Madras High Court
The Secretary To Government vs Nawabzada Khursheed Mohammad Khan on 30 April, 2013
Author: N. Paul Vasanthakumar
Bench: R.K.Agrawal, N. Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30-4-2013
CORAM
The Hon'ble Mr.Justice R.K.AGRAWAL, ACTING CHIEF JUSTICE
and
The Hon'ble Mr.Justice N.PAUL VASANTHKUMAR
W.A.No.2617 of 2012
M.P.No.1 of 2012
The Secretary to Government,
Government of Tamil Nadu,
Revenue Department, Fort St.George,
Chennai -9. .. Appellant
Vs
1. Nawabzada Khursheed Mohammad Khan
2. Rafique Mohammad Khan
3. Union of India, rep.by its Joint Secretary,
Ministry of Home Affairs,
Rehabilitation Division (Settlement Wing),
Jaisalmar House, Mansingh Road,
New Delhi. .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 2.9.2010 passed in W.P.No.7068 of 2007.
For Appellant : Mr.P.H.Arvind Pandian,
Additional Advocate General,
assisted by Mr.T.N.Rajagopalan,
Addl. Govt. Pleder
For Respondents 1&2 : Mr.K.M.Vijayan,
for K.M.Vijayan & Associates
For 3rd Respondent : Mr.A.S.Vijaya Ragavan, SCGSC
J U D G M E N T
R.K. AGRAWAL, A.C.J. & N. PAUL VASANTHAKUMAR, J.
This writ appeal is filed against the order passed by the learned single Judge in W.P.No.7068 of 2007 dated 2.9.2010, allowing the writ petition filed by the respondents 1 and 2 herein, challenging G.O.Ms.No.778 Revenue (LD) 4(2) Department dated 4.12.2006 and seeking direction to the appellant/State Government to separate and hand over 2/3rd share of the Non-evacuee property of the respondents 1 and 2 to the extent of 82.5 grounds in R.S.No.36/3 to 36/43 of Nungambakkam village in Egmore-Nungambakkam Taluk, Chennai or to hand over either of the land in R.S.No.35/78 or R.S.No.35/3 in Nungambakkam Village, or any other suitable lands in any other area, equivalent to the value of 2/3rd share of Non-evacuee property or to pay compensation to the property in question as requested by the respondents 1 and 2 in their representation dated 12.9.2003, recommended by the District Revenue Officer, Chennai, in his letter dated 27.4.2004 and Collector of Chennai dated 9.6.2004, with further direction to complete the whole exercise within a period of eight weeks. The State Government having aggrieved over the said order, filed this writ appeal.
2. The brief facts necessary for disposal of this writ appeal are as follows:
(a) The respondents 1 and 2 herein/writ petitioners and one Aza Muniza Begum are sons and daughter of late Prince of Arcot H.H. Sir Gulam Mohammed Ali Khan. The property measuring 82.5 grounds in R.S.No.36/3 to 36/43 of Nungambakkam Village by name "Mackey's Garden" was originally owned by the Prince of Arcot and after his life time, the respondents 1 and 2 herein and Aza Muniza Begum, who are sons and daughter are entitled to each 1/3rd share in the said property.
(b) The said Aza Muniza Begum migrated to Pakistan and her 1/3rd share was declared as evacuee property under the Administration of Evacuee Property Act, 1950. Pursuant to such declaration, the entire property including 2/3rd share of the composite property was with the custodian of Evacuee property, who was appointed under the Administration of Evacuee Property Act, 1950 to take possession of the entire property measuring 82.5 grounds.
(c) The custodian decided to dispose of the evacuee property of 1/3rd share in 82.5 grounds and fixed the value of the property as Rs.1.54 lakhs by order dated 10.9.1954. However, his efforts to sell the property was not successful, as there was no actual possession of 1/3rd share, which compelled the custodian to transfer the evacuee share to non-evacuee claimants and fixed the value of 1/3rd share at Rs.54,833.33 along with arrears of rent of Rs.13,713.67 by order dated 6.7.1958. The non-evacuee claimants opposed the mode of assessment of value as well as the claim of rent as the property was vested with the custodian as composite property. Proposal to transfer evacuee property to non-evacuee claimants was not fructified.
(d) Number of persons encroached upon the evacuee property and put up permanent and quasi-permanent structures illegally and in fact the entire area was occupied by Slum Dwellers. The Government was also earning revenue from the illegal encroachers by way of property tax. The respondents 1 and 2 herein, though are entitled to 2/3rd non-evacuee property could not obtain their actual possession for the past 10 decades and they are unable to enjoy their ownership right.
