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TMI Blog2017 (5) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... t unwillingness to clear the outstanding dues, which in terms of RSO 45(4) disqualifies him to avail any preference in the matter of assignment of the “bought in” lands. That the suit was filed claiming restoration of the land relying on RSO 45(4) seven decades after the land had been bought in, is writ large on the face of the record. As the above analysis evince that in the facts of the case, the respondent No.1/plaintiff was not entitled to the preference as contemplated in RSO 45(4), the omission on the part of the revenue authorities to hold a public auction before leasing out the suit land to Sericulture Development Department and Bharat Petroleum Corporation Ltd., is of no consequence. The preference to an original owner or his undisputed heir in the matter of assignment of “bought in” lands being contingent on the compliance of the essential pre-requisites therefor, as eluded hereinbefore, we are of the unhesitant opinion that the High Court was wrong in decreeing the suit on the sole ground that no notice had been issued to the respondent No.1/plaintiff prior to the assignment of the “bought in” land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocated at Village Pillayarpatti, Thanjavur Taluk belonged to his grand-father, Kailasam Sanaiyar and after his demise, he eventually being the only legal heir had been enjoying the same. It is his pleaded case that this land was taken over by the Tahsildar, Thanjavur for the government in the year 1935 vide fasli 1343 Order No. 18431/35 A3 dated 31.12.1935 for non-payment of land tax and was converted into bought in land. This land was later converted into Punjai Tharisu (Government Dry) fallow land vide order Ni-mu/164/45/A5 dated 1.3.1945 of the R.D.O., Thanjavur. Subsequent thereto, by Order L.R 158 dated 31.12.1958 of the Special Tahsildar (Loan) and Taluk 8A order vide 51/21-1-59, the Survey Field No. 199/2 was sub-divided into 199/2A ad-measuring Ac. 2.23 cents and S.F. No. 199/2B ad-measuring Ac. 2.36 cents. Following further sub-division of the suit property, the same was assigned to Karuppaiah Sanaiyar and Muthusamy Sanaiyar of Thanjavur in the year 1958. Being aggrieved by this assignment, the respondent No. 1 questioned the same before the Tahsildar, Thanjavur, who by his order R.C. 1015/91 dated 18.6.1971, cancelled the same. 6. At this, the assignees preferred a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Development Department and the Bharat Petroleum Corporation Limited on the cancellation of the assignment of the Sanaiyars as well in contravention of the imperatives of RSO 45(4). The following are the reliefs prayed for in the suit: 1. The Hon'ble Court might be ordered to the defendants that the suit property must be assigned to the plaintiff, if not so, the re-assignment might be executed by this Hon'ble Court. 2. The possession of the suit property should be handed over by the defendants to the plaintiff, if no so, the Hon'ble Court execute the above. 10. The appellants/defendants in their written statement, denied the allegations more particularly pertaining to the alleged violation of RSO 45(4), as highlighted in the plaint. While admitting that the patta with regard to the suit property, as mentioned therein, originally stood in the name of Kailasam Sanaiyar, the land, for arrears of land tax, was bought in by the government. They denied the possession thereof subsequent thereto by the respondent No. 1 or any other heir of Kailasam Sanaiyar. They pleaded that the respondent No. 1 did never offer to pay the arrears tax/dues within a period of two y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent from the testimony of the witness of the appellants, the suit land, in the year 1935, was bought in by the government for non-payment of land tax, whereafter in 1945 it was classified as Punjai bare land. The witness deposed that even after taking over of the suit land by the government for non-payment of tax, the respondent No.1/plaintiff did not apply for restoration of the possession by offering the arrears of tax, for which the same was classified as punjai bare land and was thereafter sub-divided and assigned to the Sanaiyars. He, however admitted that this assignment in favour of Karuppaiah Sanaiyar and Muthusamy Sanaiyar was cancelled at the instance of the respondent No.1/plaintiff. According to this witness, it was only in the year 1981, when the proceedings were still pending with the concerned revenue authorities that the respondent No.1/plaintiff for the first time gave an offer to pay the arrears tax for restoration of the land to him. 13. The Trial Court, on a consideration of the pleadings of the parties and the evidence adduced, decreed the suit and directed restoration of the suit land on payment of the tax due. This conclusion was principally based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The learned counsel for the appellants/defendants has emphatically argued that in the face of the admission of respondent No.1/plaintiff that the suit land had been taken over by the government for the default in the payment of land tax, the High Court was in error in repudiating the same in absence of any challenge thereto at any point of time. According to Mr. Prasad, the impugnment on behalf of the respondent No.1/plaintiff had been directed consistently solely against the assignment of the suit land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar in the year 1958 without prior notice to him and that thus, the question of validity or otherwise of the process of taking over of the land by the government for non-payment of arrears of land tax had never been an issue between the parties. According to the learned senior counsel, a plain reading of RSO 45(4) makes it abundantly clear that mere cancellation of the assignment of the suit land in favour of Kuruppaiah Sanaiyar and Muthusamy Sanaiyar does not entitle the respondent No.1/plaintiff ipso facto to the restoration of the suit land even on payment of the tax dues by way of preference to others unless the conditions p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue