IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.8603 and 8609 of 2004 Pennarasi ...Petitioner in W.P.No.8603 of 2004 1.Veluthai 2.Kuzhanthai Velayutha Balasubramanian 3.M.Jeyakumar 4.Visalakshi ...Petitioners in W.P.No.8609 of 2004 Vs. 1.The Land Commissioner, Land Reforms, Chennai-5. 2.Land Tribunal, Land Reforms, Chennai-5. 3.The Assistant Commissioner, Land Reforms, Madurai. ...Respondents in both petitions W.P.No.8603 of 2004 is filed for the issuance of writ of certiorarified mandamus to call for the records and set aside the orders of the first respondent passed in D1/RP.No.8/2000 (L.Ref) dated 7.12.2000 and to direct the respondents to consider the grant of exemption and exclusion for the lands claimed and also to direct the respondents to exclude the lands belonging to Chellammal. W.P.No.8609 of 2004 is filed for the issuance of writ of certiorarified mandamus to call for the records and set aside the orders of the first respondent passed in D1/RP.No.5/2000 (L.Ref) dated 13.09.2000 and also to set aside the final statement published in Tamil Nadu Government Gazette under Section 12, dated 24.11.1999 and to direct denova enquiry and to direct the respondents to redetermine the holding of the petitioners after granting exemption and exclusion etc. For Petitioners : Mr.V.K.Vijayaraghavan For Respondents : Mr.M.Dhandapani, Spl.G.P.(W) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R The first writ petition (W.P.No.8603/2004) was filed by one Pennarasi, seeking to challenge an order dated 07.12.2000 passed by the first respondent, Land Commissioner, Land Reforms, Chennai. Originally, the petitioner filed a revision under Section 83 of the Tamilnadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 before the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai. The said revision was taken on file as SRP.No.26 of 2001. 2. Similarly, W.P.No.8609 of 2004 is filed by Veluthai and three others, challenging the order dated 13.09.2000 passed by the first respondent Land Commissioner. Originally, the petitioners filed a revision under Section 83 of the Tamilnadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 before the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai. The said revision was taken on file as SRP.No.5 of 2001. 3. In view of the abolition of the Tribunal, the matters stood transferred to this Court and were renumbered as CRP Nos.1948 and 1946 of 2003 respectively. However, a learned Judge of this court opined that no Civil Revision Petition will lie as the officers whose orders under challenge were not a Court but only statutory authorities. Therefore, the CRPs were converted into writ petitions and notice was ordered. 4. Before the Tribunal, in the first writ petition the respondents have filed a counter affidavit dated Nil. The petitioner has filed a reply affidavit dated 17.06.2010. 5. The case of the first writ petitioner was that one Chellammal, third wife of Kandasamay Gounder filed a suit in O.S.No.935 of 1971 for possession of lands and for profits against the petitioner. She contended that the lands were allotted to her husband Kandasamy Gounder in a partition that took place in 1936. The Kandasamy Gounder died and thus Chellammal became entitled to the lands along with her son Muthusamy Gounder. It was contended that she became the owner of the land as per Central Act 30/1956 and got a perfect title. She further stated that the revision petitioner being the grand daughter, she was not entitled to any any right in the above land to her exclusion. She also stated that one Meghanathasundaraswamy Gounder had corrected the village records to suit his convenience. The said suit came to be contested and a compromise memo was entered between the parties. Even before the suit was filed, patta was granted jointly in the name of Chellammal in respect of the lands in point in recognition of her right in a family arrangement. The patta stood in her name and the name of Valliammal, who is her daughter. Therefore, the petitioner was not the exclusive owner of the lands. The patta was issued by the Sub Collector, Madurai to Chellammal and Valliammal. The suit was decreed on 24.11.1972. Chellammal’s right of 56.42 acres of land situated in the village was confirmed. The first respondent Land Commissioner before whom the dispute regarding the https://hcservices.ecourts.gov.in/hcservices/ declaration of surplus was made did not consider the respective ownership of the lands among the members of the family. 6. The third respondent, namely the Assistant Commissioner of Land Reforms, Madurai inspected the land and sent a report. But that report was not given to the petitioner. Hence, she could not give any objections. Though the petitioner was not the exclusive owner of the land and right of Chellammal was not considered by the impugned order, the land belonging to the petitioner has been wrongly shown as exclusive land. But however, the first respondent Land Commissioner by the impugned order dated 07.12.2000, in the revision petition filed by the petitioner under Section 82 held that the first wife of Kandasamy Gounder one Nachammal died before 6.4.1960. The second wife Muthammal and her son Muthusamy also died before 06.04.1960. Therefore the surviving third wife Chellammal inherited the properties of Kandasmay Gounder. After the demise of Kandasamy Gounder, the properties were devolved on his daughter Valliammal, who is the mother of the petitioner. Since Valliammal also died before 06.04.1960, the properties were devolved on her daughter Pennarasi. It is only after a long time, to get out of the clutches of law, Chellammal has filed the suit in the year 1971 against her own grand daughter claiming a share in the property. The said suit was decreed on 24.11.1972. Since the suit was instituted only after the notified date of the amended Act on 02.10.1970, Section 23 of the Act is attracted. Therefore, in determining the ownership the properties covered by the decree cannot be deleted as the ownership will have to be determined on 06.04.1960. Hence, the stand of the petitioner in the revision petition cannot be considered. It was also found that the claim for exclusion of 5.75 acres in S.No.501/2B, on the ground that it is a tank on ground, cannot be excluded. Since under Section 3(22) of the Act only lands which are used as house sites or land exclusively use for non-agricultural purpose can be excluded. Hence the revision was rejected. It is against the rejection of the revision by the first respondent, the petitioner moved the Tribunal and has come before this Court. 