IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8600 of 2004 1.Sennammal (died) 2.M.Devi 3.S.Swetlana 4.K.Vathsala 5.K.Latha 6.K.Kavitha 7.K.Shanthi (RR2 to 7 are substituted as parties in the place of deceased petitioner as per order dt.15.6.2010 in WPMP No.110/2010) ...Petitioners in W.P.8600/04 Vs. 1.The Land Commissioner, Chepauk, Chennai. 2.The Assistant Commissioner, Land Reforms, Tirunelveli. ...Respondents This is a writ petition for the issuance of writ of certiorari to call for the records relating to the orders of the second respondent Assistant Commissioner in A1.MRI/256S VKM/17-70 dated 10.2.99 which was confirmed by the first respondent, Land Commissioner in Ref.D1/R.P.3/2000 (L.Ref) dated 22.12.2000 and to set aside the same. For Petitioners : Mrs.Vijayakumari Natarajan For Respondents : Mr.M.Dhandapani, Spl.G.P. O R D E R Originally, the petitioner filed Special Revision Petition 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, challenging an order of the Land Commissioner dated 22.12.2000 made in R.P.No.3 of 2000.. The said revision was taken on file as SRP.No.22 of 2001. https://hcservices.ecourts.gov.in/hcservices/ 2. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as CRP No.1926 of 2003. 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 CRP was converted into writ petition and notice was ordered. 3. During the pendency of the writ petition, the original petitioner Sennammal died on 23.11.2009. On the filing of the substitution application, the LRs have been impleaded in the place of the original petitioner. Even before the Tribunal, the respondents have filed a counter affidavit dated 24.09.2001. 4. It is the case of the petitioners, that the original petitioner was the land owner. Initially 0.56 Ordinary acres equivalent to 0.140 std.acres were exempted and 0.824 std.acres were shown as surplus lands. The land owner raised an objection and it was rejected. An order under Section 10(5) was issued. Notification to that effect was also published in the Government Gazette. 5. The land owner filed a revision before the first respondent Land Commissioner offering the alternative surplus land. The offer was accepted and the matter was remitted to the second respondent Authorised Officer. After the remand and after accepting the offer of alternative land, necessary amendments were published in the form of notification in the Government Gazette on 11.04.1990. But however,the first respondent exercised his power of suo motu revision under Section 82 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (for short Land Reforms Act). He held that on the basis of the report of the Special Deputy Tahsildar that certain lands in S.No.7/3A, 418, 34/2 to the extent of 7.97 Ordinary acres were almost urban land and they were exempted. Even before the commencement of the Act, namely 18.05.1970, there was a settlement settling some of the lands in various survey numbers to the extent of 30.71 Ordinary acres were settled by Kumarandi, the settler on Kumarakkal during her life time and thereafter on her sister, namely the original petitioner. The said Kumarakkal died on 06.12.1975. Two children were born to the original petitioner. One was on 28.11.1972 while Kumarakkal was alive. Therefore, five standard acres of land should have been allotted in the name of her child. However, S.No.69/2A was poramboke land and that was wrongly included as excess surplus land. The authority held that these facts were to be verified by the Authorised Officer. Therefore, he was directed to make a thorough enquiry and to check the pormaboke nature of land in S.NO.69/2A so as to issue final statement under Section 12 of the Act. The Land Commissioner also held that on verification of the records that the land owner was allowed to have 25 Std.Acres. But https://hcservices.ecourts.gov.in/hcservices/ the verification showed that out of 95.17 Ordinary acres allowed to be retained, the land owner was still in possession of 22.23 acres only and land to the extent of 18.43 acres were sold to different persons and the remaining extent of 54.51 acres were also owned by several persons as per the village accounts. It is in that view of the matter, the power of suo motu was exercised by the Commissioner under Section 82 so as to verify if any false claim was made by the land owner. 