IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.12.2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.44989 OF 2002 AND W.P.M.P.NO.15983 OF 2003 P.S.G.Ganga Naidu & Sons Charities Rep.by its Managing Trustee Mr.G.R.Karthikeyan .. Petitioner Versus 1. The Special Commissioner & Commissioner-Land Reforms / Land Commissioner Ezhilagam, Chepauk Chennai – 5. 2. The Asst. Commissioner (Land Reforms) Coimbatore Division Erode. 3.Srivalli Varadaraj 4.Rajashree Pathy 5.Jaishree Varadaraj 6.G.Chitra 7.Prema Govindasamy 8. Aditya Krishna Pathy .. Respondents (R-8-impleaded as per order dated 23.11.2010 in W.P.M.P.755/10 in W.P.No.44989 of 2002) PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified mandamus, calling for the records comprised in Proceedings No.D1/R.P.9/99(L.Ref.) on the file of the Land Commissioner /1st respondent, Chepauk, Chennai – 600 005 dated 10.03.2000 and to quash the same and consequently forbear the respondents 1 and 2 from initiating any proceedings in terms of the provisions of Tamil Nadu Land Reforms (FCL) Act, 1961. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Shri.V.Ayyadurai for Shri.R.Karthikeyan For Respondents-1 & 2: Shri.P.Muthukumar Government Advocate For Respondents-4 & 8: Shri.Rajnish Pathiyil For Respondent-5 : Shri.P.K.Rajagopal For Respondent-6 : Shri.K.Doraisami for Srimathi Muthumani Durasami For Respondent-7 : Shri.T.R.Rajagopal Senior Counsel For Mr.D.Ravichander O R D E R Considering the chequered history involved in the present writ petition, the factual matrix leading to the filing of the Writ Petition will have to be gone into for deciding the issues raised. 2.The petitioner herein is a Charitable Trust running a number of Educational Institutions. The petitioner Trust was created by a Deed dated 26.09.1947 which was registered as Document No.4943 of 1947 on 25.11.1947. The petitioner Trust was founded by late Shri.P.S.G.Ganga Naidu, the forefathers of the respondents 4 to 7 as well as the Managing Trustee of the petitioner Trust. 3.Two sons of Late Sri.P.S.G.Ganga Naidu by name Shri.G.Govindasamy and Shri.G.Varadaraj said to have given specific extent of lands belonging to them in favour of the petitioner Trust in the year 1960. A letter was also said to have been addressed by the Late Shri.G.Govindasamy in favour of the petitioner Trust on 14.01.1960 stating that the properties to an extent of 45.82 acres in Velankurichi Village, Coimbatore District, can be used by the petitioner Trust for grazing, raising, fodder crops etc. A resolution was said to have been passed by the petitioner Trust on 22.02.1960 accepting the alleged oral gift. The said resolution was also said to have been communicated to the Late Shri.G.Govindasamy. 4.Late Shri.G.Govindasamy and Shri.G.Varadaraj have claimed grant of permission under Section 27 of the Tamil Nadu Land Reforms (F.C.L) Act, 1961 (hereinafter called as "Act"). The said request was made on the ground that the lands have been used for grazing purpose. It is not in dispute that the said lands for which exemption was sought for are the subject matter of the present Writ Petition. The Tamil Nadu Land Board has rejected the request of the above said two https://hcservices.ecourts.gov.in/hcservices/ persons on 22.08.1968 by holding that the lands having been used for raising commercial crops, the exemption cannot be granted. 5.Writ Petitions were filed jointly by both Late Shri.G.Govindasamy and Shri.G.Varadaraj in W.P.Nos.3880 and 3881 of 1968. The Writ Petitions filed by the above said persons were dismissed by this Court in and by its order dated 03.02.1970 by holding that the rejection of the application made by them for retaining the lands under Section 27 of the Act was just and proper. The Authorised Officer (Land Reforms), Coimbatore, in and by his proceedings dated 26.11.1974 excluded the lands which were the subject matter of the Writ Petitions from the holdings of Late Shri.G.Govindasamy and Shri.G.Varadaraj on the ground that they have been in possession and enjoyment of the petitioner Trust. Thereafter, the orders have been passed on the holdings of the petitioner Trust on 21.12.1974. 6.Late Shri.G.Govindasamy and Shri.G.Varadaraj gave letters of affirmation of Entrustment Deed on 15.07.1978 acknowledging the oral gift made by them earlier in favour of the petitioner Trust. A request was made by the petitioner Trust in the month of June, 1986 seeking permission to sell the lands including the lands which are the subject matter of the Writ Petition. On receipt of the said letter, the Authorised Officer had issued a notice under Section 20-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 to show cause as to why the penalty for future acquisition in contravention of the provisions of the Act cannot be imposed. Thereafter, the Assistant Commissioner (Land Reforms), namely, the respondent No.2 issued a notice of hearing. 