IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.06.2011 Coram THE HONOURABLE Mr.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.Nos.17034 & 17035 of 2001 and W.M.P.Nos.25213 & 25215 of 2001 1.Thayarammal @ Sundaralakshmi 2.Kamalaveni 3.Kothainayaki .. Petitioners in W.P.No.17034/2001 T.Boopalan .. Petitioner in W.P.No.17035/2001 V. 1.The Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai – 600 004. 2.The Land Commissioner, Chepauk, Chennai – 600 005. 3.The Authorised Officer & The Assistant Commissioner, (Land Reforms) Erode District. .. Respondents in both WPs Prayer in W.P.No.17034/2001: Petition filed under Article 226 of the Constitution of India, praying for an issuance of a Writ of Certiorarified Mandamus calling for the records relating to the proceedings issued under section 9(2)(b) of the Act and the order made in Ref.No.5T/MR.I/58.61/A2 dated 16.8.93 passed under section 10(1) and 10(5) of the Act and the notification issued under section 12(1) of the Act in the Tamil Nadu Government Gazettee Part IV Section 1 dated 17.12.1997 passed by the third respondent and the order dated 11.8.1999 made in R.P.No.147 of 1998 passed by the second respondent and the order dated 3.1.2001 made in S.R.P.No.16 of 2000 passed by the first respondent and quash the same and direct the third respondent to initiate fresh proceedings against the petitioners from the stage of section 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961. Prayer in W.P.No.17035/2001: Petition filed under Article 226 of the Constitution of India, praying for an issuance of a Writ of Certiorarified Mandamus calling for the records relating to the proceedings issued under section 9(2)(b) of the Act and the order made in Ref.No.5T/MR.I/58.61/A2 dated 16.8.93 passed under section 10(1) and 10(5) of the Act and the notification issued under section 12(1) of the Act in the Tamil Nadu Government Gazettee Part IV https://hcservices.ecourts.gov.in/hcservices/ Section 1 dated 17.12.1997 passed by the third respondent and the order dated 11.8.1999 made in R.P.No.146 of 1998 passed by the second respondent and the order dated 3.1.2001 made in S.R.P.No.15 of 2000 passed by the first respondent and quash the same and direct the third respondent to initiate fresh proceedings against the petitioners from the stage of section 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961. For Petitioners : Mr.G.Ethirajulu (In both WPs) For Respondents : Mrs.Malarvizhi Udayakumar, (In both WPs) Special Government Pleader COMMON ORDER M.VENUGOPAL,J. W.P.No.17034 of 2001: The Petitioners have filed the Writ of Certiorarified Mandamus in calling for the records pertaining to the proceedings issued under Section 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (58 of 1961) and the order made in Ref.No.5T/MR.I/ 58.61/A2 dated 16.8.93 passed under Sections 10(1) and 10(5) of the Act and the notification issued under section 12(1) of the Act in the Tamil Nadu Government Gazettee Part IV Section 1 dated 17.12.1997 passed by the 3rd Respondent/Authorised Officer & Assistant Commissioner, (Land Reforms), Erode District and the order dated 11.8.1999 made in R.P.No.147 of 1998 passed by the 2nd Respondent/ Land Commissioner, Chepauk, Chennai and the order dated 3.1.2001 made in S.R.P.No.16 of 2000 passed by the 1st Respondent/Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai and to quash the same. Further, the Petitioners have sought for the issuance of a direction to the 3rd Respondent in initiating fresh proceedings against the Petitioners from the stage of Section 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961. W.P.No.17035 of 2001: The Petitioners have filed the Writ of Certiorarified Mandamus in calling for the records pertaining to the proceedings issued under Section 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (58 of 1961) and the order made in Ref.No.5T/MR.I/58.61/A2 dated 16.8.93 passed under Sections 10(1) and 10(5) of the Act and the notification issued under section 12(1) of the Act in the Tamil Nadu Government Gazettee Part IV Section 1 dated 17.12.1997 passed by the 3rd Respondent/Authorised Officer & Assistant Commissioner, (Land Reforms), Erode District and the order dated 11.8.1999 made in R.P.No.146 of 1998 passed by the 2nd Respondent/Land Commissioner, Chepauk, Chennai and the order dated 3.1.2001 made in S.R.P.No.15 of 2000 passed by the 1st Respondent/Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai and to quash the same. Further, the Petitioners have sought for the issuance of a direction to the 3rd Respondent in initiating fresh proceedings against the Petitioners from the stage of Section https://hcservices.ecourts.gov.in/hcservices/ 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961. 