Madras High Court
Major V.T.Nair (Retd) vs The State Of Tamilnadu
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.02.2018
Delivered on : 08.03.2018
CORAM:
THE HON'BLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HON'BLE MR.JUSTICE P.VELMURUGAN
W.A Nos.1959 and 1960 of 2012,
M.P.Nos.1 and 1 of 2012
Major V.T.Nair (Retd) ...Appellant in both Appeals
Vs
1.The State of Tamilnadu,
Rep. by the Chief Secretary,
Fort St.George, Chennai - 600 009.
2.The Secretary to Government,
Planning, Development and Special
Initiatives Department,
Government of Tamilnadu,
Fort St.George, Chennai - 600 009.
3.The Principal Secretary,
Revenue Department,
Government of Tamilnadu,
Fort St.George, Chennai - 600 009.
4.The Principal Secretary and
Commissioner of Land Administration
Ezhilagam, Chepauk,
Chennai 600 005.
5.The District Collector
Kancheepuram District
Kancheepuram, Chennai 631 501.
6.The District Revenue Officer,
Kancheepuram District,
Kancheepuram 631 501.
7.Chennai Metro Rail Limited
Rep. by its Managing Director
No.11/6, Seethammal Road,
Alwarpet, Chennai 600 018.
8.The Tahsildar,
Alandur Taluk @ Nanganallur
Kancheepuram District
Chennai 600 065.
9.The Executive Officer,
St.Thomas Mount Cantonment Board,
St.Thomas Mount,
Chennai - 600 009.
10.The High Power Committee,
Government of Tamilnadu
Fort St.George,
Chennai - 600 009.
11.The Revenue Divisional Officer,
Tambaram Division,
Kancheepuram District,
Chennai - 600 045. ...Respondents
Prayer:- Writ Appeals filed under clause 15 of the Letter Patent against the order dated 16.04.2012 made in W.P.No.29664 and 29665 of 2011.
For Appellant : Mr.P.V.Balasubramanian
(in both Appeals)
For Respondents : Mrs.A.SriJayanthi
Spl.Govt.Pleader for R1 to R6 and
R8 to R11
Mr.Vijaynarayan, Advocate General
Assisted by Mr.Jayesh B Dolia for R7
( in both Appeals)
C O M M O N J U D G M E N T
K.K.SASIDHARAN,J.
Introductory This is the unfortunate case of a retired Major, whose patta land was taken over by the Government by evicting him unceremoniously, treating it as a Government land and transferring it to Chennai Metro Rail Limited (hereinafter referred to as "CMRL") notwithstanding the voluminous documents evidencing his title and possession of the land purchased by him in 1973.
2. The order passed by the Government in G.O.Ms.No.43 Planning, Development and Special Initiatives Department, dated 2 February 2011 transferring the land in the possession of M/s.GMMCO Limited to CMRL was set aside by the Writ Court and directed the parties to approach the Civil Court for declaration of title. The order was upheld by the Division Bench. When a similar challenge was made to the Government Orders in G.O.Ms.No.144 PD and SI Department, dated 27 August 2010 and G.O.Ms.No.45 PD and SI Department, dated 2 February 2011 transferring his land, which was allotted to his predecessor in interest, as per Award dated 12 August 1949 in O.P.No.84 of 1949 on the file of the High Court, Madras and another passed by the First Bench in W.P.No.6818 of 2012 quashing the eviction proceedings and directing CMRL to approach the Civil Court to establish the right and to take possession, the learned single Judge dismissed the writ petitions and directed the appellant to approach the Civil Court notwithstanding the initiation of civil suit by the CMRL in respect of the adjacent land in the possession of GMMCO Ltd., covered by G.O.Ms.No.43 dated 2 February 2011.