7.A Writ Petition was filed in W.P.No.12838 of 1988 by the petitioner, seeking to quash the proceedings dated 24.06.1988. The Writ Petition was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal and numbered as T.R.P.No.439 of 1991. The Special Appellate Tribunal in and by its order dated 30.06.1994 has passed an order directing the petitioner Trust to give a reply to the show cause notice given under Section 20-A of the Act. The Tribunal had also observed that the action has been taken both under Section 20-A and 10(5) of the Act. The legal heirs of Late Shri.G.Varadaraj, cancelled the affirmation deed by a registered document on 17.07.1996. Similarly, the Late Shri.G.Govindasamy also cancelled the affirmation deed on 25.03.1992. 8.A suit was filed in O.S.No.112 of 1993 by the petitioner against the seventh respondent herein who is the wife of the Late Shri.G.Govindasamy seeking the relief of declaration and the consequential permanent injunction. The said suit was filed based upon the title on the alleged gift deed and adverse possession. The suit was decreed exparte on 28.09.1994 against which an application was filed to set aside and the same is pending disposal. https://hcservices.ecourts.gov.in/hcservices/ 9.The respondent No.2 after considering the entire materials available on record was pleased to hold that some of the lands are not brought under cultivation, the legal heirs of the Late Shri.G.Govindasamy are in possession, mutations have been made in the revenue records including pattas and the affirmation deed has been cancelled. Similarly, reasons have been assigned in so far as the lands said to have been donated by Late Shri.G.Varadaraj is concerned. Accordingly, it was held that the transaction between the donors, namely Late Shri.G.Varadaraj and Shri.G.Govindasamy on the one hand and the petitioner on the other hand are binami transactions to defeat the provisions of the Act. As a consequence thereon, the lands were directed to be included in the holdings of the Late Govindaswamy and Shri.G.Varadaraj. 10.A revision was filed by the petitioner, challenging the said order of the respondent No.2 before the respondent No.1. The respondent No.1 in and by his proceedings in D1/R.P.No.9/99(L.Ref.) dated 10.03.2000 was pleased to dismiss the revision filed by the petitioner. While hearing the revision petition, the petitioner was not heard, as the petitioner's counsel was continuously absent for two occasions, even though he was intimated along with the documents. In fact the matter was adjourned to several dates. When it was taken up for hearing on 13.01.2000, a representation was made by the petitioner's counsel seeking adjournment by filing a memo. Thereafter, the matter was adjourned on two occasions. Even though the petitioner's counsel received the notice there was no representation. Therefore an order was passed on merits with the available materials. Challenging the said order, the present writ petition has been filed. 11.The order impugned has been passed on 10.03.2000. Even prior to the order impugned, the properties have been included in the holdings of the respondents 3 to 8. They offered alternative lands in Mayiladumparai and accordingly they have been taken as excess lands. The lands have been taken possession by the Tahsildar and distributed to the needy people. There was also a partition between the legal heirs of Late Shri.G.Varadaraj on 09.04.2001 including the properties involved in the Writ Petition which was followed by sub-division of lands. Thereafter, the present writ petition has been filed on 12.12.2002. 12.Submissions of the learned counsel for the petitioner: 12.1.Shri.V.Ayyadurai, learned counsel appearing for the petitioner submitted that the original owners of Late Shri.G.Govindasamy and Shri.G.Varadaraj gifted the lands in the year 1960. A letter was also given by Late Shri.G.Govindasamy dated 14.01.1960. A resolution was passed by the petitioner accepting the same and it was communicated to Late Shri.G.Govindasamy. In the proceedings dated 26.11.1974, the lands have been excluded from the https://hcservices.ecourts.gov.in/hcservices/ holdings of Late Shri.G.Govindasamy and Shri.G.Varadaraj. The lands have been included in the holdings of the petitioner. The above said persons executed the affirmation of entrustment of trust property on 15.07.1978 by registered deeds. Therefore, it is not open to the respondents 3 to 8 to contend that there was no oral gift. 12.2.The proceedings dated 26.11.1974 have become final and the second respondent does not have any power or authority to review the same. Section 2 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 came into force with effect from 01.03.1972. It also cannot be applied to an existing Trust. Section 3 (19) speaks about the possession of land by the owner which includes the petitioner who enjoy the property as a owner. Section 15 of the Act which provides for power to rectify bonafide mistakes cannot be exercised. Section 20-A of the Act has got no application, since there is no future acquisition made by the petitioner. 