2.According to the Petitioners, they are the daughters and son of Late Thirumalaisamy and Rukmaniammal of Puthur Village, Dharapuram Taluk, Erode District. The family of deceased Thirumalaisamy consist of 9 members. The family members of Late Thirumalaisamy effected partition among themselves as per the partition deed dated 02.12.1959. Their father expired on 20.09.1966 and their mother expired during the year 1995 . 3.The case of the Petitioners is that the 3rd Respondent/Authorised Officer and Assistant Commissioner (Land Reforms), Erode District initiated proceedings as per Section 9(2) (b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961 without properly serving notices to all the members of the family of Late Thirumalaisamy Naidu and in violation of principles of natural justice. 4.The 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode District inspite of division of status among the family members considered the members of the Family as one unit and determined that the Family is holding surplus lands to an extent of 97.409 Standard Acres after allowing 30.00 Standard Acres as admissible ceiling area. The said order was not communicated to some of the family members to enable them to put forward their objections. 5.The 3rd Respondent (Authorised Officer and the Assistant Commissioner (Land Reforms), Erode District issued a draft statement as per Section 10(1) of the Act published in the Tamil Nadu Government Gazettee dated 20.02.1991 proposed to declare an extent of 109.069 standard acres of land as surplus lands, after deducting the extent of 13.12 Standard acres as per Section VI holding that these lands does not belong to the land owner's wife and correcting conversion into standard acres. Even the said notification was not served on all the interested parties who are the family members of the land owner. Although notice was served on one of the family members, viz., T.Rajendran, no sufficient opportunity was given to him. However, the 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode District by an order in Ref.No.5T/MR.I/58.61/92 passed an order as per Section 10(5) of the Act. 6.For the purpose of better appreciation of the matter, the order passed as per Section 10(5) of the Act dated 16.08.1993 is extracted hereunder: Extent Section -I Ordinary Standard Acres Acres Holding of the land owner 363.89 1/3 119.129 Section VI 83.84 30.400 --------------------------------- 437.73 1/3 149.609 https://hcservices.ecourts.gov.in/hcservices/ Exclusion/Exemption Granted Nil Nil Net holding 437.73 1/3 149.609 Ceiling area section I 52.50 30.000 17.50 10.000 ------------ ------------ Total 70.000 40.000 ------------ ------------ Surplus Section I 301.39 1/3 89.129 Section VI 66.34 20.480 -------------- ------------ 367.73 1/3 109.609 -------------- ------------- 7.It is to be pointed out that the final statement as per Section 12 of the Act was published in the Tamil Nadu Government Gazettee dated 10.8.1994 and the order as per Section 15 of the Act was passed in Ref.No.5T/MRI/58/61/A2 dated 19.11.1997 owing to the change in the name of the Village and Survey numbers. Also an amendment to the final statement as per Section 12 of the Act dated 10.8.1994 was published in the Tamil Nadu Government Gazettee dated 12.3.1997 and another final statement on 17.12.1997. 8.The plea of the Petitioners is that the 3rd Respondent/ Authorised Officer and the Assistant Commissioner (Land Reforms), Erode without serving copy of the said final statement to all the family members who are interested in the proceedings published a notification as per Section 18(1) of the Act in the Tamil Nadu Government Gazettee dated 30.09.1998. 