Judgment:
ORDER
N.V. Balasubramanian, J.
1. The subject matter of the dispute in the writ petition relates to a punja land in R.S. 95/6 of an extent of 18 cents in Kuruvadi village, Nannilum taluk, Thanjavur district. The writ petitioner has filed an application before the second respondent under Section 5 of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (hereinafter referred to as 'Record of Tenancy Rights Act') to delete the name of the first respondent from the record of the tenancy rights for the said village, maintained in the office of the second respondent. According to the petitioner, the land in question is a dry land used only for tethering cattle and for storage of hay-rick, and the land was never used for cultivation or horticulture and hence, the land does not fall within the definition of the lands under Section 2(4) of the Record of Tenancy Rights Act. The entry in the record of tenancy rights found in favour of the first respondent to the effect that he was a tenant in respect of the said land was made, according to the petitioner, without his knowledge and hence, after coming lo know of the same, he has filed die application under Section 5 of the Record of Tenancy Rights Act before the second respondent for the deletion of his name.
2. The first respondent resisted the said application on the ground that the disputed property as well as another extent of 2 acres of nanja land were taken on lease by his father Rajangam and the first respondent and the members of his family were cultivating the disputed land.
3. The second respondent conducted due enquiry, heard the parties and held that the claim of the petitioner was bona fide and directed the deletion of the name of the first respondent as a tenant from the record of tenancy rights maintained by the second respondent.
4. The first respondent preferred an appeal before the third respondent challenging the order of the second respondent. The third respondent alter due consideration of the entire matter, recorded a finding to the effect that it was not proved that the erstwhile trustee Neelamegam Pillai was served with a notice before the name of the first respondent was recorded as a tenant. The third respondent further held that there was no evidence to show that there was cultivation of a the land in question, and on the basis of the report of the Village Administrative Officer, it was made clear that the land was used only as brick-kiln. In this view of the matter, the third respondent held that the first 'respondent has not proved that there was a lease in his favour of agricultural lands, and there was no evidence to show that the first respondent has cultivated the land in question.
5. The first respondent preferred a revision before the fourth respondent, who is the revisional authority. The revisional authority found that the application filed by the petitioner was under Section 5 of the Record of Tenancy Rights Act, and he held that the application under Section 5 of the Act for the modification of the entries in the approved record of tenancy rights would lie, where by reason of death, or transfer of interest, or any other subsequent change in the circumstances, a modification is required in respect of record of tenancy rights. The Revisional Authority held that the case put forward by the writ petitioner did not fall within any of the contingencies prescribed under Section 5 of the Record of Tenancy Rights Act, and hence, he took a view that the application under Section 5 of the Record of Tenancy Rights Act was not maintainable in law. He further held that the first respondent has cultivated the land. He placed reliance upon the documentary evidence Exs. R-3 and R-4 to come to the conclusion that the first respondent had cultivated the land. The Revisional Authority held that if the writ petitioner intends to evict the first respondent, he should take proceedings under the Tamil Nadu Cultivating Tenants Protection Act, 1955 (Tamil Nadu Act 25 of 1955). In this view of the matter, he allowed the revision petition.
6. Learned Counsel for the writ petitioner contended that (he order passed by the fourth respondent is erroneous, because the finding that the first respondent was cultivating the land was arrived at by the fourth respondent on the basis of the documents, Exs. R-3 and R-4 and the Revisional authority has completely overlooked the other document filed by the writ petitioner and the evidence of the Village Administrative Officer to the effect that there was only a brick-kiln in the land. According to the learned Counsel for the petitioner, the finding arrived at by the revisional authority without considering the entire materials on record is erroneous and liable to be set aside and the matter should be remitted to the fourth respondent for fresh consideration of the matter.
7. On the other hand, learned Counsel for (he first respondent would submit that the application preferred by the writ petitioner under Section 5 of the Record of Tenancy Rights Act docs not lie, because the grounds on which the writ petitioner has filed the application for the modification of the entries in the record of tenancy rights would not come within the purview of the scope of Section 5 of the Record of Tenancy Rights Act and when the application itself does not lie, and the Revisional Authority was perfectly justified in rejecting the application as not maintainable and was also justified in allowing the revision petition on that score.