12.3.The deed of confirmation entered into on 15.07.1978 travels back to the original gift. The decree obtained by the petitioner before the Civil Court not only binds the respondent No.7 but also the other respondents. The decree is a judgment in rem. The gift was given much prior to the coming into force of the Act and the order impugned passed by the respondent No.1 will have to be set aside in as much as sufficient opportunity has not been given to the petitioner. In support of his contention, the learned counsel has relied upon the judgment of the Honourable Supreme Court in A.G.VARADARAJULU v. STATE OF TAMIL NADU [(1998) 4 SCC 231] and submitted that what is required under Section 3(19) is an element of title. Therefore, the learned counsel submitted that the Writ Petition will have to be allowed. 13.Submissions of the respondents 1 and 2: 13.1.Shri.P.Muthukumar, learned Government Advocate appearing for the respondents submitted that the order impugned has been passed by the first respondent after affording number of opportunities to the petitioner. It is further submitted that the power has been correctly exercised by the respondents in as much as the holdings cannot be recognised based upon the oral gift. The factual findings given by the respondents shall not be disturbed by this Court while exercising the power under Article 226 of the Constitution of India. The consequences of a transfer contrary to the provision has been stipulated under Section 20-A of the Act itself. The subsequent development as alleged by the respondents could not be confirmed and in any case liberty may be given to the respondents 1 and 2 to proceed in accordance with law in pursuant to the impugned order. 14.Submissions of the respondents No.4 and 8: 14.1.Shri.Rajnish Pathiyil, learned counsel appearing for the respondents No.4 and 8 submitted that the respondents have got https://hcservices.ecourts.gov.in/hcservices/ all the properties changed in the revenue records in pursuant to the proceedings under Section 10(5), 12 and 14 of the Act. The excess lands have been acquired and distributed to the needy persons. There was a partition between the family on 09.04.2001 by a registered deed. The properties have been subdivided thereafter on 24.06.2002. The Writ Petition has been filed after a period of two years and 8 months from the date of the order impugned. There is no explanation for the delay in filing the Writ Petition. The subsequent events will have to be taken into consideration while granting the relief sought for. 15.Submissions of the respondent No.5: 15.1.Shri.P.K.Rajagopal, learned counsel appearing for the respondent No.5 submitted that the action under Section 20-A of the Act is perfectly valid in as much as the mandate of Section 19 of the Act was not complied with. The petitioner himself made an application for the sale of land and therefore, it is not open to it to challenge the authority of the respondent No.2. No suit has been filed by the petitioner against the legal heirs of Late Shri.G.Varadaraj. The suit was filed and decreed exparte only against one of the legal representatives of the Late Shri.G.Govindasamy. 16.Submissions of the respondent No.6: 16.1.Shri.K.Doraisami, learned counsel appearing for the respondent No.6 submitted that there is no gift as alleged by the petitioner. Even assuming that there is a gift, the same is a void transaction in the teeth of the provisions contained in Section 14 and 17 of the Indian Registration Act, 1908 as well as the Section 123 of the Transfer of Property Act, 1882. The suit filed by the petitioner was only against the seventh respondent and not others. The deed of affirmation was later withdrawn by Late Shri.G.Govindasamy himself. The power has been exercised by the respondent No.2 under Section 20-A as well as Section 15 of the Act. 16.2.The proceedings which are the subject matter of the Writ Petition filed in W.P.No.3881 of 1968 would falsify the case of the petitioner. While construing the provisions of a social welfare legislation which aims at equitable distribution of