(e) According to the respondents, the Government are legally responsible for holding evacuee property and for handing over 2/3rd share of non-evacuee property as they are unlawfully earning revenue from the evacuee property by collecting property tax, which compelled the respondents 1 and 2 to approach the appropriate authority to provide for 52.5 grounds i.e, 2/3rd share of the total land or to allot 12 grounds in S.No.35/78 or S.No.35/3 Nungambakkam Village, Egmore-Nungambakkam Taluk, on exchange basis or pay compensation to the land.
(f) The respondents 1 and 2/writ petitioners, having not received any positive reply, approached the Hon'ble Supreme Court by filing W.P.(C)No.526 of 2005 and the Supreme Court by order dated 24.10.2005 directed the authority concerned to dispose of the respondents' application within three months. Thereafter G.O.Ms.No.778 Revenue (LD) 4(2) Department dated 4.12.2006 was issued rejecting the request of the respondents stating that the area in question was declared as slum area during 1971 and as per Administration of Evacuee Property, Government is not having specific responsibility in respect of non-evacuee property, which is purely a private property, which has to be protected by its owner and therefore the respondents 1 and 2 are not entitled to get compensation or exchange of lands.
(g) The above said order was challenged by the respondents 1 and 2 by filing W.P.No.7068 of 2007 and the learned single Judge by order dated 2.9.2010 allowed the writ petition, against which this writ appeal is filed by the State Government.
3. Mr.P.H.Arvind Pandian, learned Additional Advocate General, on the basis of the grounds of appeal raised argued that the contention of the appellant/State Government in this appeal is that the "Makeys Garden" is a composite property measuring 82.5 grounds consisting of 26 plots in R.S.No.36/3 to 36/43 of Nungambakkam Village, which was owned by the Prince of Arcot Sir Gulam Mohammed Ali Khan and in the year 1950 the daughter of the said Prince of Arcot viz, Aza Muniza Begum migrated to Pakistan, due to which her 1/3rd share in the composite property was declared as evacuee property under the Administration of Evacuee Property Act, 1950. The respondents 1 and 2 were fighting for the remaining 2/3rd share of the Non-evacuee property as they are the legal heirs of late Prince of Arcot. Learned Additional Advocate General submitted that on 10.9.1954 the Competent Officer viz., Evacuee Interest (Separation) Madras called upon the non-evacuee property owner to deposit the evacuee's share and also suggested that the composite property be sold by way of public auction as per Section 10 of the Evacuee Interest (Separation) Act, 1951. Valuation Officer was appointed, who fixed the value of the composite property as Rs.1,58,500/-. He also noted that some of the tenants are in the property, who obtained rights under the Madras City Tenants' Protection Act, 1921 and on 6.8.1968, based on the offer of the respondents 1 and 2 to purchase 1/3rd share, the Competent Officer ordered that the evacuee's share in the composite property be transferred to the respondents 1 and 2, if they were prepared to pay Rs.54,833.33 plus Rs.13,713.67 being the arrears of rent within one month, failing which the property could be sold by public auction. The respondents refused to pay the said amount and objected the demand of rent. As against the said order neither appeal was filed under section 14 of the Evacuee Interest (Separation) Act, 1951, nor they seek for partition of the composite property under section 10 of the Act.
4. It is also the contention of the learned Additional Advocate General that the State Government issued G.O.Ms.No.378 Housing Department, dated 2.11.1972 and declared the entire land as slum area under Section 3(1) of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971. The respondents 1 and 2 having failed to purchase the Evacuee property in spite of offering to purchase and having failed to get partition of their share, cannot demand compensation/exchange of land as the entire area is now occupied by the trespassers, who also constructed pucca houses. It is the contention of the appellant that even though the respondents 1 and 2 are owners of the non-evacuee 2/3rd share of the property, they having slept over the matter for over 50 years, and they cannot blame the State Government and claim compensation or alternate lands in lieu of their share. The Government having rejected the request of the respondents 1 and 2 on that ground, the learned single Judge was not justified in setting aside the Government order and giving direction as stated supra.
