Pennarasi vs The Land Commissioner, Land Tribunal and The Assistant Commissioner, Land Reforms

K. Chandru, J.—The first writ petition (W.P. No. 8603/2004) was filed by one Pennarasi, seeking to challenge an order dated 07.12.2000

passed by the first Respondent, Land Commissioner, Land Reforms, Chennai. Originally, the Petitioner filed a revision u/s 83 of the Tamilnadu

Land Reforms (Fixation of Ceiling on Land) Act, 1961 before the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai. The said

revision was taken on file as SRP. No. 26 of 2001.

Similarly, W.P. No. 8609 of 2004 is filed by Veluthai and three others, challenging the order dated 13.09.2000 passed by the first Respondent

Land Commissioner. Originally, the Petitioners filed a revision u/s 83 of the Tamilnadu Land Reforms (Fixation of Ceiling on Land) Act, 1961

before the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai. The said revision was taken on file as SRP. No. 5 of 2001.

In view of the abolition of the Tribunal, the matters stood transferred to this Court and were renumbered as CRP Nos. 1948 and 1946 of 2003

respectively. However, a learned Judge of this Court opined that no Civil Revision Petition will lie as the officers whose orders under challenge

were not a Court but only statutory authorities. Therefore, the CR Ps were converted into writ petitions and notice was ordered.

Before the Tribunal, in the first writ petition the Respondents have filed a counter affidavit dated Nil. The Petitioner has filed a reply affidavit

dated 17.06.2010.

The case of the first writ Petitioner was that one Chellammal, third wife of Kandasamay Gounder filed a suit in O.S. No. 935 of 1971 for

possession of lands and for profits against the Petitioner. She contended that the lands were allotted to her husband Kandasamy Gounder in a

partition that took place in 1936. The Kandasamy Gounder died and thus Chellammal became entitled to the lands along with her son Muthusamy

Gounder. It was contended that she became the owner of the land as per Central Act 30/1956 and got a perfect title. She further stated that the

revision Petitioner being the grand daughter, she was not entitled to any right in the above land to her exclusion. She also stated that one

Meghanathas undaraswamy Gounder had corrected the village records to suit his convenience. The said suit came to be contested and a

compromise memo was entered between the parties. Even before the suit was filed, patta was granted jointly in the name of Chellammal in respect

of the lands in point in recognition of her right in a family arrangement. The patta stood in her name and the name of Valliammal, who is her

daughter. Therefore, the Petitioner was not the exclusive owner of the lands. The patta was issued by the Sub Collector, Madurai to Chellammal

and Valliammal. The suit was decreed on 24.11.1972. Chellammal''s right of 56.42 acres of land situated in the village was confirmed. The first

Respondent Land Commissioner before whom the dispute regarding the declaration of surplus was made did not consider the respective

ownership of the lands among the members of the family.

The third Respondent, namely the Assistant Commissioner of Land Reforms, Madurai inspected the land and sent a report. But that report was

not given to the Petitioner. Hence, she could not give any objections. Though the Petitioner was not the exclusive owner of the land and right of

Chellammal was not considered by the impugned order, the land belonging to the Petitioner has been wrongly shown as exclusive land. But

however, the first Respondent Land Commissioner by the impugned order dated 07.12.2000, in the revision petition filed by the Petitioner u/s 82

held that the first wife of Kandasamy Gounder one Nachammal died before 6.4.1960. The second wife Muthammal and her son Muthusamy also

died before 06.04.1960. Therefore the surviving third wife Chellammal inherited the properties of Kandasmay Gounder. After the demise of

Kandasamy Gounder, the properties were devolved on his daughter Valliammal, who is the mother of the Petitioner. Since Valliammal also died

before 06.04.1960, the properties were devolved on her daughter Pennarasi. It is only after a long time, to get out of the clutches of law,

Chellammal has filed the suit in the year 1971 against her own grand daughter claiming a share in the property. The said suit was decreed on

24.11.1972. Since the suit was instituted only after the notified date of the amended Act on 02.10.1970, Section 23 of the Act is attracted.

Therefore, in determining the ownership the properties covered by the decree cannot be deleted as the ownership will have to be determined on

06.04.1960. Hence, the stand of the Petitioner in the revision petition cannot be considered. It was also found that the claim for exclusion of 5.75

acres in S. No. 501/2B, on the ground that it is a tank on ground, cannot be excluded. Since u/s 3(22) of the Act only lands which are used as

house sites or land exclusively use for non-agricultural purpose can be excluded. Hence the revision was rejected. It is against the rejection of the

revision by the first Respondent, the Petitioner moved the Tribunal and has come before this Court.