9.Being dissatisfied with the notification dated 30.09.1998 published as per Section 18(1) of the Act in the Tamil Nadu Government Gazettee the Writ Petitioners filed Revision Petitions before the 2nd Respondent in D1/R.P.No.145, 146 and 147 of 1998. The said Revision Petitions were dismissed by the 2nd Respondent by means of an order dated 11.08.1999 without properly considering the matter in issue. Thereupon, the Petitioners and others filed S.R.P.Nos.14, 15 and 16 of 2000 on the file of the 1st Respondent/Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai. 10.The main contention advanced on behalf of the Petitioners is that the 1st Respondent/Tamil Nadu Land Reforms Special Appellate Tribunal set aside the notification as per Section 18(1) of the Act and remanded the case, holding that the notices were not served on the Petitioners and others properly. Further, the date of marriage of the Petitioners and their holdings are to be determined afresh, but, instead of setting aside the order from the stage of Section 9 (2)(b) of the Act, the 1st Respondent/Special Appellate Tribunal set aside the order only from the stage of Section 14 of the Act by means of a common order dated 3.1.2001. As against the said order, the Petitioners herein have projected these present Writ Petitions. https://hcservices.ecourts.gov.in/hcservices/ 11.The Learned Counsel for the Petitioners urges before this Court that the impugned order of the 1st Respondent, so far as it relates to the Petitioners, is contrary to the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 58 of 1961. 12.The Learned Counsel for the Petitioners contends that the 1st Respondent has not taken into account the extent of 96.96 Ordinary Acres of land which have been wrongly included in the holdings of Rukmaniammal inspite of a finding that the partition effected in her favour is invalid and moreover, the total holdings of the entire family of late Thirumalaisamy Naidu has been arrived at an extent of 395.65 1/3 Ordinary Acres and therefore, the said omission vitiates the entire proceedings. 13.The Learned Counsel for the Petitioners submits that the Respondents have misconstrued the findings rendered in O.S.No.6 of 1971 on the file of the Sub Court, Erode and thereby committed an error in holding that the partition effected on 02.12.1959 as an invalid one without considering the fact that a compromise has been entered into between the parties to the suit and the decree has been passed to that effect, dividing the properties among the family members and for all practical purposes the family members have been divided in status during the year 1959 itself even prior to the introduction of the Act. 14.The Petitioners take a plea that the Respondents should have treated the family of late Thirumalaisamy Naidu as divided family in status on the basis of the partition effected among the members of the family and should have treated each member of the family as a separate family and fixed the ceiling limit as per Section 5 of the Act. 15.The Learned Counsel for the Petitioners submits that the Respondents ought to have determined the ceiling limit of the family of late Thirumalaisamy Naidu, consisting of 9 members, as 50 standard acres instead of allowing them to retain only 30 Standard Acres and therefore, the said approach of the Respondents vitiates the entire proceedings. 16.The Learned Counsel for the Petitioners strenuously contends that the 1st Respondent/Special Appellate Tribunal having noted that the notices have not been served on all the family members of late Thirumalaisamy Naidu in all the stages of the proceedings should have set aside the entire orders commencing from the order passed under Section 9(2)(b) of the Act. 17.The Learned Counsel for the Petitioners take a legal plea that the 1st Respondent has misconstrued Sections 4 and 23 of the Act and thereby erred in holding that a registered partition effected between the parties on 02.12.1959 as void and thereby erred in holding that the transfer and sub division effected after the notified date i.e. after 