Madras High Court
Tmt.Seethalakshmi vs The State Of Tamil Nadu on 1 November, 2012
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 01.11.2012 CORAM THE HONOURABLE MR. JUSTICE T. RAJA W.P.No.8616 of 2003 1.Tmt.Seethalakshmi 2.Mr.Ganapathi(Deceased) 3.Tmt.Rasammal 4.Tmt.Gandhimathi 5.Avaiyyar 6.Seetha lakshmi 7.Vishalakshi 8.Rasammal .. Petitioners Vs. 1.The State of Tamil Nadu, Rep. by its Secretary to Government, Revenue Department, Fort St. George, Chennai 9. 2.The Special Commissioner and Commissioner of land Reforms, Chepauk, Chennai 5. 3.The Assistant Commissioner for Urban land tax, Tirunelveli. .. Respondents Writ petition filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Mandamus to forbear the respondents from interfering with the possession and enjoyment of the land by the petitioner in S.No.468/1A, Kilaveeraraghavapuram village, Palayamkottai Taluk, Tirunelveli District, to an extent of 13712.sq.metres by invoking provisions of the Urban Land Ceiling Act 1978, as repealed Act 20/1999. For Petitioners ... Mr.G.Sankaran For Respondents ... Mr.R.Govindasamy, Addl. Govt. Pleader ORDER
The present writ petition has been filed for issuance of writ of Mandamus to forbear the respondents from interfering with the possession and enjoyment of land by the petitioners in S.No.468/1A, Kilaveeraraghavapuram village, Palayamkottai Taluk, Tirunelveli District, to an extent of 13712.sq.metres by invoking provisions of the Urban Land (Ceiling and Regulation) Act 1978, as per the repealed Act 20/1999.
2.The case of the petitioners is as follows:
The petitioners are the legal heirs of the deceased A.Chellaiah Thevar. The lands in Survey No.468/1, T.S.Nos.2534, 3346 and 3549 to an extent of 2172 sq.mts belonged to Chellaiah Thevar. After his demise, the legal heirs viz., the petitioners are in possession and enjoyment of the said lands.
3.The above said lands are utilised for agricultural purpose and classified as dry lands. Entries are also made for 'Avuri' cultivation in the Adangal maintained by the Revenue Department. The erstwhile Board of Revenue has clarified that there is no action taken in respect of the lands, which are classified as wet or dry, particularly when they are used for agricultural purpose for the plan of Tirunelveli Urban Agglomeration. While being so, the petitioners came to understand that the second respondent, Commissioner of Land and Commissioner of Land Reforms, Chepauk, seemed to have issued a Draft Declaration under Section 7(2) of the Urban Land Ceiling Act, 1978 seeking to declare the land measuring an extent of 2172 sq.mts. as excess.
4.It was further submitted that the Board of Revenue as per the proceedings in G1/24412/78, dated 22.8.1978, has decided to test the lands whether the lands are used for agricultural purpose at least one pasli year during the pasli years 1381 to 1386. The land in Survey No.468/1 is used for cultivation during the pasli year 1384 with well water and the crop is also registered in the village adangal account.
5.It was further submitted that the land, which is treated as urban land only has to be used for the purpose of urban use. The lands, which are registered as dry or wet lands, though they are not used for agricultural purpose should be treated as agricultural lands. Under such circumstances, the Draft Declaration under Section 7(2) of the Act was passed, ignoring the proceedings issued by the Board of Revenue that no action has been initiated on the lands, which are registered as wet or dry lands and have been put to agricultural purpose for the plan of Tirunelveli Urban Agglomeration. The Government has also taken the same view and passed orders in G.O.Ms.No.1507, dated 27.11.1991 conferring benefits to the lands covered by the said Government Order. On appeal filed by the petitioners to treat the lands as agricultural lands, the second respondent being the Appellate Authority has stated that the said agricultural lands are lying waste during fasli years 1381 to 1386 and hence, the lands belonging to the petitioners alone cannot be treated as Urban lands indiscriminately. There are rulings holding that the lands which are registered as agricultural lands cannot be treated as otherwise for the reason that the land owner did not have agricultural operation.
6.In spite of the above said factors, it was pleaded, the respondents passed an order under Section 5 of the Act declaring 13712 sq.mts. of land as excess vacant land. The adjoining lands within the limits of the third respondent were also sought to be acquired under the Urban Land Ceiling Act. However, after issuance of Declaration under Section 7 (2) followed by Notice under Section 9(4)and finally, followed by orders under Section 9(5), it was found that the neighbouring lands, which are being utilised for agricultural purpose were dropped by the third respondent by his proceedings dated 9.9.1995. Though the land in Survey No.468/1 has been determined as wet land and was being cultivated during the fasli year 1384 with well water and the crop was also registered in the village adangal account, the respondent acquired an extent of 13712 sq.mts of land by invoking provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978. Hence, the present writ petition has been filed by the petitioners.
