Durai Singh v. Assistant Commissioner, Land Reforms, Erode

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 06.07.2012CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMW.P.No.5342 of 2006andW.P.M.P.No.5729 of 20061.Durai Singh2.Rathnaswami3.Kaliappan4.M.Krishnaswami5.M.Kaliappan6.P.Kittuswami7.A.Gopu..PetitionersVs.1.Assistant Commissioner, Land Reforms, Erode.2.District Collector, Erode.3.Commissioner of Land Reforms, Chepauk, Chennai – 5.4.Durai Raj5.Deputy Secretary to Government (Revenue), Govt. of Tamil Nadu Chennai.(R3 & R4 impleaded as per order dated 26.03.2008 in M.P.No.98/08 in W.P.No.5342 of 2006 R5 impleaded as per order dated 08.03.2011 in W.P.M.P.No.732/2010 in W.P.5342/2006)..Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Declaration declaring G.O.145,Revenue (L.R.1-2) dated 04.03.2005 consequent to the order of thethird respondent in D1/RP19/1998 Land Reforms, dated 10.04.1998 asillegal, null and void.(Amended prayer has been amended as per order dated 12.4.2012 inWPMP.646/2010 in WP.5342/2006)For Petitioner : Mr.M.V.KrishnanFor Respondents: Mr.R.Rajeswaran, Spl.GP (R1 to R3 and R5) Mr.N.Subramani (R4)O R D E RThe petitioners have filed this Writ Petition for a declarationdeclaring G.O.145, Revenue (L.R.1-2) dated 04.03.2005 consequent tothe order of the third respondent in D1/RP19/1998 Land Reforms, dated10.04.1998 as illegal, null and void.2. Shorn of unnecessary particulars, the relevant facts whichrequire mention are as follows:One Dorairaj, was the owner of properties in Dalavoipattinam andChinnakkampalyam villages. His holding of an extent of 22.36.0hectares (5.589 std. Acres), was found to be in excess of the ceilinglimit under the Land Reforms Act. The lands in Dalavoipattinamvillage were found suitable for distribution to the landless poor andaccordingly, assignment thereof was made in favour of thepetitioners. A tentative value was fixed and the petitioners hadalso made initial payment in respect thereof in sums of Rs.50/-. Asregards the properties held by the said Dorairaj in Dalavoipattinamvillage, a temple viz., Sri Varadaraja Perumal temple claimed titleover the same resulting in proceedings before Court which eventuallyended in favour of Dorairaj. In the mean while, Dorairaj moved areview petition in R.P.No.19 of 1998 before the Land Commissionerinter alia submitting that in the event of lands which stood in hisname being found in excess as an outcome of pending litigation https://hcservices.ecourts.gov.in/hcservices/ regards the property situated in Dalavoipattinam village, he waswilling to offer the properties in Chinnakkampalyam village for thepurpose of acquisition. This plea was accepted by the LandCommissioner, who under orders dated 10.04.1998 informed that in theevent of the litigation in respect of holdings in Dalavoipattinamvillage, concluding in favour of Dorairaj, his holdings inChinnakkampalyam village, may be taken up for the purpose ofacquisition and distribution to the landless poor. Pursuant to suchorder and upon conclusion of the legal battle, G.O.145, Revenue(L.R.1-2) dated 04.03.2005, was issued informing that the holdings ofDorairaj which were found to be in excess were in Dalavoipattinamvillage.3. The contention made on behalf of the petitioners is that theorder of the Land Commissioner in his proceedings in D1/RP19/1998Land Reforms, dated 10.04.1998, violated the provisions of Section 82of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act,1961 (hereinafter referred to as Act). Under proviso to such section,it is incumbent upon the Land Commissioner, in considering a reviewpetition (which in the instant case sought modification of the landsfound in excess i.e., instead of lands in Dalavoipattinam village,lands in Chinnakkampalyam village were offered), to issue notice toall persons who may prejudicially be affected by orders passedtherein. As the holdings of Dorairaj in Dalavoipattinam villagealready stood assigned to the petitioners and they also had madeinitial payment towards the price thereof, any order of modificationof the Land Commissioner touching upon the lands which were found tobe in excess would have a bearing upon the rights of the petitioners.In other words, the contention is that the issue raised in the reviewpetition before the Land Commissioner is the offer of the land holderof lands in Chinnakkampalyam village instead of lands inDalavoipattinam village. In the event of the Land Commissioneraccepting such plea of the land owner, the same would have a materialbearing on the interests of those in whose favour the land inDalavoipattinam stood assigned. While so, the petitioners, asassignees would be persons who prejudicially could be affected by theorders of the Land Commissioner in R.P.No.19 of 1998 and accordingly,they ought to have been put on notice. Learned counsel, towardsimpressing upon this Court the need for authorities to satisfythemselves also as regards the easy and convenient enjoyment of landsfound in excess of the ceiling area, drew our attention to thejudgment of this Court in S.R.Ramasami Gounder v. The Authorised https://hcservices.ecourts.gov.in/hcservices/ Officer, Land Reforms, Coimbatore [1977 (2) MLJ 241] wherein thefollowing observations find place:"5. Lastly, the argument is that the offer made by theholder has been unreasonably rejected by the AuthorisedOfficer and the Land Tribunal also committed an error inmechanically accepting it. No doubt, under Section 10(4), ifany person has specified the particulars of the land which hedesires to retain within his ceiling area, the authorisedofficer shall, as far as practicable, but subject to theprovisions of the Act, declare the same land as comprisedwithin his ceiling area. The third proviso to this sub-clause says:"Provided also that subject to the above provisions,the land which the authorised officer proposes to declareas surplus land under clause (xii) of sub-section (1)shall, as far as practicable, be such as is capable ofeasy and convenient enjoyment."Mr.Sundaram Iyer's contention is that the words "easyand convenient enjoyment in the third proviso to sub-clause(4) has reference only to the retainer and not to the Statewhich under the provisions on the statute is entitled to takethem over from the holder. This does not appeal to me. Thevery purpose of agrarian reform is to slice off the extent oflands from the landholders for the avowed and benevolentpurpose of passing them on to the landless poor, so that theycould easily and conveniently enjoy it. In my view, thephrase "capable of easy and convenient enjoyment" in thethird proviso to sub-clause (4) has a special connotation.Otherwise, every landholder would have the choice to givesuch useless land and probably inaccessible land or landwhich cannot easily or conveniently be enjoyed under clause(4) and the Authorised Officer would in equity be bound toaccept the same and leave the rest. This does not appear tobe the intendment of either the sub-clause or the object ofthe enactment either. The easiness and convenience referredto in the third proviso in sub-clause (4) has reference onlyto the State whose object is to pass on such lands taken over https://hcservices.ecourts.gov.in/hcservices/ by it to others who do not own land, so that they couldeasily enjoy the same. The very purpose and object of theenactment would be lost if the holder's choice has toprevail."4. Learned counsel for the petitioners submitted that thepetitioners were residents of Dalavoipattinam village and the effectof G.O.145, Revenue (L.R.1-2) dated 04.03.2005, would be that theywould have to tend to properties assigned to them 40 kms. away fromtheir place of residence.5. Learned Special Government Pleader submits that the provisoto Section 82 of the Act, touching upon notice to parties who may beprejudiced by an order of the Land Commissioner in exercise of powerunder Section 82 of the Act, would relate to persons who have anyright of ownership over the land and not to persons such as thepetitioners, who only are assignees thereof and had no vested rightthereto. Taking this Court through Section 82 of the Act, he submitsthat the proceedings under particular sections mentioned therein allrelate to that between the land owner and the Land Commissioner.6. This Court finds much force in the submission of learnedcounsel for the petitioners. This Court is unable to read down theproviso to Section 82 of the Act and accord the meaning that 'anyparty who might be prejudiced by an order of the Land Commissioner inexercise of powers under revision' would relate only to the landowner. The wording of the proviso is clear on terms and does notallow such a limited reading. The other submission of learnedSpecial Government Pleader as regards the proceedings in respect ofwhich revision under section 82 of the Act are entertainable also isnot acceptable for the reason that it misses the wording in thesection which allows for revision "in respect of any proceeding underthis Act not being a proceeding in respect of which a suit or anappeal to the land tribunal is provided by this Act". Clearly in theinstant case, the proceedings of the Land Commissioner are not inrespect of a matter which allows of a suit or an appeal. As informedin the decision in S.R.Ramasami Gounder v. The Authorised Officer,Land Reforms, Coimbatore [1977 (2) MLJ 241], consideration regardseasy and convenient enjoyment of property by the assignees is arelevant factor. Therefore, in circumstances where no notice standsissued to the petitioners regards the proceedings of the LandCommissioner in D1/RP19/1998 Land Reforms, dated 10.04.1998, theorder therein would have to be interfered with. https://hcservices.ecourts.gov.in/hcservices/

