IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.01.2011 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.A. NO.1156 OF 2003 AND W.A.M.P.NO.26 OF 2010 The Secretary The Coimbatore Vasavi Trust No.385, Raja Street Coimbatore – 641 001. .. Appellant Versus 1.K.Karuppasamy 2.Sankaran 3.A.Sundaram 4.Vijaya 5.K.Rajeswari 6.N.K.Samy 7.A.Ramasamy 8.Nachammal 9.K.Palanisamy 10.Dharman 11.The Secretary Revenue (Land Reforms) Department Chennai – 600 009. 12.The Land Commissioner Land Reforms, Chepauk Chennai – 600 005. 13.S.Chandramohan 14.K.Ramasamy 15.S.Rajendran 16.S.Sasikala Gandhi 17.Jeya Laksmi 18.Murugesan 19.M.Nataraj 20.S.Rajamani 21.R.Ilangkumaran 22.D.Dhanasingh .. Respondents (RR13 to 22 impleaded as part respondent vide order of court dated 21.1.2011 made in W.A. MP.No.26/2010). https://hcservices.ecourts.gov.in/hcservices/ Writ Appeal filed under Clause 15 of the Letters Patent Act to set aside the order of the learned single Judge dated 18.02.2003 in W.P.No.11729 of 1998. For Appellant : Shri.A.L.Somayaji Senior Counsel for Shri.N.Ishtiaq Ahmed For Respondents-1 to 10 : Shri.S.V.Jayaraman Senior Counsel for Shri.R.Chandrasudan For Respondents-11 & 12 : Shri.A.Arumugam Special Government Pleader For Respondents-13 to 22 : Shri.A.M.Packianathan Easter J U D G M E N T M.M.SUNDRESH, J This Writ Appeal has been filed by the appellant aggrieved against the order passed by the learned single Judge in allowing the Writ Petition filed by the respondents 1 to 10 by setting aside the order passed by the first respondent in G.O.Ms.No.357, Revenue (Land Reforms II (3) Department, dated 30.04.1998 by which the application filed by the appellant was allowed granting permission to hold an extent of 20.58 ¼ acres of land. 2.The brief facts of the case are as follows: i.The appellant herein is a Trust created by a registered deed dated 03.12.1984. It acquired an extent of 20.58 ¼ acres of land in Kurudampalayam Village, Coimbatore North Taluk, Coimbatore District, through various sale deeds between 1985 and 1987. Proceedings have been initiated by the Assistant Commissioner (Land Reforms), Coimbatore, by issuing a notice under section 20-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (hereinafter referred as 'Act 1958 of 1961') as amended by Act 37 of 1972) to show cause as to why the purchase made by the appellant Trust shall not be declared as null and void having acquired contrary to the provisions contained in the Act. ii.After considering the reply given by the appellant dated 15.02.1990, a final order was passed by the Assistant Commissioner (Land Reforms), Coimbatore in Reference No.8405/88/E dated 09.06.1990 declaring an extent of 20.58 ¼ acres of land as having vested with the Government. The appellant filed a revision before the Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai – 600 005, challenging the order passed by the Assistant Commissioner under https://hcservices.ecourts.gov.in/hcservices/ section 20-A of the Act. An application was also filed by the appellant on 21.06.1990 to the Government namely the respondent No.11 herein seeking permission under section 37-B of the Act to hold the excess land already purchased for the establishment and running of educational institutions as well as for hospital purposes. iii.The revision filed by the appellant before the Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai – 600 005, challenging the order passed under section 20-A of the Act was returned directing the appellant to approach the proper forum. Thereafter, it preferred a revision before the Land Commissioner, (Land Reforms) namely, the respondent No.12 herein, challenging the order of the Assistant Commissioner (Land Reforms), Coimbatore passed under section 20-A of the Act. The revision filed by the appellant was dismissed by the 12th respondent on 13.12.1990 as time barred. iv.The application filed by the appellant under section 37- B was returned by the 11th respondent by letter dated 01.02.1991 for certain compliance. Since the appellant has not rectified the said defects and represented the application filed under section 37-B of the Act, the Assistant Commissioner (Land Reforms), Coimbatore sought for instruction to take over the possession of the surplus lands covered under section 20-A of the Act. Accordingly, the respondent No.11 granted permission in and by the proceedings dated 20.12.1994 to proceed in accordance with law consequent on the orders passed under section 20-A of the Act. v.Proceedings have been initiated by the Deputy Commissioner of Land Reforms under the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965 by calling for applications towards the assignment of land. Accordingly, publications have been made under the Rules in important places such as the office of the District Collector, Revenue Divisional