7.Mr.G.Sankaran, learned counsel for the petitioners has submitted that the petitioners are in possession and enjoyment of the acquired property till date. The adjoining lands of the petitioners were dropped by the proceedings dated 9.9.1995 issued by the third respondent. While so, the land measuring an extent of 13712 sq.mts. of the petitioners in S.No.468/1A, Kilaveerargavapuram village, Palayamkottai Taluk, Tirunelveli has been acquired by the respondents. It shows that the respondents have applied different treatment to different persons. Though the land of the petitioners was acquired by the respondents, the petitioners have not been paid with the statutory compensation till date. Since the physical possession of the land has not been taken over from the petitioners, till now as per Section 3(1) of the Repeal Act, 1999, the authorities have no power to take possession or to take action against the land owners. As per Section 4 of the Repeal Act, the proceedings which were initiated and pending before the authorities, shall stand abated and the land owners are entitled to get back their land after refunding the necessary fee. That being so, the respondents have no power to take action pursuant to the proceedings initiated under Section 9(5) of the Principal Act.
8.The learned counsel for the petitioners has further submitted that though the land in Survey No.468/1A Kilaveeraragavapuram village, Palayamkottai Taluk, Tirunelveli District measuring an extent of 13712 sq.mts. of land has been determined as dry land by the Board of Revenue and the land, which was being cultivated during fasli year 1384 with well water and the crop was also registered in the village adangal account, the respondents have acquired the 13712 sq.mts of land by invoking provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 as Repealed under the Act 20/1999, when the land is registered as wet in Survey No.468/1.
9.Moreover, the learned counsel for the petitioner has submitted that the respondents have not complied with the provision under Sections 11(3) or 11(5) or 11(6) of the Act. Even though the respondents have fixed the compensation of Rs.3,425/- for the land acquired measuring an extent of 13712 sq.mts as excess land, they have not followed Section 16(2) of the Act. Section 16(2)(a) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1999 reads as follows:
"If the amount payable is twenty five thousand rupees or below, it shall be paid in cash forthwith".
10.It was further submitted that a small amount of Rs.3,425/-, that too fixed as compensation on 18.4.1987, has not been paid to the petitioners till date. When the original land owner was alive on the date of acquisition and also on the date of determination of the compensation namely, on 18.4.1983, till his life time, the respondents have not come forward to pay the entire compensation amount in full, which is completely running against under Section 16(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act.
11.The learned counsel for the petitioners, while relying upon Section 16(2) of the Act, has brought to the notice of this Court that if the amount payable exceeds twenty five thousand rupees, the first twenty five thousand rupees shall be paid in cash forthwith and the balance, during a period of fifteen years, shall be paid in cash in equal annual instalments carrying an interest at the rate of 6% per annum with effect from the date on which, the vacant land is deemed to have been acquired by the State Government under sub Section (3) of Section 11.
12.According to the learned counsel for the petitioners, the respondents have not complied with the conditions stipulated under Section 16(2)of the Act in paying compensation to the petitioners. Therefore, the respondents have not only followed Sections 11(5) and 11 (6) of the Act, but also failed to fulfil the mandatory conditions mentioned under Section 16(2) of the Act. Hence, the entire proceedings stands abated. While further addressing on the failure of mandatory conditions laid under Sections 11 (5) and 11(6), it has been pleaded that till date the land belonging to the petitioners has not been physically taken over by the respondents.
13.To prove the fact that the petitioners are in physical possession of the land, the learned counsel for the petitioners has filed three documents namely, patta dated 9.10.2012 issued in the name of Chellaiah Thevar by the Tahsildar, Palayamkottai, Kist Receipt dated 11.10.2012 and Adangal dated 11.10.2012. These three revenue documents issued by the Revenue Authorities in the year 2012 are still in the name of the original land owner Chellaiah Thevar. After demise of the original land owner, the legal heirs are in possession of the said acquired land and the respondents have not taken the physical possession.
14.While making his submissions, the learned counsel for the petitioners has relied upon the decision in GOVERNMENT OF TAMIL NADU REP. BY THE COMMISSIONER AND SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, CHENNAI 9 AND OTHERS VS. MECCA PRIME TANNERY REP. BY ITS MANAGING DIRECTOR TMT. V.JAYAKODI, CHENNAI 44 AND OTHERS (2012 (6) MLJ 273), to state that the State Government shall not be deemed to be in possession of the land even though it vests with the State under Section 11(3) of the Act unless it proves that actions have been taken by the authority of the State under Sections 11(5) and 11(6) of the Act.