7. Though the prayer of the petitioners is that the respondentsbe injuncted from in any manner interfering with the rights andpossession of the petitioners' lands in R.S.No.419/2 (OldS.No.714/1), Dalavoipattinam (VII) Dharapuram, Taluk, Erode, thisCourt considers it appropriate to set aside the order of LandCommissioner in his proceedings D1/RP19/1998 Land Reforms, dated10.04.1998 and require him to proceed therein afresh after issuingnotice to the petitioners and come to a reasoned decision in thematter. It is needless to state that once this Court has set asidethe order of the Land Commissioner dated 10.04.1998, the issue ofG.O.145, Revenue (L.R.1-2) dated 04.03.2005, pursuant thereto, wouldhave to be found bad in law. 8. Accordingly, this Writ Petition stands allowed and the orderof the Land Commissioner dated 10.04.1998 is set aside. The LandCommissioner is directed to proceed with the matter afresh afterissuing notice to the petitioners and dispose of the same within aperiod of 12 weeks from the date of receipt of a copy of this order.No costs. Consequently, the connected miscellaneous petition isclosed. Sd/-Assistant Registrar/TRUE COPY/Sub Assistant RegistrargmTo1.The Assistant Commissioner, Land Reforms, Erode.2.The District Collector, Erode.3.The Commissioner of Land Reforms, Chepauk, Chennai – 5. https://hcservices.ecourts.gov.in/hcservices/

4.The Deputy Secretary to Government (Revenue), Govt. of Tamil Nadu Chennai.+1CC to Mr.M.V.Krishnan, Advocate SR.39372+1CC to Mr.N.Subramani, Advocate SR.39189+1CC to The Government Pleader SR.39633W.P.No.5342 of 2006GR(CO)KSA(31/08//2012)