Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
17. 12.2013 CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.34145 of 2013 and M.P.Nos.1 and 2 of 2013 1. Valarmathi 2. Savithri 3. Pushpathal 4. Jayamani 5. Kamalam 6. Sumathi Petitioners vs.
1. The District Collector, Tiruppur, Tiruppur District.
2. The Special Tahsildar, Adi-Dravidar Welfare, Kangayam, Kangayam Taluk, Tiruppur District. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records of the second respondent culminating in and by his proceedings No.LA21/90A dated 24.7.2007 pertaining to the petitioners and quash the same. For Petitioner : Mr.B.Dyaneswaran For Respondents : Mr.R.A.S.Senthilvel, Govt. Advocate ORDER
With consent, the writ petition itself is taken up for disposal at the admission stage.
2. The case of the petitioners is that they belong to Schedule Caste Community and are daily wage workers and they do not own any house. The grievance of the petitioners is that they were granted free house-site pattas by the second respondent vide his proceedings dated 2.6.2006, but, later, their free house site pattas were cancelled by the impugned proceedings without assigning any reason, based on a letter issued by the first respondent dated 18.7.2007. According to the petitioner, the impugned proceedings is liable to be set aside as the second respondent has no authority to pass the same and as per the Revenue Standing Orders, only the Revenue Divisional Officer has got jurisdiction to pass the same and it has been passed in violation of principles of natural justice, without giving any notice to the petitioners or holding any enquiry and also without assigning any reason and the impugned proceedings is made without application of mind. Hence, the present writ petition.
3. Learned counsel for the petitioners submits that the issue in this writ petition has already been settled by this court in W.P.No.3259 of 2008 filed by one of persons aggrieved by the very same impugned order viz., D.Anandharani, who stood enlisted at Serial No.17 in the impugned order, by allowing the writ petition and quashing the impugned order by order dated 26.11.2010 and the present petitioners are enlisted in the very same impugned order in Serial Nos.9, 16, 2, 8, 1 and 15 respectively and hence, the present writ petition also has to be allowed.
4. Mr.R.A.S.Senthilvel, learned Government Advocate, after going through the factual position submits that this writ petition also may be disposed of in the same manner if there is no legal impediment.
5. The order passed in W.P.No.3259 of 2008 is as follows:- ".2. The brief facts which are relevant for consideration herein are : The petitioner belongs to SC community and is the permanent resident of Uppupalayam Vellakoil Village, Kangeyam Taluk, Erode District. The 2nd respondent/Special Thasildar in his proceedings No.LA21/90A issued free house site pattas to the petitioner and few others allotting an extent of 0.02 cents each in Block No.54 in RS.No.307/1A. The petitioner and others were put in possession of their extent and the allottees have been from the date of assignment in actual possession and enjoyment of the land. While so, the 2nd respondent has in his proceedings impugned herein chosen to cancel the allotment unilaterally on the basis of the letter issued by the 1st respondent on 18.07.2007. The validity and the enforceability of the same is now questioned before this court.
3. According to the learned counsel for the petitioner, the assignment is made in favour of the petitioner after having verified the fact that she is landless poor without having permanent means of livelihood and the 2nd respondent having assigned the land and having put the allottees in possession and enjoyment of the same have no authority to cancel the allotment unilaterally without notice and opportunity to the petitioner/allotee for being heard and the action of the 2nd respondent is hence perse illegal for want of authority and for violation of principles of natural justice.
4. Whereas the learned Additional Government Pleader would seriously oppose the claim of the petitioner on the ground, that the cancellation order is under due authority and after due enquiry. It is specifically stated in the counter filed by the 2nd respondent, that the assignment was made in favour of the petitioner and others in respect of specific extent of 0.02 cents after duly dividing the land acquired for the said purpose into house site plots after forming layout and after numbering the plot serially and after fixing the boundary stones for the plots and the pattas are issued only with the details of plots number. Thereafter complaints were received from local public and dalit organisations that 20 out of 32 beneficiaries received house site patta on the basis of false documents and the same is followed by show cause notices to 20 persons and the notice was duly served on them through the Revenue Divisional Officer by affixing the notice on the survey stone in the plots and the assignee did not turn up for enquiry. But the 2nd respondent after through verification of the records and after making discreet enquiry found that 20 beneficiaries obtained patta on false grounds and submitted report to the 1st respondent on the basis of which the 1st respondent instructed the 2nd respondent to cancel the patta issued to the 20 ineligible persons. In compliance with the same the 2nd respondent issued proceedings of cancellation and the same is also duly sent to the concerned persons and served to them by affixing on the survey stone in the plot.
5. It is further stated in the counter that as the father in law of the petitioner owns house with sufficient vacant space in the same Uppupalayam, Vellakoil Village and as the same is enough for construction house for the petitioner family she is not entitled to get any free house site patta and the petitioner is not in possession of the land assigned to her.
