N.S Kuppuswamy Odayar v. Narthangudi Panchayat, (1971) 84 L.W 120 : 1971 (1) MLJ 190];
Rengaraja Iyengar v. Achikannu Ammal [(1959) 72 L.W 767 : 1959 (2) MLJ 513]; A.K. Thillaivanam v. District Collector, Chengai Anna District [1998 (3) LW 603];
Palani Ammal v. L. Sethurama Aiyangar [(1949) 62 L.W 204 : 1949 (1) MLJ 290]; Krishnamurthy Gounder v. Government of Tamilnadu [2002 (3) CTC 221];
The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan [2004-3-L.W. 278 : 2004 (2) MLJ 708];
The State of Madras v. Kasturi Ammal [1974 (87) L.W 531];
A. Srinivasan v. Tahsildar [2010-1-L.W. 123 : 2010 (3) MLJ 72
State of Tamilnadu v. Madasami [2012 (2) CTC 315];
Dharmapura Adhinam Mutt v. Raghavan [2012 (1) CTC 280];
Muthammal v. State of Tamilnadu [2006 (3) LW 361];
Karana Maravar Service Society v. The State of Tamilnadu (Madurai Bench) [2012 (4) L.W 92]; and
Zonal Officer-V v. K. Narasa Reddy [2012 (4) MLJ 646]; — Referred to.
Writ Petitions allowed.
For Petitioner in all WPs: Mr. M.S Subramanian
For Respondents-1 to 3 in all WPs: Mr. S. Gomathinayagam, AAG Assisted by Mr. N. Srinivasan, AGP
For Respondent-4 in all WPs: Mr. V. Bharathidhasan
COMMON ORDER
1. The petitioners have come up with the above writ petitions, challenging an order passed by the District Collector, Chennai, holding that certain lands in question are classified as Government Poramboke and as Pattina Natham and that therefore, the petitioners are not entitled to any compensation for eviction from those lands.
2. I have heard Mr. M.S Subramanian, learned counsel for the petitioners, Mr. S. Gomathinayagam, learned Additional Advocate General, assisted by Mr. N. Srinivasan, learned Additional Government Pleader for respondents 1 to 3 and Mr. V. Bharathidhasan, learned Standing Counsel for the fourth respondent.
3. The petitioners, in these writ petitions, were in occupation of various extents of lands in T.S Nos. 145/2, 150/2, 157/2, 158/2, 159/2 and 160/2, in Block No. 52, Konnur Village, Purasaiwakkam-Perambur Taluk, Chennai District. The petitioners had also put up superstructures on those lands and were residing in the properties for over several decades, claiming that their predecessors-in-title, had purchased the lands from a Government Servants' Cooperative Society. The petitioners were served with notices under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, on 27.6.2008, on the ground that they were in occupation of Government Poramboke lands and that these lands were required for the formation of a Railway Subway Project. The petitioners submitted replies through their counsel on 17.7.2008 and came up with a batch of writ petitions in W.P Nos. 18311 to 18316 of 2008. Since the writ petitions were classified under the heading “encroachment”, the writ petitions were listed before a Division Bench of this Court. By a short order dated 13.10.2008, the writ petitions were disposed of with a direction. The brief order of the Division Bench, disposing of the writ petitions, reads as follows:—
“Heard the learned counsel for the parties.
2. Subject matter of the challenge in the above writ petitions is a notice issued under Section 7 of the Tamil Nadu Land Encroachment Act 3 of 1905. It appears that pursuant to the said notice, all the six petitioners have given their objections on 2.7.2008, 3.7.2008, 31.7.2008, 31.7.2008, 31.7.2008 and 31.7.2008 respectively and the respective petitioners were put on notice about the compensation amount. In that view of the matter, this Court dismisses the above writ petitions by directing the Authority under the Tamil Nadu Land Encroachment Act, to consider the objections of the respective petitioners and dispose of the same within one month from today. Such disposal shall be after hearing all the parties concerned. No costs. Miscellaneous petitions are closed.”
4. In pursuance of the aforesaid order, the petitioners filed further objections on 24.10.2008 and also participated in the enquiry. But, by separate orders dated 10.11.2008, the Tahsildar rejected the objections of the petitioners. The short ground on which the Tahsildar rejected the objections of the petitioners is that in the Permanent Land Records, the classification of the lands in question had been entered as “Cirkar Poramboke Village Natham”.