8. It is necessary to consider the scope and object of the Record of Tenancy Rights Act which was enacted to provide for the preparation and maintenance' of the record of tenancy rights in respect of certain agricultural lands in the State of Tamil Nadu, the object of the Act is to provide a permanent record of tenancy rights so that there could not be any dispute over the rights of tenancy in respect of the tenancy of agricultural lands. Under Section 3 of the Record of Tenancy Rights Act, the Government is empowered to issue notification for the preparation of a record of tenancy rights for such villages of agriculture as specified in the notification and the record shall be required, maintained and registered in accordance with the provisions of the Act and the rules therein. Section 3 contemplates the preparation of the records, maintenance of the said records, and also the revision of entries in the draft record in accordance with the provisions of the Act. It is unnecessary to consider the provisions in detail except Section 3(5) of the Act which provides that after the completion of the draft record of tenancy rights for a village, such draft record shall be published in the District Gazette of the District in which the village is situated and an extract of the entries in the draft record containing the relevant particulars shall also be served on the land owner, intermediary and the tenant concerned. So, a statutory obligation is cast upon persons who prepare the record of tenancy rights to publish the same in the District Gazette and to serve an extract of entries to the land-owner, intermediary and tenant. Any person aggrieved by the draft record that the entries made arc incorrect can apply to the Record Officer for the rectification of the entries and on such an application, the Record Officer shall conduct an enquiry and on the basis of the evidence, the Record Officer is empowered to make necessary alterations in the record. Then, after the completion of the preparation of the final record of the tenancy rights, the final record is published in the Fort St. George Gazette and the record so published is called the approved record of tenancy rights. Section 3 also provides that the said approved record shall be published in the District Gazette of the District in which the village is situated. Section 5 of the Record of Tenancy Rights Act, as already seen, provides for the modification of entries under certain contingencies.
9. Rule 6 of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Rules, 1969 (hereinafter referred to as the Record of Tenancy Rights Rules) provides for the manner of publication of the draft record. Under Rule 7 of the Record of Tenancy Rights Rules, an application for rectification of entries in the draft record shall be filed before the Record Officer within sixty days from the dale of publication of the draft record in the District Gazette or within thirty days from the date of service in the case of persons on whom the extract of the record has been served. Proviso to Rule 7 of the Rules also provides that the Record Officer may admit an application presented after the expiry of the period mentioned in the rule, if he is satisfied that the party had just and sufficient cause for not presenting it within the said period. Rule 8 of the Rules provides for the procedure to be followed in the enquiries to be conducted under Section 3(8) of the Act and Rule 9 provides for the publication of the approved record.
10. A close study of the various provisions of the Act and Rules framed thereunder illustrates that this Act is a model piece of inelegant legislation. The Act, as already seen, provides for the preparation and maintenance of record of tenancy rights in respect of agricultural lands and the provisions of the Act shall have overriding effect over any other law, custom, usage or contract. The jurisdiction of the Civil Court is also barred in respect of matters over which the Record Officer is empowered me under this Act to determine on enquiry and an entry in an approved record of tenancy rights shall be presumed to be true and correct, until the contrary is proved or a new entry is lawfully substituted therefor. Once an entry is made in the record of tenancy rights for the agricultural land, the tenant in whose favour an entry is made gains an advantage and can claim the statutory benefits of the Tamil Nadu Cultivating Tenants Protection Act. The Act no doubt provides elaborate procedure for rectification of the entries during the stage of preparation of draft record of tenancy rights, but if an entry is made in the approved record of tenancy rights, without the knowledge or notice to the land owner, there is no provision for rectification of such entry, by, the original authority except by way of appeal or revision. But, the appellate remedy or revisional remedy provided under (he Act may not be an effective or available remedy where the person concerned was not served with notice or he had no requisite knowledge of the proceedings before the Record officer at the time of preparation of the draft record. Similarly, it may also happen that the name of a person who is not a real tenant might have been included, suppressing the name of the real tenant and if a person's name is included in the approved record of tenancy rights when he is not a tenant at all without the knowledge of the real tenant, the Act does not provide a statutory remedy to the real tenant to approach the original authority for the correction of the approved record of tenancy rights. In short, there is no provision in the Act or Rules for the correction of entries in the approved record of tenancy rights by the original authority where an entry is made without the knowledge or without service of the statutory notice on the landlord or the real tenant. Though the Act provides for, as already seen, an appellate remedy, it may not in all eases be an effective or available remedy due to various circumstances, beyond the control of the landlord, like the expiry of time limit to prefer an appeal or due to lack, of knowledge of the entry or where the landlord resides somewhere else or in some other country etc., Section 5 of the Act no doubt, provides for the