15.The learned counsel for the petitioners has also relied upon another decision in T.AUDIKESAVAN AND OTHERS VS. GOVERNMENT OF TAMIL NADU REP. BY ITS SECRETARY, REVENUE DEPARTMENT, CHENNAI AND OTHERS (2008 (3) MLJ 252), wherein, paragraph 13 reads as follows:
"It is also admitted by the respondents that land owner has not handed over the possession and the possession was taken over by signing a land delivery receipt. Thus, obviously this is not actually taking physical possession with the signature of the land owner, evidencing voluntary delivery of lands. By claiming that they have taken possession by signing a land delivery receipt, the respondents have clearly admitted that they have not taken actual physical possession.
Therefore, I am of the considered view that the physical possession of the land has not been taken and the writ petitioners are entitled to the benefit conferred under Section 4 of the Repeal Act."
16.The learned counsel for the petitioners has further pleaded that the respondents have failed to prove that the physical possession has been taken over by them and also failed to prove that they have paid the entire compensation amount to the petitioners and as such he argued that it is well settled that the land acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 would abate in view of coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. For, in the present case, as the possession has not been taken over by the Government, the proceedings initiated by the respondents have been abated under section 2 of the Repeal Act.
17.Finally, the learned counsel has further submitted that under Section 3(2)(a) and (b)of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999, any land deemed to have vested in the State Government under Section (3) of Section 11 of the Principal Act, but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
18.According to him, the Act has categorically provided that when the physical possession of the acquired property has not been taken over from the land owner and he is in continuous possession and enjoyment of the said acquired property, the said land owner is entitled to be in physical possession and enjoyment of the acquired land under Section 4 of the Repeal Act.
19.On the basis of the above argument, he pleaded to allow this writ petition as they are in physical possession of the land in question. He pleaded again that they are prepared to refund whatever the amount, due to be paid by them to the respondents for the acquired land measuring an extent of 13712 sq.mts.
20.Opposing the prayer made in the writ petition, a detailed counter affidavit and an additional counter affidavit have been filed by the respondents.
21.The learned Additional Government Pleader of the respondents would argue that the land measuring an extent of 1.37.00 sq.mts. in Survey No.468/1A at Kilaveeraghavapuram has been taken over by the Government under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 on 04.03.1993 as surplus land from Thiru. Chellaiah Thevar. But, the petitioners have filed this writ petition for returning the land to them, that too, after twenty years, which has been taken over by the Government, which is unsustainable in law. Since the land was not cultivated during the Fasli years 1381 to 1386 and no agricultural operation was going on in the above said land, the land has been taken over by the Government under the said Act as surplus land of Chellaiah Thevar.
22.It is stated in the additional counter affidavit that Section 9(5) notice was sent to the urban land owner on 25.2.1983 and the same was received by the urban land owner Chellaiah Thevar. After receiving the objection from the petitioner, as per Section 9(5) of the Act, an order was passed by the authority on 14.12.1987. Thereafter, a proposal was sent to the Government by the Authority on 27.3.1982. Subsequently, Form Nos. 5 and 6 notifications of the declaration were properly adopted. Thereafter, the land measuring an extent of 1.37.00 sq.mts. in Survey No.468/1A at Kilaveeraghavapuram has been taken and handed over to the Revenue Department. The urban land owner Chellaiah Thevar preferred an appeal under Section 33 of the Act and the same was dismissed on 7.5.1983. As against the same, the said Chellaiah Thevar filed revision and the said revision was also dismissed on 9.1.1985.
