M. Subbakannu v. P.L Ramanathan Chettiar

The Chief Justice:

The land in dispute in these proceedings is S. No. 288, which in the revenue records is shown as having an area of 10-83 acres and is recorded as a tank. After Act 26 of 1948 came into force, the first respondent herein, who has filed the writ petition for quashing the order of the Board of Revenue, was granted a patta on 31st December, 1958 in respect of the said land which is described in the order of the Assistant Settlement Officer as Ooranis and the appurtenant sites. A condition was attached to this patta that the grantee should continue to maintain Ooranis for the sake of the villagers and others. By an amendment to Tamil Nadu Act 26 of 1948, made by Tamil Nadu Act 49 of 1974, a new provision was introduced as S. 14-A in the Act. In S. 14-A(1) it was provided that notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or Oorani. Sub-S. (2) with which we are concerned, reads as follows:—

“Any ryotwari patta granted in respect of any private tank or oorani under this Act before the date of the publication of the Tamil Nadu Estates (Abolition and Convertion into Ryotwari) Amendment Act, 1974, in the Tamil Nadu Government Gazette, shall stand cancelled, and for purposes of compensation under this Act the private tank or oorani shall be deemed to be land in respect of which neither the landholder nor any other person is entitled to ryotwari patta under this Act.”

It appears that after the Amending Act came into force, the present appellant filed a revision petition before the Board of Revenue praying that the order of the Assistant Settlement Officer should be quashed. The Board of Revenue took notice of this revision petition and on a construction of S. 14.A took the view that it was admitted before the Board that the land in dispute constituted the private ooranies and a temple and therefore, the application of the provision of S. 14-A of the Act becomes automatic and inescapable. The Board took the view that under S. 14 A, all pattas in respect of oorani or private tank stood automatically cancelled and all that had to be done was to implement the said cancellation by serving an intimation on the pattadars in the Form prescribed in the Rules issued under S. 67 read with S. 14-A of the Act, and the necessary corrections in the village records had to be carried out. The Board of Revenue, therefore, directed the Assistant Settlement Officer to issue an intimation it he had not already done so.

2. This order of the Board of Revenue was challenged by the first respondent in the writ petition. In the writ petition the learned single Judge of this Court took the view that it was not the case of any one that the entire extent of 10-83 acres was covered by the ooranies and therefore, according to him the proper and just order to be passed was to limit the operation of the order of the Board of Revenue to the actual extent covered by both Ooranies. This extent was directed to be determined by the Assistant Settlement Officer, Kovilpatti. It was directed that patta will be issued to the first respondent herein after demarcating the actual extent. This order is now challenged in this appeal by the third respondent in the writ petition (original revision petitioner before the Board of Revenue) in this appeal.

3. The contention on behalf of the appellant is that the learned Judge was in error in holding that the patta had to be cancelled in respect of the actual area covered by the ooranies. The argument is that survey No. 288 which has been recorded as a tank and in respect of which patta bad been given, mast extend to the entire area of 10.83 acses covered by this survey number and that the effect of S. 14-A of the Act was not that a patta could be granted in respect of an area which is not covered by water is the tank or the ooranies. The learned counsel appearing for the first respondent herein has contended that he was entitled to a patta of the surrounding area excluding the area covered by water and though S. 14A may be operative in respect of the area covered by the Ooranies, land, which, according to him, was appurtenant land, was still available for the grant of patta. It is also argued that after the order of the learned Judge, demarcation has already been made and a separate area which is not covered by the ooranies has been carved out and has been given S. No. 288/1 having an area of 5.87 acres. The argument of the learned counsel for the first respondent appears to be that, when S. 14-A cancels the patta granted in respect of any private tank or oorani, the operation of the provision is restricted only to the actual area covered by the tank water or the oorani. It is not possible to accept this contention. It is not in dispute that what has been described in S. No. 28 in the Revenue records is surrounded by fields belonging to the different owners. S. No. 288 has been exclusively recorded as a tank. The old revenue records do not show that any part of it was cultivated at any time or any crop has been raised. We have before us the original records of the year 1951 and the column with regard to the crops is blank. There is a presumption of correctness attached to this regard and we must proceed on the assumption that in 1951 the entire survey No. 288 constituted a tank.

4. The actual surface covered by water may increase or decrease according to the quantity of water in the tank. That is however no reason for restricting the area of the tank only to the area covered by water. The fact that water has dried up at a given point of time does net cease to make the area of S. No. 288 a tank for all purposes and the entire area of S. No. 288 has to be construed as a tank, until, of course, either a part of the area or the whole area is diverted to some other use or is separately assessed to land revenue. Sub-S. (2) of S. 14A has to be read in the light of S. 14A(1). S. 14A(1) prohibits the grant of ryotwari patta in respect of any private tank Oorani. S. 14A will, therefore operate in respect of a survey number which is registered in the revenue records as a tank, whatever may be the quantity of water in the tank or whatever may be the area under water in the tank. When Sub-S. (2) of S. 14A was enacted with the avowed object of cancelling all such pattas which were granted in respect of tanks, the operation of Sub-S. (2) cannot be restricted only to an area which is covered with water. This provision will have to be construed in the light of the revenue records and if S. No. 288 has been recorded as a tank, no part of S. No. 288, irrespective of the actual use to which a part of it has been unauthorisedly put either by its owner or by those who were claiming through him, will cease to be a tank for the purpose of Tamil Nadu Act 26 of 1948. In our view, the learned Judge was, therefore, in error in restricting the operation of S. 14-A only to the actual extent covered by the Ooranies which will vary year to year or even month to month.

5. Accordingly we set aside the order of the learned Judge, and restore the order of the second respondent. Consequently, the appeal is all owed, but there will be no order as to costs.

VCS.