5. Challenging the orders of the Tahsildar dated 10.11.2008, the petitioners filed a batch of writ petitions in W.P Nos. 27129 of 2008 batch of cases, on the file of this Court. Before the Division Bench before which, these batch of writ petitions came up for hearing, the respondents took two objections viz., (i) that there was a factual dispute with regard to the classification of the land and (ii) that there was an emergency to proceed with the Subway Project. Taking note of both these submissions, the Division Bench disposed of the writ petitions by an order dated 23.1.2009, directing the petitioners to file an appeal against the orders of the Tahsildar dated 10.11.2008 to the District Collector under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 and further directing the Appellate Authority to decide the factual dispute about the classification of the land. The operative portion of the order of the Division Bench, reads as follows:—
“5. In the present case, under Article 226 of the Constitution of India, it is not possible to decide the question of fact as to whether the lands in question are “Grama Natham” or “Government Poramboke”. In the impugned orders, it is shown as “Poramboke Grama Natham”, but we are not clear as to what the Tahsildar wanted to mean while he mentioned that the lands are “Poramboke Grama Natham”.
6. In the aforesaid background, depending on the nature of the lands, the question will arise as to whether one or other petitioner is entitled for compensation under the relevant Act. It is desirable that the petitioners should move before the appellate forum.
However, taking into consideration the public interest, we allow the respondents to proceed with the subway project in question and the demolition of house-building or structure-property if made, the same will be subject to the decision of the appeal or the final decision as may be taken by the Court of Law. If the case is decided in favour of one or other petitioner, the authority will decide the quantum of compensation or the damage, if one or other petitioner is so entitled to, under the relevant Act.
The petitioners are given liberty to prefer appeal under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 within 30 days, without prejudice to the right of the petitioners to challenge the jurisdiction of the appellate authority before a Court of competent jurisdiction, in case it is decided against the petitioners. The respondents will not oppose filing of such appeal on the ground of delay.
The appellate authority will look into the original records and may hear the petitioners in person and if one or other petitioner wants to peruse the records, the appellate authority will allow them to look into the same. The appellate authority will give finding of facts relating to the nature (classification) of the lands and will dispose of the appeal within a period of three months from the date of receipt of the appeal.
We have recorded the statement made on behalf of the respondents that they will not demolish the building/structure in question, within 15 days to enable the occupants to vacate the same in the meantime.
7. The writ petitions stand disposed of with the aforesaid observations/directions, but there shall be no order as to costs. The miscellaneous petitions are closed.”
6. In pursuance of the above order, the petitioners filed appeals under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 to the District Collector. The District Collector held an enquiry and has now passed a common order dated 8.10.2010, rejecting the claim of the petitioners and holding that the lands are classified as Government Poramboke-Pattina Natham. Thus, the petitioners are back to square one and have come up with the above writ petitions, challenging the order of the Appellate Authority.
7. It must be noted at this stage that in view of the liberty granted by the Division Bench by its order dated 23.1.2009, the petitioners have already been thrown out of their residential houses and a Subway has, in fact, come up. Therefore, irrespective of the outcome of the present writ petitions, it is clear that the petitioners cannot get back their lands and residential houses. Keeping this in mind, let me now proceed to determine the issue raised in the writ petitions.
8. The main grievance of the writ petitioners is that the lands over which their residential buildings were constructed, were originally classified as natham lands, that their predecessors in title purchased those lands from a Government Servants' Co-operative Society and that therefore, the provisions of the TamilNadu Land Encroachment Act, 1905 could not have been invoked against the petitioners. If the lands could not be termed as Government poramboke lands and if the petitioners or their predecessors in title could not be classified as encroachers, then they could not also be evicted from their lands without the initiation of appropriate proceedings under any of the Land Acquisition Laws.
9. In support of the above contentions, Mr. M.S Subramanian, learned counsel for the petitioners relied upon
(i) the provisions of the TamilNadu Land Encroachment Act, 1905;
(ii) the provisions of the Revenue Standing Orders; and
(iii) certain decisions, which I shall advert to later.
The learned counsel also brought to my attention the fact that the Competent Authority under the Tamilnadu Urban Land (Ceiling and Regulation) Act levied urban land tax upon the petitioners for the land in question. Therefore, it is his contention that the land could not have been a Government poramboke land.
10. Before adverting to the contentions of the learned counsel for the petitioners, it is necessary to have an understanding of what a natham land means. Major Law Lexicon of P. Ramanatha Aiyar (Fourth Edition 2010 Vol. IV) describes ‘nattum’ as follows:
‘That part of the village lands on which the houses of mirasidars are built, as distinct from the lands attached to the village; a village especially one inhabited by Sudras in opposition of an agraharam, one inhabited by brahmins.’
