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K.M. Natarajan, J.—C.R.R. No. 2164 of 1977 has been preferred by R.R. Selvarajan against the order passed by the Principal Sub Judge, Pondicherry, in L.T.C.M.A. No. 4 of 1978 while C.R.P. No. 2190 of 1978 is filed by his wife against the order passed in L.T.C.M.A. No. 5 of 1978 and C.R.P. No. 2191 of 1978 is filed by his then minor son Murugavel against the order in L.T.C.M.A. No. 6 of 1978. These C.R.Ps. arose out of the same Draft statement published under S.9(1) of the Pondicherry Land Reforms (Fixation of Ceiling on Land) Act, 1973. All the revision-petitioners preferred objections before the Authorised Officer against the said Draft Statement published in the Extraordinary Gazette No. 164 dated 27.9.1976. The objections were rejected by the Authorised Officer in a common order dated 12.12.1977. The revision-petitioner in C.R.P. No. 2164 of 1977 has preferred a writ petition in W.P. No. 6689 of 1975 challenging the above order and the said writ petition was dismissed on 28.7.1976 directing the revision-petitioners to file their revised return. Accordingly, they filed returns. Since the land-owners did not appear for enquiry, a revised Draft Statement was published in Extraordinary Gazette No. 517 dated 30.11.1976. Thereupon, they also submitted objections and the objections were considered. The Authorised Officer passed an order directing the preparation and publication of final statement under S.11 of the Act on the basis of the reasoning given in the said order. Aggrieved by the same, they preferred appeals before the principal Sub Judge in L.T.C.M.A. Nos. 4. 5 and 6 of 1978 and they were dismissed. Hence these revisions.
The main reliefs prayed for in these revisions are (1) the exclusion of the lands which are the subject matter of acquisition under the Land Acquisition Act and now taken over by the Government and which are referred to in objections 3 and 4 by the revision petitioner in C.R.P. No. 2164 of 1977, and (2) about the classification of the agricultural and non-agricultural lands after inspection and physical verification as referred to in objection No. 2.
For appreciating the contentions advanced on behalf of both parties, certain dates and the provisions of the Act are relevant. The appointed date as per the Pondicherry Land Reforms (Fixation of Ceiling on Land; Act 1973 (hereinafter referred to as the Act) is 24.1.1971. The date on which the Act was passed was 11.11.1973 and it received the assent of the President on 22.9.1974 and 14.10.1974. The notified date is 1.4.1975. As regards the inclusion of the lands in the holding of the revision-petitioners, which were acquired under various schemes, the revision-petitioner raised an objection that five items of land at Olandai village are under acquisition for various schemes and they should be deleted from the Draft Statement. The Authorised Officer rejected the said objection on the ground that the acquisition proceedings have been taken after the appointed date after 24.1.1971 and therefore those transfers have to be treated as if such transfers had not taken place as per S. 4(4) of the Act. The Land Tribunal, namely, the Principal Sub Judge, Pondicherry, affirmed the same holding that the word ''otherwise'' mentioned in S. 4(4) of the Act is broad enough to embrace lands covered under the land acquisition proceedings and that S. 4(4) of the Act cannot be equated to Ss. 22 and 23 of the Tamil Nadu Act. The learned counsel for the revision-petitioners, Mr. G. Masilamani, drew my attention to the decisions reported by this court in W.P. Nos. 119 and 120 of 19740 Narendra Dairy Farms (P) Ltd., by its Managing Director v. Dorairanga Lakshmana Naicktr and another. (Respondent, in W.A. 677 & 678/79). V. State of Tamil Nadu by Secretary to Government Public Works Irrigation Department ,Madras-9 and 2 others, (Appellants in W.P. No. 677 & 678/79) rendered by Natarajan, J., the judgment in W.A. Nos. 408 and 409 of 1971. N. Swami nathan V. District Revenue officer, Salem and 2 others, dated 25.6.1974 and W.A. Nos 677 and 678 of 1979 rendered by a Division Bench consisting of V. Ramaswamy and V. Ratnam, JJ. which is also reported in AIR 1987 Madras 161 and submitted that in view of the said decisions those lands which are under land acquisition proceedings have to be excluded from the holdings and also the Draft Statement.
