Madras High Court
G.Murugesan vs The District Collector on 8 December, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.(MD)No.8549 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.(MD)No.8549 of 2023
and
W.M.P.(MD)Nos.7858 & 12003 of 2023
G.Murugesan ... Petitioner
Vs.
1.The District Collector,
Office of the District Collector,
Tuticorin District.
2.Thoothukudi Municipal Corporation,
Rep. by its Corporation,
Thoothukudi Taluk, Thoothukudi District.
3.M.Rajalakshmi
4.M.Sivasubramanian ...Respondents
(R3 & R4 are impleaded vide Court order dated 08.12.2023 made in W.M.P.
(MD)No.16974 of 2023 in W.P.(MD)No.8549 of 2023)
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Certiorarified Mandamus, to call for the records relating to the impugned
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W.P.(MD)No.8549 of 2023
notice issued by the 2nd respondent dated 10.04.2023 and to quash the same and
consequentially, to direct the respondents, their men and agents not to interfere
with the peaceful possession and enjoyment of the petitioner of his property to an
extent of 5 cents in Plot No.16 (Out of 1 Acre 2 ½ cents divided into plots) in Old
Survey No.207/1B in resurvey No.207/1A1C, 207/2A and 207/2C in Mullakadu
Village, Thoothukudi Taluk, Thoothukudi District.
For Petitioner : Mrs.P.Jessi Jeeva Priya
For R1 : Mr.S.P.Maharajan,
Special Government Pleader
For R2 : Mr.N.Anandakumar
For R3 & R4 : Mr.S.Suresh Manickam
ORDER
(Order of the Court was made by V.LAKSHMINARAYANAN, J.)
Challenging the notice issued by the 2nd respondent dated 10.04.2023,
the present Writ Petition is filed with a consequential direction to the respondents,
their men and agents not to interfere with the peaceful possession and enjoyment
of the petitioner in the property to an extent of 5 cents in Plot No.16 (Out of 1
Acre 2 ½ cents divided into plots) in Old Survey No.207/1B in resurvey
No.207/1A1C, 207/2A and 207/2C in Mullakadu Village, Thoothukudi Taluk,
Thoothukudi District.
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2.The case of the petitioner is that his father, namely, Ganapathy, had
purchased the subject property on 13.04.2005 from one Rathinam and by way of a
registered gift deed dated 16.11.2007, he had gifted the property to the first
respondent. A decade after having gifted the property, an ingenious application
under Right to Information Act was made to the second respondent by the father
of the writ petitioner, wherein, it was sought for whether the Municipality had
taken possession of the property, which had been gifted as road. On receipt of
information that possession had not been taken, a suit had been filed in
O.S.No.111 of 2017 on the file of the Principal District Munsif Court, Tuticorin.
The relief sought for in the said suit was for a declaration that the gift deed that
was given in favour of His Excellency the Governor of Tamil Nadu is null and
void.
3.We find it extremely surprising that a suit had been against His
Excellency the Governor, who is protected from any proceedings that may be
initiated by virtue of the provisions of Article 361 of Constitution of India. His
excellency had been impleaded as 1st defendant and he was said to have been
represented by the District Collector. Simultaneously, the State of Tamil Nadu
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without mentioning any department said to have been represented by the District
Collector. Unfortunately, without noticing these fundamental defects in the very
frame of the suit, the learned Principal District Judge, Thoothukudi passed a
decree on 30.10.2017.
4.On the strength of the ex-parte decree so obtained, the petitioner seems
to be impelled to make a claim that the gift deed, which was given by his father,
had been declared as null and void by the civil Court and the property is re-vested
with him. Therefore, the 2nd respondent has no jurisdiction to issue notice dated
10.04.2023.
5.Mrs.P.Jessi Jeeva Priya would contend that as the gift deed has been
set aside, automatically, the property re-vests with the petitioner and therefore, it
cannot be treated as encroachment. This is strenuously resisted by the respective
learned counsels appearing for the second respondent as well as newly impleaded
respondents 3 and 4.
