Dhanushkodi Ammal v. The Land Commissioner, Chepauk, Madras-5.2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 5.2.2010 CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMARAOANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWrit Petition No.21234 of 2000andW.M.P.No.30905 of 20001.Dhanushkodi Ammal2.Parameswari3.Kandavel4.Senthilvel (Minor)5.Vijayanand (Minor)(Minors represented by their mother and next friend Parameswari)... Petitioners Vs.1.The Land Commissioner, Chepauk, Madras-5.2.The Land Tribunal, Thanjavur.3.The Authorised Officer and Asst.Commissioner (Land Reforms), Tiruchirapalli.... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying to issue a Writ of Certiorari calling for the recordsof the Authorised Officer proceedings initiated against thepetitioners herein that culminated into issue of final statementpublished in the Government Gazette, dated 16.12.1992 in M.R.19/A/Lalgudi (58-61 (4) confirmed in and by the proceedings dated26.4.1994 of the Land Commissioner, Madras in F1/R.P.No.35 (L.Ref.)on his file and confirmed in and by the proceedings inS.R.P.No.29/86,dated 29.9.1998 on the file of the Land Reforms Special AppellateTribunal, Madras and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mrs.Hema Sampath, Senior Counsel for Mr.C.R.PrasananFor R.1 & R.3: Mrs.Malarvizhi Udayakumar, Spl.G.P. (Writs)O R D E ROne Ayyavu Muthiriyar of Ananthimedu, hamlet of Sathamangalam,Lalgudi Taluk, was the land owner, whose holding was attracted by theprovisions of the Tamil Nadu Land Reforms (Fixation of Ceiling onLand) Act 58/61, had two wives, by name Ponnupapammal and PapathiAmmal. Through the first wife Ponnu Papammal, he had two daughtersPichaiammal and Nagarathanam and through the second wife PapathiAmmal, he had three daughters Periakkal, Dhanushkoti (the firstpetitioner) and Parameswari (the second petitioner). Petitioners 3to 5 are the children of the second petitioner Parameswari. 2. From the materials placed on record it is seen that theAuthorised Officer concerned found that on the crucial date i.e.6.4.1960, the landowner's family consisted of the landowner, hisfirst wife Ponnupappa, his second wife Pappathi Ammal and hisunmarried daughter Parameswari (the second petitioner herein). On23.3.1955, the land owner executed a deed of settlement in favour ofhis five daughters. His first wife owned 8.75 acres and on hissecond wife, he settled 6.46 acres of land. According to therespondents as on 6.4.1990, the properties owned by Ayyavu andmembers of his family, as defined under Section 3(14) of the Act,were as follows:Ayyavu : 30.00 standard acresPonnu Papammal(the first wife): 7.29 standard acresPapathi Ammal: 6.92 standard acres(the second wife)Minor Parameswari: 20.02 standard acres(the second petitioner)------- 69.23 standard acres -------Periakkal, the eldest daughter through his second wife, died leaving17.58 standard acres and in accordance with the settlement mentionedabove, the second petitioner Parameswari got half of the saidproperties and thus the total holdings of Parameswari got increasedto 28.79 standard acres. https://hcservices.ecourts.gov.in/hcservices/

3. Thereafter, the second petitioner herein by name Parameswari,who was a minor at that time, by her father and next friend filedW.P./No.454 of 1963 before this Court for issue of a Writ ofProhibition directing the respondents (the State of Madras and theAuthorised Officer) to forbear them from making any proceedings inpursuance of the notice dated 2.1.1963 issued to her, calling uponher to submit a return under Section 8 of the Act on the ground thatthe Act is ultra vires and that in any event, the definition of theword 'family' under Section 2(14) is arbitrary and discriminatorysince if the said term 'family' is given effect, she would lose 8.79acres as she remained unmarried and that the land owned by her i.e.28.79 standard acres should not be taken into account whiledetermining the surplus land available for requisition. In themeanwhile, Ayyavu submitted a return dated 31.1.1963 to theAuthorised Officer, wherein he has stated that his holding aloneshould be taken into account in fixing the ceiling and that hisdaughter Parameswari's property should not be tagged on to hisproperty. It is seen that the return submitted by Ayyavu was notcomplete, since he did not fill up the annexure-J under Form-2,giving particulars of the land, which he desired to retain within theceiling area and the land which he desired to be declared as surplusland under Section 8(1)(viii).4. Thereafter, the Authorised Officer issued a notice to Ayyavuunder Section 10(1) of the Act regarding an inquiry, giving time till10.7.1963 to offer his explanation and posting the inquiry to16.7.1963, but, before receiving the aforesaid notice, Ayyavu died on23.6.1963 and his first wife Ponnu Papammal also died in August 1963and therefore, on 1.7.1963, Papathi Ammal, the second wife of Ayyavu,filed her objections in reply to the notice dated 2.1.1963,contending that minor Parameswari's properties should not be takeninto account separately for the purpose of the Act and not to betagged on to the properties left by the deceased Ayyavu. OneSubramanyam, grandson of the landowner Ayyavu through his first wifePonnu Pappammal, who claimed rights under the Settlement dated19.5.1963 has filed a memorandum of objections dated 24.8.1964contending that the surplus lands should be deducted only from andout of the minor Parameswari's property. 