23.The respondents have followed not only Section 11 (3) but also Section 11 (5) to acquire the excess urban land under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. In terms of acquisition, an award was passed on 18.4.1983 by fixing an amount of Rs.3,425/- as compensation. The award amount of Rs.3,425/- has been paid in the following manner:
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Sl.No. Date of payment Amount Receiving person
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1 8684 Rs.344.35 Chellaiah Thevar
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2 17/7/1985 Rs.315.10 Received by 2nd petitioner
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3 1786 Rs.304.80 Received by 2nd petitioner
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4 22/6/1987 Rs.294.55 Received by 2nd petitioner
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5 18/1/1990 Rs.274.00 Remitted in Treasury under civil deposit
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6 61090 Rs.294.00 Remitted in Treasury under civil deposit
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7 19/04/1992 Rs.253.00 Remitted in Treasury under civil deposit
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8 24/12/1993 Rs.243.00 Remitted in Treasury under civil deposit
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9 25/10/1995 Rs.726.00 12 to 15 instalments Remitted in Treasury under civil deposit
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24.Further it was argued that unless the physical possession has been taken over by the Government, the petitioners are not eligible to receive the total award amount in full, hence, the petitioners were paid in instalments. He pleaded, in the present case, it can be seen that not only Section 11(5) was complied with, but the payment of compensation was also satisfactorily paid to the petitioners. Since the original land owner and the second petitioner on various dates received their compensation in four instalments, again the learned Additional Government Pleader for the respondents has pleaded that it is not a fit case to accept the prayer made by the petitioners in the writ petition. The above said arguments do not carry any merit in view of Section 16(1) and (2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1978, which are extracted hereunder:
"16(1)The State Government shall, within a period of six months from the date of the order of competent authority determining the amount to be paid under Section 12, or, in a case where an appeal has been preferred against such order under Section 13 or where a revision has been preferred under section 15, within a period of six months from the date of the final order of the appellate or revisional authority, pay the amount referred to in section 12 to the person or persons entitled thereto.
(2)(a)It is amount payable is twenty five thousand rupees or below, it shall be paid in cash forthwith.
(b)If the amount payable exceeds twenty five thousand rupees, the first twenty five thousand rupees shall be paid in cash forthwith and the balance shall, during a period of fifteen years, be paid in cash in equal annual instalments carrying an interest at the rate of six percent per annum with effect from the date on which the vacant land is deemed to have been acquired by the State Government under sub section (3) of section 11."
25.Admittedly, if we look at Section 16(2) of the Act, the land measuring an extent of 13712 sq.metres acquired by applying Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, has been fixed for a sum of Rs.3,425/- as compensation on 18.4.1983, but as per Section 16(2)(a), as the amount is less than Rs.25,000/-, the respondents ought to have paid the entire compensation amount in cash forthwith. Unfortunately, even though a meagre amount of Rs.3,425/- was fixed as compensation for an extent of 1371 sq. metres, the respondents have not paid even now the entire compensation amount in cash to the land owner, particularly, when the original land owner Mr.Chellaiah Thevar was alive till 1989, the respondents have not come forward to pay any interest for the balance amount till now. The respondents have paid only a part of some compensation in several instalments as against Sections 16(1) and 16(2)(a) of the Act. The violation of these provisions shall be fatal against the acquisition proceedings to the extent that it is abated. In this context, it is pertinent to refer to the judgment of my respected brother Justice M.Jaichandren in N.S.JAYA VS. THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNNMENT OF TAMILNADU, SECRETARIAT, FORT ST. GEORGE, CHENNAI 600 009 AND THREE OTHERS in W.P.Nos.39713 and 39714 of 2002, dated 06.02.2009 and the decision in T.AUDIKESAVAN AND OTHERS VS. GOVERNMENT OF TAMIL NADU REP. BY ITS SECRETARY, REVENUE DEPARTMENT, CHENNAI AND OTHERS (2008 (3) MLJ 252), inwhich, it is held that when the land owner has not handed over the physical possession of the land and the possession was taken over by signing a land delivery receipt, it would not amount to actually taking physical possession with the signature of the land owner evidencing voluntary delivery of lands. Further it was held in the above said judgment that if the respondents had not taken physical possession of the land in question and if full compensation amount had not been paid, the land acquisition proceedings would stand abated, in view of coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 i.e. Act 20 of 1999.
26.Section 11(3) of the Act very clearly provides that after the notification is issued under Section 11 declaring the excess vacant land, the same shall be deemed to have been acquired and vested in the State Government, free from all encumbrances. Section 11(3), therefore, does not provide that after the notification, the State Government shall be deemed to have come into possession of the land so declared as excess land. After such vesting of the land in the State under Section 11(3), the State has to initiate action for taking possession of the land, which is evident from the provisions contained in Section 11(5) and Section 11(6) of the Act. Section 11(5) contemplates issuance of notice by the State Government to any person, who may be in possession, to surrender and deliver possession of the land to the State Government or any person duly authorised by the State Government in this behalf. If the owner of the land or the person in possession refuses or fails to deliver possession of the land to the competent authority, the latter may take possession of the land even by using force, if necessary, as contemplated under Section 11(6) of the Act.
