K.Tamilselvi v. The Union Of India

In the High Court of Judicature at Madras Dated : 17.2.2020 Coram :

The Honourable Mr.Justice T.S.SIVAGNANAM Writ Petition Nos.19789 & 19790 of 2017 & WMP.Nos.21370 & 21371 of 2017 K.Tamilselvi

...Petitioner in

WP.19789/2017 V.Krishnamoorthy

...Petitioner in

WP.19790/2017 Vs 1.The Union of India, rep.by its Secretary, Government of Pondicherry.

2.The Sub-Registrar, Oulgaret, Pondicherry.

...R1 & R2 in both the WPs 3.The Authorized Officer (Land Reforms), Office of the Sub-Collector, North (Revenue), Puducherry.

(R3 impleaded vide order of court dated 17.2.2020 in WMP.Nos.25819 & 25820 of 2017) ...R3 in both the WPs PETITIONS under Article 226 of The Constitution of India praying for the issuance of Writs of Mandamus directing the second respondent to register the sale deeds pertaining to the petitioners' properties (plot Nos.139 and 138 respectively), comprised in resurvey No.231/4, Oulgaret Village, Puducherry. For Petitioners :

Mr.R.Sunilkumar For Respondents :

Mr.D.Ravichander, AGP COMMON ORDER I have heard Mr.R.Sunilkumar, learned counsel for the petitioners and Mr.D.Ravichander, learned Additional Government Pleader appearing for the respondents.

2. The petitioners, who are husband and wife, seek a direction to the second respondent to register the sale deeds pertaining to their properties respectively in plot Nos.139 and 138, comprised in resurvey No.231/4, Oulgaret Village, Puducherry.

3. The petitioners purchased the said properties measuring an extent of 1,200 sq.ft. each, from one Mr.S.V.Shamugham registered as doc.Nos.238 of 2000 dated 25.1.2000 and doc.No.4777 of 1997 dated 22.8.1997 respectively.

4. The petitioners would state that they were in need of funds for medical treatment and hence, they decided to sell the said properties. However, for such a purpose, unless and until the guideline value of the respective properties is fixed by the first respondent, the petitioners will not be in a position to sell the same. Therefore, the petitioners submitted several representations to the Authorities concerned and since there was no response, the petitioners are before this Court.

5. The petitioners would further state that a similar writ petition was filed before this Court concerning the same block of land in W.P.No.36046 of 2006, which was ordered on 08.3.2011 with a direction the second respondent herein to register the sale deed subject to the petitioner therein filing a declaration in Form 16 of the Pondicherry Land Reforms (Fixation of Ceiling on Land), Act, 1973. In another writ petition in W.P.No.18545 of 2014, vide order dated 17.3.2015, a similar relief was granted. That apart, vide dated 18.3.2015, W.P.No.23428 of 2014 was disposed of on similar lines.

6. Recently, an identical issue was considered by this Court in the decision in the case of Shanavas Zainul Arab rep.by her power agent R.Rajmohan Vs. The District Collector-cumAdditional Secretary (Revenue), Puducherry [W.P.No.9661 of 2016 dated 20.1.2010] and the writ petition was allowed with a direction to the respondents therein to fix the guideline register value in respect of the land in question within a stipulated period and upon fixation, it was left open to the petitioner therein to present any document for registration before the concerned Sub-Registrar subject to fulfillment of other conditions such filing of declaration in Form 16. The relevant portions in the decision dated 20.1.2010 read as follows :

"5. The reason for the third respondent refusing to register the sale deed stated to have been executed by the petitioner represented by her power of attorney agent is on the ground that respondents 1 and 2 had not assigned the GLR value pertaining

to the land in question. Therefore, this Court needs to consider as to why respondents 1 and 2 had not assigned the GLR value and if they have not done so, are they justified in refusing to assign the GLR value in respect of the land in question.