6.We have carefully considered the arguments made by both parties.
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7.Let us first look at the gift deed executed by the father of the writ
petitioner, namely, Mr.Ganapathy, in favour of Muthiahpuram Selection Grade
Panchayat, which reads as follows:
“ehd; vd; RahHr;rpjkha;> 13.04.2005-k; Njjp> J}j;Jf;Fb
lTz;> LtpGuk; 6-k; ek;gH njU> 18-k; ek;gH tPl;by; trpj;j>
jpU.rP.uj;jpdk; mtHfsplkpUe;J J}j;Jf;Fb NkY}H rg;hp MgP];
1 Gj;jfk; 2005-k; tUlj;jpa 544-k; ek;guhf vd; ngaUf;F
fpiuak; ngw;W> ehsJ Njjp tiu> rHf;fhH jPHit KjyhdJ
ghf;fpapd;wp nrYj;jp epuhl;Nrgizaha; ehd; Mz;lDgtpj;J
tUfpw vdf;F kl;Lk; nrhe;jkhd nrhj;jpy; ,jd; jgrpy; fz;l
kidia kl;Lk; nghJkf;fs; midtUk; nghJtha; Goq;fpf;
nfhs;Sk; nghJf;fhhpa gad;ghl;L tiff;fhf murhiz vz;
563 ehs; : 28.6.1985-d;gbAk; tzpfthpj;Jiw murhiz vz;
150> ehs;: 22.9.2000-d;gbAk;> ed;nfhil nfhLf;f KbT nra;J
&.100/- &gha; ehkpdy; kjpg;G nfhz;l NuhL kidia ,jd;
%yk; ehd; Kj;ijahGuk; Kjy;epiy Cuhl;rp kd;wj;jpw;F
vOjpf; nfhLj;J xg;gilj;J tpl;lgbahy;> ehsJ Njjp Kjy;
nghJkf;fs; midtUk; ,jd; jgrpy; fz;l rhiy kidia
nghJtha; Goq;fpf; nfhs;s Ntz;baJ.”
A reading of this document shows that not only had a gift deed been executed, but
the possession of the road had also been handed over to Muthiahpuram Selection
Grade Panchayat. When a gift deed has been executed and the document shows
that possession has been handed over, it does not lie in the mouth of the donor or
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his representative to claim that the possession had not been handed over.
8. This issue is no longer res integra and had been settled by a judgment
of the Supreme Court in Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC
445. The relevant portion is extracted hereunder:
“16. The matter can be viewed from yet another angle.
Section 123 of the TP Act is in two parts. The first part deals with
gifts of immovable property while the second part deals with gifts of
movable property. Insofar as the gifts of immovable property are
concerned, Section 123 makes transfer by a registered instrument
mandatory. This is evident from the use of word “transfer must be
effected” used by Parliament insofar as immovable property is
concerned. In contradiction to that requirement the second part of
Section 123 dealing with gifts of movable property, simply requires
that gift of movable property may be effected either by a registered
instrument signed as aforesaid or “by delivery”. The difference in the
two provisions lies in the fact that insofar as the transfer of movable
property by way of gift is concerned the same can be effected by a
registered instrument or by delivery. Such transfer in the case of
immovable property no doubt requires a registered instrument but
the provision does not make delivery of possession of the immovable
property gifted as an additional requirement for the gift to be valid
and effective. If the intention of the legislature was to make delivery
of possession of the property gifted also as a condition precedent for
a valid gift, the provision could and indeed would have specifically
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said so. Absence of any such requirement can only lead us to the
conclusion that delivery of possession is not an essential prerequisite
for the making of a valid gift in the case of immovable property.”
9. This makes it clear that on execution of registered gift deed and on its
attestation, title to the property stands transferred in favour of the donee.
Therefore, on and from the date of execution of the gift deed, the property vested
with the Panchayat. The dedication document had been challenged after a period
of ten years on the strength of a reply given under the Right to Information Act. A
separate document with respect to possession is not necessary. Where the gift
deed has been executed in favour of a particular person and the gift deed
specifically recites that possession has been handed over, it is not open to the
donor to plead that the gift deed has not come into force, since such possession has
not been handed over.
