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Madras High Court
S.A. Ramachandran And Ors. vs The Government Of Tamil Nadu And ... on 18 March, 1997
Equivalent citations: (1997) 2 MLJ 584
Author: Raju

JUDGMENT

Raju, J.

1. These two writ appeals have been filed against, the order of a learned single Judge of this Court, dated 26.3.1991 in W.P. No. 1881 of 1987, whereunder the learned single Judge allowed the writ petition seeking for a writ of certiorari to call for, and quash the proceedings of the State Government in their letter dated 2.2.1987 confirming the order of the Commissioner, Land Administration, dated 17.12.1983. The appeal in W.A. No. 1228 of 1991 has been filed by the 4th respondent in the writ petition and W.A. No. 1446 of 1991 has been filed by the State Government and the other authorities in the Department, who were the remaining respondents in the writ petition.

2. The writ petitioner/first respondent herein has been assigned with an extent of 2 cents of land in Survey No. 1/3 (wet) with a well thereon by the Revenue Divisional Officer, Aruppukkottai at Ramanathapuram, by his proceedings dated 11.12.1960 on collection of a sum of Rs. 1,515 stipulated to be the market value of the property. Some of the ayacutdars at Muthuramalingapuram village appear to have made representations and the Collector of Ramanathapuram at Madurai by his proceedings dated 26.6.1978, after giving a show-cause notice and an opportunity to the first respondent has ordered the cancellation of the assignment of the land with samudhayam well situated thereon. The first respondent pursued the matter before the Board of Revenue, which came to be rejected and the thereupon before the Government. The Government in G.O.Ms.No.2421, Revenue Department, dated 21.1.1980 referred the matter and the first respondent writ petitioner to the Board of Revenue for orders on his petition and it was at that stage, the Commissioner, Land Reforms and Land Administration by his notice dated 12.10.1981 proposed to revise the order of assignment is the purported exercise of his powers under the Board's Standing Orders (B.S.O) 15(18). After giving an opportunity and after hearing the first respondent-writ petitioner, the Commissioner, Land administration passed an order dated 17.12.1983 and recording a finding that the assignment made suffered material irregularity, the order of cancellation earlier passed was not interfered with and the appeal of the first respondent came to be dismissed. Once again the first respondent herein went before the Government and the Government rejected the claim of the first respondent by its proceedings dated 2.2.1987. The first respondent herein filed the writ petition as noticed earlier before this Court to quash the proceedings dated 2.2.1987 and 17.12.1983.

3. The learned single Judge though repelled the challenge made to the proceedings under which the cancellation of assignment was ordered on the ground that it was beyond the period of limitation contained in B.S.O. for the Collector to invoke his power of cancellation of an assignment, relying upon the fact that the Board of Revenue (Commissioner of Land Reform and Land Administration) has issued a show-cause notice and this would rectify matters since the power of Board of Revenue is not circumscribed with any time limit as in the case of the District Collector. On merits the learned single Judge accepted the contention of the first respondent-writ petitioner that the assignment made was valid and that the challenge to the assignment was born out of jealousy of some of the villagers and consequently, the vitiating circumstance pointed out by the Collector as also by the Board of Revenue as undermining the legality and propriety of the assignment are not well merited and therefore, called for interference. Hence, the above two appeals.

4. Mrs. Prabha Sridevan, learned Counsel for the appellants in W.A. No. 1228 of 1991 and Mr. R. Subramanian, learned Special Government Pleader for the appellant in W.A. No. 1446 of 1991 made submissions contending that the reasons assigned by the authorities below to cancel the order of assignment in favour of the first respondent are well merited and that the assignment of the well, which was otherwise classified as Samudhayam well initially and meant for the use of the public, could not have been assigned to an individual to the deteriment of the public and therefore, the learned Judge ought not to have interfered with the orders of the authorities below. Per contra, Mr. A.R.L. Sundaresan, learned Counsel for the first respondent-writ petitioner strenuously contended that the challenge made to the assignment was not only a belated one, but born out of jealousy on the part of some villagers as rightly pointed out by the learned single Judge and that, at any rate, the assignment did not suffer from any infirmity or illegality, which would justify the interference by the Collector or the other higher authorities. The learned Counsel also contended that the location of the well in question is such that it is the first respondent and persons closely related to only have lands surrounding the well and therefore, it could before the better and proper use only by the first respondent and all these aspects have been rightly taken into account by the original authority, which granted the assignment as also by the learned single Judge, who sustained the order of assignment and consequently, no interference is called for with the order of the learned single Judge.