Brief Facts
3. The land situated in R.S.No.1459, Door No.17/1, G.S.T.Raod originally belonged to Thiru.Jelal Haji Abdul Karim Sahib. There was a dispute with respect to the property after his death, as to whether it was a Wakf property or his private property. The issue was referred to arbitration. The Arbitrator passed an Award holding that it was a private property available for distribution among the legal heirs. The Award was made a decree by the High Court, as per Decree dated 12 August 1949 in O.P.No.84 of 1949. As per the decree, the property described as land and building No.14 was allotted to the share of Thiru.Jalal Mohammed Fazlur Rahman Sahib. He sold the property to Thiru.D.Anjaneyulu Chetty, as per Sale Deed dated 26 December 1959, and registered as Document No.2790 of 1959. The property was later sold to Thiru.Madanchand Samdaria vide Sale Deed dated 30 July 1962 and registered as Document No.2002 of 1962 from whom the appellant purchased the property as per sale deed dated 9 April 1973. The sale deed was registered as Document No.599 of 1973.
4. The patta of the land was transferred and mutated in the name of the appellant. The Planning Authority issued planning permission to the appellant to construct a residential house. The appellant on the strength of the building permit constructed a residential house. The electricity department has given electricity connection to the house. The property was assessed to Property Tax and Urban Tax by the statutory authorities. The Cantonment Board has categorised the land as B2 Patta land and collected taxes regularly, treating the appellant as the owner of the property.
5. The appellant was not aware of the proceedings relating to transfer of his land to CMRL. The appellant filed a writ petition to forbear the respondents from disturbing his possession, immediately after demolition of a portion of his house property. The writ petition was not pressed with liberty to claim compensation in accordance with law. The appellant agreed to vacate the property. The writ petition was disposed of by order dated 9 August 2011 in W.P.No.3501 of 2011.
6. In the mean time, the representation submitted by the appellant to the District Collector was rejected by order dated 10 December 2010. The Collector in his order indicated that it was a Poramboke land and the lease in respect of the land had already expired. According to the Collector, the patta was wrongly issued to the appellant.
7. The appellant after collecting the Government Orders dated 27 August 2010 and 2 February 2011 transferring his land to CMRL filed writ petitions in W.P.Nos.29664 of 2011 and 29665 of 2011 to quash those two orders and pay him compensation.
8. The learned single Judge dismissed the writ petitions on account of the earlier order dated 9 August 2011 in W.P.No.3501 of 2011. The learned single Judge observed that the appellant is at liberty to approach the Civil Court or resort to the Land Acquisition Act for compensation. Feeling aggrieved, the appellant has filed the intra court appeals.
Respective Submissions
9. The learned counsel for the appellant contended that the documents produced by the appellant proved his title and possession. Similar was the case of GMMCO Limited. The Writ Court and the Division Bench directed CMRL to pay compensation to the company and liberty to the parties to approach the Civil Court for declaring the title. The Tahsildar thereafter filed a suit for Declaration of Title in O.S.No.494 of 2012 on the file of District Munsif Court, Alandur. Since the appellant is similarly situated, the Writ Court ought to have directed CMRL or Tahsildar to approach the Civil Court rather than directing the title holder to get his title declared. The learned counsel submitted that the appellant would claim compensation only after the Civil Court decree, in case a suit is filed by CMRL or the jurisdictional Tahsilar as in the case of GMMCO Limited in O.S.No.494 of 2012.
10. The learned Advocate General contended that the land is shown as Poramboke land in the revenue records. Therefore, it is for the appellant to approach the Civil Court for declaration of his title. The learned Advocate General though confirmed the factual position regarding initiation of civil suit by the Tahsildar against GMMCO Limited for Declaration, contended that in view of taking possession of the land by CMRL, it is for the appellant to prove his claim before the Civil Court.
Analysis
11. The property in question was allotted to the share of the predecessor-in-interest of the appellant as per decree, dated 12 August 1949 in O.P.No.84 of 1949 on the file of the High Court. The appellant purchased the property as per registered Sale Deed dated 9 April 1973. The land records were mutated in the name of the appellant based on his title deed. The appellant on receipt of planning permit constructed a residential house and it was assessed to property tax. The possession was recognised by the Cantonment Board by issuing him B2 Patta.