02.10.1960 and before the publication of notification under Section 18(1) of the Act is void. https://hcservices.ecourts.gov.in/hcservices/ 18.According to the Learned Counsel for the Petitioners, the 1st Respondent has gone wrong in holding that the compromise decree dated 27.11.1976 in O.S.No.6 of 1971 is non est in law and the further observation that the properties will continue to be in the holding of the land owner for the purpose of the statute is not a valid and proper one in the eye of law. 19.The Petitioners contend that the 3rd Respondent/Authorised Officer and Assistant Commissioner (Land Reforms), Erode District has committed an error in passing an order as per Section 9(2)(b) of the Act without proper service of notice on all the family members and therefore, the entire subsequent proceedings and orders culminating an order under Section 10(5) and 18(1) of the Act are non est in law. 20.According to the Learned Counsel for the Petitioners, the Respondents have erred in holding that the order passed as per Section 9(2)(b) of the Act has been served on Rukmaniammal, Sundaralakshmi, T.Rajendran and Dhanasegaran through the Special Revenue Inspector, Dharapuram without effecting service as provided under Rule 8(d)(iii) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Rules 1962. Furthermore, the 3rd Respondent/ Authorised Officer and Assistant Commissioner having noted that the notices could not be served on Kamalaveni, Boopalan and T.Vidyasekaran by registered post since the same has been returned unserved, should have served notice on the other mode envisaged under Rule 8 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Rules 1962. 21.The 3rd Respondent/Authorised Officer and Assistant Commissioner has failed to include the names of 1) Sundaralakshmi and 2) Kamalaveni in the notification issued as per Section 12(1) of the Act and this omission vitiates the entire proceedings according to the Petitioners. 22.The Learned Counsel for the Petitioners contends that the 3rd Respondent should have taken note of the alienations effected by the individuals in favour of third parties before the enactment of Land Reforms Act by the Legislature. But the 3rd Respondent/Authorised Officer and the Assistant Commissioner has committed an error in including the aforesaid properties either in the list of surplus lands or in the holdings of the land owners. In short, the non consideration of the said facts vitiate the entire findings. 23.Lastly, it is the contention of the Learned Counsel for the Petitioners that if the proceedings finalising the ceiling area is determined from the stage of Section 14 of the Act, the earlier orders passed as per Section 9(2)(b), 10, 12 of the Act will become final and they cannot agitate their independent right of holding within the purview of Section 5 of the Act. 24.Per contra, the Learned Special Government Pleader appearing for the Respondents submits that the 1st Respondent/Special Appellate Tribunal, in its Common Order in S.R.P.No.14 to 16 of 2000, filed by one T.Vidyasagaran S/o.Late Thirumalaisamy Naidu (Petitioner in https://hcservices.ecourts.gov.in/hcservices/ S.R.P.No.14/2000), T.Boobalan S/o.Late Thirumalaisamy Naidu, the Writ Petitioner in W.P.No.17035 of 2001 (Petitioner in S.R.P.No.15/2000), Thayarammal, Kamalaveni and Kothainayaki, the Writ Petitioners in W.P.No.17034 of 2001 (Petitioners in S.R.P.Nos.16/2000), on 03.01.2000, has, among other things, observed that 'the compromise decree dated 27.11.1976 in O.S.No.6/71 on the file of Subordinate Court at Erode is non est in the eye of law and the lands dealt with under the compromise decree dated 27.11.76 in O.S.No.6/71 will continue to be the holdings of the land owner for the purpose of this statute etc. and accordingly, allowed S.R.P.Nos.14 to 16 of 2000 by setting aside the impugned common order dated 11.08.1999 in R.P.Nos.145 to 147 of 1998. Further, the 1st Respondent/Special Appellate Tribunal also remanded the matter back to the 3rd Respondent/Assistant Commissioner (Authorised Officer) of Land Reforms, Erode for fresh disposal in accordance with law, from the stage of Section 14 of the Act and then to issue