Officer, Tahsildar, District Adi Dravidar Welfare Officer, ex-service men land office and the Panchayats. After the receipt of all applications, 21 persons have been selected, comprising of three categories namely, scheduled caste, backward community and ex-service men, being landless poor and the lands have been assigned in their favour in the year 1995 (on payment of charges). In pursuant to the said assignment, possession was handed over to the assignees and the mutation was effected in the adangals as well as in the patta pass book. Chittas have been issued in their name. vi.The appellant filed a Special Revision Petition before the Tamil Nadu Land Reforms Special Appellate Tribunal, challenging the order of the 12th respondent dated 13.12.1990. The Tribunal in and by its order dated 07.12.1995 in S.R.P.No.75 of 1995 was pleased to set aside the order of the 12th respondent herein with a further direction to dispose of the revision petition filed by the appellant on merits. When the said revision was pending, the appellant made https://hcservices.ecourts.gov.in/hcservices/ another request for permission under section 37-B of the Act on 12.07.1995. The Commissioner and Director of Land Reforms made a recommendation to the 11th respondent recommending permission to be granted in favour of the appellant. The said recommendation did not contain the earlier facts such as the proceedings dated 06.02.1995 initiated by the Assistant Commissioner (Land Reforms), Coimbatore and the consequential assignment as well as the possession in favour of 21 persons who have been granted the said assignment. vii.Based upon the same, the revision filed by the appellant before the 12th respondent was disposed of by the order dated 05.04.1998 by directing the Assistant Commissioner (Land Reforms), Coimbatore to pursue further action in the light of the orders of the Government to be under section 37-B of the Act. After the disposal of the said revision which was filed challenging the order passed under section 20-A of the Act, the respondent No.11 has granted permission under section 37-B of the said Act to hold an extent of 20.34 ¼ acres of land. It is also to be seen from the records that even in the order passed under section 37-B of the Act by the 11th respondent there is absolutely no reference about the earlier proceedings which resulted in the assignments in favour of 21 poor landless persons. After coming to know of the said factum of granting permission by the respondent No.11 in favour of the appellant, the respondents 1 to 10 who are some of the beneficiaries and the assignees filed the Writ Petition in W.P.No.11729 of 1998 to quash the Government Order passed in G.O.Ms.No.357, Revenue (Land Reforms II (3) Department, dated 30.04.1998. viii.The Writ Petition filed by the respondents 1 to 10 was allowed by the learned single Judge on the ground that the power under section 37-B cannot be exercised by the respondent No.11 after taking possession under section 20-A of the Act. It was further observed that it cannot be said that the appellant was holding the lands as defined under section 3(19) of the Act. The learned single Judge was further pleased to hold that the Land Commissioner has not set aside the order passed under Section 20-A but only observed that action can be taken in pursuant to the decision to be taken by the respondent No.11. The contention of the appellant that it was acting as an "intermediary" as referred under section 3(19) was also rejected. The fact that the possession was taken and handed over to the respondents 1 to 10 with subsequent mutation was also taken into consideration for rejecting the contention of the appellant regarding possession. Finally the learned single Judge has held that from the assignment deeds executed in favour of respondents 1 to 10 as well as petitioners in W.A.M.P.No.26 of 2010, they cannot be cancelled on any other ground than those mentioned thereunder. Accordingly, the Writ Petition filed by the respondents 1 to 10 was allowed. Challenging the said order, the present Writ Appeal has been filed. The petitioners in W.A.M.P.No.26 of 2010 who are also the assignees https://hcservices.ecourts.gov.in/hcservices/ like that of the respondents 1 to 10 have filed the said application seeking to implead themselves as party respondents in the appeal. 