5. Mr.K.M.Vijayan, learned Senior counsel on the other hand submitted that it is an admitted case that 82.5 grounds of lands in S.No.36/3 to 36/43 being the property of the Prince of Arcot and respondents 1 and 2 being the legal heirs viz., sons of the said Prince of Arcot, they are entitled to get 2/3rd share and their sister's 1/3rd share alone was declared as Evacuee property, as she migrated to Pakistan. The property being composite property, there was no metes and bounds and merely because the custodian offered to sell the evacuee property of 1/3rd share, the custodian cannot deny 2/3rd share of the respondents 1 and 2. As the State Government declared the entire property as slum area including 2/3rd share of the property owned by the respondents 1 and 2, the respondents are entitled to get either compensation or alternate lands, as the entire property is now under the control of the Slum Clearance Board.
6. The learned Senior Counsel appearing for the respondents 1 and 2 heavily relied on the report submitted by the District Revenue Officer, Chennai to the Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai, wherein it is specifically stated that the request of the respondents 1 and 2 in seeking exchange of land in lieu of pending settlement of claims towards 2/3rd share of non-evacuee property, with an extent of 12 grounds in S.No.35/3 of Nungambakkam Village can be considered to settle the issue as it will clear 2/3rd share of non-evacuee property, which is pending transfer to the claimants and the entire property will become the property of the Government. As pucca buildings are built up in the Evacuee land, regularisation of the encroachment of this land could be decided after settlement of non-evacuee lands. This aspect was not considered by the Government while rejecting the request of the respondents 1 and 2 by issuing G.O.Ms.No.778 dated 4.12.2006, which was passed after the direction issued by the supreme Court to dispose of the representation of the respondents 1 and 2, within three months, without expressing anything on merits of the case. Therefore the learned single Judge was justified in setting aside the Government order and in allowing the writ petition with further direction.
7. We have considered the rival submissions made by the learned Additional Advocate General appearing for he appellant as well as learned Senior Counsel appearing for respondents.
8. It is not in dispute that 82.5 grounds in R.S.No.36/3 to 36/43 was owned by H.H.Sir Gulam Mohammed Ali Khan, the Prince of Arcot, who died leaving behind Aza Muniza Begum as his daughter and respondents 1 and 2 herein, as his sons. The said Aza Muniza Begum was entitled to 1/3rd share in the said composite property, who having migrated to Pakistan, her 1/3rd share in the property was declared as Evacuee property. The remaining 2/3rd share (55.5 grounds) devolved on the respondents 1 and 2. Admittedly no partition of the said property took place.
9. On 6.8.1968, the custodian passed orders to transfer 1/3rd share of the Evacuee property to non-evacuee claimants, if they were willing to pay Rs.54,833 towards value of the said 1/3rd share and Rs.13,713.67 towards arrears of rent within one month, failing which it was informed that the property will be disposed of in public auction. The respondents 1 and 2 were not willing to pay arrears of rent and not paid any amount. The property was also not auctioned due to encroachments made by several persons.
10. It is also the admitted position that the respondents 1 and 2 have not taken any steps to get partition of their 2/3rd share in 82.5 grounds. The entire property was encroached by slum dwellers and the Government of Tamil Nadu notified the entire area as slum area under the provisions of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971. Thus, it is clear that the entire property is occupied by the Slum Dwellers by putting up construction and they are paying property tax to the Government. The Slum Dwellers are unable to be given patta as the dispute about the property is not settled even today as the respondents 1 and 2 herein are the owners of 2/3rd share viz., 55.5 grounds.
11. There is laxity on the part of the respondents 1 and 2 in taking steps to protect their lands from encroachment. They have also not taken any steps to get partition of the land and they also failed to protect their possession. Only in the year 2003, the respondents 1 and submitted representation, that was on 12.9.2003, seeking exchange of land to an extent of 12 grounds in S.No.35/78 Nungambakkam Village, Egmore-Nungambakkam Taluk. The said request was processed at the instance of the Special Commissioner and Commissioner of Land Administration and remarks were called for on 22.10.2003, based on which the Tahsildar, Egmore-Nungambakkam through his proceedings dated 15.3.2004 submitted a report before the District Revenue Officer, Chennai, who in turn submitted a detailed report in his proceedings J3/65959/2003, dated 27.4.2004 to the Special Commissioner of Land Administration, Chennai, wherein it is stated as follows:
"The Tahsildar, Egmore-Nungambakkam Taluk while sending the proposals has reported that the request of the petitioners for the exchange of land in lieu of pending settlement of claims towards 2/3 shares of non evacuee shares with an extent of 10 Grs. In S.No.35/3 of Nungambakkam village might be considered to settle the issue. In the event of considering the exchange of land as stated above, the original claim of 2/3 shares of non evacuee co-sharers measuring Gr.54 1914 sq.ft. which is pending for transfer to the claimants stand abated and automatically the entire property known as Mackeys Garden becomes the property of Government. Moreover the exchange of land in lieu of non evacuee sharers by relinquishing their right of 54 Grs. And 1914 Sq.ft. is beneficial to Government in terms of land cost.