5. The Authorised Officer conducted an enquiry under Section 10(1) on the objections filed by both Subramnyam and Papathi Ammal andhe over ruled the objections filed by Subrmanyam on the ground thatSubramanyam is not a 'member of the family' as defined in the Act andthat his claim under the Settlement Deed dated 10.5.1963 is hit bySection 22. As against the said order of the Authorised Officer,I.T.C.H.A.No.3 of 1966 was filed before the Land Tribunal https://hcservices.ecourts.gov.in/hcservices/ (Subordinate Judge), Pudukottai and the said Tribunal, by the orderdated 24.6.1966, set aside the order of the Authorised Officer andremanded the matter to the Authorised Officer for framing certainpoints and calling upon him to render his findings on those points.As against the said findings of the Land Tribunal, Civil RevisionPetition No.1562 of 1966 was filed before this Court wherein alearned single Judge of this Court, by the order dated 24.12.1970,set aside the order of the Land Tribunal and further observing thatSu8bramaniam need not be consulted in the matter of specifying thesurplus lands as he was not a member of the family of the land ownerand that the Authorised Officer would pass an order under Section 10(1) of the Act, after obtaining the required information.6. It is further seen from the materials placed on record thatthereafter, a draft statement under Section 10(1) of the Act waspublished in the Government Gazette, dated 16.2.1972 and it wasserved on Pappathi Ammal and her unmarried daughter Parameswari.Again, P.Subramanian and five others filed objection petitionsagainst the above said draft statement under Section 10(1) of theAct, but this objection was ignored by the Authorised Officer,relying on the earlier judgment of this Court in C.R.P.No.1562 of1966, holding that Subramaniam is not a member of the family on thecrucial date and thus he need not be consulted. 7. In the meantime, on 7.1.1971, this Court, in C.R.P.No.66 of1968 has held that the Authorised Officer was empowered to declaresurplus lands under Sections 10(5) and 15 of the Act, only if theland owner was alive on that date and that the heirs could not beproceeded for. Following this dictum laid down by this Court in theabove said C.R.P.No.66 of 1968, the proceedings under the Act againstthe estate of the landowner Ayyavu Muthariyar were dropped. But,they were re-opened based on a subsequent judgment of the HonourableSupreme Court in C.A.No.1667 of 1981, dated 11.2.1982, reported inAIR 1982 SC 865 = (1982) 1 SCC 680 (Bhikoba Shankar Dhumal v. MohanLal Punchand Tathed), thereby holding that 'the proceedings initiatedunder the Act can be continued in the name of the land owner, as ifthe land owner was alive, by impleading their legal heirs in theproceedings as if the landowner was alive on the notified date of theAct, since his death subsequent to that date, will not alter thesituation and that proceedings under the Act can continue in the nameof the landowner, by impleading his legal heirs in the proceedings'.8. Thereafter, the final statement was published on 16.12.1992and Section 18(1) Notification was published on 19.2.1993 and thesurplus lands have since been assigned as per the Act to eligiblepersons. Thereafter, the petitioners have appealed to the Land https://hcservices.ecourts.gov.in/hcservices/ Commissioner in February, 1993 against the final statement publishedon 16.12.1992 and since the Land Commissioner rejected the petitionas per the order dated 26.4.1994, a Special Revision Petition No.29of 1996 was preferred before the Tamil Nadu Land Reforms SpecialAppellate Tribunal, Chennai and since the said Appellate Tribunalalso refused to interfere with the final statement and finalnotification issued by the Government in the case and thus dismissedthe said Special Revision Petition, the petitioners have come forwardto file this writ petition. 