3.Submissions of the appellant: 3.1.Shri.A.L.Somayaji, learned senior counsel appearing for the appellant submitted that the learned single Judge has committed an error in holding that the appellant has made an application seeking permission under section 37-B only on 12.07.1995. The learned senior counsel further submitted that the appellant made an application as early as on 21.06.1990 itself. The appellant challenged the order passed under section 20-A before the Special Commissioner. Thereafter, the appellant again filed the revision before the respondent No.12 which passed the final order after the directions of the appellate Tribunal. The order passed by the 12th respondent would amount to setting aside the order passed under Section 20-A of the Act. The appellant had also enjoyed the benefit of stay in the revision filed before the 12th respondent. The 11th respondent has correctly exercised the power under Section 37-B of the Act. Further on the ground of law and equity, the appeal will have to be allowed. 3.2.The learned senior counsel also opposed the impleading petition filed by the proposed respondents on the ground that the said petition will have to be dismissed for laches. It is contended that the impleading petitioners having not filed any Writ Petition challenging the order passed by the 11th respondent in G.O.Ms.No.357, Revenue (Land Reforms II (3) Department, dated 30.04.1998 they cannot be permitted to place their submissions in the appeal. Hence, the learned senior counsel submitted that the appeal will have to be allowed and the impleading petition will be dismissed. 4.Submissions of respondents 1 to 10: 4.1.Shri.S.V.Jayaraman, learned senior counsel appearing for respondents 1 to 10 submitted that, the assignments granted in favour of respondents 1 to 10 were never challenged. The assignments have been made after following the due procedure and after receipt of the required payments. In pursuant to the assignments made to the needy persons, possession have been taken and mutations have been made in the revenue records. The appellant has not pursued the earlier application made on 21.06.1990. The averment made in the counter affidavit filed by the respondents 11 and 12 would exemplify the fact that the possession has been taken and handed over to the assignees. Neither in the recommendations made by the Commissioner of Land Reforms nor in the order impugned, there is any reference to the accrued rights of respondents 1 to 10. Once the possession is taken by the appellant it would become a persona non grata and therefore has no locus standi to maintain the application under Section 37-B of the Act. There is no power or authority for the 11th respondent to pass the Government Order. The respondents 1 to 10 have not been heard in any other proceedings and in such an eventuality the order https://hcservices.ecourts.gov.in/hcservices/ passed would become a nullity. In support of his said contentions, the learned senior counsel has made reliance upon the judgment rendered by the Honourable Apex Court in 2010-5-L.W.592 [SULOCHANA CHANDRAKANT GALANDE v. PUNE MUNICIPAL TRANSPORT AND OTHERS] and the judgment of the Division Bench rendered in 2008 (4) CTC 193 [MALARKODI v. THE SECRETARY TO THE GOVERNMENT OF TAMIL NADU]. The senior counsel submitted that the Writ Appeal is devoid of merits and therefore, the same will have to be dismissed. 5.Shri.A.M.Packianathan Easter, learned counsel appearing for impleading petitioners submitted that inasmuch as the order impugned passed by the 11th respondent having not communicated to the impleading petitioners, they cannot be non-suited on the ground of laches. The appellant after filing a revision challenging the assignment granted to the needy persons ought to have impleaded all the persons. The impleading petitioners are the necessary parties and the order impugned passed by the 11th respondent would take away their vested rights. An order of assignment is a document of title and therefore the same cannot be set aside in proceedings in which the impleading petitioners were not made as parties. The proposed respondents have taken possession and necessary mutations have been made in the revenue records. They came to know about the proceedings only in the year 2003, in view of the interim order obtained by the appellant due to which the revenue authorities have refused to accept the payment of kist from them. Inasmuch as the order impugned passed by the 11th respondent is one without authority there is no question of delay. Hence, the learned counsel prayed that the impleading petition have to be allowed and the Writ Appeal will have to be dismissed. 6.The learned Special Government Pleader appearing for respondents 11 and 12 submitted that the order under section 20-A has been correctly passed inasmuch as the appellant Trust has purchased land in violations of the provisions of the Act. The learned Special Government Pleader further submitted that, it is a fact that lands have been distributed to the poor and needy persons, which fact has not been taken into consideration while passing the order impugned. Therefore, it is submitted that appropriate orders will have to be passed by this Court. 