Madras High Court
M.Veerappan vs The Revenue Divisional Officer on 4 February, 2019
Equivalent citations: AIR 2020 (NOC) 270 (MAD.) (MADURAI BENCH), AIRONLINE 2019 MAD 2189
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 31.01.2019
PRONOUNCED ON : 04.02.2019
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD).No.17694 of 2015 and
W.P.(MD)No.7153 of 2016 and
M.P.(MD)No.1 of 2015 and W.M.P.(MD)No.6054 of 2016
W.P.(MD)No.17694 of 2015
M.Veerappan ... Petitioner
Vs.
1. The Revenue Divisional Officer,
Madurai District, Madurai.
2. The Tahsildar,
Melur, Madurai District.
3. Kalavathy
4. A.Nagaraj
(R-3 & R-4 are suo motu impleaded
vide Order dated 13.12.2018) ... Respondents
PRAYER : Writ Petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Declaration, declaring
that the proceedings under the Tamil Nadu Land Reforms
(Fixation of Ceiling on Land) Act, 1961 as amended by Tamil
Nadu Act 17 of 1970 in G.O.Ms.No.741, Revenue, 27th March
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1981 published in the Government Gazette on 27.05.1981 in
respect of the surplus lands of M.M.M.M.Unnamalai Aachi in
respect of the petitioner's lands in Survey Numbers 341/1,
341/2 and 341/3 admeasuring 1.65, 0.46 and 0.26 acres of
land respectively totalling 2.37 acres is not valid and does not
affect the petitioner's title and to quash the consequential
proceedings of the R.D.O. Dated 04.09.2015.
(Prayer is amended vide Order dated 24.01.2019 in
W.M.P.(MD)No.21888 of 2018)
For Petitioner : Mr.N.Dilipkumar
For R-1 & R-2 : Mr.M.Rajarajan,
Government Advocate.
For R-3 & R-4 : Mr.T.A.Ebenezer
***
W.P.(MD)No.7153 of 2016
1. A.Periyapillai(Died)
2. Kalavathy
3. A.Nagaraj
(Petitioners 2 & 3 are substituted for the
deceased sole petitioner vide order dated 14.11.2018
in W.M.P.(MD)No.19708 of 2018) ... Petitioners
Vs.
1. The Secretary to Government,
State of Tamil Nadu,
Revenue (Land Reforms) Department,
Secretariat, Chennai – 9.
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2. The Revenue Divisional Officer,
Madurai.
3. The Assistant Commissioner,
Land Reforms,
Madurai – 2,
Collectorate, Madurai.
4. The Tahsildar,
Melur Taluk, Madurai District.
5. M.Veerappan ... Respondents
PRAYER : Writ Petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, directing
respondents 1 and 3 to initiate assignment proceedings in
respect of the lands in survey Nos.341/1, 341/2 and 341/3,
Aritapatti Village, Melur Taluk, Madurai District within
stipulated time.
For Petitioners : Mr.T.A.Ebenezer
For R-1 to R-4 : Mr.M.Rajarajan,
Government Advocate.
For R-5 : Mr.N.Dilipkumar
***
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COMMON ORDER
The internecine dispute between sister and brother has given rise to these two Writ petitions. The basic facts are not in dispute. The property in question measuring about 2.37 acres comprised in Survey Nos.341/1, 341/2 and 341/3, in Aritapatti Village, Melur Taluk, Madurai District, originally stood in the name of Smt.Unnamalai Achi. She sold the said lands vide registered sale deed dated 17.09.1969 in favour of one A.Allimuthu and his younger brother Kokilan. The said Allimuthu is none other than the husband of Periyapillai, the original petitioner in W.P.(MD)No.7153 of 2016. They subsequently sold the same on 03.05.1974 vide document No.1003 of 1974 in favour of Minor Veerappan, represented by his father and natural guardian Muthukaruppan. The said Veerappan is the brother of Periyapillai. According to Periyapillai, the property was the subject matter of partition that had taken place on 15.09.1975 between Muthukaruppan and his wife Puliyammal. Subsequently, Muthukaruppan http://www.judis.nic.in 5 executed a registered gift deed in favour of Periyapillai on 06.08.1988.