7. In the second writ petition, the petitioners are Mrs. Veluthai, her daughter and sons. By the impugned order dated 13.09.2000, the first respondent refused to entertain the revision petition under Section 82 of the Tamil Nadu Land Reforms (FCL) Act. The authority held that the holdings of the family will be determined only as on 06.04.1960, namely the commencement of the original Act and at that time since all the land owners were minors, they will form part of the original family Unit. Since they cannot have a separate unit in the ancestral property, they cannot be assessed as a separate unit. The correct extent of the land held by Pennarasi daughter of Valiyammal was 142.06 equivalent to 37.517 standard acres. It was also stated that one of these issues were raised at the time of enquiry under Section 10(5). Since the petitioner herself asked for exemption under Section 74 to an extent of 50 acres at the stage of enquiry proceedings and also got the same, no such exemption was pleaded at that time. Further, the usage on the notified dated 06.04.1960 is relevant and https://hcservices.ecourts.gov.in/hcservices/ the lands are capable of being brought under Cultivation. The fact that there was Coconut thope cannot be considered, as coconut trees were only new saplings and hence, the exemption on that ground also cannot be accepted. 8. In the second writ petition, a counter affidavit dated 04.06.2001 was filed by the respondents. A reply affidavit dated 17.06.2010 was filed by the petitioners. 9. Mr.V.K.Vijayaraghavan, learned counsel for the petitioners contended that even in the year 1986, the Tahsildar, Palani had informed about the construction of the tank. The Agricultural Development Officer had also stated that some of the lands were classified as Kalanguthu and it was only having thorny bushes including Velam trees. Only when bushes and velam trees were removed, it can be liable for cultivation. Therefore, he stated that the order of the first respondent was due to non-application of mind and liable to be interfered with. Similarly, in the second writ petition, he produced a copy of the certificate given by the Village Administrative Officer and the Adangal Extract to show the existence of Coconut thopes. 10. Mr.V.K.Vijayaraghavan made three submissions: i) The bonafide of the suit cannot be questioned by the authorities. ii)The documents produced were not considered and before passing an order under Revision, the authority must have heard the parties. iii) So long as the lands were used as coconut Thopes, they are entitled for exemption and not covered by the Act. 11. In support of his submission, he placed reliance upon a judgment of the Division Bench of this Court in The Land Commissioner, Board of Revenue, Land Reforms v. V.C.Veerappa Chettiar reported in 1999 LW 331. He relied upon the following passage found in paragraph 9, which is as follows:- "...Even if the respondent had failed to claim exemption of those lands when the draft statements were prepared under S.10, he is entitled to such exemption at a later stage also, i.e., even after the publication of the field statement under S.18, because Ss.18-A, 18-B and 18-C provide for certain modifications being made even after final statements had been prepared and published in the Government Gazette under S.22, a revision would lie to the Land Commissioner in respect of proceedings under S.18(4) also besides other sections contained therein. Such being the case, the respondent is entitled under the Act to seek exemption of certain lands which are non-agricultural lands,on the ground that they had been wrongly treated as agricultural lands and declared as surplus and taken possession of, when https://hcservices.ecourts.gov.in/hcservices/ such a claim is made, the proper course for the Land Commissioner is to examine the claim on merits, i.e, firstly see whether the lands are non-agricultural lands in this case claimed to be channel-cum-road portion, house sites and building sites where houses and school have been built – and secondly to see whether those lands had been put to such use on the crucial date viz., 6th April 1960.If both the tests are satisfied, then, the exemption sought for should be granted and suitable modification should be made in terms of S.18-C. If the tests are not satisfied, then, the claim for exemption cannot be sustained and it has to be rejected..." 12. He also referred to the subsequent judgment of this Court in Savitriammal v. The Commissioner, Land Revenue, Land Reforms Board of Revenue reported in 1999 LW 832 and referred to paragraph 2, which is as follows:- "2. Mr.A.V.Dhanakoti, learned counsel for the petitioner, would submit that if evidence is required on the questions posed by the first respondent with regard to the deed of Trust, the first respondent ought to have remitted the matter back to the second respondent for reconsideration as contemplated under S.82 of the Act, directing the second respondent to permit the petitioner to place the requisite evidence on the questions. This plea of the learned counsel for the petitioner on facts, requires countenance. If infact,the deed of Trust covers the land in question and has been acted upon, and would fall within the exempted category, the petitioner may plead and succeed for exemption under S.2 of the Act. S.82 of the Act is generously couched, and enables the