7.We have heard the arguments of Shri.A.L.Somayaji, learned senior counsel appearing for the appellant, Shri.S.V.Jayaraman, learned senior counsel appearing for respondents 1 to 10, Shri.A.Arumugam, learned Special Government Pleader appearing for respondents 11 and 12 and Shri.A.M.Packianathan Easter, learned counsel appearing for proposed respondents 13 to 22. 8.Analysis of the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 1961: https://hcservices.ecourts.gov.in/hcservices/ 8.1.The Act has been enacted with the social objective of distributing the lands to the landless persons. It also provides fetters on the right to hold lands paving way for equitable distribution among the citizens. Considering the scope and reasoning behind the enactment, a wider interpretation will have to be given to a welfare legislation. The Court will have to adopt a goal oriented approach by acting as an activist and a catalyst. The Honourable Apex Court while interpreting the provisions of the Act in (1980) I MLJ 34 [AUTHORISED OFFICER, THANJAVUR v. NAGANATHA AYYAR] has held as follows: "1.The short point of law decided in the long judgment under appeal may justly be given short shrift. But the batch of Civil Revision Petitions allowed by the High Court involves a legal issue of deep import from the angle of agrarian reform and surplus land available for distribution under its scheme that we deem it proper to discuss the core question at some length. If the statutory construction which found favour with the High Court be correct the risk of reform legislation being condemned to functional futility is great, and so the State has come up in appeal by Special Leave challenging the High Court's interpretation of section 22 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (for short, the Ceiling Act). Presently, we will set out the skeletal facts relating to the civil appeals and the scheme of the Act designed for distributive justice in the field of agricultural land ownership, sufficient to disclose the purpose of the legislation, the mischief it intends to suppress, the reverse effect of the construction put on the key section (section 22) in the judgment under appeal and the consequent stultification of the objective of the Ceiling Act. While dealing with welfare legislation of so fundamental a character as agrarian reform, the Court must constantly remember that the statutory pilgrimage to 'destination social justice' should be helped, and not hampered, by judicial interpretation. For, the story of agrarian redistribution in Tamil Nadu, as elsewhere, has been tardy and zig- zag, what with legislative delays, judicial stays and invalidations, followed by fresh constitutional amendments and new constitutional challenges and statutory constructions, holding up, for decades, urgent measures of rural economic justice which was part of the pledges of the freedom struggle. It is true that judges are https://hcservices.ecourts.gov.in/hcservices/ constitutional invigilators and statutory interpreters: but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation's appointed instrumentalities in the transformation of the socio-economic order. The judiciary, in its sphere, shares the revolutionary purpose of the constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that Courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme." 8.2.Therefore, we are of the considered view that a wider interpretation has to be given, considering the object of the Act and on a proper reading of the provisions contained. 8.3.The appellant Trust was created as per the Trust Deed dated 03.12.1984. Act 37 of 1972 came into force with effect from 01.03.1972. Section 2 of the said Act prescribes that the provisions of the Act would not apply to the lands held by an existing public trust. Section 2(1) in specific terms states that the provisions of the Act would not apply to the lands already held by an existing trust at the time of coming into force of the Act. Therefore, when an immovable property is purchased by a trust which has come into existence after 01.03.1972 and the said purchase was also made in excess of the ceiling limit after the said period then the provisions of the Act would clearly apply. In other words, the exemption of the Act is only for the properties held by the Trust before coming into force of the Act and not subsequently acquired thereafter. Admittedly in the present case on hand, section 2 does not have any application as to the existence of the Trust and the purchase are subsequent to 01.03.1972. 