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2001 DIGILAW 359 (MAD)

S. Sivanandam v. The State of Tamil Nadu and others

2001-03-20

P.SHANMUGAM, V.KANAGARAJ

body2001
V.Kanagaraj, J.: The petitioner has filed this review application praying to review the judgment rendered in W.A.No.2029 of 1999, dated 14.9.2000 by this Court thereby confirming the order passed by the learned single Judge of this Court in W.P.No.17858 of 1991, dated 28.6.1999 thereby dismissing the writ petition filed by five petitioners of whom the review applicant is the 5th petitioner therein. 2. Tracing the history of the above review application to come into being, it is the writ petition that has been filed under Art.226 of the Constitution of India by the petitioner herein and his brothers and sister, all numbering five, praying to issue a writ of certiorari calling for the records from the first respondent/ State of Tamil Nadu in respect of G.O.Ms.No.536, Housing and Urban Development, dated 5.4.1991 and G.O.Ms.No.1378, Housing and Urban Development, dated 24.10.1991 and quash the said proceedings insofar as it related to the petitioners land in T.S.No.50/1 in an extent of 2.72.82 hectares of Kilperumbakkam Village, Villupuram Taluk on averments such as that there was a dispute going on between the co-owners of the property and their father and that there was a decree, which came to be passed in the year 1983; that at the time when the notification under Sec.4(1) of the Land Acquisition Act (hereinafter referred to as the Act’) was passed, the appeal against the decree was pending; that the question of title of the co-owners had not been finalised till then and that in the notification issued under Sec.4(1) of the Act, only the name of the father came to be mentioned and not that of the petitioners thus denying them an opportunity to participate in the enquiry held under Sec.5-A of the Act. On these and such other grounds, the petitioners therein challenged the Land Acquisition proceedings mainly claiming that there was no proper notice or opportunity for them to be heard. On these and such other grounds, the petitioners therein challenged the Land Acquisition proceedings mainly claiming that there was no proper notice or opportunity for them to be heard. The learned single Judge, having examined the facts and circumstances in the context of the petition as put forth by rival parties and in further consideration of the position of law relating to the subject, ultimately, dismissed the writ petition on ground that it was without merit, testifying the validity of which W.A.No.2029 of 1999 was preferred by the fifth petitioner in the writ petition before this Bench and this appellate forum also, having examined the appeal on merits, dismissed the appeal with a minor clarification. 3. 3. Only seeking review of this judgment dated 14.9.2000, the petitioner has come forward to file the above revive application on grounds such as: (i) that the findings that the father of co-owners had disputed the tile of others and claimed the same exclusively, is without reference to the title as declared by the competent civil Court; (ii) that a preliminary decree for partition was passed on 16.9.1983 in O.S.No.63 of 1982 on the file of the Court of Subordinate Judge, Villupuram whereby it was declared that the appellant was also entitled to 1/8th share; (iii) that on appeal, the interim stay granted by this Court in C.M.P.No.14416 of 1983 was made absolute on 21.1.1984 regarding passing of the final decree alone and in all other respects allowing the proceedings to go on with further remarks that as and when the mesne profits are ascertained, it shall be open to the respondent to move this Court; (iv) that aggrieved by the said order dated 21.1.1984, the petitioner’s father preferred L.P.A.No.13 of 1984 and the order of stay granted by the learned single Judge stood modified further directing a Commissioner to be appointed for effecting the division of the immovable properties and on the basis of the said report, the share of act of the plaintiff and the defendants instead of being 1/8th, as decided in the preliminary decree, came to be modified as 1/9th in the appeal, which came to be confirmed upto the Supreme Court thus revealing the entitlement of the appellant to 1/9th share and thus the appellant became an interested person entitled to notice under Sec.5-A of the Act; and (v) that the appellant through his notice dated 7.8.1990 sent in his objections to the Land Acquisition Officer who, in spite of being aware of the fact, even before Notification made under Sec.4(1) of the Act, did not afford him an opportunity to be heard during enquiry under Sec.5-A of the said Act. 4. 4. During arguments, the review applicant himself appearing as party-in-person argued his case before us in Tamil asserting the facts raised in the grounds afore-extracted and would lay emphasis that it was decided by the civil Court that he was entitled to a share in the property acquired; that he raised objection on 13.8.1991 and would lament that in spite of having made it clear that he was entitled to a definite share in the property acquired, the Land Acquisition Officer failed to afford him an opportunity to be heard during Sec.5-A enquiry following the procedures contemplated under Sub-secs.(3) and (4) of Sec.9 of the Act and therefore, the entire proceeding gets vitiated. He would also cite three judgments, the first one delivered by a single Judge of this Court in Avudaithangammal v. Subramania Thevar and Murugaiah Thevr with eight others, (1994)1 L.W. 82 , the second one delivered by the Apex Court in Bhagwant Sulakhe v. Digambar Gopal Sulankhe, A.I.R. 1986 S.C. 79. and the third one delivered by a Full Bench of this Court in P.C.Thanikavelu v. The Special Deputy Collector of Land Acquisition, (1989)1 M.L.J. 222. 