6. Pursuant to the remand, the second respondent Assistant Commissioner (Land Reforms) Tirunelveli, sent reports dated 19.06.1997 and 10.02.1999. After the remand in his final report dated 10.02.1999, the Authorised Officer found that the claim of settlement granting five standard acres by Kumarakkal was not bonafide, though it was dated 07.02.1970, it was registered on 21.05.1970. Therefore, it was presumed that it was ante dated. For the purpose of doubting the genuineness of the document, it was shown that it was written in eight stamp papers. None of them were purchased either in the name of the Vendor or vendee. Though the registration was on 21.05.1970, the stamp papers were purchased sometime from April 1968 to October 1968. Therefore, the report of the Assistant Commissioner opined that the transaction said to have been taken place on 07.02.1970 was fraudulent transaction intended to take out from the purview of Section 22 of the Land Reforms Act. Hence it is void. Even with reference to the claim that S.NO.69/2A of Kamalapuram Village was a poramboke land, the land owner before the Assistant Commissioner had stated that it belong to the land owner and a portion of the holdings of the land owner’s wife. In the light of these fact facts, the land owner was requested to furnish the list of lands to be declared as surplus to an extent of 8.832 standard acres. 7. On the basis of the order passed by the second respondent on remand, the petitioner moved the first respondent Commissioner once again under Section 82 of he Land Reforms Act challenging these findings. The contention was the document was executed on 07.02.1970 and registered later. Section 22 of the Land Reforms Act had empowered the authority to declare the transaction as void only when the transfer defeats any provision of the Act. The authorities cannot go behind the validity of registration. In the suo motu revision, the land Commissioner could not have exercised the said jurisdiction as it is beyond the limitation. By the disputed document dated 07.02.1970, the property has been transferred to minor children of the land owner. It was also stated that the invalidity of the transfer of property can be held to be bad in law only if it is done from 15.02.1970 to 02.10.1970 and covered by Section 21A. But under Section 22, bonafide transfer cannot be gone into by the authorities. The family arrangement among the family members is recognized by law and it does not even require registration. https://hcservices.ecourts.gov.in/hcservices/ 8. In the counter affidavit filed by the respondents, it was stated that notification was published in the Government Gazette on 11.04.1990. The suo motu revision proposal was received on 05.04.1994 and show cause notice was issued on 06.02.1995. Therefore, the exercise of power under Section 82 is well within the time limit. Further, under Rule 62 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Rules, 1962, suo motu power to exercise revision was enhanced to five years vide G.O.Ms.No.912 Revenue Department, dated 19.04.1978. With reference to the claim that the transfer was covered by Section 21A of the Land Ceiling Act, in paragraphs 22 and 23, it was averred as follows:- "22. As per Section 21A of the Land Ceiling Act only transfers effected by means of registered instruments of a partition or voluntary settlement made in favour of minor sons, unmarried daughters or minor grandson or unmarried grand daughters in the male line are to be treated as valid. The settlee Pothiammal is not a co-parcenor and the document is not a partition and also she is not an unmarried daughter or grand daughter of the landowner to get the benefit under Section 21A of the Act. 23.As regards ground No.XX, it is submitted that the petitioner’s husband has settled a sizeable extent of lands in favour of Pothiammal only with a view to reduce his holdings which itself reveals his clear intention to defeat the Act. Hence the authorized officer has correctly held the transaction as void under Section 22 of the Act." 9. It was also submitted that the order of the Commissioner dated 30.04.1996 remanding the matter to the Authorised Officer in respect of the transfer of property by settlement as well as the claim of certain lands being Poramboke land was never put to challenge by the petitioners. Only when the order passed after remand, they have filed the revision before the Tribunal. In that revision, they cannot question the findings recorded by the Commissioner. 