S. 4 (4) of the Act deals with the land to be excluded and it reads as follows:--
In calculating the extent of land held by any person, any land which was transferred by sale gift or otherwise or partitioned by that person after the appointed day, but before the commencement of this Act, shall be taken into account as if such land had not been transferred or partitioned, as the case may be.
In State of Tamil Nadu and Others Vs. Narendra Dairy Farms (P) Ltd. and Another, , a Division Bench of this Court consisting of V. Ramaswamy and Ratnam, JJ., confirmed the judgment rendered by a single Judge of this Court in W.P. Nos. 119 and 120 of 1974 and held:-
"Land Acquisition Act (1) of 1894), S. 4(1) Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act (58 of 1961), S.18(1) Acquisition of land-Initiation of proceedings under both Acts for purpose in question permissible-Proceedings, initiated under Acquisition Act-subsequent resort to ceiling proceedings under Reforms Act for Acquisition Amounts to misuse of power" Head note (C).
Even assuming that lands proposed to be acquired for construction of an irrigation dam could be acquired by resort to proceedings under the Acquisition Act and by resort to ceiling proceedings under the Reforms Act, there is misuse of the power by the State in applying the provisions of the Land Reforms Act to the lands in question when proceedings had already been initiated under the Acquisition Act as comparatively a very meagre amount would be received by the land owner if the Government subsequently takes resort to provisions of the Reforms Act.
It was further held:-
Taking into account the purpose and object of the Land Reforms Act, the Government cannot rely upon its provisions providing for ceiling proceedings to acquire lands needed for an irrigation project. The policy of the Land Reforms Act as well as the rules shows that the surplus lands have be allotted to the landless persons and not for other purpose. It may be that the provisions of the irrigation facilities is also part of agrarian reforms. But agrarian reforms is not one of the avowed objects of the Act, which is intended only to reduce the disparity in the ownership of agricultural lands and to secure an equitable distribution of the surplus lands in a manner, which would "subserve the common good, result in agricultural production and promote justice, social and economic".
Ultimately in the above case, the lands which were the subject matter of the land acquisition proceedings were ordered to be excluded from the holding of the land owner in the subsequent Draft statement prepared. As against the said judgment, the learned Government Pleader for Pondicherry, Mr. S. Govindaswamy drew my attention to a decision reported in Bhikoba Shankar Dhumal (Dead) by Lrs. and Others Vs. Mohan Lal Punchand Tathed and Others, At page 870 it was held:
This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under S.21 of the Act. It is no doubt true that S.21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette. But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under S.12(1) (a) of the Act, to the date of taking possession of any land in excess of the ceiling area in the case of those who come under S.12 (1) (b) of the Act and to the date of conversion of land into a different class in the case of those who come under S.12(2) of the Act. Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite.
That was a case under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act (27 of 1961). The question for consideration in that decision is about the effect of the proceedings prior to the notification of declaration as to surplus land under S.21 of the said Act and it was consequently held that the proceedings cannot be dropped. In that connection, it was held that the surplus land has got to be determined as on the appointed date even though such person may die before the actual extent of the surplus land is determined and notified under S.21 of the Act. The learned counsel for the revision-petitioner submitted that the said decision is not applicable to the facts of this case and that the already quoted Division Bench decision considered the reasons for excluding the lands which were under acquisition by the Government.
The Division Bench observed:--
The preamble of the Land Ceiling Act further indicates that ?the primordial purpose is to acquire lands in excess of the ceiling area in order that such excess may be made available for distribution amongst the landless and other persons in the rural areas in accordance with the rules framed. Thus, the policy of the Land Ceiling Act as well as rules shows that the surplus lands have to be allotted to the landless persons and not for other purpose.