12. The appellant has been residing in the house constructed by him. The said fact is proved by the documents produced by him.
13. The Government notwithstanding the possession of land by the appellant passed an order in G.O.Ms.No.144 dated 27 August 2010 transferring the land to the CMRL. This was followed by G.O.Ms.No.45 dated 2 February 2011.
14. Before issuing the orders transferring the land to CMRL, enquiry with notice to the appellant was not conducted by the authorities. In fact, the respondents have no case that the appellant was put on notice before passing the orders giving Enter Upon permission CMRL.
15. It is true that when attempt was made to demolish the structure without notice and to evict him unceremoniously, the appellant filed a writ petition and agreed to give vacant possession to CMRL reserving his right to claim compensation.
16. The core question is as to whether inspite of the voluminous documents produced by the appellant to prove his title and possession, he should be dragged to the Civil Court to prove his right for payment of compensation.
Litigation relating to the adjacent land
17. The adjacent property in R.S.No.512, Door No.6, G.S.T. Road, St.Thomas Mount was in the possession of GMMCO Limited. The said land was also transferred to CMRL by the Government as per G.O.Ms.No.43 dated 2 February 2011. The Writ Court as per order dated 25 April 2011 in W.P.No.3277 of 2011 directed the CMRL to pay a sum of Rs.8,28,40,000/- to GMMCO towards compensation without prejudice to its right to claim enhanced compensation and with liberty to the parties to approach the Civil Court. The order was upheld by the Division Bench by judgment dated 5 January 2012 in W.A.No.1927 of 2011 by permitting GMMCO to withdraw 50% of the amount subject to the condition that in case the claim of the Company fails, the amount shall be refunded.
18.It is a matter of record that the Tahsildar, Alandur filed a suit against GMMCO for declaration of title in O.S.No.494 of 2012 before the District Munsif, Alandur.
19. The appellant is similarly situated. However, in the case of the appellant, the learned single Judge directed him to file a civil suit.
Similar Order passed by the First Bench 20(a) In Thankamma Koshy v. The Government of Tamil Nadu (W.P.No.6818 of 2012 dated 18 October 2016), the petitioner was in possession of a dwelling unit and land at G.S.T.Road, St.Thomas Mount. The land is very near to the property of the appellant herein. Since there was a threat of dispossession by CMRL, the land owner filed a writ petition in W.P.No.4024 of 2012. The writ petitioner undertook to hand over the possession of the land to CMRL. The writ petition was therefore disposed of on 7 March 2012. Thereafter, the land owner challenged the notice under Section 7 of the Tamil Nadu Land Encroachment Act in W.P.No.6818 of 2012. The Collector defended the eviction proceedings by contending that the land would come under "Time Expired Lease" category.
(b) The appellant is armed with an order passed by the First Bench in W.P.No.6818 of 2012, directing CMRL to establish its title and thereafter take possession from the writ petitioner. The facts are identical to the case on hand.
(c) The Division Bench by order dated 18 October 2016 quashed the proceedings initiated under the provisions of the Tamil Nadu Land Encroachment Act and issued the following direction:
"9. The result is that both the notice under Section 7 of the said Act dated 20.01.2012 and the order under Section 6 of the said Act dated 30.01.2012 are quashed and in case the respondents are desirous of obtaining possession of the land, they will have to take recourse to civil proceedings for cancellation of the sale deed executed in favour of the petitioner and other relief and that would naturally be subject to all defences as are available to the petitioner as to title or by way of adverse possession as the petitioner may choose."