5. So far as the first judgment reported in Avudaithangammal v. Subramania Thevar and Murugaiah Thevar with eight others, (1994)1 L.W. 82 , is concerned, a learned single Judge of this Court, while dealing with a proceeding under the Record of Tenancy Rights Act in second appeals held that “in such proceedings if entries are made by suppressing the real facts without notice to persons interested, such proceedings re not conclusive and the same could be challenged to the correctness of the revenue records.” The said Court further held that the Courts below were in error in having granted a decree in favour of the first respondent in those second appeals, consequently, allowing the second appeals filed by the appellant. 6. In the second judgment cited above, while dealing with civil appeals, the Apex Court has held: “The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.” 7. The last judgment cited above, which has been delivered by a Full Bench of this Court is in a writ petition based on the Land Acquisition Act. While dealing with the entitlement of a person interested to notice, if the name of such person is brought to the notice of the Collector, even though his name may not be found d entered in the revenue records, the Full Bench has held: “The enquiry contemplated under Sec.5-A of the Act would be full and complete only when the person who is really interested in the land is put on notice.” But, at the same time, it is made clear that, “Individual notice is mandatory only to those persons whose names are found by the Collector as persons interested, on information received through reliable source.” On such arguments advanced, the petitioner would ultimately pray to review the judgment dated 14.9.2000 rendered in W.A.No.2029 of 1999. 8. On the part of the learned Government Advocate appearing on behalf of the respondents 1 and 2 it would be submitted that the Collector and the other officers involved in the acquisition proceeding of the land on behalf of the Government would act only to the information revealed on revenue records and on such knowledge of the ownership of parties within the limitations of law and unless parties interested bring it to the notice of the Collector in time, there is no reason on the part of the Collector to wait indefinitely without proceeding to the next stage and in this case since no such information was revealed to the Collector in time as it is loitered on the part of the petitioner at present, proceedings were initiated based on the available materials and information and hence there is no point of looking back at this stage. The learned Government Advocate would also indicate that none of the judgment cited on the part of the petitioner would come to his rescue nor could the review be ordered by this Court since the petitioner has miserably missed the bus. 9. The learned Government Advocate would also indicate that none of the judgment cited on the part of the petitioner would come to his rescue nor could the review be ordered by this Court since the petitioner has miserably missed the bus. 9. In careful consideration of the pleadings of the petitioner, having regard to the materials placed on record, upon hearing the review petitioner as party-in-person, the learned Government advocate on behalf of the respondents 1 and 2 contra and with no representation made on behalf of respondents No.3 to 7 what comes to be known is that the petitioner seems to be aggrieved that during the relevant time of the land acquisition proceedings regarding the subject matter in the case in hand, himself in spite of having been entitled to 1/9th share in the whole of the properties, the land had been acquired without a notice of enquiry under Sec.5-A of the Act to him in spite of himself being an interested person entitled to the notice which aspect has not been looked into by the Division Bench while deciding whether the appellant is entitled to the notice for the enquiry under Sec.5-A of the Act as an interested person resulting in miscarriage of justice in the writ Appeal and therefore the same has to be reviewed. 10. From out of the three judgments cited on the part of the petitioner sticking to the proposition held in the first of the above three judgments, the learned single Judge of this Court while disposing the Second Appeals has held that if entries are made by suppression of fact without notice to the persons interested in a proceeding under the Record of Tenancy Rights Act, such proceeding is not conclusive. In such a situation, the learned Judge has held, such revenue proceedings would not be conclusive and a change to the correctness of the revenue records is maintainable. In the said case, the element considered by the learned Judge is the suppression of the real facts on the entries made by the Record officer in a proceeding under the Record of Tenancy Rights Act, which is dominant and such a situation does not exist in the case in hand since no suppression of facts occupies the seat so far as the pleadings and arguments of the petitioner are concerned. Therefore, the proposition held in this judgment, on such facts in a second appeal, becomes inapplicable to the case in hand. 11. The second judgment of the Honourable Apex Court cited by the petitioner is also in civil appeals wherein while dealing with the aspect of severance of status of joint family in a joint family property under Hindu Law, their Lordships have held that the character of any joint family properties does not change with the severance of the status of the joint family and the joint family property continues to retain its joint family character so long as the property exists without partition among co-sharers. It is not the case of the respondents that the petitioners was not entitled to a share at the relevant time, as argued on his part but whether such of the rights of the petitioner enjoyed in the property acquired has been revealed in the revenue records which are concluded relevant for the purpose of the land acquisition authorities to decide the ownership or by notice to the Collector or by any other means within the time prescribed by law. While such is the consideration that is given credence to in cases of land acquisition to decide the ownership, the proposition held in this judgment, which is a civil appeal, on a substantial question of law by the Honourable Apex Court having nothing to do with the case under review, this proposition cited as held by the Honourable Apex Court also becomes not applicable to the facts of the case in hand. 12. The third proposition is one held in a Full Bench decision made in a writ petition, which is a subject directly concerned with the case in hand in the sense that this judgment particularly deals with the enquiry contemplated under Sec.5-A of the Act in the manner prescribed by Sub-secs.