It is further reported by him that the evacuee land is now fully built up with pucca buildings and the regularisation of the encroachments on this land could not be decided in view of the pending settlement of non evacuee interest over these lands. By accepting the request of the petitioners for the exchange of land in lieu of their non evacuee shares in the evacuee property, the encroachments could be regularised by collecting the land cost based on the market value/nominal market value as most of the encroachers could afford to pay the cost fixed by Government.
It is further reported by the Tahsildar, Egmore-Nungambakkam Taluk that the guideline value of the land in Greams Road is fixed at Rs.2980/- per sq.ft. by the Sub Registrar, Thousandlights and based on the guideline value, the value of one ground of land is worked out to Rs.71,52,000/-. As there are no vacant sales nearby the land in question and since the guideline value for the land seems to be reasonable one, this value may be adopted as market value of the land. The composite property in R.S.No.35/3 etc., which is also facing Greams Road adjacent to the land under reference also attracts the same value. The Tahsildar, Egmore-Nungambakkam Taluk has stated that the request of the petitioners for the allotment of 12 Grs. Of land in R.S.No.35/3 of Nungambakkam village in lieu of 2/3 non evacuee share in S.No.36/3 etc., in Mackey's Garden may be restricted to 10 Grs. And recommended to Government.
The report of the Tahsildar, Egmore-Nungambakkam Taluk was examined in detail. The request of the petitioners for allotment of 10 Grs. Of lands in R.S.No.35/3 Nungambakkam Village in lieu of 2/3 non evacuee shares in S.No.36/3 etc., in Mackey's Garden deserves consideration and by considering their request, the regularisation of encroachment in the land in R.S.No.36/3 etc., of Nungambakkam village could also be made by collecting the market value of the land in question as the land becomes the property of the Government as and when the non evacuee interest is settled.
I enclose the following records for kind perusal and reference,
1) Copy of letter No.A2/30812/03 dated 15.04.2004 from the Tahsildar, Egmore-
ungambakkam Taluk.
2) Notes of inspection of the Tahsildar, Egmore-Nungambakkam Taluk.
3) Guideline value extract in original issued by the Sub Registrar, Thousandlights."
(Emphasis Supplied) From the above referred report, it is evident that the Slum Clearance Board is not able to give assignment of lands to Slum Dwellers as the ownership of the land in S.No.36/3 to 36/43 vests with the respondents 1 and 2, even today. Unless the said issue is settled, the Slum Dwellers/tenants cannot be given assignment or patta to their respective areas and a practical suggestion was made by the Tahsildar, which was recommended by the District Revenue Officer, Chennai. The Honourable Supreme Court also directed the State Government to dispose of petitioner's representation seeking alternate land without going into the merits of the matter.
12. The Government Order issued on 4.12.2006 nowhere refers about the report submitted by the District Revenue Officer dated 27.4.2004 as well as the difficulties faced by the Slum Clearance Board in giving assignment of the lands to the tenants/Slum Dwellers, who are occupying the 55.5 grounds in S.No.36/3 to 36/43. Thus, we are of the view that the impugned order was passed by the appellant/State Government without application of mind, i.e., without considering the relevant issues in proper perspective.
13. In view of the above findings, the impugned Government Order dated 4.12.2006 is liable to be set aside and the Government is to be directed to reconsider the issue afresh based on the materials available on record. The positive direction given by the learned single Judge also cannot be sustained.
14. In fine, the writ appeal is partly allowed. The order of the Government issued in G.O.Ms.No.778 Revenue (LD) 4(2) Department dated 4.12.2006 is set aside and the matter is remitted to the Government/appellant herein to consider the issue afresh, based on the materials available on record and pass fresh orders, within a period of four months from the date of receipt of copy of this judgment. No costs. Connected miscellaneous petition is closed.
Index :Yes/No (R.K.A., ACJ) (N.P.V.,J)
Internet :Yes/No 30th April, 2013
Vr
The Hon'ble Acting Chief Justice &
N.Paul Vasanthakumar, J
Vr
Pre-Delivery Judgment in
W.A.No.2617 of 2012
30-4-2013