The Division Bench further observed that the Land Ceiling Act is only to reduce the disparity in the ownership of agricultural lands and to secure an equitable distribution of the surplus lands in a manner which would sub-serve the common good result in agricultural production and promote justice, social and economic. In the above quoted Division Bench case, the lands were acquired for putting up a Dam and those lands were not available for distribution among the agriculturists and the question of liability of surrender of the said land under the provisions of the Act does not arise. In the circumstances, the question of distributing the land to the landless poor is impossible. In the instant case, the lands were acquired for the purpose of construction of sugar factory and actually a sugar factory was put up. It cannot be given for any other purpose particularly to the landless agriculturists for cultivation and the lands were already taken over by the Government under the Land Acquisition Act during 1971-1974. According to the learned counsel there is no quarrel over the crucial date for determining the surplus land provided the land continued to be as such. Once it ceases to be land, the liability to surrender I does not arise. I find much force in the contention of the learned counsel for the revision petitioner. In view of the ratio laid down in the decision of the Division Bench of this Court, the lands which were already acquired by the Government under the Land Acquisition Act have 11 be excluded from the holding of the Land-owner namely the revision-petitioner.
Next, as regards the classification of the land it is submitted by the learned counsel for the revision-petitioner, Mr. G. Masilamani, that in view of S. 2(16) of the Pondicherry Land Reforms (Fixation of Ceiling on Land) Act, 1973, land means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes forest land, pasture land, orchard and tope. As per the definition in S. 2 (16) of the Act, land does not include house site or land used exclusively for non-agricultural purposes. It is submitted by the learned counsel that it is the duty of the State to let in evidence that the lands are within the definition of the Act and the officers have not inspected the land and relied on the earlier settlement records and as such the matter should be remitted back for the purpose of finding out whether the lands are only agricultural lands or non-agricultural lands. On the other hand, the learned Government Pleader Pondicherry, Mr. S. Govindaswamy, submitted that already objections were raised and both the authorities below have considered the same and correctly classified the same. It is a finding of fact and there is absolutely nothing to hold that the said finding suffers from any infirmity whatsoever so as to warrant interference. Further no attempt has been made on the side of the revision-petitioner to show that they are not agricultural lands, as against the evidence adduced on the side of the State. It is seen from the order passed by the Authorised Officer that while considering the objection regarding inclusion of certain items as non-agricultural lands being houses and appurtenance to houses, revenue records have been perused and the Cad. Nos. which have been described as house sites as per Matrices Register itself were ordered to be deleted from the total holdings. It is also brought to my notice by the learned Government Pleader that the re-settlement took place in the year 1970 and the authorities took into consideration the Revenue records while classifying the lands and also excluded the other non-agricultural lands duly considering the objections raised by the revision-petitioner. No useful purpose would be served by remanding the matter for personal inspection after a lapse of nearly 10 years when so many constructions have been brought in and the mode of enjoyment has been admittedly changed. Hence, I do not find any merit in the contention of the learned counsel for the revision-petitioner. I find that this objection has been duly considered by the Authorised Officer and no interference is called for in this revision. No other point is urged in C.R.P. No. 2164 of 1977. Hence C.R.P. No. 2164 of 1977 is partly allowed and the properties which were the subject matter of the acquisition proceedings are directed to be deleted from the holdings of the revision petitioner. A revised Draft Statement is to be published and the other proceedings are directed to continue according to law.