5. We have carefully considered the submissions of the learned Counsel appearing on either side. As pointed out earlier, the learned single Judge himself was pleased to reject the challenge made by the first respondent/writ petitioner to the power of the Collector in interfere with the order of assignment beyond the period stipulated there for under the Standing Orders on the view that the show cause notice issued by the Commissioner of Land Reforms and Land Administration sets right the infirmity, if any, on that account particularly having regard to the fact that the power of the Board and the Government to set aside, cancel or in any way modify the decision of the authorities subordinate to them without any limit of time where there had been any material irregularity in the procedure or where the decision exceeded the power of the officer who passed it or where it was passed under a mistake of fact and owing to fraud or mis-representation. The learned Counsel for the first respondent, who could not satisfy the learned single Judge on this aspect renewed his plea in this regard once again before us. We have gone through the reasons assigned by the learned single Judge pertaining to this ground of challenge. We are in entire agreement with the learned Judge that the attack made on the power of the Collector to interfere with the order of assignment at this point of time was no longer available to him, in the teeth of the subsequent issue of notice by the Commissioner of Land Reforms and that there is absolute no merit in the challenge projected on such a ground.

6. The next question that requires to be considered is as top the legality and propriety of the assignment made in favour of the first respondent. The records referred to and relied upon by the authorities below amply prove that prior to the settlement introduced in respect of the village in question with effect from fasli 1366, which village originally appears to be a Zamin village attached to the estate of Ramanathapuram, which has been taken over by the Notification issued in G.O.Ms. No. 2093, Revenue, dated 11.8.1949 with effect from 7.9.1949, that the well in question was earlier classified in the village accounts as Samudhayam well, meaning thereby well for the public and in the use of the public in the village. No doubt, during settlement proceedings for reasons not either intelligible or explainable the classification appears to have been altered and in the settlement register known as 'A' Register as against the item of the land in question, the entry incorporated is as "Anadheenam. Squarewell". It is taking advantage of apparently the absence of any specific reference to the well as Samudhayam well after the introduction of the settlement from fasli 1366, that the move for assignment appears to have been made and countenanced too, There is no serious controversy over the factual position that in the locality, there is acute shortage of water facilities and that this well had good springs and gifted with copious water supply at all times during the year. The authorities, as could be seen from their orders, who directed cancellation of the assignment and later sustained such cancellation, were uniformly of the view that the well must have been retained for the common purpose and use of the villagers and not only could not have been assigned and given away in favour of a single individual, but that it was not capable of being assigned being a samudhayam well meant for the common use of the villagers. As against this line of reasonings, as pointed out earlier, the learned Counsel for the first respondent - writ petitioner would contend that the well in question was surrounded by only the lands of the first respondent and his close relatives and therefore by conserving the well for the common purpose, no real purpose will be served and it could not be of any use to the villagers in public and therefore, the assignment in favour of the first respondent herein does not call for interference. As against the further reason, which weighed with the authorities to cancel the assignment that what was assigned was not to be taken to be a land, but really the well, it has been contended for the first respondent that there could be no valid objection in law or on facts to assignment of even an anadheenam or assessed waste land and in case of any well or other property situated therein being also separately valued and the value thereof received in consideration of such assignment. This reasoning appears to have had the acceptance of the learned single Judge, who also expressed the view that though the major portion of the extent assigned might have been occupied by well, still there was some extent of land besides the well and therefore, what was assigned could be considered to be a land and not well.