modification of the entries, but the remedy provided under Section 5 of the Act would be available only in certain cases mentioned therein, and it docs not provide for the correction of entries in the approved record of tenancy rights in all cases or where an entry is made without knowledge of the landlord and the real tenant. Hence, when an entry is made in an approved register without the knowledge or notice of the landlord or the tenant, it must be taken that the entry made is a nullity, and has no legal effect and cannot operate against the landlord or the real tenant. The question that has been raised by the learned Counsel for the first respondent is that during the preparation of the draft register, notice of draft entry was made in the District Gazette inviting objections from the landlords for the proposed inclusion of the name of the tenant and hence, it must be taken that the petitioner or his predecessor in Office were aware of the proceedings. I do not accept the contention of the learned Counsel for the first respondent. The appellate authority found that there is no evidence to show that the previous trustee was served with Ihc individual no-lice. The appellate authority held that neither the copy of the notice nor the relevant register was produced before the authority to show that the previous trustee was served with the individual notice. The question left is what is the effect of the publication in the District Gazette during the stage of preparation of draft record of tenancy rights. The question whether the publication in the District Gazette would amount to sufficient notice came up for consideration before this Court in W.P. No. 1142 of 1966 which arose under the Wakfs Act, and wherein Alagiriswami, J. has held as under:
The publication in the Gazette is hardly a proper substitute for notice to the person affected. Not everybody is expected to look in to the gazette every day at the risk of his losing his property rights. Publication in the gazette must be accompanied by notice to the persons affected. Otherwise, there will be absence of the minimum requirements of natural justice before a person is deprived of his property rights.
The above judgment was followed in Abdul Kareem v. Special Officer, Wakfs : AIR1972Mad8 wherein I he learned Judge also held that the said judgment of Alagiriswami, J. was confirmed in appeal. Following the above decisions, I also hold that the publication in she District Gazette during the stage of preparation of draft record would not be sufficient compliance of the provisions of the Act or the Rules. Unless there is a proof of individual notice to the person concerned or persons is likely to be affected by an entry made in the approved record, the mere publication in the gazette would not be sufficient to attribute knowledge of the draft proceedings either to the landowner or the real tenant. The question still remains as to the source of the power to correct the entry made in the approved record of tenancy rights in the situation mentioned above. I am of the view that the power to correct an entry made without the knowledge or notice to the landlord or the tenant, in the absence of any specific provision in the Act or Rules, should be traceable to the powers of the officer to make the entry under Section 3 of the Act. The power to make an entry under Section 3 should also include the power to cancel the same or the power to unify the same. Hence, the source of such a power can only be traceable to Section 3 of the Act.
11. The revisional authority held that the revision petition does not lie because Section 5 does not contemplate the revision of entries except in case listed in Section 5 of the Act. Admittedly, the instant case does not fall within any of the cases mentioned in Section 5 of the Act. Therefore, the revisional authority was justified in the view he has taken that the application preferred by the landlord cannot be termed as an application under Section 5 of the Act. But, when the record officer has exercised powers and deleted the name of the first respondent as a tenant from the approved record of tenancy rights, it must be taken that he has exercised the powers under Section 3 of the Act, which I have already indicated should include the powers to cancel the entry. Similarly, when the appellate authority exercised powers under Section 6 of the Act, it must be taken that he has exercised powers as an Appellate authority against an order was passed under Section 3 of the Act. If the order of the appellate authority is under Section 6 of the Act, it is not open to the revisional authority to say that the revision petition does not lie because he was considering an order of the appellate authority passed under Section 6 and once the order of the appellate authority is under Section 6 of the Act, a revision under Section 7 of the Act would perfectly lie. In this view of (he matter, I hold that the view of the revisional authority that the revision is not sustainable in law.
12. Hence, the view of the revisional authority that the original application filed by the landlord should be treated under Section 5 and so, the application itself is liable to be rejected, is not tenable in law. Once the view is taken that the revision petition is maintainable, the finding of the revisional authority that the first respondent was a tenant should also be examined. The revisional authority in the impugned order considered only two documents viz., respondents' document No. 3 respondents' document No. 4 to come to a conclusion that the first respondent was a tenant. The fourth respondent apparently, approached the question whether the first respondent was a tenant or not in a lighter vein because he was of the view that the revision was not maintainable. Since the revisional authority has failed to consider the entire evidence on record, pro and eon, his order-is liable to be set aside. Hence, I set aside the order of the revisional authority and direct the fourth respondent to consider the entire matter afresh. The revisional authority should consider the entire mat(sic) and decide the case afresh in accordance with law. In this view of the matter, I allow this writ petition. There will be no order as to costs.