2. According to both the Writ petitioners, they were unaware that the suit property was covered by the proceedings initiated against Unnamalai Achi under the Tamil Nadu Land Reforms(Fixation of Ceiling on Land) Act, 1961. Periyapillai would claim ownership over the land in question and she would allege that behind her back, Veerappan got his name entered as a cultivating tenant. She therefore initiated eviction proceedings against Veerappan. Finally, by Order dated 04.09.2015, the authorised officer/Revenue Divisional Officer, Madurai held that the land in question stands vested with the Government by virtue of Notification under Section 18(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 issued as early as on 27.05.1981 and that therefore neither Periyapillai nor Veerappan have any right therein. He directed removal of the encroachments and called upon the Tahsildar, Melur, to put up a Board indicating that the land in question is a surplus land belonging to the Government.
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3. In view of these developments, Veerappan chose to question the said order dated 04.09.2015. Subsequently, he amended the Writ prayer and also sought a declaration that the proceedings under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 as amended by Tamil Nadu Act 17 of 1970 in G.O.Ms.No.741, Revenue, 27th March 1981 and published in the Government Gazette on 27.05.1981 are null and void.
4. On the other hand, Periyapillai seems to have accepted the position that the lands are surplus lands belonging to the Government. She therefore wanted the authorities to assign the lands in question in her favour. During the pendency of these proceedings, Periyapillai passed away and her legal heirs have come on record.
5. Heard the learned counsel on either side who reiterated the contentions set out in their respective pleadings.
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6. Thiru.N.Dilip Kumar, learned counsel appearing for Veerappan, petitioner in W.P.(MD)No.17694 of 2015 and fifth respondent in W.P.(MD)No.7153 of 2016 pointed out that Unnamalai Achi had alienated the lands in question by registered sale deed dated 17.09.1969 in favour of Allimuthu and his brother Kokilan. A mere look at the impugned notification in G.O.Ms.No.741, Revenue, dated 27.03.1981 would indicate that the proceedings were concluded only under the Tamil Nadu Act 17 of 1970. Therefore, the date of commencement of the Act is 15.02.1970 and the notified date was 02.10.1970. In as much as Unnamalai Achi had already alienated the land in question in the year 1969 by a registered sale deed before the date of commencement of the Act, the said transaction cannot be ignored while calculating the land holding at the hands of Unnamalai Achi. What was held by Unnamalai Achi on the date of commencement of the Act i.e., 15.02.1970 alone is material. In support of this contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court reported in 1995 Supp (2) SCC 481 (V. Gopal http://www.judis.nic.in 8 Reddiar v. State of T.N.,). Paragraph Nos.20 to 22 of the said decision is as follows:-
“20. It is submitted before us by the respondents that as a result of Section 3(2) of the Reduction Act, pending proceedings under the old Act have to be continued save and except that the ceiling would be reduced. Hence transactions of sale after 2-10-1962 which were required to be ignored under the unamended Section 23 of the Principal Act would also have to be ignored under the Principal Act as modified by the Reduction Act in view of Section 3(1).
21. This submission ignores an important part of Section 3(2) which prescribes that for the purpose of determining a person’s reduced ceiling after 15-2-1970, the provisions of the Principal Act as modified by Section 2 of the Reduction Act, shall apply to a person against whom any proceedings are pending as described under Section 3(1). This means that under Section 3(2), for the purpose of determining the reduced holding, the amended Section http://www.judis.nic.in 9 23 will have to be applied i.e. the notified date under the amended Section 23 has now to be read as 2-10-1970 instead of 2-10-1962. For the purpose, therefore, of reducing the holding further under Section 3(2), only sale transactions between 2-10-1970 and the date of the final statement are required to be ignored. Sub-sections (1) and (2) of Section 3 must be read harmoniously. In a case where a proceeding under the Principal Act had commenced under the Principal Act but had not concluded before the commencement of the Reduction Act, the proceeding will have to be continued under the unamended Principal Act to arrive at the permissible holding under the unamended Principal Act. A person, however, cannot hold more than the reduced ceiling area after the commencement of the Reduction Act.