6. The original land formed part of a larger extent and proceedings were initiated by the respondents under the provisions of the Pondicherry Land Reforms (Fixation of Ceiling on Land ) Act, 1973 (hereinafter called the Act). An extent of 3.9961 standard hectares were notified to be the land held in excess of the permissible limit under the Act and was declared as surplus by the authorized officer and a draft statement under Section 9(1) of the Act was published in Gazette No.171 dated 26.8.1977. The above facts have been furnished by the second respondent in the counter affidavit.

7. From the counter affidavit, it is seen that the original land owner namely the assessee had filed objections to the draft statement under Section 9(1) of the Act. It is stated that thereafter, final statement was published under Section 11 of the Act declaring an extent of 3.9961 standard hectares as surplus in the hands of the original land owner and accordingly, a Notification was issued in Gazette No.112 dated 11.11.1981. It is further stated that the Notification under Section 17(1) of the Act was published in District Gazette No.46 dated 06.5.1982, that the Declaration under Section 17(2) of the Act was issued on 29.5.1982 and that the surplus portion declared namely an extent of 3.9961 standard hectares was taken possession on 14.6.1982.

8. It appears that the son of the original land owner, who was referred to as the assessee, challenged the procedure adopted by the Authorities by filing W.P.No.10571 of 1984, in which, a direction was issued to conduct a fresh enquiry.

According to the second respondent, though a date was fixed for enquiry, the assessee's son did not appear for the

enquiry and the matter was being prolonged because several people had to be substituted as they were no more and their legal heirs were to be brought on record.

Subsequently, in the year 2008, an amended Form 10 Notification was issued under Section 13(1) of the Act, which was after considering the objections given by the legal heirs of the assessee. It is also stated in the counter affidavit that approval of Form 13 under Section 17(1) of the Act is under process, upon which, the land will be taken possession by the Government after due proclamation.

9. With these facts, the learned Additional Government Pleader would state that in terms of Section 22 of the Act, there is a clear restriction on transfer of the land covered under the Act by any person and in this regard, he has invited the attention of this Court to Section 22

(1) of the Act. It is further stated that the assessee and his legal heirs had already sold a major portion of the land covered in the proceedings including the portion notified as surplus in pieces to innocent buyers and in order to prevent any further transactions, the entire lands covered in the proceedings were frozen by the then authorized officer vide circular dated 13.8.2008 and this is the reason as to why the GLR value has not been fixed.

10. It appears that such a problem has arisen in several areas in Puducherry. This is so because several writ petitions were filed before this Court by various persons seeking a direction upon the Authorities to register and release the documents, which have been refused to be entertained on grounds, which are identical to that of the grounds raised in this writ petition. In all those writ petitions namely W.P.No.32472 of 2006 dated 08.3.2007, W.P.No.34046 of 2006 dated 08.3.2011 and W.P.No.18292 of 2015 dated 25.6.2015 were allowed and this Court had an occasion to consider a similar issue in the case of I.Shakila Vs. District Collector [reported in 2015 SCC OnLine Madras 8166]. In all those cases, a direction was issued to

register and release the documents and particularly for the reason that the properties, which were sold, were within the retainable extent of the erstwhile land owner/assessee.

11. In fact, the order in W.P.No.36046 of 2006 dated 08.3.2011 was in respect of the very same survey number where the present writ petition seeks relief. The second respondent, in the counter affidavit, has specifically admitted the fact that the land at Cadastre No.1122, 1122bis corresponding to R.S.No.230/2, Oulgaret Revenue Village falls within the retention portion of the assessees namely Mr.Siva and Mr.Nedunchezian under the Act.

12. The argument of the learned Additional Government Pleader appearing for the respondents is that there is an embargo under Sub-Section (1) of Section 22 of the Act restricting transfer of the land, that until final proceedings are over, transfer cannot be effected and that rightly, the GLR value has not been assigned, as several innocent people have been cheated.

