Partly allowed

The District Collector v. Kary Ellappa S/O Kempaiya

Madras HC3 Aug 2023WA/1195/2017

Case brief

AI extract

What is this about?

This court allowed the writ appeal filed by the District Collector setting aside a High Court order that favored the original owner, while dismissing the beneficiaries' appeal against a review dismissal, holding that the earlier final judgment binds the first respondent.

What did the court decide?

Writ appeal by the District Collector allowed; writ appeal by the beneficiaries dismissed. Liberty granted to approach concerned authority for compensation.

The District Collector Vs Kary Ellappa S/O Kempaiya — Land Acquisition | Madras HC (2023)

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W.A.Nos. 1195 of 2017 and 642 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 03.08.2023

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CORAM

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THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR AND THE HONOURABLE MR.JUSTICE P. B. BALAJI

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W.A.Nos. 1195 of 2017 and 642 of 2019 and CMP.Nos. 18620/2016, 16898 & 13440 of 2017 and 10937 of 2018

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W.A.No.1195 of 2017

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1.The District Colloctor, Dharmapuri District, Dharmapuri.

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2.The Special Tahsildar, (ADW) Krishnagiri, Dharmapuri District.

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..Appellants

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1.Kary Ellapa S/o. Kempaiya 2.Timmakka D/o.Kempaiya

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3.Muniyammal D/o.Kempaiya 4.Savithiriamma 1/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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D/o.Kempaiya 5.K.Venkatesh S/o.Kempaiya

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Respondents

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W.A.No. 642 of 2019 1.Rani W/o.Sekar 2. Manjula W/o.Murugesh 3.Akkaiyamma W/o.Nanjappa 4.Kemmamma W/o.Chinnamuthappa 5.R.Padma w/o.Ramesh 6.Krishnamma W/o.Thimmarayappa 7.Giriyamma W/o.Kenchappa 8.Chinnamma W/o.Murugesh 9.Rammakka W/o.Thimmarayappa Thippamma W/o.Chennarayappa(deceased) 10.Sembamma W/o. Muniraj 11.Munithai W/o. Sathappa 12.Devamma W/o.Chikkanna 13.Santha W/o.Ashok 14.Jayamma W/o. Madhanagiriyappa 15.Dhairamma 2/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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W/o.Krishnappa 16.Munirathana W/o.Thimmarayappa 17.Periyamunirathnamma W/o.Muniyappa 18.Neelamma W/o.Venkatesappa 19.Maramma W/o.Thimmarayappa 20.Jeyamma W/o.Muniraj 21.Padma W/o.Narayanappa

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..Appellants

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1.Kempaiya (died) S/o.Mukitappa Kempaiya 2.Kary Ellapa S/o.Kempaiya 3.Timmakka D/o. Kempaiya 4.Muniyammal D/o.Kempaiya 5.Savithiriamma D/o.Kempaiya 6.K.Venkatesh W/o.Kempaiya

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7.The District Collector, Dharmpauri Dharmapuri District.

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8.The Special Tahsildar ADW, Krishnagiri, Dharmapuri District.

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..Respondents

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3/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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Prayer in W.A.No.1195 of 2017: Writ Appeal is filed under Clause 15 of Letter Patent to set aside the order made in W.P.No.39709 of 2006, dated 25.11.2015.

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Prayer in W.A.No.642 of 2019: Writ Appeal is filed under Clause 15 of Letter Patent to set aside the order dated 21.12.2017 passed in Review Application No. 18 of 2017.

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For Appellants

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in W.A.No. 1195 of 2017 : Mrs.Geethathamarai Selvan, Spl.GP in W.A.No.642 of 2019 : M/s. Karl Marx

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For Respondent :

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in W.A.No. 1195 of 2017 : Mr.G.M. Anantha Kumar, R1 to R5

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in W.A.No. 642 of 2019 : Mrs.Geethathamarai Selvan,Spl.GP

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-R7 &R8

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Mr.G.M.Ananthakumar -R2 to R6 (Vakalath not filed)

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COMMON JUDGMENT

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(Judgment of the Court was made by D.KRISHNAKUMAR, J.)

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Challenging the order passed in W.P.No. 39709 of 2006, dated 25.11.2015, the District Collector has filed instant Writ Appeal in W.A.No. 1195 of 2017.

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4/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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Challenging the said order of this Court, the beneficiaries have

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preferred Review Application No. 18 of 2017 and the same was dismissed

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by the learned Single Judge by order dated 21.12.2017. Challenging the same, the beneficiaries have filed present writ appeal in W.A.No. 642 of 2019.

