thirty days from the date of the receipt of the order.

"15. Revision on application. - (1) An application under section 13 to the District Revenue Officer or such officer as may be authorised by the Government in this behalf by Notification for revision of an order passed by the Tahsildar or the appellate authority shall be filed within ninety days from the date of receipt of the order.

(2) The District Revenue Officer or such officer as may be authorised by the Government may admit an application for revision presented after expiry of the period mentioned in sub-rule (1), if he is satisfied that the party had just and sufficient cause for not presenting it within the said period."

A conjoint reading of the above provisions, it is clear that the Tahsildar is the original authority for effecting modifications of the relevant entries in the Patta Pass Book as per Section 10 of the Act and he is empowered to decide as to whether such modification is required to be entered in the Patta Pass Book and pursuant to which, he can either entertain the application made for effecting modification or reject the same. Thereafter, if any person aggrieved by an order made by the Tahsildar under Section 10 of the Act, he can make an appeal under Section 12 of the Act and Rule 14 specifies that the Revenue Divisional Officer is the Appellate Authority to hear the appeal to be preferred under Section 12. Further, a revision is also provided under Section 13 of the Act to the District Revenue Officer. Therefore, as rightly contended by the learned counsel for the petitioner, in the present case, the Revenue Divisional Officer being Appellate Authority has acted as Original Authority and passed the impugned order, cancelling the Patta and hence, the said order is liable to be set aside. I would have upheld the impugned order if it was passed by the original authority, i.e. Tahsildar.

In similar circumstances, this Court in its decision reported in T.R. Dinakaran Vs. The Revenue Divisional Officer, Aruppukottai. and 9 Others, ", has held as under in para 15 to 17: "15. From the reading of the above said provisions under the Tamil Nadu Patta Pass Book Act, 1993 and the Rules made thereunder, it could be seen that the Tashildar is the competent authority under Section 10 for modifications of the relevant entries in the Patta Pass Book and such modifications are also possible only under the following circumstances, namely, (i) by reason of the death of any person; or (ii) by reason of the transfer of interest in the land; or (3) by reason of any other subsequent change in circumstances. Therefore, the Tashildar is empowered to make modification of entry in the Patta Pass Book only under those three circumstances as referred above. Even for making such modification based on application filed by the person, the Tashildar is bound to give reasonable opportunity to the parties concerned to make their representations either orally or in writing. Thereafter, the Tashildar shall pass an order accordingly, and also make such consequential changes in the Patta Pass Book as appears to be necessary for giving effect to his order. If the Tashildar decides that there is no necessity for effecting any modification, he shall reject the application seeking for modification.

"16. Section 12 of the said Act contemplates an appeal against an order made by the Tashildar under the said Act. Rule 14 of the Tamil Nadu Patta Pass Book Rules, 1997, states that the Revenue Divisional Officer is the appellate authority to hear the appeal to be preferred under Section 12. Section 13 contemplates further revision to the Revenue Divisional Officer either on the application of a party or in his own motion.

"17. From the discussion of the above provisions relating to the powers conferred on the Revenue Authorities, it could be seen that the Revenue Divisional Officer, namely, the first respondent herein can exercise the power only as an appellate authority under Section 12 that too as against an order passed by the Tashildar either under section 10 or any other provision under the said Act. From the perusal of the impugned order passed by the first respondent dated 24.07.2006, it is seen that the first respondent has not passed the order as an appellate authority by exercising his power under Section 12. On the other hand, he has passed the order only as an original authority pursuant to a representation given before District Collector by the respondents. It is needless to say that neither District Collector nor the respondents herein can confer the power on the first respondent, which is otherwise not available to him under the Tamil Nadu Patta Pass Book Act, 1983. Though the learned counsel appearing for the 4th respondent has argued that the order passed by the first respondent has to be treated only as an appellate order, a very reading of the order passed by the first respondent would show that the same was not passed against any order passed by the Tashildar and on the other hand, the first respondent had exercised the power as the original authority by taking the role of the Tashildar while such power was not conferred by statute. Therefore, it could be seen that the power exercised by the first respondent in passing the impugned order is not conferred under the Act and consequently, the same is the one passed without jurisdiction.?

Having regard to the above, this Court is of the view that since the impugned order has been passed by the 3rd respondent without having jurisdiction, is liable to be set aside.

For the foregoing reasons, the Writ Petition is allowed and the order of the 3rd respondent, dated 16.4.2012 is set aside. The matter is remitted back to the 4th respondent to consider and pass appropriate orders in accordance with law and on merits, after affording an opportunity to all the parties concerned, within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected MPs are closed.