13. This argument of the respondents cannot be countenanced for more than one reason. Firstly, the proceedings initiated under the Act in the year 1977 were proposing to declare an extent of 3.9961 standard hectares as surplus in the hands of the assessee. After objections were received, a final statement was issued under Section 11 of the Act and published in the Gazette on 11.11.1981. Thereafter, the procedure to be followed is under Section 17 of the Act, which deals with acquisition of surplus land. Thus, on and after publication of the final statement under Section 11 of the Act, the entire matter gets crystallized and thereafter the procedure to be followed for taking over possession is to be adopted.

14. It is no doubt true that the legal heirs of the land owner had raised certain objections, that the final statement was sought to be amended by exercise of power under Section 13(1) of the Act, which has now been forwarded to the Government and that the matter is under consideration in

accordance with Section 17(1) of the Act.

Though these are the facts stated in the counter affidavit, it is admitted that the land purchased by the petitioner is within the retention portion. If the retention portion stood crystallized on 11.11.1981 in terms of the final statement under Section 11 of the Act, the purchase effected by the petitioner in the year 1998 cannot be stated to be hit by the provisions of Section 22(1) of the Act.

15. The learned Additional Government Pleader has referred to the common judgment of the Hon'ble Division Bench of this Court in W.A. Nos.875 to 878 of 2012 dated 13.2.2018 [G. Gopalsamy & another Vs.

Government of Pondicherry & Others].

16. On a perusal of the said common judgment, it is seen that the Hon'ble Division Bench of this Court has only discussed as to what is the effect of Section 22(1) of the Act and that there is no discussion with regard to any fact situation similar to the case on hand.

17. In the judgment of Hon'ble Division Bench of this Court in the case of S.Vaitheeswaran & Others Vs. Union of India & Others [reported in 2016 (4) LW 512] relied upon by the learned counsel for the petitioner, it has been held that Sections 22(1) and 22(2)(a) of the Act have to be harmoniously read and if done so, it revealed that while there is a restriction on transfer in terms of Section 22(1) of the Act, if and when such a transfer takes place, Section 22(2)(a) of the Act provides the manner, in which, the property should be recovered from such persons namely the transferor and if there is no such property, then only it should be recovered from the transferee.

18. In the instant case, we need not travel thus far to go into the aspect of recovery of property because the final statement having been published on 11.11.1981 and the petitioner having purchased the land in the year 1998 after the final statement and before the so called amendment made on 12.6.2008 by invoking the power under Section 13(1) of

the Act, the transaction effected by the petitioner cannot be faulted. Apart from the above, the proceedings under the Act have been inordinately delayed. The Act came into effect in 1973 and the proceedings against the petitioner's vendor's vendor namely the assessee was initiated in the year 1977 and it is yet to attain finality. Having found that the petitioner cannot be penalized nor her transaction can be stated to be barred under Section 22(1) of the Act, the petitioner is entitled to seek fixation of the GLR value.

19. In the light of the above, the writ petition is allowed and respondents 1 and 2 are directed to fix the GLR value in respect of the land in question within a period of four months from the date of receipt of a copy of this order. On fixation of the GLR value, it is open to the petitioner to present any document for registration before the third respondent subject to fulfillment of other conditions such as filing of declaration in Form-16."

7. In the light of the above, the writ petitions are disposed of by directing respondents 1 and 3 to fix the guideline register value for the lands in question within a period of four months from the date of receipt of a copy of this order. On fixation of the guideline register value, the petitioners are permitted to submit the sale deeds for registration before the second respondent, who shall register the sale deeds present by the petitioners subject to the petitioners filing declaration in Form 16 under the said Act. No costs. Consequently, the connected WMPs are closed. Sd/- Assistant Registrar // True Copy// Sub Assistant Registrar RS

To 1.The Secretary to Union of India, Government of Pondicherry. 2.The Sub-Registrar, Oulgaret, Pondicherry.

3.The Authorized Officer (Land Reforms), Office of the Sub-Collector, North(Revenue), Puducherry. +1cc to Mr.R.Sunil Kumar, Advocate, SR.No.12908. +2cc to Government Pleader(Pondy), SR.No.13168. WP.Nos.19789 & 19790 of 2017& WMP.Nos.21370 & 21371 of 2017 SVI(CO) CSR: 17.03.2020