The proceeding, therefore, will have to continue in order to further determine the reduced holding under the modified Principal Act. For the purpose of determining his final holding under the http://www.judis.nic.in 10 modified Principal Act, the amended Section 23 will have to be applied to the ceiling holding determined under the original Principal Act. In the present case, therefore, for the purpose of calculating the reduced ceiling area, sale transactions between the new notified date and the date of the final statement alone should be ignored (vide amended Section 23). Sale transactions prior to 15-2-1970 will have to be taken into account. Therefore, for further reduction under Section 3(2) what will have to be taken into account, will be the holding of the appellants as determined under the Principal Act [Section 3(1)] less any other reduction in their holding on account of sales, transfers etc. prior to the commencement of the Reduction Act.
The existence of the words “and the provisions of the Principal Act as modified by Section 2 shall after the said date apply to such person” in Section 3(2) clearly indicate that the further reduction of holding as per the Reduction Act has to be done in accordance with the provisions of the http://www.judis.nic.in 11 Principal Act read with the Reduction Act. Sub-section (2) cannot be read as simply reducing the ceiling area in the pending proceedings under the Principal Act. Sub-section (2) clearly provides the method of thus reducing the ceiling after 15-2-1970. This further reduction has to be done in accordance with the provisions of the Principal Act read with the Reduction Act.
22. Any pending proceeding, therefore, under the Principal Act will have to be continued and concluded in the aforesaid manner by first calculating the ceiling area under the Principal Act and then reducing it further to the ceiling under the Reduction Act read with the Principal Act by applying the provisions of the Principal Act as modified by the Reduction Act; so that a person does not hold land in excess of the ceiling area prescribed under the Principal Act read with the Reduction Act. ...”
7. A later Bench of the Hon'ble Supreme court raised a doubt that the ratio of the decision reported in (1995) Supp (2) http://www.judis.nic.in 12 SCC 481 (V. Gopal Reddiar v. State of T.N.,). and the ratio of the decision reported in (1998) 4 SCC 231 (A.G.Varadharajulu V. State of T.N.,) are in conflict with each other. The matter was referred to the three Judges Bench reported in (1998) 7 SCC 157 (Arul Nadar V. A.O) . The three Judges Bench in the aforesaid decision held that there was no conflict between two decisions and the decision reported in (1995) Supp (2) SCC 481 (V. Gopal Reddiar v. State of T.N.,) was approved. The decision reported in (1998) 7 SCC 157 (Arul Nadar V. Authorised Officer ) was followed by the Madras High Court in the decision reported (2013) 1 L.W. 990 (Venkatachalam V. District Revenue Officer).
8. In the counter affidavit, it is specifically stated that Unnamalai Achi filed her statutory returns under Section 8(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 58 of 1961 on 13.07.1965. Thus even though the proceedings had commenced under the Tamil Nadu Act 58 of 1961, the fact remains that they were continued after the Reduction Act came into force. Thus the case on hand will be http://www.judis.nic.in 13 governed by the ratio of Gopal Reddiar case, as rightly contended by Thiru.Dilip Kumar, learned counsel appearing for Thiru.Veerappan.
9. As rightly pointed out by the learned counsel appearing for Veerappan, the Notification issued under Section 18(1) of the Act in G.O.Ms.No.741 dated 27.03.1981 specifically refers to the Reduction Act, i.e., Tamil Nadu Act 17 of 1970. Therefore, as laid down by the Hon'ble Supreme Court, the transactions that had taken place prior to 15.02.1970 could not have been ignored by the authorised officer(Land Reforms). They ought to have been taken into account. Since it was not taken into account, obviously, the inclusion of the land in question in the impugned Notification vide G.O.Ms.No.741, Revenue, dated 27.03.1981 is bad in law.
10. Of course there is another impediment for Thiru.Veerappan to overcome. The Notification in question was issued way back in the year 1981. The challenge is mounted in respect of the said notification only in January http://www.judis.nic.in 14 2019. Of course the Writ petition was filed in the year 2015 itself, questioning the order passed by the Revenue Divisional Officer, Madurai, for his removal from the land in question.
11. The learned counsel would submit that the doctrine of laches ought not to be put against him. He would place reliance on the decision of the Hon'ble Supreme Court reported in (2017) 16 SCC 104 (Shoeline V. CST). It was held therein that in determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant’s part; and (ii) any change of position that has occurred on the defendant’s part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be http://www.judis.nic.in 15 reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.
