BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 25/08/2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.(MD)No.11881 of 2008 W.P.(MD)No.11880 of 2008 and W.P.(MD)No.2416 of 2009 Ibrahimkhan ... Petitioner (In W.P.No.11881/2008) K.M.Sulthan Ibrahim ...Petitioner (In W.P.No.11880/2008) 1.K.S.Mohamed Fathima 2.Faritha Fathima 3.Syeetha Fathima 4.Chinnakattu Meerkuttiammal ...Petitioners (In W.P.No.2416/2009) Vs. 1. The Assistant Commissioner, Land Reforms, Madurai. 2. The Land Commissioner, Chepauk, Chennai. 3. K.S.Mohamed Fathima 4.Faritha Fathima 5.Syeetha Fathima 6.Chinnakattu Meerkuttiammal ..Respondents
(In W.P.No.11881/2008,
11880 of 2008)
(No relief claimed against respondent Nos. 3 to 6 and may be given up)
1. The Assistant Commissioner,
Land Reforms, Madurai.
2. The Land Commissioner,
Chepauk, Chennai. …Respondents
(In WP.No.2416 of 2009)
Prayer
Writ Petitions are filed under Article 226 of the Constitution of India
to issue a Writ of Certiorarified mandamus or any other writ or order or
direction in the nature of writ of certiorarified mandamus calling for the
records of the second respondent in D1/R.P.No. 26/2007 (Land Reforms) dated
11.8.2008 quash the same as illegal aribitrary, and unenforceable consequently
direct the first respondent to conduct de-nova enquiry after giving opportunity
to the petitioner.
!For Petitioners… Mr. V.K.Vijayaragavan
^For R1 and R2 … D.Muruganantham
Additional Government Pleader
For R3 to R6 … Given up
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:COMMON ORDER
This order shall dispose of W.P.(MD)Nos.11880, 11881 of 2008 and
2416 of 2009, as common questions of law, and facts arise for consideration.
For the sake of brevity, the facts are being taken from W.P.(MD)No.11881 of
2008.
2. The facts leading to filing of all three writ petitions are, that
late Thiru.K.E.Kader Meeran was the owner of the land, situated at Uthamapalayam
Village and neighbouring villages. Late Thiru.K.E.Kader Meeran had three sons
i.e., Late Thiru. K. Syed Mohammed Ibrahim, Late Thiru K. Abdul Rahim and Late
K.Mohammed Bashir.
3. The Assistant Commissioner, passed an order in exercise of powers
under Section 9(2)(b) of the Tamil Nadu Land Reforms (FCL) Act, 1961
(hereinafter referred to as “the Act”), dated 05.11.2002, declaring the land
standing in the name of Late Thiru. K. Syed Mohammed Ibrahim, to be surplus. In
pursuance to the order passed by the Assistant Commissioner, a Gazette
Notification was issued by the State Government in the Government Gazette on
31.01.2006.
4. Some of the legal heirs of Late Thiru. K. Syed Mohammed Ibrahim
challenged the order passed by the Assistant Commissioner under Section 9(2)(b)
of the Act, by filing Revision under Section 82 of the Act.
5. The land Commissioner, accepted the Revision partly, and remanded
the case back to the Assistant Commissioner, to permit the land owner, to select
the land, by following the observation made in the Revisional order. The
Assistant Commissioner was further directed, to incorporate necessary amendment
in the final selection, in pursuance to the selection to be carried out, by the
land owners, and thereafter, issue a Notification under Section 18(1) of the
Act.
6. The petitioners were not party to the proceedings. Therefore, are
prima facie, not bound by the decision of the Authorities, and should have
availed their remedy, under ordinary law.
7. However, keeping in view the fact, that the order of the
Assistant Commissioner passed under Section 9(2)(b) of the Act, stands set
aside, and the matter remitted back, to the Assistant Commissioner, to determine
the selection of the land, these writ petitions are being taken up to be
disposed of on merit.
8. The pleaded case of the petitioners, in all these writ petitions,
is that the orders passed by the Assistant Commissioner under Section 9(2)(b) of
the Act, and that of the Revisional Authority, are without jurisdiction, and
suffers from error apparent on the face of record, in as much as the Assistant
Commissioner, while determining the surplus land of late Thiru. K. Syed Mohammed
Ibrahim, has proceeded on the presumption that the total land holding of late
Thiru. K. Syed Mohammed Ibrahim, was inherited by Late Thiru. K.E.Kadar Meeran,
as sole heir under a Settlement, which is factually not correct.
9. The stand of the petitioners in all the three writ petitions, is
that Late. Thiru. K.E. Kader Meeran had by way of three registered settlement,
had transferred the land in favour of his three sons in the year 1970, i.e.,
before his death. In pursuance to the settlement, each of his son became owner
of the land, under the settlement in his own right, and therefore, the land
falling to their share could not be included in the land of Late Thiru. K. Syed
Mohammed Ibrahim, or in any predecessor of the petitioner, being the owner of
the land.
10. The petitioners were entitled, to notice of surplus proceedings.
The impugned orders, therefore, are challenged, being in violation of the
principle of natural justice, as the persons interested / owners of the land,
have not been given an opportunity of hearing.
11. This contention deserves to be accepted, it is well settled law
that in determining the surplus land, all the persons interested, are to be
heard before an order is passed. The petitioner, being absolute owner of the
land by inheritance from their predecessors, were to be heard, before any
adverse order was passed against them, in declaring their land as surplus by
taking it to be that of Late Thiru. K. Syed Mohammed Ibrahim.
12. It was also the contention of the learned counsel for the
petitioner, that the Assistant Commissioner, while passing the impugned order
under Section 9(2)(b) of the Act, did not record a finding, that the total land
was inherited by late Thiru. K. Syed Mohammed Ibrahim in exclusion to his
brothers.
13. In absence of the finding, the order passed by the Assistant
Commissioner, cannot be sustained, as it suffers from error apparent on the face
of record.
14. As already noticed above, there is no necessity to go into the
merits of the contentions raised.
15. For the reason, that the petitioners were not parties to the
proceedings either before the Assistant Commissioner or before the Commissioner,
but, keeping in view of the fact, that the case has been remanded back to the
Assistant Commissioner for re-determination of the area to be land owners area,
these writ petitions are disposed of, by giving liberty to the petitioners to
approach the Assistant Commissioner, to file their claim as owner of the land,
for being taken out of the surplus area.
16. In that event, the Assistant Commissioner is directed to
consider the claim of the petitioners, while determining the surplus area of
Late Thiru. K. Syed Mohammed Ibrahim, and record a finding, as to whether the
land was inherited by the petitioners, and is not be considered to be that of
share of Late Thiru. K. Syed Mohammed Ibrahim, for being declared surplus.
17. The petitioners shall be at liberty, to put forth all grounds
available under the Act, before the Assistant Commissioner.
18. The parties through their counsel are directed to appear before
the Assistant Commissioner Land Reforms on 29.09.2011 at 10.30 a.m., to file
their respective claim statements for adjudication.
No costs.
ses / Dpn / –
To,
1. The Assistant Commissiioner,Land Reforms, Madurai.
2. The Land Commissioner,Chepauk, Chennai.