7. We have carefully considered all these aspects adverted to by the different authorities like the District Collector, the Board of Revenue and the Government on the one hand and the learned single Judge on the other. The learned Judge could not have taken the view that what was assigned was land and not of the well, despite his observation that major portion of the property was occupied by the well only. The well needs necessarily some surrounding space also for access and use. Having regard to the extent of the land itself and the location of the well and the earlier classification of the property as samudhayan well, it is but necessary to view the property assigned to be mainly well only with some surrounding space of land. Though Board's Standing Order No. 15(14) envisaged the authorities undertaking assignment of lands to value the well or standing trees or other properties also in the extent of the land to be assigned, that is not the same thing permitting assignment of well simpliciter, de hors all other consideration and on the facts of this case it has to be borne in mind then what is sought to be assigned was in reality and in substance a well and well alone, particularly when such well stood classified in the village accounts as samudhayam well meaning thereby well for the common use of the villagers. In our view, the properties like the one which had been classified as samudhayam well cannot be assigned at all by the authorities to any individual to the detriment of the public. We are of the view that the properties of the nature are to be held and has got to be owned and held by the Government in trust for the public and there cannot be any breach of such trust to the detriment of the public and public interest. The sum and substance of the reasons assigned by the District Collector as also by the Board really are in recognition of this vital and well settled principle.

8. The fact that the property in question is surrounded by either the lands of the first respondent or the lands of some of his relatives alone, is no justification to concert this public property into a private property belonging to a single individual. It is common knowledge that in the area in question, water scarcity is acute and the retention of the well as community well would help not only for irrigational purpose, but to meet any future demand from the public for the water in the well, which indisputably is said to have good springs and copious supply of water. The Revenue Divisional Officer, who thought fit to assign the well in question in favour of an individual, in our view, has abdicated his responsibilities and has committed a gross breach of trust by acting adverse to the public interest. The District Collector as also the Commissioner of Land Administration, in our view, were right in interfering with the order of assignment. The reliance placed by the learned Counsel for the first respondent on the decisions in State of Madras v. Nadimalli Subbaraju and Chakravarthi v. Thillaimoorthy (1970) 1 M.L.J. 476 is in-appropriate to and in our view, certain observations made therein could not be availed of for the purpose of sustaining the assignment of samudhayam or common well, which, as held by us, is a gross violation and serious dereliction of duty and responsibility committed by the Revenue Divisional Officer by committing also breach of trust and confidence reposed in the said authority.

9. Learned Counsel for the first respondent also submitted that the 'A' Register of the village would disclose several square wells in existence in village. That might be true since the 'A' Register of the village is bound to disclose all the physical features and condition of the lands in the village with proper description of the wells, roads, any public monument etc. What is important in so far as the property in question is concerned is that this property, prior to the introduction of the settlement, was indisputably classified as samudhayam well and after the introduction of the settlement, though the nature of the well is indicated with reference to its physical features or shape and is specified to be a square well, the classification, that it is not owned by anyone private individual but it is vested with the Government for the sake and use of public continues to exist. For that reason, we are unable to see much difference between the classification of a well to be a samudhayan well or a well treated as anadheenam. Both, in our view, would indicate that the property vests with the Government for public purposes and having regard to the nature of the property; we are of the view that it should be included in the permanently prohibited category for assignment.

10. In view of the above, we are convinced that the reasons assigned by the District Collector as also the Board of Revenue in the orders under challenge are well merited and consequently, justify the cancellation of the assignment in favour of the first respondent herein. Consequently, we are unable to share the views expressed by the learned single Judge to allow the writ petition. The Writ Appeals are, therefore, allowed and the order of the learned single Judge is hereby set aside. Consequently, we direct the District Collector concerned to ensure that this property is enlisted in the permanently prohibited category of property to keep the same beyond the reach of assignment. There will be no order as to costs. Consequently, C.M.P. No. 13879 of 1991 is dismissed.