10. Mrs.Vijayakumari Natarajan, learned counsel appearing for the petitioners referred to the judgment of this Court in The Authorised Officer (Land Reforms) Erode v. M.Ramaswamy Gounder and others reported in 1983 I MLJ 261 for contending that in respect of transfer of property, it is the Transfer of Property Act which is a Special Law and the Land Reforms is only a General Law. If transaction was completed by the Transfer of Property by a formal conveyance executed and later registered, the same transaction is not hit by Section 22. https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel also referred to the judgment of the Supreme Court in Hamda Ammal v. Avadiappa Pathar and Others reported in 1991 (2) LW 110 for the purpose of contending that a registered document shall operate from the time from which it would have commenced to operate and not from the date of registration and after registration, it will relate back to the date of execution of the document. Even as per Section 23 of the Registration Act, a document in the form of Sale deed can be executed for registration within four months from the date of execution. The learned counsel further referred to the judgment of the Supreme Court in Thakur Kishan Singh (Dead) v. Arvind Kumar reported in 1998 (I) CTC 241 which is for the very same effect. 12. The learned counsel also referred to the judgment of this Court in B.Chandrasekaran and another v. State of Tamil Nadu by it Secretary reported in 2001 (3) CTC 353 for contending that if any statute required that any particular thing has to be done in a manner prescribed under that statute, the same cannot be done in any other manner and that other methods of performance are necessarily forbidden. 13. It is with these submissions, the learned counsel prayed for setting aside the impugned order. However, this Court is not inclined to accept the submissions made by the learned counsel for the petitioners. First of all. the order passed by the Commissioner remitting the matter and calling for two specific findings from the Authorised Officer, the firstly, regarding the bonafide nature of transfer by way of settlement and secondly, the validity of the claim regarding Pormaboke land were never questioned by the petitioners. Even otherwise, with reference to the findings regarding the poramboke land, the Commissioner had stated that the land owner herself had given a statement that the land in that particular survey number belong to them and they cannot resile from the said statement by later contending that it was poramboke land. 14. With reference to the bonafide nature of transfer, it is necessary to refer to the judgment of the Supreme Court in Authorised Officer v. S. Naganatha Ayyar reported in (1979) 3 SCC 466. Initially, this Court held that while exercising power under Section 22, the Authority cannot nullify any transaction or transfer or partition unless it was shown as sham, nominal or bogus in S.Naganatha Ayyar's case. The state took up the matter on appeal and the Supreme Court reversed the order passed by this Court. In paragraphs 16 and 17 it was held as follows: https://hcservices.ecourts.gov.in/hcservices/ "16.In the interpretation of Section 22 we too are Portia men. For this reason we reverse the view of the High Court that Section 22 will not apply to nullify any transaction of transfer or partition unless it is further shown that it is sham, nominal or bogus. Nor do we agree with Shree Ramamurthi that even if a transaction defeats the ceiling provisions, it may still be valid if the transfer is, from an individual point of view bona fide. The short reply is that from the community’s angle, especially the landless community’s angle hungering for allotment, the alienation, however necessary for the individual, is not bona fide vis-a-vis the community. 17.Therefore, we allow the appeal in the light of the interpretation we have adopted, restore the Tribunal’s holding and rule that if any transfer defeats the provisions of the Act by reducing the extent of surplus land in excess of the ceiling available from any person such transaction, bona fide or not, is void in the matter of computation of the permissible area and the surplus area. May be, that the transaction may be good for other purposes or may not be. The Authorised Officer is within his power if he ignores it as void for purposes of Section 22 Section 7 and other ceiling-related provisions." 15. Though application of Section 21A related to a specific period and even if Section 21A did not apply, by the exercise of power under Section 22, a bogus transaction transferring properties with a view to defeat the provisions of the Act can certainly be gone into by the authorities. 16. In the present case, the Authorised Officer had given cogent reasons to show that the transaction was fraudulent and the document was ante dated with a view to get over the provisions of the Act. Hence,the decisions cited by the petitioner has no relevance to the facts on hand. 17. In the light of the above, the writ petition stands 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, Chepauk, Chennai. 2.The Assistant Commissioner, Land Reforms, Tirunelveli. + 1 cc to Mr.S. Natarajan, Sr.32471 + 1 cc to the Government Pleader sr.32719 W.P.NO.8600 of 2004 PKB(CO) Eu 13.6.11 https://hcservices.ecourts.gov.in/hcservices/