12. He also strongly invoked the observations of the Hon'ble Supreme Court reported in (2015) 3 SCC 1(Assam Sanmilita Mahasangha V. Union of India). The Hon'ble Supreme Court after referring to the earlier cases and the law relating to the doctrine of the laches observed that time has come to have a re-look at the doctrine of laches altogether when it comes into violation of Articles 21 and 29 of the Constitution of India. Of course, the right to property was sought to be under played. But then, we are dealing with the case of an ordinary farmer who owns a few acres of land. In such cases, taking away the land would be like removing the sheet anchor of his existence. It would certainly amount to infringing his right to livelihood under Article 21 of the Constitution of India. Therefore, the case on hand would fall under Article 21 of the Constitution of India and not under http://www.judis.nic.in 16 Article 300(A) of the Constitution of India. Of course, the respondents would try to create a picture, as if Thiru.Veerappan is a Mirasdar. I am convinced that it is not so. He is having few more acres in his wife's name and in the name of his son. That would still qualify him as a smaller farmer only.
13. Applying the aforesaid principles, I can still permit the petitioner to successfully question the notification of the year 1981. It is obvious that at no point of time, the petitioner acquiesced. It is obvious that no third party rights have been created. In fact when Periyapillai filed W.P.No.3981 of 2008, the Assistant Commissioner(Land Reforms), Madurai – 2 filed a counter affidavit stating that the assignment proceedings have not been initiated and that they would be initiated in due course. Even in the impugned order dated 16.09.2015 passed by the Revenue Divisional Officer, Madurai, rejecting the claims of both Periyapillai and Veerappan, it is admitted that the lands are in the possession and enjoyment of Veerappan and that is why a direction for his removal from the said http://www.judis.nic.in 17 property was issued on 04.09.2015. Thus, by accepting the case of M.Veerappan, no third party rights would stand infringed. Therefore, this is not a case in which this Court would be justified in non-suiting the petitioner by invoking the doctrine of laches. However, the impugned notification cannot be quashed in toto. They pertain to quite a few other items. Therefore, the impugned notification is quashed only in so far as Survey Nos.341/1, 341/2 and 341/3 in Aritapatti Village, Melur Taluk, Madurai District, is concerned and in other respects, the impugned notification is not touched. The order dated 04.09.2015 is based on the 1981 notification. Since I have quashed the original notification dated 27.05.1981, the consequential order dated 04.09.2015 of the Revenue Divisional Officer, Madurai, also goes.
14. There has been a long and bitter battle between Veerappan and his sister Periyapillai. The sister is no more. But the dispute does not appear to have suffered a death. The children of Periyapillai have come on record. Their stand appears to be that the property in question originally http://www.judis.nic.in 18 purchased in the name of Veerappan actually belonged to Muthukaruppan. Muthukaruppan had gifted the property in favour of Periyapillai. Therefore, it is obvious that Periyapillai has some claims against Veerappan in respect of the property.
15. I am of the view that the dispute between Veerappan and his sister's family will have to be resolved through the civil court. The order now passed will not cast any reflection on the rights of Periyapillai or her children. What ever civil proceedings there may be instituted by the legal heirs of Periyapillai and Veerappan will be decided without being influenced by the outcome of these proceedings.
16. In this view of the matter, W.P.(MD)No.17694 of 2015 stands allowed and W.P.(MD)No.7153 of 2015 stands dismissed. No costs. Consequently, connected Miscellaneous petitions are closed.
04.02.2019 Index : yes/No Internet:Yes/No pmu http://www.judis.nic.in 19 To
1. The Secretary to Government, State of Tamil Nadu, Revenue (Land Reforms) Department, Secretariat, Chennai – 9.
2. The Revenue Divisional Officer, Madurai.
3. The Assistant Commissioner, Land Reforms, Madurai – 2, Collectorate, Madurai.
4. The Tahsildar, Melur Taluk, Madurai District.
http://www.judis.nic.in 20 G.R.SWAMINATHAN,J.
pmu W.P.(MD).No.17694 of 2015 and W.P.(MD)No.7153 of 2016 and M.P.(MD)No.1 of 2015 and W.M.P.(MD)No.6054 of 2016 04.02.2019 http://www.judis.nic.in 21 http://www.judis.nic.in