the notification as per Section 18(1) of the Act after considering the objections of the legal heirs of the land owner Thirumalaisamy Naidu and others. Furthermore, the 1st Respondent/ Special Appellate Tribunal has directed the 3rd Respondent/Authorised Officer to issue notices to all the legal heirs of Thirumalaisamy Naidu and also the Petitioners in R.P.Nos.3/99 and 20 to 30/99 by Registered Post with Acknowledgement due, and if any one of them refuses to receive the same, then, it must be treated as sufficient service on them and to proceed with the matter accordingly and pass necessary amendment to the final statement as per Section 14 of the Act after due enquiry within six months from the date of the order and thereafter to issue the notification under Section 18(1) of the Act.' 25.The Learned Special Government Pleader brings it to the notice of this Court that before filing of R.P.Nos.145 to 147 of 1998 by the Writ Petitioners and another/Revision Petitioners, one Govindarajulu and 11 others filed R.P.No.3/89 in respect of the notification as per Section 18(1) of the Act. The Land Commissioner, in R.P.No.3/89, by his order dated 23.4.89, has remanded the matter to the 3rd Respondent/Assistant Commissioner (Authorised Officer) of Land Reforms at Erode to determine the title in respect of the suit land after conducting an enquiry and also set aside the notification as per Section 18(1) of the Act. Continuing further, one Chellappa Gounder and 10 others have filed Revision Petitions R.P.Nos.20 to 30/89 on the file of the Land Commissioner against the notification made under Section 18(1) of the Act. However, the Land Commissioner has dismissed R.P.Nos.20 to 30/89 as premature inasmuch as the notification issued under Section 18(1) of the Act has already been set aside in R.P.No.3/89 dated 23.4.89 passed by the Land Commissioner. 26.It is to be pointed out that the 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode in the proceedings in Reference No.5T/MR.I/58.61/92 dated 16.08.1993 has observed as follows: "(Late) Thiru R.Thirumalaisamy Naidu, S/o. Thiru, Ramasamy Naidu of Goindapuram, H/oPuthur Village, Dharpuram Taluk of Periyar District held an extent of 395165 1/3 ordinary acres enquivalent to 123.590 standard acres of land as on 06.04.60, the date of the commencement https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu Land Reforms (FCI) Act, 1961 (Tamil Nadu Act No.58 of 1961), hereinafter called the Act. The land owner dies during the year 1966. As the land owner was alive on the notified date of the Act, i.e., 2.10.62, action under the provisions of the Act was, therefore, initiated to declare the surplus available in the holdings of the land owner. (2)The land owners, his wife, Tmt.Rukumaniammal and his four minor sons (viz) Rajendran (1), Boopalan(2), Vidyasekaran (3) and Dhanasekaran(4), made a family partition among themselves through a registered document bearing No.3784/59 dated 02.12.59. According to the partition deed the lands held by the family were divided among the members of the family of the land owner as detailed below; Extent Ordinary Standard Acres Acres i)Thiruamalaisamy Nidu (Puthur Village) Land Owner 102.01 37.795 ii)Rukumaniammal, Wife of the land owner, Puthur Village 89.70 ½ 22.986 Pannapuram Village 25.13 5/6 6.283 ------------- --------- 114.841 1/3 29.269 Shares of his minor sons:- iii)Rajendran 36.27 ½ 14.087 iv)Boopalan 36.27 ½ 12.507 v)Vidyasekaran 55.16 ½ 17.52 vi)Dhanaseekaran 51.08 ½ 17.35 27.Also, the 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode, in his order dated 16.08.1993, has stated hereunder: "The partition was effected on 2.12.69. It is not valid as the partition was effected between the land owner, his wife and minor sons other than the co-parceners. Further partition is also not valid as per the judgment in O.S.NO.6 of 1971 dated 27.11.76 of the sub-court, Erode and it was declared as nominal transaction. Therefore, the family members among them partition was affected have to be treated as one unit as on 6.4.1960 the date of the commencement of the Act for the purposes of proceedings under the Act. The family of the land owner consists of