6. Heard the rival submissions made on both sides and perused the records produced therein.
7. The perusal of the order of assignment issued to the petitioner copy of which is enclosed at pages 1 and 2 of the of the typed set of papers would reveal that assignment is made in her favour after duly verifying her application and the allotee is put in possession and enjoyment of the same. As a matter of of fact the 2nd respondent has in para 5 of his counter specifically stated that the assignment made is in respect of specific plots with specific number and with boundary stones.
8. It is not in dispute that impugned order came to be passed more than one year after the assignment of the lands. The perusal of the copy of the same enclosed at page 3 of the typed set of the papers reveals that the same is passed, in compliance with the instructions received by the 1st respondent/District Collector dated 18.07.2007 which in turn is based on discreet enquiry report. But, the impugned order does not refer to the complaint referred to in the counter as given by local public and dalit organisation and is the basis for further enquiry resulting in the order of cancellation.
9. Though the 2nd respondent has in his counter refers to the complaint and refers to the show cause notice issued to the 20 ineligible persons for the enquiry upon such complaint and the instructions given by the District Collector etc., the out come of which is the impugned order of cancellation and post cancellation notice to the allotees the copy of those documents are not made available herein in support of the same, when the petitioner has come forward with the specific case that the impugned order of cancellation is without authority, without assigning any reason and in violation of the principles of natural justice, the authorities ought to have produced the copies of the documents above referred to and there is absolutely no reason much less valid reason for the failure to make the copies of those documents available before this court.
10. Even otherwise, admittedly the petitioner and 19 other allotees in respect of whom the impugned order of cancellation passed are not personally served with any notice for the enquiry. The pre and post enquiry notices are as per the averments contained in the counter affidavit affixed on survey stone in the respective plots. As the notice is not personally served on the allotees they did not appear for the enquiry. It is noteworthy to mention at this juncture, that the plot allotted to the petitioner and others is vacant site and as per one of the conditions contained in the assignment order the allottees are required to complete the constructions upon the land within 36 months from 02.06.2006 which is the date of allotment and as the enquiry is said to the commenced within one year the allotees could not be expected to be in actual occupation of the land as such the explanation sought to be given by the respondent that as the allottess are not in actual possession of the property the service of notice through affixture on the survey stones is sufficient service cannot at all be accepted.
11. The facts remain undisputed are that the impugned order of cancellation is made without personally serving notice to the allottees and without making the copy of the complaint available to them and without giving due opportunity to them to know the nature of the complaint and to raise their objection and to participate in the enquiry and to make their objections against the contents of the enquiry report. As rightly argued by the learned counsel for the petitioner, at every stage the allotees are kept ignorant of the proceedings initiated against them.
12. In so far as the petitioner is concerned the reason given in para 4 in the counter filed by the 2nd respondent is that she is ineligible to get the allotment as her father in law owns house with vacant sit which is sufficient to put up house. But, the respondents have not produced any supportive document, the respondents have also not brought to the notice of the court about any rule or order which renders the applicant to be ineligible, in the event of any other member of the family in the relationship of in laws owns vacant plot.
13. Further the 2nd respondent has except referring to the proceedings of the District Collector, not mentioned the ground on the basis of which 20 out of 32 allotees are held to be ineligible for free house site patta. The failure to do so renders impugned order totally non speaking order. Further the order of assignment does not reserve any authority upon the authority concerned to make unilateral cancellation of the same on any of the grounds mentioned herein.
14. Viewing from any angle, the impugned order of cancellation is arbitrary, unfair, illegal, contrary to the procedure known to law and is in violation of the principles of natural justice and is legally and factually unsustainable and is liable to be quashed in so far as the petitioner is concerned, who is shown as serial No.17 in the impugned order.
15. In the result, the writ petition is allowed by quashing the impugned order in so far as the petitioner is concerned with liberty given to the respondent to hold fresh enquiry if warranted after giving due notice and due opportunity to the petitioner for being personally heard. No costs. Consequently, connected miscellaneous petition is closed.".
6. Therefore, it is clear that the subject matter is covered by the order passed by this court in W.P.No.3259 of 2008 wherein the impugned order in respect of the petitioner therein, was quashed. The present writ petitioners also stand on the same footing. Hence, the present writ petition is also allowed and the impugned order insofar as the present writ petitioners are concerned is also quashed with liberty to the respondent to hold fresh enquiry, after giving due notice and due opportunity to the petitioners for being personally heard. No costs. The connected miscellaneous petitions are closed. 17.12.2013 Index : Yes Internet : Yes ssk. To 1. The District Collector, Tiruppur, Tiruppur District.
2. The Special Tahsildar, Adi-Dravidar Welfare, Kangayam, Kangayam Taluk, Tiruppur District. V.DHANAPALAN, J.
ssk. W.P.No.34145 of 2013 17.12.2013.