and incidentals thereto. RSO 45, the pivotal provision for the present adjudication is an integral part of the said process. RSO 45 provides that if no bid is made in any sale of any land for realization of such arrears of land revenue etc., it should be purchased on behalf of the Government at a nominal price, the amount of the purchase money being written off the accounts as an irrecoverable arrears with the sanction of the competent authority and thereafter as per RSO 45(2), the government would have an absolute right to lands purchased by it and consequently such land would not be treated as a village waste available for occupation by ryots or without darkhast, but has to be entered in a Taluka Register No.18A and would not be dealt with under the Darkhast Rules and that any unauthorized entry upon it would render the trespasser liable. RSO 45(4) being of decisive relevance is extracted herein below in full. 45(4). Disposal of bought-in-lands.- (1) In the matter of assignment of bought-in-lands, the original owners or their undisputed heirs should be preferred to outsiders, provided that the assigning authority is satisfied that the original owner was not a willful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is not alive, the notice mentioned above should be issued to his undisputed heirs. On receipt of an application for re-assignment of the land, the Tahsildar will verify whether all the arrears and back assessment, etc., due, together with interest on the arrears, have been remitted by the applicant and whether the applicant, if he is not the original owner is the undisputed heir of the original owner. The tahsildar will then submit the application together with his recommendation to the Revenue Divisional Officer. The Divisional Officer will pass orders on the application himself- (a) in cases where the land is wet or other valuable land coming under sub-paragraph (1) (a), (b) and (c) of paragraph 22 of S.O. 15 and whether the extent involved does not exceed 2 acres, and (b) in the case of other kinds of land where the extent involved does not exceed 5 acres. In all other cases, the Revenue Divisional Officer will forward the application with his recommendation to the Collector for his orders. If no application for re-assignment of the land is received within the specified time or if the original owner or his undisputed heir informs the tahsildar that he does not want ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a land is bought in and its purchase money is written off, if there is no objection to the assignment of the land, the tahsildar should issue a notice in writing to the defaulter informing him that the land would be reassigned to him, if he pays the arrears, back assessment, balance of loan, if any etc. and if he applies to the Tahsildar for a reassignment to the land within a period of one year from the date of receipt of such notice. (i) In the case of lands bought in before Fasli 1366, time may be given till 30th of June 1958 or such other date as the Board of Revenue may by general instructions specify. (j) In such cases, if the original owner is not alive, the notice mentioned should be issued to his undisputed heirs. (k) On the receipt of an application for reassignment of the land, if made, the Tahsildar will verify whether all the arrears and back assessment etc., due together with the interest on the arrears have been remitted by the applicant and whether the applicant, if he is not the original owner, is the undisputed heir of the original owner. (l) In case all these are complied with, the Tahsildar would then submit the application together with his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /them if he/they pay the arrears, back assessment, back balance of loan, if any etc. on their application to the Tahsildar to the said effect. The eventuality of a fresh sale would occur in case, in response to such notice, no application for reassignment is received from the original owner or his undisputed heir or if he/they inform the Tahsildar that he/they do not desire to have the land back. Here again, the Revisional Divisional Officer, at his discretion and if he is satisfied that the fresh sale would not fetch more than ₹ 10 per acre, would refrain from undertaking that exercise and instead direct that the land be struck off in the Taluk Register No.18A and classed as ordinary village waste. 22. In the face of such clear and unambiguous method of disposal of bought in lands, as prescribed by RSO 45(4), there is no semblance of doubt that for an original owner or his undisputed heir to claim preference in the matter of assignment thereof to him/them, the above three pre-conditions would have to be essentially complied with. In absence of such compliance, any plea of preference in the assignment of bought in lands under RSO 45(4) is patently fallacious and untena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssignment of the bought in land to the Sanaiyars were also confined to the grievance of want of notice to the respondent No.1/plaintiff prior to such endowment to them. There is no shred of evidence to demonstrate that the default in the payment of land tax, which resulted in the taking over of the land by the government was not willful and that the same was due to circumstances beyond the defaulters' control and further that the assignment, if to be made to the respondent No.1/plaintiff would be unobjectionable in the facts and circumstances of the case. Significantly, the respondent No.1/plaintiff admits that the land was bought in by the government in the year 1935 in view of the failure to pay the land tax. To reiterate, this process had not been objected to until the suit was filed in the year 2005. In any view of the matter, any demurral to this process of taking over of the land in 1935, even if made in the year 2005 in the suit, can by no means be taken of cognizance of or be entertained. As a matter of fact, PW1 (respondent No.1/plaintiff) did admit that the land was auctioned for failure to pay the land revenue and it was essentially therefore his burden to also e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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