9. The learned senior counsel appearing for the petitionerswould argue that since on an earlier occasion, the proceedingsinitiated against the landowner were closed, re-opening the sameunder the guise of revision or otherwise is illegal and therefore,the impugned order is liable to be set aside. The learned seniorcounsel for the petitioners would further argue that the suo motupower of revision vested in the Land Commissioner were not intendedto be exercised unreasonably and unfairly and since in the case onhand, a finality of decision has already been arrived at by theauthorities concerned, by closing the proceedings initiated earlier,under the guise of suo motu powers, the Land Commissioner once againcannot reopen the issue that too with a long delay.10. In support of her contentions, the learned senior counselfor the petitioners would rely on the following judgments:1. R.V.APPASWAMY vs. AUTHORISED OFFICER (LAND REFORMS)KOVILPATTI, TIRUNELVELI DISTRICT [1982 (1) MLJ 219];2. K.P.AYYEEMUTHUSWAMI GOUNDER vs. THE LAND COMMISSIONER,BOARD OF REVENUE, LAND REFORMS, MADRAS AND ANOTHER [1982(1) MLJ 133]; 3. V.S.PARTHASARATHY MUDALIAR vs. THE AUTHORISED OFFICER(LAND REFORMS), KANCHEEPURAM [VOL.95 L.W. 707];4. TIRUMATHI MAJORANJITHAM vs. THE AUTHORISED OFFICER (LANDREFORMS), NAGAPATTINAM EAST, THANJAVUR DISTRICT AND ANOTHER[1984 (2) MLJ 474];5. THE STATE OF TAMIL NADU REPRESENTED BY THE ASSISTANTSECRETARY, BOARD OF REVENUE, (L.REFS.), CHEPAUK, MADRAS-5AND ANOTHER vs. C.CHANDRA MOHAN AND OTHERS [1986 (1) MLJ382];6. G.R.RADHAKRISHNAN vs. THE AUTHORISED OFFICER, LANDREFORMS, KANCHEEPURAM [1986 (2) MLJ 57]; https://hcservices.ecourts.gov.in/hcservices/

7. THE AUTHORISED OFFICER (LAND REFORMS), KANCHEEPURAM vs.B.BALACHANDRA REDDY [1986 (2) MLJ 350]. 11. In the first judgment cited above, reported in 1982 (1) MLJ210, a learned single Judge of this Court has held as follows:"The language of Section 50(9) being similar to that inSection 15(a) of the Act, the principle that the powerunder the latter provision only applies to mistake in thecorrectness not of the merits but of the form of the entryin the final settlement and that it is directed againstclerical or arithmetical mistakes, as held in Syed RabiaBeevi V. The Authorised Officer, (1970) 2 M.L.J. 700 : 83L.W. 555, applied with equal force with regard to the scopeof the power under Section 50(9) of the Act. The reasonsgiven by the respondent for reopening the matter cannot besustained in view of the principle that the power tocorrect a bona fide mistake in regard to any entry cannottake within its amplitude a power to correct mistakes onmerits. The determination of the amount as per ScheduleIII, preparation of the assessment roll, considering theobjections over the same and the publication of the finalassessment roll have all been done adhering to theprovisions of the Act, and the whole matter got concludedlong back after an investigation into and adjudication overthe merits of the case. Viewed in this light, it is notpossible to countenance the notice issued by the respondentafter the lapse of 3 years and 6 months under Section 50(9)as to making corrections in the final assessment roll onthe ground of bona fide mistake and recovering thecompensation already paid." 12. In the second judgment cited above, reported in 1982 (1) MLJ133, the learned single Judge of this Court has held as follows:"The suo motu power of revision in respect of orders passedunder Section 50(5) of the Tamil Nadu Act LVIII of 1961 isnot intended to be exercised arbitrarily without takingnote of the consequences, which have followed pursuant toorders already passed under the Act. In the instant case,the authorities were declaring nil compensation for thelands acquired under the Act and at the same time, they hadalready determined and were reaping the benefit of thevalue for the same lands assigned to third parties.Practically this would amount to unjust enrichment by theState at the expense of a citizen like the petitioner. Thesuo motu powers of revision under Section 82 of the Actreserved for the first respondent are not intended to be https://hcservices.ecourts.gov.in/hcservices/ exercised to lead to the above result. Any power vestedwith a public authority is not intended to be exercisedunreasonably and unfairly. Any element of caprice orarbitrariness in the exercise of such power cannot betolerated by Courts when it is brought to their notice bycitizens who are put to prejudice and loss by such exerciseof power. This compels the interference in writproceedings." 13. In the third judgment cited above, reported in Vol. 95L.W.707, another learned single Judge of this Court has held that:"In the instant case, it is not the clerical error or thebona fide mistake contemplated under S.15 of the Act thatis sought to be revoked by the order under revision; but theAuthorised Officer who revised his own order resorted to afresh assessment regarding the determination of theexemption. This is certainly revising its own order whichcannot be done under the provisions of the Act. If it wasaggrieved, certainly as pointed out by the learned counselfor the revision petitioner herein, the provision of S.78ought to have been resorted to. There is absolutely noprovision in the enactment which justifies such a revisionindulged in by the Authorised Officer."14. In the fourth judgment cited above, reported in 1984 (2) MLJ474, a Division Bench of this Court, has held as follows:"It is clear from Section 10(5) of the Tamil Nadu LandReforms (Fixation of Ceiling on Land Act) that the draftstatement shall be published and a copy thereof shall beserved on the persons concerned, the tenants, creditors andall other persons