As regards C.R.P. No. 2190 of 1978, which is filed by the wife of the revision-petitioner in C.R.P. No. 2164 of 1977, and C.R.P. No. 2191 of 1978 filed by the minor son, the learned counsel for the revision-petitioners, Mr. G. Masilamani, is not advancing any argument. But the learned Government Pleader, Mr. S. Govindaswamy, submitted that in view of the decision of the Supreme Court in Vengadasalam Pillai Vs. Union Territory of Pondicherry, wherein Their Lordships considered the expression ''Family'' and the computation of holding of family and held that the separate properties of minor sons as well as the wife given to them by partition before appointed day have to be included. It was held in the above decision as follows:--
Pondicherry Land Reforms (Fixation of Ceiling on Land) Act (9 of 1973) Ss. 2(10) (4) (24), 4, 7 and 22 Expression ''Family'' Computation of holding of family separate properties of minor sons as well as the wife given to them by partition before appointed day have to be included. (Words and Phrases-''Family'').
On a reading of the definition of the term ''family'' it is clear that notwithstanding any transaction of partition entered into prior to the appointed day, the minor sons of a person will for the purposes of the Act, be treated as members of the family of such person together with his wife and unmarried daughters. In computing the extend of the holding of the family the separate properties of the minor sons as well as the separate property of the wife purchased by her from her stridhanam have all to be included.
It is also pertinent to note that Their Lordships have observed:--
The fact that the definition of ''family'' contained in S. 2(10) does not treat the major sons of a person as members of his family is clearly a pointer that an undivided Hindu Family was not in the contemplation of the Legislature when it enacted the said definition section. Similarly, the provision contained in sub-S.3(a) of S.4 that in calculating the extent of land held by a member of a family or by an individual person, the share of the member of the family or of the individual person in the land held by an undivided ''Hindu Family shall be taken into account furnishes a conclusive indication that the "family" mentioned in the Act is wholly distinct and different from an "Undivided Hindu Family. The stress is only on the existence of the relationship mentioned in the Section and unity of title or jointness of holding in relation to property are not essential elements for attracting the applicability of the definition.
The learned counsel also drew my attention to the Division Bench decision of this Court reported in A. Venkatakrishnan v. Union Territory, Pondicherry AIR 1987 Mad. 29, wherein Kailasam, C.J. and Ramanujam, J. held that the Pondicherry Land Reforms (fixation of Ceiling on Land) Act cannot be challenged on ground of violation of fundamental rights and that the Pondicherry Legislature has plenary powers which includes the power to make retrospective legislations. Ultimately, the learned Judges dismissed the writ petitions and upheld the validity of S.4(4) of the Act (Act 9 of 1974). It was held in that decision :
The result of this sub-section is that in determining the ceiling area the land possessed by the land holder as on 24.1.1971, the appointed day, will have to be taken into account although the Act came into force on 14.10.1974.
So far as the minor son is concerned, it was contended that by deed of partition and family arrangement dated 9.3.1970 he has become a separate family and that the items held by him should be treated separately. But, in view of the definition of ''family'' in S. 2 (10) of the Act which includes minor and in view of the ratio laid down in the decision of the Supreme Court, the objection overruled by the authorities below cannot be said to be in any way erroneous. Hence, C.R.P. No. 2191 of 1978 is liable to be dismissed.
As regards C.R.P. No. 2190 of 1978 filed by the wife, the Authorised Officer as well as the Land Tribunal considered the objections in a proper footing and rejected the same holding that the writ petition filed by her husband Selvarajan, who is the revision-petitioner in C.R.P. No. 2164 of 1977, challenging the Pondicherry Land Reforms (Fixation of Ceiling on Land) Act was dismissed. In view of S. 4 (4) of the Act it cannot be said that the land sold by her after the appointed day should be deleted and there was no justification for deletion of the land. Hence, this revision is liable to be dismissed. In the result, C.R.P. Nos. 2190 and 2191 of 1978 fail and stand dismissed. C.R.P. No. 2164 of 1977 is partly allowed and the lands which are under the land acquisition proceedings by the Government are ordered to be deleted from the holding and in other respects the order passed by the authorities below are confirmed. In the circumstances of the case, there will be no order as to costs.