11. In N.S Kuppuswamy Odayar v. Narthangudi Panchayat [1971 (1) MLJ 190 : (1971) 84 L.W 120], it was held by M.M Ismail, J that the mere fact that in the re-settlement register, a particular piece of land has been described as poramboke, will not, by itself, establish title of the Govemmeni to the land in question.
12. In Rengaraja Iyengar v. Achikannu Ammal [1959 (2) MLJ 513 : (1959) 72 L.W 767], this Court pointed out that a house site owned by a person in what is generally known as gramanatham is not the property of the Government under Tamilnadu Act III of 1905. The Court also went on to point out that in order that a land may properly be described as house site, within the meaning of that expression in Section 2 of the Act, it is not necessary that there should be a residential building. A person may, in a village habitation, own a house in a street and a site on the outskirts of the habitation, but within the limits of the gramanatham, using it for the purpose of storing his hay and manure, if he is an agriculturist, or as a smithy, if he is a smith, or as a brick kiln, if he is a brick maker or as a place for weaving, if he is a weaver. It was contended in the said case that by virtue of Section 3(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, house sites should also be held to be property as to which title gets transferred to the Government. But, the Court repelled the contention by pointing out that a building in a gramanatham is protected from transfer of title to the Government both under Section 18(1) of the 1948 Act and also under the Land Encroachment Act, 1905. In other words, the title to a house site in a gramanatham is protected from transfer to Government by the operation of Tamilnadu Act III of 1905.
13. In A.K. Thillaivanam v. District Collector, Chengai Anna District [1998 (3) LW 603], this Court pointed out that village natham is a land, which never est with the Government. Therefore, the Court pointed out that persons, who are admittedly in exclusive possession of such property and who were never assessed to penal charges, or issued with B-Memos should be taken to have acquired a valid right to the land.
14. Mr. S. Gomathinayagam, learned Additional Advocate General raised one contention, namely that even if the land in question is a gramanatham, it is a communal property, which cannot be appropriated by individuals. But, the said argument was already repelled by Satyanarayana Rao, J in Palani Ammal v. L. Sethurama Aiyangar [1949 (1) MLJ 290 : (1949) 62 L.W 204], by holding that gramanatham is not a communal property in the sense in which thrashing floor or burning grounds or other property is communal. It is a land in the occupation of individuals, whose possession cannot be interfered. The individual in possession could very well resist ejectment and even institute a suit for ejectment against a trespasser.
15. In Krishnamurthy Gounder v. Government of Tamilnadu [2002 (3) CTC 221], K. Raviraja Pandian, J relied upon the decisions in Palani Ammal and A.K Thillaivanam and held that gramanatham is a land, which never vested with the Government and that therefore, the eviction of persons in occupation of gramanatham land is impermissible under the Land Encroachment Act, 1905.
16. In The Executive Officer, Kadathur Town Panchayat v. V. Swaminathan [2004 (2) MLJ 708 : 2004-3-L.W. 278], a Division Bench of this Court referred to the definition of the word ‘gramanatham’ appearing in Law Lexicon as ‘ground set apart on which the house of village may be built’. After citing several earlier decisions including those in Palani Ammal, S. Rengaraja Iyengar and A.K Thillaivanam, the Division Bench came to the conclusion that natham land does not vest with the Government to enable them to throw out persons in occupation.