who in the opinion of the authorisedofficer are interested in the land to which such draftstatement relates. Section 12 of the Act deals with thepublication of the final statement. This statementaccording to the section, must be published with details,of the holding and a copy thereof has to be served on thepersons referred to in sub-section (5) of Section 10."15. In the fifth judgment cited above, reported in 1986 (1) MLJ382, a Division Bench of this Court has held that:"To find out whether there had been valid service ofnotice, the provisions of rule 8 must be looked into. Asper this rule, any notice or order issued or made under theAct has to be served on an individual person by (a)delivering or tendering the notice to him in person orthrough his counsel or agent; (b) by delivering or https://hcservices.ecourts.gov.in/hcservices/ tendering the notice to some adult member of the family and(c) by sending the notice or order to the person concernedby registered post, acknowledgement due. Only if all thethree methods fail, the authorities can have resort toserving the notice by affixture. In the absence ofevidence to show that the first three methods of service ofnotice were attempted and all of them failed, even if it isto be held that notice had been served by affixture, itwill not constitute a valid service. When such aconclusion is reached, it goes without saying that the LandCommissioner cannot reject the revisions filed by therespondents on the ground that they had been filed beyondthe prescribed period of two months from the date ofservice of notice."16. In the sixth judgment cited above, reported in 1986 (2) MLJ57, a learned single Judge of this Court has held as follows:"There is no provision in the Act which enables theAuthorised Officer to review his earlier order or to reopena closed issue. The only provision which is relevant inthis case probably is Section 15 but that deals withclerical or arithmetical mistakes and not a review of theearlier order itself or passing a fresh order. The findingof the Authorised Officer that the lands covered by the saledeed dated 15th November, 1966 measuring 11.25 standardacres though standing in the name of the petitioner werelands purchased from and out of the income of the jointfamily properties and as such joint family properties is afinal one which could not have been revised by thesucceeding officer on the ground of clerical or arithmeticalmistake."17. In the last judgment cited above, reported in 1986 (2) MLJ350, a learned single Judge of this Court has held that "An Authorised Officer has no jurisdiction to reopen suomotu an order passed by another Authorised Officer earlierholding that Act LVIII of 1961 was not applicable as therespondent holds an extent of 14.970 standard acres which iswithin the ceiling limit of 15 standard acres."18. Placing reliance on the above judgments, the learned seniorcounsel for the petitioner would argue that no opportunity was givento the legal heirs of the deceased landowner and that the respondentscannot set the clock back and would pray to allow this writ petition.19. On the other hand, the learned Special Government Pleaderwould argue that the respondents have followed all the procedure https://hcservices.ecourts.gov.in/hcservices/ contemplated under law, by giving sufficient and reasonableopportunities to the legal heirs of the deceased landowner and byfollowing the judgment of the Honourable Apex Court, the proceedingsare re-opened, wherein no illegality could be found with and on sucharguments, she would pray to dismiss this writ petition.20. Though much has been argued on the part of the learnedsenior counsel appearing for the petitioners that the LandCommissioner cannot revive his own order by using his suo motu powersand relied on the above quoted judgments, one thing must be madeclear that on an earlier occasion, the proceedings were dropped byfollowing a judgment of a learned single Judge of this Court inC.R.P.No.66 of 1968, holding that proceedings cannot continue againsta landowner, who is dead; the said legal position was upset by theHonourable Apex Court in its judgment reported in Bhikoba ShankarDhumal v. Mohan Lal Punchand Tathed, (1982) 1 SCC 680 = AIR 1982 SC865 thereby holding that 'the proceedings initiated under the Actcan be continued in the name of the land owner, as if the land ownerwas alive, by impleading their legal heirs in the proceedings as ifthe landowner was alive on the notified date of the Act, since hisdeath subsequent to that date, will not alter the situation and thatproceedings under the Act can continue in the name of the landowner,by impleading his legal heirs in the proceedings'. Therefore, thelaw which was followed by the respondents on the earlier occasion washeld to be bad.21. There could be no doubt that the judicial decisions, unlessotherwise specified, are retrospective and they would only beprospective in nature, if it has been provided therein. For this, wedraw source from the judgment of the Honourable Apex