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2021 Supreme(Mad) 3114

IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, J.
Seriya Pushpam, rep.by her Power of Attorney M.Jayakumar – Appellant
Versus
The Special Commissioner and Commissioner for Land Administration - Respondent
W.P.No.11836 of 2010
Decided on : 17-03-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr.V.Raghavachari
For the Respondent: Mr.Venkadesh Kumar, Mr.R.Sivakumar

Headnote:

Constitution of India,1950 – Article 300A – Land – Property – Assignment – Loan - Petitioner's husband, while he was in service of Navy, submitted an application for assignment of certain land - His request was considered and an order of assignment - As per the order of assignment, was assigned free of land value, but on collection of stone value, subject to usual conditions of assignment in relaxation of orders in G.O. Revenue - In the said order, it was stated that assignment was by order of Government - Petitioner has produced before this Court revenue record to show that her husband was pattadar of property and Kist from Fasli was also paid by her - Petitioner's husband, during his lifetime, created a mortgage in respect of property, which was assigned to him, for a loan obtained from Co-operative Primary Agricultural and Rural Development Bank Limited and the said mortgage deed, issued by Bank, indicates that property was mortgaged and later redeemed by clearance of loan - Whether legal heirs of original assignee were in possession or interested in property at all – Held, Having regard to factual scenario and the facts that were pleaded and established, this Court has no hesitation to hold that the impugned order is illegal, arbitrary and unconstitutional - This Court, while setting aside the order impugned, restores the status quo ante - While admitting the writ petition, this Court granted an order of ad-interim stay of further proceedings - Though it is stated in the counter affidavit that land was handed over to fifth respondent, fifth respondent has not come forward with a specific stand about construction activities - At the same time, though it is stated counter affidavit that Slum Clearance Board has built apartments in land, construction activities must be with reference to remaining extent of land, as assignment, in favour of fifth respondent, was in respect of a vast extent of land, which is more than 100 acres - As it was pointed out by a Division Bench of this Court in one of judgements above referred to, vested right in favour of an assignee, giving assignee absolute title, cannot be interfered with by respondents other than by process known to law - Writ Petition is allowed.

ORDER :

1. This Writ Petition is filed by one Serya Pushpam, through her Power of Attorney, by name, M.Jayakumar, for issuance of a writ of Certiorari, to call for the records on the file of fourth respondent in proceedings G.O.Ms.51, dated 24.01.2007, and quash the same.

2. The brief facts, that are set out in the affidavit, filed in support of the Writ Petition, are as follows :

2.1. Petitioner's husband, by name, Sri V.Doss Peck, while he was in service of Navy, submitted an application for assignment of certain land. His request was considered and an order of assignment in favour of Sri V.Doss Peck was issued on 02.09.1966. As per the order of assignment, an extent of 4 acres in Survey No.523 and an extent of 1 acre in Survey No.524 in Perumbakkam Village, Saidapet Taluk, Chengalpet District, was assigned in favour of Sri V.Doss Peck free of land value, but on collection of stone value of Rs.2/- and sub-division fee of Rs.4/-, subject to usual conditions of assignment in relaxation of orders in G.O.Ms.No.1135, Revenue, dated 16.03.1962. In the said order, it was stated that the assignment was by order of Government. Petitioner has produced before this Court the revenue record to show that her husband was the pattadar of the property and Kist from Fasli 1388 to 1392 was also paid by her. Petitioner's husband, during his lifetime, created a mortgage in respect of the property, which was assigned to him, for a loan obtained from Saidapet Co-operative Primary Agricultural and Rural Development Bank Limited and the said mortgage deed, issued by the Bank, indicates that the property was mortgaged and later redeemed by clearance of loan on 15.10.1975. Petitioner's husband Sri V.Doss Peck died on 08.05.1993, leaving behind the petitioner, two sons and three daughters. The Legal Heir certificate produced by the petitioner shows the particulars of the legal representatives. It is stated that the revenue officials refused to collect land revenue under the pretext of patta in favour of petitioner's husband being cancelled. It is further stated that petitioner's husband or petitioner was not given any notice before cancellation of patta. From various representations, it is revealed that petitioner was informed about the cancellation of patta by Revenue Divisional Officer, namely, third respondent herein. But, there is no indication about the communication of the order, cancelling assignment or patta.

2.2. Petitioner has stated in the affidavit that her husband was in physical possession and enjoyment of the property and kist was collected from him lastly on 10.04.1983 for the Fastly 1388 to 1392. Petitioner has produced before this Court the Kist Receipt, that was issued on 10-04.1983. Further, it is stated, that, to her dismay, she was informed that the assignment in favour of her husband was cancelled even in the year 1981. Petitioner submitted a representation before first respondent on 24.10.1994, requesting first respondent to set aside the cancellation of patta, said to have been made in the year 1981. Some representations were also submitted by petitioner to the Hon'ble Minister for Revenue and the District Collector on various occasions. Though petitioner has also produced a copy of the intimation/instruction given by the District Collector to the Tahsildar, dated 23.08.2003, directing the Tahsildar to conduct an inquiry and submit a report, no report or inquiry details are produced before this Court during the proceedings or served on petitioner before filing of the Writ Petition. Petitioner continued to make representations to the District Collector and the Tahsildar from 2004 to 2006. However, she came to know about the impugned order vide G.O.Ms.No.51, Revenue Department, dated 24.01.2007, by which, Tamil Nadu Slum Clearance Board was given permission to enter upon the land to an extent of 47.46.0 Hectares in Perumbakkam Village, including an extent of 5 acres of land, which was assigned in favour of petitioner's husband. Chall

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