9.Sub-section 19 of Section 3 reads as follows: "3(19)."to hold land", with its grammatical variations and cognate expressions, means to own land as owner or to possess or enjoy land as possessory mortgage or as tenant or as intermediary or in one or more of those capacities." https://hcservices.ecourts.gov.in/hcservices/ 9.1. A reading of the above said Section would throw light on the fact that to hold a land one has to be a owner, mortgagee, tenant or intermediary or in one or more of those capacities. Considering the scope of the enactment a wider import cannot be given to give the benefit to any other person. The definition of the word hold or held has been considered by the Honourable Supreme Court in A.G.VARADARAJULU v. STATE OF TAMIL NADU [(1998) 4 SCC 231] wherein it has been held as under: "26.The word “hold” or “held” in the context of land has come up for consideration in several cases before this Court. In State of U.P. v. Sarjoo Devi6 while dealing with the said word in Section 3(14) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as follows: (SCC p.8, paras 8 and 10) “The word ‘held’ occurring in the above definition which is a past participle of the word ‘hold’ is of wide import. In the Unabridged Edition of The Random House Dictionary of the English Language, the word ‘hold’ has been inter alia stated to mean ‘to have the ownership or use of; keep as one’s own’. In Webster’s New Twentieth Century Dictionary (Second Edition), it is stated that in legal parlance the word ‘held’ means to possess by ‘legal title’. Relying upon this connotation, this Court in Bhudan Singh v. Nabi Bux7 interpreted the word ‘held’ in Section 9 of U.P. Zamindari Abolition and Land Reforms Act, 1950 as meaning possession by legal title.” (emphasis supplied) Again in State of A.P. v. Mohd. Ashrafuddin8 it was held as follows: (SCC p. 4, para 8) “According to Oxford Dictionary ‘held’ means: to possess; to be the owner or holder or tenant of; keep possession of; occupy. Thus, ‘held’ connotes both ownership as well as possession. And in the context of the definition it is not possible to interpret the term ‘held’ only in the sense of possession.” The word “holds” was again interpreted in Hari Ram v. Babu Gokul Prasad where it occurs in Section 185(1) of the Madhya Pradesh Land Revenue Code, 1959. It was observed: (SCC p.611, para 5) “The word ‘holds’ is not a word of art. It has https://hcservices.ecourts.gov.in/hcservices/ not been defined in the Act. It has to be understood in its ordinary normal meaning. According to Oxford English Dictionary, it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title.” 9.2.Therefore, the words 'owner, mortgagee, tenant and intermediary' will have to be read on the principle of ejusdem generis and there is no scope for giving any other interpretation to include all other persons. Further, Section 3(21) defines the word 'intermediary' which only means that a person who acts in between as a broker, agent or negotiator, between the two parties, which is not the position of the petitioner in the present case. 9.3.Section 7 of the Act deals with ceiling on holding land, which is extracted hereunder: "7.Ceiling on holding land.-On and from the date of the commencement of this Act, no person shall, except as otherwise provided in this Act, but subject to the provisions of Chapter VIII, be entitled to hold land in excess of the ceiling area: Provided that while calculating the total extent of land held by any person, any extent in excess of the ceiling area and not exceeding half an acre in the case of wet land and one acre in the case of dry land shall, irrespective of the assessment of such land, be excluded." 9.4.The said Section is both restrictive and prohibitive in nature. While it restricts the right of a person concerned, it declares that no person shall be subject to the exception, be entitled to hold land in excess of the ceiling area. Therefore, the object of the enactment is very clear that no person shall be allowed to have more lands than what is permissible under the Act. 10.Section 20-A deals with a penalty for future acquisition in contravention of the provisions of the Act. 10.1.Chapter III of the Tamil Nadu Act 58 of 1961 deals with ceiling of future acquisition and restriction of certain transfers. Section 20-A of the Act speaks about the penalty for future acquisition in contravention of the Act. It specifically provides for the contravention of Section 2(2). If such a contravention has been made by a party concerned, any transaction by which an excess land was acquired shall become null and void and such a land by way of a penalty would be deemed to have been transferred to the Government with effect from the date of such acquisition. https://hcservices.ecourts.gov.in/hcservices/ Therefore, a reading of section 20-A would make it clear that a transaction made in contravention of the Act would become null and void. Thereafter, the land which is the subject matter of such transaction would be deemed to have been transferred to the Government with effect from the date of acquisition based upon a declaration made by the authorised officer. Hence, section 20-A can be divided into