Court in GENERALMANAGER, UTTARANCHAL JAL SANSTHAN Vs. LAXMI DEVI AND OTHERS [(2009) 7SCC 205].22. Therefore, it can be held that the respondents have notcommitted any error in re-opening the case by following the judgmentof the Honourable Apex Court, which is the law of the land.23. But, another question has been raised on the part of thelearned senior counsel for the petitioners that while exercising hissuo motu revisional powers under Section 82, the Land Commissionercannot re-open a case, wherein proceedings were already dropped andsuch suo motu power of revision is not intended to be exercisedarbitrarily without taking note of the consequences which havefollowed pursuant to orders already passed under the Act. For betterappreciation of this aspect, we shall now deal with Section 82 of theAct, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "82. Revision by the Land Commissioner – The LandCommissioner may call for and examine the recordof anyauthorized officer in respectof any proceeding underSection 9(3), 12, 13, 14(1), 14(2), 17(3), 18(4), 50(5) or50(9) or the record of any proceeding under sub-section (2)of Section 54 and in respect of any other proceeding underthis Act not being a proceeding in respect of which a suitor an appeal to the Land Tribunal is provided by this Actto satisfy himself as to the regularity of such proceedingor the correctness,legality or propriety of any decision ororder passed thereon; and if, in any case, it appears tothe Land Commissioner that any such proceeding, decision ororder should be modified, annulled, reversed or remittedfor reconsideration, he may pass orders accordingly:Provided that the Land Commissioner shall not pass anyorder prejudicial to any party unless he has been given areasonable opportunity of being heard." 24. The revisional power vested on the Land Commissioner underthis Section required him to satisfy himself as to the regularity ofthe proceeding or the correctness, legality or propriety of anydecision or order passed by an Authorised Officer. In the case onhand, admittedly, on an earlier occasion, the proceedings weredropped by the Authorised Officer following the order passed by alearned single Judge of this Court in C.R.P.No.66 of 1968, but whenthe said law held by the learned single Judge was held to be bad bythe Apex Court, the Land Commissioner has re-opened the matter,following the law laid down by the Honourable Apex Court, wherein wefind no illegality or irregularity. But, the proviso of Section 82makes it obligatory on the part of the Land Commissioner not to passany order prejudicial to any party unless he has been given areasonable opportunity of being heard. Therefore, it is to be seenwhether opportunities were afforded to the parties concerned by theAuthorities.25. In the case on hand, when the matter was re-opened,following the dictum of the Honourable Apex Court in Bhikoba ShankarDhumal v. Mohan Lal Punchand Tathed, (1982) 1 SCC 680 = AIR 1982 SC865, the legal heirs of the deceased landowner were brought on recordand due opportunities were given to them to put up their case. Fromthe materials placed on record, it is also seen that the legal heirsof the deceased land owner also filed number of representationsbefore the authorities and all of them have also been taken intoaccount and during the final hearing before the Authorised Officer,the learned counsel appearing for the petitioners himself has statedthat the petitioners have nothing more to say and requested the saidAuthority to pass orders as per law. Since notices have been dulyserved on the parties and they have also participated in the https://hcservices.ecourts.gov.in/hcservices/ proceedings before the Authority and put in their submissions byavailing due opportunities afforded to them and since the proceedingswere re-opened pursuant to the law declared by the Honourable ApexCourt in Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed, (1982)1 SCC 680 = AIR 1982 SC 865, the above judgments relied on by thelearned senior counsel for the petitioners have no application to thefacts of the case on hand. 26. The Tamil Nadu Land Reforms Special Appellate Tribunal hasconsidered all the facts and circumstances of the case in theirproper perspective and has arrived at an unerroneous conclusion ofrejecting the case of the petitioners and we find no reason to causeour interference into the well merited and considered order passed bythe said Appellate Tribunal.For all the above reasons and discussions, this writ petition isdismissed. No costs. Consequently, W.M.P.No.30905 of 2000 is alsodismissed.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarRaoTo1.The Land Commissioner, Chepauk, Chennai-5.2.The Land Tribunal, Thanjavur.3.The Authorised Officer and Asst.Commissioner (Land Reforms), Tiruchirapalli.4.The Tamil Nadu Land Reforms Special Appellate Tribunal, Santhome, Chennai-4.+One CC to MR.C.R.PRASANAN, Advocate SR.7583+One CC to the Govt., Pleader SR.8267 W.P.No.21234 of 2000 &WMP.No.30905 of 2000KG(CO)MS