KUMARESH NARENDRA MINOR Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Petitioner, a minor, represented by his mother, informs of having become entitled to extent of lands under will of his grandfather dated 7.3.1948 and two codicils thereto dated 3.3.1950 and 14.10.1950. An extent of 316.89 acres was acquired by the respondents 1 and 3 even in the year 1972 under the Land Acquisition Act 1894 for the purpose of construction of the Palar Porundalar dam. Pursuant to taking of possession, the land was handed over to the Public Works Department and the dam was constructed in 1972. The lands are within the dam water spread area. Respondents had issued notifications on 29.3.1972, 5.4.1972, 12.4.1972, 3.5.1972 and Section 5(A) enquiries were also held on 16.5.1972, 6.7.1972, 18.7.1972 and 19.7.1972. In the meanwhile, possession had been taken and the dam had been constructed. A notification under Section 18(1) of the Tamil Nadu land reforms (fixation of ceiling on land) Act 1961 had been issued on 22.7.1981 and the respondents had failed to pursue the process set upon by them under the land acquisition act. Informing that such a course had been adopted by the respondents in respect of lands belonging to Ms. Narendra Dairy Farms Private Limited and the same had been held to be bad under orders of this Court in W.P. Nos. 119 and 120 of 1974 dated 9.4.1979, that appeal against such findings had been dismissed in W.A. No. 576 of 1979 under orders dated 6.11.1985 and further appeal to the Supreme Court also stood dismissed, petitioner seeks relief as prayed for. In the counter affidavit of the respondents, it is contended that the holdings of the petitioner's father attracted the provisions of the Tamil Nadu land reforms (fixation of ceiling of land) act 1961. His holdings as on 6.4.1960 were determined and a draft statement under Section 10(1) of the land reforms act was prepared and published in the Tamil under Government Gazette dated 1.9.1965. The final statement under Section 12 of such act was published in the government Gazette dated 29.3.1972. In G.O. Ms. No. 1389 revenue dated 11.6.1981 notification under Section 18(1) of the act declaring excess an extent of 3450.231/4 ordinary acres equivalent to 1099.90 standard acres was approved and published in Tamilnadu government Gazette dated 22.7.1981. Action was taken under the provisions of the land acquisition act in respect of the same land towards construction of the Palar Porundalar dam without informing the fact thereof to the Land Reforms Department. It is informed that the landowner i.e. the petitioner's father had moved W.P. No. 2842 of 1992 before this Court seeking a direction for deposit of the compensation amount for lands covered in the notification issued under Section 4 of the land acquisition act. This Court under orders dated 24.11.1999 had observed that the notification under Section 4(1) of Land Acquisition Act was withdrawn as a notification under Section 18(1) of the land reforms act already was published and the lands covered by the land acquisition proceedings were declared as surplus already under such act. This Court had directed the Assistant Commissioner (land reforms) Dindigul to issue notice to the landowner and after conducting proper enquiry, fix the compensation and to pass orders according to law. Enquiry under Rule 45(1) of the Tamil Nadu land reforms (fixation of ceiling on land) rules 1962 was conducted and under orders dated 5.7.2006 the compensation was determined at Rs. 6,46,794. The orders have been served on the landowners on 8.7.2006. The draft assessment roll had been prepared and published in the Tamil Nadu government Gazette dated 9.8.2006 and served on the landowner on 1.9.2006. In answer to objections raised by the mother of the petitioner, an order under Section 50(4) of the Tamil Nadu Land Reforms (fixation of ceiling on land) Act 1961 was passed on 23.10.2006 and served on the landowner as also the petitioner's mother on 20.11.2006. Thereafter, the final assessment roll had been published in the Tamil Nadu Government Gazette on 29.11.2006 and served on the landowner as also the petitioner's mother on 26.12.2006. It is informed that owing to an order of stay granted in the present proceedings the compensation payable under the land reforms act for the lands in question could not be determined. It is contended that as the will in favour of the petitioner was of the year 1950, the notification under Section 18(1) of the Land Reforms Act having been issued on 22.7.1981 and the lands in question having been taken over by government thereunder, the petitioner who only could inherit lands held by his father, could not claim an inheritance of lands that have fallen into the hands of government long before his birth in 2001. It is contended that as observed by this Court in its order W.P. 2842 of 1992 dated 24.11.1999, the notification under Section 4 of the land acquisition act stood withdrawn as a notification under Section 18(1) of the land reforms act had already been published. The lands in question had been found to be surplus holdings as on 6.4.1960. Section 4 of the Tamil Nadu Land Reforms Act 1961 contained a non obstante clause, the lands were required for public purpose as construction of darn is also an agrarian act, the decisions of this Court in W.P. Nos. 119 and 120 of 1976 and connected proceedings could not serve the petitioner's purposes and hence the writ petition is to be dismissed.

(2.) We have heard Mr. N.R. Chandran learned senior counsel for the petitioner on 18.7.2012 and 23.7.2012. Despite opportunities provided there have been no arguments advanced on behalf of the respondents. Informed as we were that the matter had been argued twice over before other judges, this Court had reserved orders on 2.8.2012 granting liberty to the respondents to submit their written arguments. Till date, the respondents have not done so.

(3.) Learned senior counsel for petitioner submitted that in identical factual circumstance, the respondents had given a go by to proceedings under the land acquisition act and proceeded under the land reforms act. A learned single judge of this Court under orders in W.P. Nos. 119 and 120 of 1974 dated 9.4.1979 had directed that the respondents go by the land acquisition act. This decision stood confirmed up to the apex Court. He submitted that the lands in question lay submerged owing to the construction of the Palar Porundalar dam. The purpose of the land reforms act was to make available land held in excess of the ceiling limit to the landless towards their carrying out agricultural operations thereupon. Since such purpose could not be served in the instant case, the land reforms act could not be resorted to. He next contended that even if it be taken that both the land acquisition act as also the land reforms act would apply, that which was more advantageous to the land owner ought to be applied. Learned senior counsel relied on judgment of this Court in The Revenue Divisional Officer v. Saroja Victor, 2010 1 CTC 7, to inform that if, as in the instant case, proceedings for acquisition had been initiated after possession was taken, it would be open to the landowner, at the time of seeking a reference under Section 18 of the land acquisition act, to request the collector to include in the terms of reference the question relating to damages for use in occupation for the period from the date of taking possession till date of notification under Section 4 of the land acquisition act. Explaining the reason for the petitioner moving the present writ petition in the year 2006 as against possession of lands taken in 1972, learned senior counsel submits that just as the petitioners, the respondents also were also under the impression that the decision in Narendra Dairy's case applied also to the present case. Having caused the notification under Section 18(1) of the Tamil Nadu land reforms (fixation of ceiling on land) act 1961 on 22.7.1981, the respondent had resorted to publishing a draft assessment roll as late as on 9.8.2006 which was the cause for concern leading to the filing of the present writ petition.