In the second writ petition, the Petitioners are Mrs. Veluthai, her daughter and sons. By the impugned order dated 13.09.2000, the first

Respondent refused to entertain the revision petition u/s 82 of the Tamil Nadu Land Reforms (FCL) Act. The authority held that the holdings of the

family will be determined only as on 06.04.1960, namely the commencement of the original Act and at that time since all the land owners were

minors, they will form part of the original family Unit. Since they cannot have a separate unit in the ancestral property, they cannot be assessed as a

separate unit. The correct extent of the land held by Pennarasi daughter of Valiyammal was 142.06 equivalent to 37.517 standard acres. It was

also stated that one of these issues were raised at the time of enquiry u/s 10(5). Since the Petitioner herself asked for exemption u/s 74 to an extent

of 50 acres at the stage of enquiry proceedings and also got the same, no such exemption was pleaded at that time. Further, the usage on the

notified dated 06.04.1960 is relevant and the lands are capable of being brought under Cultivation. The fact that there was Coconut thope cannot

be considered, as coconut trees were only new saplings and hence, the exemption on that ground also cannot be accepted.

In the second writ petition, a counter affidavit dated 04.06.2001 was filed by the Respondents. A reply affidavit dated 17.06.2010 was filed by

the Petitioners.

Mr. V.K. Vijayaraghavan, learned Counsel for the Petitioners contended that even in the year 1986, the Tahsildar, Palani had informed about

the construction of the tank. The Agricultural Development Officer had also stated that some of the lands were classified as Kalanguthu and it was

only having thorny bushes including Velam trees. Only when bushes and velam trees were removed, it can be liable for cultivation. Therefore, he

stated that the order of the first Respondent was due to non-application of mind and liable to be interfered with. Similarly, in the second writ

petition, he produced a copy of the certificate given by the Village Administrative Officer and the Adangal Extract to show the existence of

Coconut thopes.

Mr. V.K. Vijayaraghavan made three submissions:

i) The bonafide of the suit cannot be questioned by the authorities.

ii)The documents produced were not considered and before passing an order under Revision, the authority must have heard the parties.

iii) So long as the lands were used as coconut Thopes, they are entitled for exemption and not covered by the Act.

In support of his submission, he placed reliance upon a judgment of the Division Bench of this Court in The Land Commissioner, Board of

Revenue, Land Reforms v. V.C. Veerappa Chettiar reported in 1999 LW 331. He relied upon the following passage found in paragraph 9, which

is as follows:

... Even if the Respondent had failed to claim exemption of those lands when the draft statements were prepared u/s 10, he is entitled to such

exemption at a later stage also, i.e., even after the publication of the field statement u/s 18, because Ss.18-A, 18-B and 18-C provide for certain

modifications being made even after final statements had been prepared and published in the Government Gazette u/s 22, a revision would lie to

the Land Commissioner in respect of proceedings u/s 18(4) also besides other sections contained therein. Such being the case, the Respondent is

entitled under the Act to seek exemption of certain lands which are non-agricultural lands, on the ground that they had been wrongly treated as

agricultural lands and declared as surplus and taken possession of, when such a claim is made, the proper course for the Land Commissioner is to

examine the claim on merits, i.e, firstly see whether the lands are non-agricultural lands in this case claimed to be channel-cum-road portion, house

sites and building sites where houses and school have been built - and secondly to see whether those lands had been put to such use on the crucial

date viz., 6th April 1960. If both the tests are satisfied, then, the exemption sought for should be granted and suitable modification should be made

in terms of Section 18-C. If the tests are not satisfied, then, the claim for exemption cannot be sustained and it has to be rejected...

He also referred to the subsequent judgment of this Court in Savitriammal v. The Commissioner, Land Revenue, Land Reforms Board of

Revenue reported in 1999 LW 832 and referred to paragraph 2, which is as follows:

Mr. A.V. Dhanakoti, learned Counsel for the Petitioner, would submit that if evidence is required on the questions posed by the first

Respondent with regard to the deed of Trust, the first Respondent ought to have remitted the matter back to the second Respondent for

reconsideration as contemplated u/s 82 of the Act, directing the second Respondent to permit the Petitioner to place the requisite evidence on the

questions. This plea of the learned Counsel for the Petitioner on facts, requires countenance. If infact, the deed of Trust covers the land in question

and has been acted upon, and would fall within the exempted category, the Petitioner may plead and succeed for exemption u/s 2 of the Act.