17. A situation identical to the one on hand arose before a Division Bench of this Court in The State of Madras v. Kasturi Ammal [1974 (87) L.W 531], In that case, a land was taken possession of by a panchayat by offering to purchase it from the person in possession on the ground that the land was required for erecting water works. After taking possession, the panchayat (which later became a municipality) and the State Government refused to pay compensation for the land on the ground that the land was partly a road poramboke and partly a natham poramboke according to a survey held in 1919. Therefore, the State and the municipality contended that the land had already vested with the Government in terms of Section 2(1) of the Tamilnadu Land Encroachment Act 1905 and also in terms of Tamilnadu Act XXX of 1963. Hence, the person, claiming to be the owner, filed a suit for declaration of title and also for compensation. The suit was decreed on the ground that the State was estopped from denying the title of the plaintiff. The appeals filed by the State and the cross objections filed by the plaintiff for enhancement of the compensation, came up before a Division Bench of Ramaprasad Rao and NatarajanJJ. After referring to the decision of Subrahmanyam, J in S. Rengaraja Iyengar, the Division Bench referred to a few other decisions in paragraph 14 and elicited the principle of law in paragraph 15. Paragraphs 14 and 15 of the decision are extracted as follows:
‘14. We may also usefully refer to some other decisions which hold that the statutory machinery provided under Act XXVI of 1948 or Act XXX of 1963 as the case may be can have jurisdiction only in respect of those matters, such as the grant of ryotwari patta, provided under the Act and that such machinery, being the creatures of the statute, cannot deal with a civil right, the determination of which can be done only by a civil Court. In State of Madras v. Umayal Achi, L.P.A No. 106 of 1959., it was held that the civil Court had jurisdiction to entertain the suit for a mere injunction restraining the Government from arbitrarily and oppressively applying the provisions of the Land Encroachments Act to persons like the plaintiff who have been in occupation of lands in a notified estate even prior to the date of the notification. In The State of Madras v. Parisutha Nadar, (1961) 2 M.L.J 285., it has been held that it is not open to the Government in the course of the proceedings to put forward its own title to the property sought to be acquired so as to defeat the rights of the persons entitled to the compensation. In State of Madras v. Ramalingasami Madani, a Bench of this Court held as follows: “It is clear from the provisions of the Act (XXVI of 1948) that what really vests in the Government in respect of a ryoti or private land is merely title and there is no vesting of possession, which is protected under the proviso to Section 3(d) of the Act. So long as the possession of the land continues to vest in the ryot, he would be entitled to protect his rights in respect of the same by resorting to civil Courts.” Though there is a long catena of decisions in this behalf, we have adverted to a few only as it is unnecessary to make reference to all of them in view of the fact that the law is now well settled that the statutory machinery created by either Act XXVI of 1948 or Act XXX of 1963 can exercise jurisdiction only in respect of those matters which are specified in the enactments and cannot pervade the field of civil litigation which is exclusively that of the civil Court. The learned Additional Government Pleader invited our attention to a Bench decision of this Court in Raja of Vizianagaram, In re Raja of Vizianagaram (AIR 1953 Mad 416), which, according to him, has a bearing on the case. A scrutiny of the judgment, however reveals that the ratio decidendi in that case has no application whatever to the controversy raised for decision in the appeal. In the above said case, the Raja of Vizianagaram contended that certain house-sites, though forming part of the estate of Vizianagaram, must be held to be sites given free to the zamindar without any additional assessment and that therefore, the vacant sites must be held to fall outside the scope of the permanent settlement. Rajamannar, C.J, and Venkatarama Aiyar, J. (as he then was), if we may say so with great respect, rightly held that the contention was fallacious because what happened to the zamindar under the Sannad was not confined to the lands on which peishkush was calculated and that the fact that in 1802, no income accrued to the zamindar in the house-sites did not really affect the question. It is also significant to note that the Bench, notwithstanding such a pronouncement held, that “the right of the Government to take over the house-sites also along with the estate was however, subject to the claim of the zamindar, if any, under Section 12 and similar provisions of Act XXVI of 1948 to be granted ryotwari patta.”
15. The facts of this case which have already been expatiated by us have reference to a house-site owned by a person who is not an estate-holder and the owner of the site, apart from being entitled to the grant of a patta, is equally conferred by law a right to defend his possession and enjoyment. If, instead of her action for compensation, the plaintiff were to sue for an injunction based on her right of possession, her right to maintain the civil action can never be questioned. In like manner, when the plaintiff sues for compensation for the deprivation of the possession of her land, she is no way, worse off than when maintaining her action for retention of possession. Therefore, the second contention of the defendants to non-suit the plaintiff is a futile one and has therefore been rightly rejected by the trial Court. Consequently, the first defendant, now succeeded by the third defendant, cannot escape its liability to pay compensation to the plaintiff for the suit site, and the appeals by the second and the third defendants have, therefore, to fail.’
18. In A. Srinivasan v. Tahsildar [2010 (3) MLJ 72 : 2010-1-L.W. 123], M. Jaichandran, J followed the earlier decisions of this Court to hold that gramanatham cannot be considered ipso facto as Government property. Therefore, the Tahsildar was held to be not entitled to invoke the provisions of the TamilNadu Land Encroachment Act, 1905.
19. In State of Tamilnadu v. Madasami [2012 (2) CTC 315], V. Periya Karuppiah, J followed the decisions in A.K Thillaivanam and S. Rengaraja Iyengar.
20. In Dharmapura Adhinam Mutt v. Raghavan [2012 (1) CTC 280], a Division Bench of this Court pointed out that gramanatham is the village habitation where the land owners may build houses and reside. They are also known as house sites. They are classified as gramanatham to differentiate them from inam lands, ryotwari lands, pannai lands and waste lands, which vest in the Government. Therefore, after quoting with approval, the decisions in S. Rengaraja Iyengar, A.K Thillaivanam and A. Srinivasan, the Division Bench reiterated the position that gramanatham is not vested in the Government.