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The learned Special Government Pleader appearing for the appellants has submitted that the 4(1) Notification in Na.Ka.47073/1998 was published in Dharmapuri District on 08.01.1999. Challenging the said notification, one Kariellapa has filed a writ petition in W.P.No. 2800 of 2000 before this Court. This Court by order dated 26.06.2000 dismissed the said writ petition by observing as follows:

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“9. From the file, I am able to see that when enquiry was held on 19.03.1999, the petitioner's father did not reveal the said fact that there was a partition in the property and the property was alloted to the petitioner. Only subsequently the second respondent received a representation on 20.03.1999 to the effect that there was a partition in the family and the petitioner got land in question to his share. But the second

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5/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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respondent passed an award on 22.03.1999. Now I am not dealing with the said question as the petitioner has not challenged the award.”

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Challenging the said order of the writ court, the said Kariellappa has preferred a writ appeal in W.A.No. 1941 of 2000 before the Hon'ble Division Bench of this Court and the same was also dismissed by by order dated 27.07.2001 confirming the order of the writ Court. Thereafter, one Kempaiya who is the father of the 1^st respondent namely Kary Ellappa has filed a writ petition in W.P.No.39709 of 2006, challenging the very same 4(1) notification dated 08.01.1999, contending that he is the original owner of the property in question. This Court allowed the said writ petition on the ground that without following the procedure under Section 4(3)(b) of the Act, the respondent-department straightaway issued notification to the petitioner, which cannot be stated to be a notice served under Section 4(2) of the Act.

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The learned Special Government Pleader appearing for the

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appellants has further submitted that the acquired land was sub divided and

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6/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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house site pattas were issued to poor Adi Dravidars as per the Scheme on 31.03.1999 and the acquired land is with the beneficiaries and not with the Government. The learned Judge without considering the said fact has allowed the said writ petition, which according to the learned Special Government Pleader is unsustainable in law and liable to be set aside.

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The learned counsel appearing for the respondents/petitioners is that the petitioner in W.P.No. 39709 of 2006 namely Kempiah is the original owner of the property and his name also found in the 4(2) notification issued under the Act. The writ Court has rightly concluded the writ petition in favour of the writ petitioner and nothing warrants interference by this Court.

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It is seen from the records that both Kempiah(deceased) and Kary ellappa ranked as 1^st respondent in the present writ appeal in W.A.Nos.642 of 2019 and W.A.No.1195 of 2017 respectively. When the 1^st respondent in W.A.No.1195 of 2017 namely Kariepplla being a party in the earlier litigation and speaking order also been passed by this Court both in writ petition and writ appeal, the same is binding on the parties. 7/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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Admittedly, in an earlier litigation, the writ petition filed by the 1^st respondent was considered by this Court and the same was rejected. On the same ground, another writ petition was filed by his father came to be accepted accepted. The grounds raised in both writ petitions are one and the same. Apart from that after the death of his father, the deceased father was shown as 1^st respondent in the review application preferred by the beneficiaries. Therefore, the order passed in the writ appeal squarely binding on the first respondent, therefore we find some force on the contentions raised by the learned Government Pleader.

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According to us, when the 1^st respondent in the present writ appeal in W.A. No.1195 of 2017 was the appellant in W.A.No. 1941 of 2000 and the said order has become final, the earlier order passed in the writ appeal filed by him will bind him, therefore the contention of the respondent cannot be accepted.

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8/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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Considering the submissions made by both the learned counsels

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and the in view of the admitted fact that the 1^st respondent in W.A.No. 1195 of 2017 is not a original owner of the property in question, the order passed in W.P.No.39709 of 2006 is liable to be set aside. Accordingly, the appeal preferred by the beneficiaries as against order passed in review application in R.A.No. 18 of 2017 is also liable to be dismissed.

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In the result, the writ appeal preferred by the District Collector,

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Dharmapuri in W.A.No. 1195 of 2017 is allowed. The writ appeal preferred by the beneficiaries in W.A.No.642 of 2019 is dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.

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Liberty is granted to the private respondents in both writ appeals

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to approach the authority concerned and seek compensation, if so permissible under the law.

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(D.K.K., J.) (P.B.B., J.) 03.08.2023

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Index: Yes / No Internet: Yes ak

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9/10

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https://www.mhc.tn.gov.in/judis

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W.A.Nos. 1195 of 2017 and 642 of 2019

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D.KRISHNAKUMAR, J. AND P. B. BALAJI, J.

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1.The District Collector, Dharmapuri District, Dharmapuri.

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2.The Special Tahsildar, (ADW) Krishnagiri, Dharmapuri District.

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W.A.Nos. 1195 of 2017 and 642 of 2019 and CMP.Nos. 18620/2016, 16898 & 13440 of 2017 and 10937 of 2018

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03.08.2023

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10/10

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https://www.mhc.tn.gov.in/judis

The District Collector v. Kary Ellappa S/O Kempaiya

Case brief

What is this about?

What did the court decide?

The District Collector v. Kary Ellappa S/O Kempaiya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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