27.However, there are cases where although the competent authority issued the notice under Section 11(5) of the Act to the land owners or persons in possession to surrender or deliver possession of the land, but the land owner or the person in possession fails to deliver the land and continues to be in possession of such land and the authority of the State did not take action under Section 11(6) of the Act for taking delivery of possession, then in such cases, the State Government shall not be deemed to be in possession of those lands.
28.In an order passed by the learned Single Judge of this Court in W.P.Nos.39713 and 39714 of 2002, dated 06.02.2009 in N.S.JAYA VS. THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT OF TAMIL NADU, SECRETARIAT, FORT ST. GEORGE, CHENNAI 9 AND THREE OTHERS, it is held as follows:
"When actual physical possession had not been taken and the compensation payable to the petitioner had not been paid, the land acquisition proceedings initiated by the respondents, with regard to the land in question, cannot be questioned in the eye of law.
In such circumstances, in view of the reasons stated above and in view of the decided cases cited before this Court, the land acquisition proceedings, initiated by the respondents, in respect of the land in the possession of the petitioner, are unsustainable in the eye of law. Even otherwise, in view of the coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, the proceedings would stand abated. Accordingly, the writ petitions are allowed. No cost."
29.In view of above position, if we look at the present case, it can be seen that the proceeding initiated on the land in question has not been over. The issuance of notice under Sections 11(5) followed by 11(6) is concerned, the physical possession is only a crucial fact to be looked into for applying the benefit of the Repeal Act. Section 11(3), therefore, does not provide that after the notification, the State Government shall be deemed to have come into possession of the land so declared as excess land. After such vesting of the land in the State under Section 11(3), the State has to initiate action for taking possession of the land, which is evident from the provision contained in Section 11(5) and Section 11(6) of the Act. Section 11(5) contemplates issuance of notice by the State Government in this behalf. If the land owner or the person in possession fails to deliver the possession of the land to the competent authority, the competent authority may take possession of the land by using force, if necessary, as contemplated under Section 11(6) of the Act, but in the present case when the physical possession is still continuing with the petitioner, there is no proof shown for having issued notices under Section 11(5) or 11(6) of the Act, hence, the benefit of the Repeal Act is bound to reach the land owner who have been in physical possession of the land.
30.The petitioners have produced three vital documents, name, patta issued by the Tahsildar of Palayamkottai on 9.10.2012 followed by two other documents namely, Adangal dated 11.10.2012 and Kist Receipt dated 11.10.2012. These documents issued by the Revenue Authorities stand to say that the possession of the land in question is still in the hands of the petitioners. In N.S.JAYA VS. THE SECRERARY, DEPARTMENT OF REVENUE, GOVERNMENT OF TAMIL NADU, SECRETRIAT, FORT ST. GEORGE, CHENNAI (W.P.Nos.39713 and 39714 of 2002, dated 6.2.2009) a decision of the Apex Court in ANGOORI DEVI V. STATE OF U.P.JT [2000 (1) SCC 295], was referred to wherein a Constitution Bench has held that if the possession of the land had not been taken prior to the repeal, such possession cannot be taken thereafter and no proceedings can be thereafter initiated under the repealed enactment.
31.In view of the above, if we look at the case of the petitioner, the copy of patta dated 9.10.2002 issued by the Tahsildar of Palayamkottai, the copy of Adangal dated 11.10.2012 and the Kist Receipt issued by Village Administrative Officer, dated 11.10.2012 stand as good testimonies to support the case of the petitioner that the physical possession of the land still continues to be with the petitioner and furthermore, when the petitioner did not receive the full compensation till date, in respect of the land sought to be acquired by the Government, the ratio laid down in ANGOORI DEVI (cited supra) will apply in favour of the petitioner that the entire proceedings will get abated. Under such circumstances, I answer the prayer in favour of the petitioners by applying Sections 3 and 4 of the Repeal Act.
32.In view of the above said documentary proofs namely, patta, adangal and kist receipt dated 9.10.2012 and 11.10.2012, the physical possession is still continuing with the petitioners and hence, the petitioners are entitled to have benefits of the Repeal Act in the light of Section 3(2)(b) of the Repeal Act which runs hereunder:
"Any amount has been paid by the State Government with respect to such land, then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government."
33.Therefore, the petitioners are hereby directed to refund the entire amount received from the respondents with interest at the rate of 9% from the date of payment till the repayment by the petitioners.
34.In fine, for the reasons mentioned supra, the writ petition stands allowed as prayed for. There is no order as to costs.
cla To
1.The Secretary, Department of Revenue, Government of Tamil Nadu, Fort St. George, Madras 9.
2.The District Revenue Officer, Erode District, Erode.
3.The Tahsildar, Bhavani Taluk, Bhavani, Erode District