lands, the Court should lean in favour of giving effect to the enactment. Section 15 of the Act which deals with bonafide mistakes gives ample powers to the respondent No.2 to take appropriate action. A construction which makes the provision otiose should be avoided. A mere quoting of a wrong provision would not vitiate the proceedings. The petitioner was given sufficient opportunities before the respondents. In support of his contention, the learned counsel has relied upon the judgment in AUTHORISED OFFICER v. S. NAGANATHA AYYAR [(1979) 3 SCC 466], LAND COMMISSIONER v. MANJIYA PILLAI [1994 SUPP(2) SCC 464], GOMTIBAI (DEAD) THROUGH LRs. AND OTHERS v. MATTULAL (DEAD) THROUGH LRS. [AIR 1997 SC 127], and GOVERNMENT OF UNION TERRITORY OF PONDICHERRY v. MOHAMMED HUSSAIN [(1994) 5 SCC 121] and submitted that the Writ Petition will have to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 17.Submissions of the respondent No.7: 17.1.Shri.T.R.Rajagopal, learned senior counsel appearing for the respondent No.7 submitted that the suit filed by the petitioner was decreed exparte over which an application filed to set aside is pending, will not bar the authorities to function under the Act. Such a decree is a decision between the parties and not against the respondents 1 and 2. The plea of oral gift has been set up by the parties considering the factual situation prevailed at that point of time. There is no reference in the deed of affirmation about the letter dated 14.01.1960. There is no reference also in the proceedings of the respondent No.2 dated 26.11.1974. When a particular action done was outside the purview of the Act then the power is available to the authorities to rectify the same. 18.Heard Shri.V.Ayyadurai for Shri.R.Karthikeyan, learned counsel appearing for the petitioner, Shri.P.Muthukumar, learned Government Advocate, appearing for the respondents 1 and 2, Shri.Rajnish Pathiyil, learned counsel appearing for the respondents 4 and 8, Shri.P.K.Rajagopal, learned counsel appearing for the respondent No.5, Shri.K.Doraisami for Srimathi Muthumani Durasami, learned counsel for the respondent No.6 and Shri.T.R.Rajagopal, learned senior counsel appearing for the respondent No.7. 19.The facts involved as narrated above are not in dispute. It is the case of the petitioner that the oral gifts have been made by the original owners, namely Late Shri.G.Govindasamy and Shri.G.Varadaraj. Documents were also executed by the above said two persons in favour of the petitioner on 15.07.1978. However, it is to be seen that the above said two persons made an application under Section 27 of the Act, as its stood at the relevant point of time seeking retention of lands in excess of ceiling area. The application filed by them was rejected by the Tamil Nadu Land Board on 22.08.1968. 20.Challenging the same, separate Writ Petitions have been filed in W.P.Nos.3880 and 3881 of 1968. This Court in and by its order dated 03.02.1970 has dismissed the Writ Petitions by holding that the rejection orders passed by the Land Board denying the retention of lands were perfectly legal. The said fact would exemplify the position that atleast till the disposal of the Writ Petitions, Late Shri.G.Govindasamy and Shri.G.Varadaraj treated the property as one of their own. It also exemplifies the fact that the alleged oral gift was a make-believe arrangement between them and the petitioner in order to get over the rigours of the provisions of the Act. 21.It is further to be seen that a perusal of the letter dated 14.01.1960 said to have been given by the Late Shri.G.Govindasamy in favour of the petitioner would clearly show that what was given was a mere permission to utilise the land and not https://hcservices.ecourts.gov.in/hcservices/ as a gift. Therefore, this Court is of the considered view that merely because arrangements have been made between the parties to get over the provisions of the Act, the same would not bind the respondents. It is pertinent to note that while filing the earlier Writ Petitions in the year 1968, no plea was taken by the deceased persons that the lands have been given as a gift in favour of the petitioner. Hence it is very clear that the arrangement is a make believe one. 22.Whether an oral or an unregistered gift is permissible in law: 22.1.Section 17 of the Registration Act, 1908 prescribes the transactions for which a registration is compulsory. Accordingly, an instrument of immovable property has to be registered. Section 49 of the Act speaks about the effect of non-registration of documents required to be registered. It clearly spells out that a gift deed which is required to be registered under Section 17 of the Act if not done so would not the affect the immovable property concerned. In other words, in the absence of any registration which is mandatorily required there is no transfer of title and the alleged transaction would be a nullity and void in the eye of law. Hence for a transfer of an immovable property by way of a gift a registered deed is necessary. 