Section 82 of the Act is generously couched, and enables the revisional authority to make an order of remittal in appropriate cases. The Act

circumscribes the right to hold property and before the provisions of such a statute are enforced, any benefit there under, such as an exemption,

which is a silver lining in an otherwise dark portals of the statute, must be given, if in fact, the party is entitled to it in law and on facts. The omission

to put forth a plea for exemption at the earliest stage need not be rigourously put against the party, to deprive him the exemption, which he may be

lawfully entitled to. In my view, the first Respondent has taken too technical view, which has resulted in prejudice to the Petitioner, and the first

Respondent has not adverted to the amplitude of his revisional powers, and he unjustly failed to exercise the power vested in him in law.

The learned Counsel also referred to the subsequent judgments of the Authorised Officer, Land Reforms Vs. Giriraj Gopanna Manradiar, to

contend that merely because the trees in the orchard were withered away and in that place, new trees are grown or the old trees were cut for the

purpose of again raising orchards, topes or arecanut gardens or for growing fuel trees, it cannot be said that the intention was to treat it a otherwise

than an orchards or topes or arecanut gardens or lands to grow fuel trees. The following passage found in paragraph 13 is as follows:

Therefore, if the lands exempted u/s 73(vii) and (viii) do not continue to be used as orchards or topes or arecanut gardens, or are not used for

the purpose of growing fuel trees then they will have to be treated as lands subsequently coming into the possession of the land holder, liable to be

included in the ceiling area and considered under the provisions of Chapter III relating to ceiling on future acquisitions. However, it should be made

clear that the Proviso could operate only when there is a clear intention on the part of the owner not to continue to hold that same as orchard or

topes or arecanut gardens or not to use the land for the purpose of growing fuel trees. Such intention should be manifest either from the use of the

land for other purposes like cultivation after clearing the trees or from other evidence of non user for the purposes provided under the exemption.

Merely because certain trees wither away and in that place new trees are grown or the trees have been cut for the purpose of again raising

orchards, topes or arecanut gardens or for growing fuel trees, it cannot be said that the intention was to treat it otherwise than as orchards or topes

or arecanut gardens or lands to grow fuel trees. There may be a time lag between clearing the tope in order to raise new trees. But if the intention

was to keep it as a tope and not to convert it into an agricultural land, then, so long as that intention continues and no overt act nullifying the

intention of that purpose is available, the land owner shall be deemed to be entitled to exemption as provided under the Act.

There is no quarrel with the propositions of law laid down by this Court in the aforesaid cases. But in the present case, the first Respondent

had categorically found that the question of exemption of the lands were never raised at the time of the earlier enquiry and the saplings were newly

planted with a view to get over the Ceiling fixed under the Act. The finding of facts recorded by the revisional authority does not call for

interference.

With reference to the first writ petition, in the counter affidavit, in paragraph 7, it was averred as follows:

Further , in the objection petition dated 09.07.1966 filed u/s 10(5) of the Act by the landowner Meganathas undarasamy it has been contended

that the lands are given to his daughter Pennarasi by his mother-in-law Tmt. Chellammal. Similarly Tmt. Pennarasi in he objection petition dated

18.06.1966 has contended that the lands given to her has to be clubbed with the holdings of her husband Thiru Palanisamy. Further in the appeal

preferred before the Land Tribunal in CMA No. 39/67 and LTA 47/71 no such contention was raised by her. Thus, it is crystal clear that the lands

were held by Pennarasi as on 6.4.60m the date of commencement of the Act. The suit was instituted only in the year 1971 with a view to defeat

the purpose of the Act and therefore, the suit and the subsequent changes of patta will attract only Section 23 of the Act and will not alter the

determination in any way.

With reference to the Coconut thopes and tank, it was averred as follows:

The first Respondent directed the third Respondent to inspect the lands and give his report. After perusing his report, it was found that S. No.

494/1 (2.66) is lying waste and inS. No. 499/2A (0.56 acres) and in S. No. 500/1 (0.35 acres) there are only 14 coconut trees and in other S.

Nos there are no fruit bearing or nut bearing trees and only Vellaikaruvelam trees are in existence which are not qualified for exemption. As

regards claim for exclusion for an extent of 5.75 acres in S. No. 501/2B, that it is a tank on ground. It is submitted that as per Section 3(22) of the

Act, only the lands which are used as house sites or lands exclusively used for non-agricultural purposes are eligible for exclusion. Since tanks are

subservient to agricultural, the above lands cannot be excluded u/s 3(22) of the Act.

In the light of the above factual matrix, both the writ petitions will stand dismissed. However, there will be no order as to costs.