(3) and (4) of Sec.9 of the Act on every person believed to be interested in the land to be acquired wherein it is made clear that individual notice is mandatory only to those persons whose names are found in the revenue records or who are found by the Collector as persons interested on information received through reliable sources in time. It is only according to this proposition, the case of the petitioner has to be dissected on facts in order to arrive at the conclusion whether the notice contemplated by this relevant provision of law has been complied with by the Collector relating to the petitioner’s claim that he was entitled to a share in the property and in spite of notice to that effect to the Collector, he was not considered for the notice to be issued for the enquiry under Sec.5-A of the Act. 13. There cannot be different opinions pertaining to the notice that is to be issued by the Collector under Sec.5-A(2) of the Act to the person interested pertaining to the land notified under Sec.4(1) of the Act thus giving effect to Sec.5-A(1) of the Act, provided such person objects to the acquisition of the land within thirty days from the date of publication of the Notification under Sec.4(1) of the Act and on such objector, the notice contemplated under Sec.5-A(2) is mandatory. The Collector, in this regard, is normally guided by the entries effected in the revenue records wherein such interested persons in the land are indicated or by any other means made known that a person is interested in the land acquired based on the publication of the notification made under Sec.4(1) of the Act within thirty days from the date of such publication when it is incumbent on the part of the Collector to issue the notice contemplated under Sec.5-A(2) of the Act on such person interested objecting to the acquisition proceeding in writing whereupon the Collector shall give such interested person an opportunity of being heard during the enquiry held under Sec.5-A of the Act. 14. 14. The confirmed case of the respondents 1 and 2 is that the land under acquisition proceeding in this case stood registered in the name of the father of the petitioner Thiru Shanmuga Vudayar in the revenue records and hence the same was indicated in the notification made under Sec.4(1) of the Act pertaining to which all acts have been completed on 12.6.1991; that since no objection had been received within thirty days time, the draft declaration under Sec.9 was submitted to the Government on 22.8.1991; that by the time the notice was received from the petitioner herein the draft declaration under Sec.6 of the Act had already been submitted to the Government there had been no irregularity and hence it cannot be said that the declaration was illegal; that on the basis of the entries effected in the revenue records, they issued the notice to the title holder therein viz., Shanmuga Vudayar, the father of the petitioner, who appeared for the enquiry under Sec.5-A and made a statement claiming absolute tittle over the properties besides revealing the litigations pending before the Court between himself and his sons regarding the title of the property. 15. The petitioner’s case is that he was recognised as the co-owner of the property as early as on 16.9.1983 and that he ought to have been intimated with the notice as he is the interested person in the property. This fact had been made known to the authorities concerned by a letter addressed to the Government dated 28.8.1991 claiming interest over the land when much water had flowed and it has held the respondents only to include the names mentioned in the declaration made under Sec.6 of the Act. Therefore, since the petitioner did not choose to object to the proposed acquisition within thirty days from th date of notification under Sec.4(1) of the Act, he is in no manner entitled to seek for a review of the judgment passed by this Court dated 14.9.2000 in W.A.No.2029 of 1999 on ground that in spite of his notice to the Collector or Government, he was not afforded with any opportunity to be heard at the time of enquiry under Sec.5-A of the Act which is erroneous and that this aspect was not dealt with in the judgment. This has been considered both in the order passed by the learned single Judge and by the Bench in its judgment as well. 16. On a perusal of the originals, we are able to find that the Sec.4(1) notification in this case had been made on 24.4.1991, enquiry under Sec.5-A had been held on 14.8.1991 and the declaration under Sec.6 of the Act had been made on 24.10.1991. We are able to find a letter addressed by the petitioner dated 13.8.1991 which has been sent long after the statutorily fixed period of thirty days from the date of Sec.4(1) notification. Needless to mention that the petitioner had miserably missed the bus and there is no point in the petitioner having come forward to file the above review application on grounds which only go into the merit of the case and hence do not deserve to be considered, under review of the judgment already made by this Court in full consideration of the merits and in accordance with law. We are unable to see any patent error on the face of the judgment dated 14.9.2000 in W.A.No.2029 of 1999 nor anything substantially brought forth by the petitioner for relevant consideration. Since a review of the judgment so made by the Division Bench cannot be entertained on the grounds alleged by the petitioner, the same as sought for on the part of the petitioner now is absolutely bereft of merit and deserves only to be dismissed. 17. In result, the above Review Application is without merit and the same is dismissed. 18. However, in the circumstances of the case there shall be no order as to costs.