himself his wife Rukmaniammal and 4 minor sons as on notified date of the Act Based on the above partition deed, the land owner held on extent of 396.65 1/3 ordinary acres equivaent to 128.590 standard acres of land. But of this an extent of 55.68 ordinary acres was inam land, for which ryotwari pattas was issued to different person. The https://hcservices.ecourts.gov.in/hcservices/ share of the land owner as per the pattas issued is ¼ of the extent. Therefore, only the ¼ share is taken into account in the determination of holdings of the land owner. Tmt. Rukmaniammal held the following lands in her name as on the date of the commencement of the Act. Extent Ordinary Standard Acres Acres Village Puthur 83.64 19.520 Pannapuram 13.32 3.330 -------- -------- 96.96 32.850 -------- --------- 28.Apart from the above, the 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode in the course of his order dated 16.08.1993, has proceeded to state hereunder: "3.The land owner expired during the year 1966. To determine the holdings of the land owner under the provisions of the Act, notices were issued to his wife Tmt.Rukmaniammal and his legal heirs. None of them appeared for enquiry and produced documentary evidence. Therefore, with reference to available records, the holding of the land owner and his family were determined under Section (2) (b) of the Act as detailed below:- Extent Ordinary Standard Acres Acres Section I Holding of Thiru.Thirulai samy Naidu 395.65 1/3 128.590 Deduct the extent for which ryotwari patta was not issued for inam lands 47.76 14.031 -------------- ---------- 353.891 1/3 114.559 -------------- ---------- Ceiling areas admissible - 30.000 Surplus 84.559 Section VI Holding of Tmt.Rukmaniammal 96.96 22.850 Stridhana admissible - 10.000 Surplus - 12.850 https://hcservices.ecourts.gov.in/hcservices/ ABSTRACT FOR SURPLUS Section I 84.559 Section VI 12.850 ---------- Total 97.409 --------- Thus there is an acquirable surplus of 97.409 standard acres of land from the holding of the family of the land owner. The land owner was directed to offer surplus land to an extent of 97.409 standard acres for being declared as surplus which are from from encumbrances, fit for cultivation and convenient enjoyment of the eventual assignees." 29.It transpires from the order of the 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode that 'the order under Section 9(2) (b) of the Act was sent to Tmt.Rukmaniammal (1)Sundaralakshmi (2)Thiru,T.Rajendran (3) and T.Dhanasekaran (4) being the legal heirs of the deceased land owner for service through the special Revenue Inspector(L.Ref) Dharmapuram. But they refused to receive the order and so the order was served on these persons by way of affixture. The order was also sent to the legal heirs Tmt.Kamalaveni (1) Kothinayaki (2)T.Boopalan (3)and T.Vivekanandan (4)by RPAD out of these four persons, Tmt.Kothainayaki alone had received the order on 08.09.90 and in respect of the other three persons, the portal authorities have returned the covers with endt, 'Party absent in 7 beats' not known. The draft statement under Section 10(1) of the Act was accordingly, published in the Tamil Nadu Government Gazette, (No.7C) dated 20.02.91 proposing to declare an extent of 367.73 1/3 ordinary acres equivalent to 109.609 standard acres of lands as surplus, after deducting an extent of 13.12 acres under Section VI as not belonged to the land owner's wife and correcting conversion into standard acres.' 30.The 3rd Respondent/Authorised Officer and the Assistant Commissioner (Land Reforms), Erode in the order dated 16.08.1993 has observed that 'the Copy of the draft statement, as published in the Tamil Nadu Government Gazette, along with a notice in form No.7 calling for objections, if any, was sent to the legal heirs by RPAD of 24.07.91. Thiru.T.Rajendran, S/o. (Late) Thiru.Thirumalaisamy Naidu filed a petition on 10.12.91 stating that he would produce necessary documents in support of his claim. A notice was sent to him on 4.8.92 to file documentary evidence in support of his claim, if any. As he did not file any document another notice was issued to him on 17.8.92 to produce material evidences