21. In Muthammal v. State of Tamilnadu [2006 (3) LW 361], the exposition of what a poramboke land is and what a gramanatham is, as presented by Mr. T.R Mani, learned counsel was extracted by S. Ashok Kumar, J in paragraph 8 as follows:
“Learned Senior Counsel also clarified that in Natham, first occupier will be treated as the owner and no patta will be given to them. Patta is issued only for assessed lands and it is the settled law. That is why, Natham is called as Poramboke i.e, “natham Thus the word “poramboke lands” means the lands which is not assessed to revenue records and it is outside the revenue accounts. Likewise, “gramanatham” is defined in the Law Lexicon as “ground set apart on which the house of village may be built”. Similarly, Natham land is described in Tamil Lexicon published under the authority of University of Madras to the effect that it is a residential portion of a village; or portion of a village inhabited by the non brahmins; or land reserved as house sites; etc., Learned senior counsel also relied on very many decisions of this High Court as well as the Apex Court to the effect that Poramboke does not include natham and grama natham never vest with the Government, which will be referred to in the latter part of this judgment.”
22. In Karana Maravar Service Society v. The State of Tamilnadu (Madurai Bench) [2012 (4) L.W 92], the position was reiterated by K.B.K Vasuki]. Therefore, it is clear that the above position of law has held the field for over a century. Keeping this fundamental settled position of law in mind, let us now get back to the facts of the case.
23. All the petitioners herein have traced title to the land from a cooperative society by name Villivakkam Government Servants' Cooperative Building Society. The petitioners have produced—
(i) sale deeds, by which, they purchased either the land or the land with the buildings;
(ii) urban land tax assessment orders for the land;
(iii) property tax payment cards;
(iv) water and sewerage tax cards;
(v) family cards;
(vi) building plan permits; and
(vii) approved building plans.
All these documents show that the lands have been in possession and enjoyment of the petitioners and their predecessors for over 70 years and that the petitioners have put up constructions with approved building plans. The petitioners have also produced proof to show that steps were taken for the issue of patta in favour of the petitioners, but it was abandoned halfway through, after the proposal for the subway project was mooted. As rightly contended by Mr. M.S Subramanian, learned counsel for the petitioners, no urban land tax could be levied, if the land in question belonged to the Government.
24. But unfortunately, overlooking all the above documents, the District Collector has passed the impugned order branding the land as a pattina natham. There is no classification known as pattina natham anywhere in the Madras Presidency or in the Provinces. I do not know wherefrom the District Collector invented such a new classification, which had never existed. A land could either be a village natham or a Government poramboke or a privately owned land. No land is classified as pattina natham. Therefore, the impugned order is obviously erroneous and is liable to be set aside.
25. The impugned order also shows total lack of application of mind. In the last but two paragraphs of the impugned order, the District Collector has used the expressions “Government poramboke” and “gramanatham” as synonyms. But they are not. After using the expressions “Government poramboke” and “gramanatham” as synonyms, the District Collector has relied upon the entry in the adangal as though it is a pattina natham. Thus, the District Collector used all expressions together very loosely.
26. Mr. S. Gomathinayagam, learned Additional Advocate General contended that a Division Bench has recently issued a direction in Zonal Officer v. K. Narasa Reddy [2012 (4) MLJ 646] to the Government to protect natham land from being encroached by land grabbers. Therefore, the learned Additional Advocate General contended that the respondents have a duty to protect these lands.
27. But, the said decision has no application to the case on hand. The decision of the Division Bench concerned the land unoccupied by people for a long time and which has now become a source of attraction for land grabbers. But in the case on hand, the petitioners claim title through a cooperative society and they have traced title for over 80 years. Therefore, the decision of the Division Bench cannot be relied upon to determine the rights of the petitioners herein.
28. In view of the above, the writ petitions are allowed and the common impugned order is set aside. But, since the respondents took possession of the lands by virtue of an order passed by a Division Bench of this Court for the purpose of formation of a subway, it is not possible now to put the petitioners back into possession. The land and building belonging to the petitioners should be taken only to have been acquired for the purpose of formation of the subway and compensation worked out both for the land and building. Therefore, the respondents are directed to initiate proceedings for the determination of compensation payable to the petitioners, both in respect of the land and in respect of the superstructures. The proceedings for compensation shall be commenced and concluded within three months and the petitioners are entitled to an opportunity of being heard. No costs.
VCJ/VCS