revisional authority to make an order of remittal in appropriate cases. The Act circumscribes the right to hold property and before the provisions of such a statute are enforced, any benefit there under, such as an exemption, which is a silver lining in an otherwise dark portals of the statute, must be given, if in fact, the party is entitled to it in law and on facts. The omission to put forth a plea for exemption at the earliest stage need not be rigourously put against the party, to deprive him the exemption, which he may be lawfully entitled to. In my view, the first respondent has taken too technical view, which has resulted in prejudice to the petitioner, and the first respondent has not adverted to the amplitude of his revisional powers, and he unjustly failed to exercise the power vested in him in law." https://hcservices.ecourts.gov.in/hcservices/ 13. The learned counsel also referred to the subsequent judgments of the Division Bench in Authorised Officer, Land Reforms, Coimbatore v. Giriraj Gopanna Manradiar reported in 1989 1 LW 149 to contend that merely because the trees in the orchard were withered away and in that place, new trees are grown or the old trees were cut for the purpose of again raising orchards, topes or arecanut gardens or for growing fuel trees, it cannot be said that the intention was to treat it a otherwise than an orchards or topes or arecanut gardens or lands to grow fuel trees. The following passage found in paragraph 13 is as follows:- "13. Therefore, if the lands exempted under S.73 (vii) and (viii) do not continue to be used as orchards or topes or arecanut gardens, or are not used for the purpose of growing fuel trees then they will have to be treated as lands subsequently coming into the possession of the land holder, liable to be included in the ceiling area and considered under the provisions of Chapter III relating to ceiling on future acquisitions. However, it should be made clear that the Proviso could operate only when there is a clear intention on the part of the owner not to continue to hold that same as orchard or topes or arecanut gardens or not to use the land for the purpose of growing fuel trees. Such intention should be manifest either from the use of the land for other purposes like cultivation after clearing the trees or from other evidence of non user for the purposes provided under the exemption. Merely because certain trees wither away and in that place new trees are grown or the trees have been cut for the purpose of again raising orchards, topes or arecanut gardens or for growing fuel trees, it cannot be said that the intention was to treat it otherwise than as orchards or topes or arecanut gardens or lands to grow fuel trees. There may be a time lag between clearing the tope in order to raise new trees. But if the intention was to keep it as a tope and not to convert it into an agricultural land, then, so long as that intention continues and no overt act nullifying the intention of that purpose is available, the land owner shall be deemed to be entitled to exemption as provided under the Act." 14. There is no quarrel with the propositions of law laid down by this Court in the aforesaid cases. But in the present case, the first respondent had categorically found that the question of exemption of the lands were never raised at the time of the earlier enquiry and the saplings were newly planted with a view to get over the Ceiling fixed under the Act. The finding of facts recorded by the revisional authority does not call for interference. https://hcservices.ecourts.gov.in/hcservices/ 15. With reference to the first writ petition, in the counter affidavit, in paragraph 7, it was averred as follows:- 7. Further , in the objection petition dated 09.07.1966 filed under section 10(5) of the Act by the landowner Meganathasundarasamy it has been contended that the lands are given to his daughter Pennarasi by his mother-in-law Tmt.Chellammal. Similarly Tmt.Pennarasi in he objection petition dated 18.06.1966 has contended that the lands given to her has to be clubbed with the holdings of her husband Thiru Palanisamy. Further in the appeal preferred before the Land Tribunal in CMA No.39/67 and LTA 47/71 no such contention was raised by her. Thus, it is crystal clear that the lands were held by Pennarasi as on 6.4.60m the date of commencement of the Act. The suit was instituted only in the year 1971 with a view to defeat the purpose of the Act and therefore, the suit and the subsequent changes of patta will attract only Section 23 of the Act and will not alter the determination in any way." 16. With reference to the Coconut thopes and tank, it was averred as follows:- "The first respondent directed the third respondent to inspect the lands and give his report. After perusing his report, it was found that S.No.494/1 (2.66) is lying waste and inS.No.499/2A (0.56 acres) and in S.No.500/1 (0.35 acres) there are only 14 coconut trees and in other S.Nos there are no fruit bearing or nut bearing trees and only Vellaikaruvelam trees are in existence which are not qualified for exemption. As regards claim for exclusion for an extent of 5.75 acres in S.NO.501/2B, that it is a tank on ground. It is submitted that as per Section 3(22) of the Act, only the lands which are used as house sites or lands exclusively used for non-agricultural purposes are eligible for exclusion. Since tanks are sub- servient to agricultural, the above lands cannot be excluded under Section 3(22) of the Act." 17. In the light of the above factual matrix, both the writ petitions will stand dismissed. However,there will be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ svki To 1.The Land Commissioner, Land Reforms, Chennai-5. 2.Land Tribunal, Land Reforms, Chennai-5. 3.The Assistant Commissioner, Land Reforms, Madurai. + 1 cc to Government Pleader SR.32722 + 2 ccs to Mr.v.K. Vijayaraghavan, Sr.32307 W.P.Nos.8603 and 8609 of 2004 RSY(CO) EU 16.6.11 https://hcservices.ecourts.gov.in/hcservices/