21. The case of the appellant is covered by the decision of the Division Bench in W.P.No.6818 of 2012. The appellant and his predecessors have been in possession and enjoyment of the land prior to the decree dated 12 August 1949 in O.P.No.84 of 1949 and thereafter. The appellant has been living there after constructing a house. The property was assessed to tax. The patta was in his name. Such being the similarity of the case of the appellant vis-a-vis, the case of the petitioner in W.P.No.6818 of 2012, it is not correct on the part of the respondents to contend that the appellant must approach the Civil Court to establish his right. The learned Judge was equally not correct in observing that the case of the appellant would be barred by res judicata in view of the earlier order in W.P.No.3501 of 2011. Even the petitioner in W.P.No.6818 of 2012 earlier filed a writ petition for similar relief and undertook to hand over possession to CMRL. Even then when a writ petition was filed by her later in W.P.No.6868 of 2012, the Division Bench quashed the eviction proceedings giving liberty to the respondents to take possession by approaching the Civil Court.
22. We are in respectful agreement with the view taken by the Division Bench in its order dated 18 October 2016 in W.P.No.6818 of 2012.
23. However, in the subject case, possession has already been taken by the CMRL. We are therefore of the view that equity should be worked out in the light of the earlier order passed by the Division Bench in GMMCO and the order in Thankamma Koshy (W.P.No.6818/2012) and the initiation of Civil Suit by the Tahsildar in O.S.No.494 of 2012.
Disposition
24. Accordingly, by following the order dated 18 October 2016 in W.P.No.6818 of 2012, and in the light of the pending civil suit in O.S.No.494 of 2012 on the file of the District Munsif, Alandur, we direct the Tahsildar, Alandur, to file a civil suit impleading the appellant as the defendant for declaration of title within a period of four weeks from the date of receipt of a copy of this judgment . The suit shall be taken up along with the suit in O.S.No.494 of 2012 for trial. The appellant must co-operate for an early disposal of the suit. We direct the jurisdictional Civil Court to dispose of the suit as expeditiously as possible and in any case within a period of six months from the date of institution. The question of payment of compensation to the appellant would abide by the decision of the Civil Court.
25. We make it clear that the observation made in this judgment with respect to the devolution of the property and possession for deciding the writ petition would not bind the Civil Court. In short, the Trial Court shall decide the suit on merits and as per law uninfluenced by any of the observations made in this judgment.
26. The intra court appeals are allowed with the direction as indicated above. No costs. Consequently, connected miscellaneous petitions are closed.
(K.K.SASIDHARAN.,J.) (P.VELMURUGAN.,J.) 8 March 2018 Index : Yes svki To
1.The Chief Secretary, The State of Tamilnadu, Fort St.George, Chennai - 600 009.
2.The Secretary to Government, Planning, Development and Special Initiatives Department, Government of Tamilnadu, Fort St.George, Chennai - 600 009.
3.The Principal Secretary, Revenue Department, Government of Tamilnadu, Fort St.George, Chennai - 600 009.
4.The Principal Secretary and Commissioner of Land Administration Ezhilagam, Chepauk,Chennai 600 005.
5.The District Collector Kancheepuram District Kancheepuram, Chennai 631 501.
6.The District Revenue Officer, Kancheepuram District, Kancheepuram 631 501.
7.Chennai Metro Rail Limited Rep. by its Managing Director No.11/6, Seethammal Road, Alwarpet, Chennai 600 018.
8.The Tahsildar, Alandur Taluk @ Nanganallur Kancheepuram District Chennai 600 065.
9.The Executive Officer, St.Thomas Mount Cantonment Board, St.Thomas Mount, Chennai - 600 009.
K.K.SASIDHARAN,J. and
P.VELMURUGAN,J.
(svki)
10.The High Power Committee,
Government of Tamilnadu
Fort St.George,
Chennai - 600 009.
11.The Revenue Divisional Officer,
Tambaram Division,
Kancheepuram District,
Chennai - 600 045.
Pre-Delivery Judgment in
W.A Nos.1959 and 1960 of 2012
08.03.2018