22.2.'Gift' has been defined under the Transfer of Property Act, 1882. Section 123 of the said Act prescribes that a transfer of gift must be effected by a registered instrument signed by the donor and attested by atleast two witnesses. In the present case on hand, there was neither a written document nor it was registered with attestation. Therefore, in such an eventuality the very plea of the petitioner would fall on the ground in as much as there is no transfer in the eye of law. In GOMTIBAI (DEAD) THROUGH LRs. AND OTHERS v. MATTULAL (DEAD) THROUGH LRS. [AIR 1997 SC 127], the Honourable Apex Court has observed as follows: "4.Thus, it is seen that the gift of immovable property should be made only for transferring the right, title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre- existing right, title and interest of donor thereby stand divested in the donee by operation of Section 17 of the Registration Act only when the gift deed is duly registered and thereafter the donor would lose title to the property. It must also be proved that the donee had accepted the property gifted over under the instrument. In this case, though the transfer of gift was acted upon by Kusturibai as per the correspondence and evidence on record, but, admittedly, there is no written instrument executed by the donor, namely, https://hcservices.ecourts.gov.in/hcservices/ the plaintiff and the defendant in favour of their cousin sister Kusturibai and it was got attested by at least two witnesses and registered in accordance with the provisions of the Stamp Act and the Registration Act. In the absence of compliance of these formalities, at best what could be seen from the partition deed is that the original plaintiff and the defendant have expressed their intention to gift over the land to their cousin sister Kusturibai. As held earlier, in the absence of any registered instrument of gift and acceptance thereof by the donee, the said property could not be said to have been legally transferred in favour of their cousin sister; in other words, the gift is not complete in the eye of law. Therefore, the District Court has rightly set aside the decree of the trial court which was later confirmed by the High Court. We do not find any error of law warranting interference." 22.3.Hence on a consideration of the provisions contained in the Transfer of Property Act, 1882 read with the Registration Act, 1908 and applying the ratio laid down by the Honourable Apex Court the alleged transactions even assuming are true are void, ab initio, without the sanction of law. 23.Constructions of the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 23.1.A perusal of Section 2 of the Act would throw light on the fact that the provisions of the Act would not apply to the lands held by an existing public Trust. Section 2(1) clearly specifies the fact that the provisions would not apply only in a case where the lands are already held by an existing Trust at the time of coming into force of the Act. In other words, when an immovable property is purchased by a Trust after coming into force of the Act, then the provisions of the Act would apply. Therefore, the exemption was only for the properties held by the Trust and not acquired by the Trust after coming into force and the provisions. The contention of the learned counsel for the petitioner that in as much as Section 2 came into force only with effect from 01.03.1972 and hence it cannot be applied to the petitioner's case cannot be accepted for the reason that the transaction being void without the mandate of law the subsequent registration made on 15.07.1978 would amount to a new acquisition. 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 https://hcservices.ecourts.gov.in/hcservices/ intermediary or in one or more of those capacities." 23.2.A reading of the above said Section would throw light on the fact that to hold land one has to be a owner, mortgage, 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 more so when the owner himself claims the title to the property in his holding and the title of the petitioner is denied. The contention of the learned counsel for the petitioner that in as much as the petitioner got a semblance of a title it has to be held that it comes under the definition of Section 3(19) cannot be accepted. 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,