10. This being the position of law, let us now look at the decree that had
been granted by the Civil Court. O.S.No.111 of 2017 on the file of the Principal
District Munsif Court at Tuticorin is, as pointed out, a very curious suit indeed.
The Governor of Tamil Nadu had been impleaded as the first defendant, the State
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of Tamil Nadu as the second defendant, the Thoothukudi Municipal Corporation
was arrayed as the third defendant and Muthiahpuram Selection Grade Panchayat
as the fourth defendant. The learned Principal District Munsif has taken the suit
on file without reference to Article 361(4) of the Constitution of India.
11. Article 361(4) of the Constitution of India reads as follows:
“(4) No civil proceedings in which relief is claimed against
the President, or the Governor of a State, shall be instituted during
his term of office in any court in respect of any act done or
purporting to be done by him in his personal capacity, whether before
or after he entered upon his office as President, or as Governor of
such State, until the expiration of two months next after notice in
writing has been delivered to the President or the Governor, as the
case may be, or left at his office stating the nature of the proceedings,
the cause of action therefor, the name, description and place of
residence of the party by whom such proceedings are to be instituted
and the relief which he claims.”
Interpreting this provision, a Full Bench of this Court in Mathialagan Vs.
Governor of Tamil Nadu, AIR 1973 Mad 198 at Page 218, while approving a
decision of the learned Single Judge of Calcutta High Court in Biman Chandra
Vs. H.C.Mukherjee, Governor of West Bengal, AIR 1952 Cal 799, held as
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follows:
“A single learned Judge of the Calcutta High Court in Biman
Chandra v. H.C. Mukherjee, Governor of West Bengal (AIR 1952 Cal
799) held that a comparison of Cl. (1) of Art. 361 with Cl. (4) thereof
made it clear that in respect of Official acts, an absolute bar was
created, but in respect of acts done in personal capacity a partial bar in
the shape of notice for a period of two months prior to institution of
civil proceedings was imposed. We concur with him in this view.”
This view had been followed by a learned Single Judge of this Court in Kasturi
Radha Krishnan Vs. The Hon'ble President of India, Government of India, New
Delhi and another, AIR 1990 Mad 216. This position of law prevails as held by
the Constitution Bench of the Supreme Court in Rameshwar Prasad and others
Vs. Union of India and another, (2006) 2 SCC 1.
12. Therefore, the irresistible conclusion that we can arrive at is that the
suit itself is not maintainable and is contrary to Article 361 of the Constitution of
India and all that remains to be said is that the decree is a void one. No decree can
be granted by a Court constituted under the Constitution of India contrary to the
same. The learned Principal District Munsif Court could not have entertained the
suit filed against His Excellency the Governor of Tamil Nadu without noticing the
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bar under the Constitution. The suit had been entertained and therefore, in
exercise of the powers vested in us under Article 227 of the Constitution of India,
we declare the decree to be void.
13.We are of the view that the property had been dedicated as road and it
does not re-vest with the donee. The document had been executed and a road had
been dedicated for the use of the public at large. If a bitumen road had not been
laid, it does not give a right to the donor or any person claiming though him to
encroach upon the same.
14.The learned counsel for the writ petitioner would plead that by virtue
of the gift deed having been executed by the father of the petitioner and his
property was divested, he is not in a position to enjoy his property. This should
have been run in the mind of the petitioner's father at the time of execution of the
gift deed. Having executed the document with open eyes, he is bound by the
same.
15.Since the writ petitioner claims title only through his father,
Ganapathy, he cannot have a better right than his father. Having divested the title,
the petitioner has no right to enjoy the property, which has already been gifted in
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favour of the Panchayat.
16. Reverting to the Writ Petition, the second respondent is entitled to
issue a notice of the property, which had vested with the Local Body as early as
2007 and therefore, challenge to the said title has to be rejected.
17. In view of the above, the Writ Petition is absolutely devoid of merits
and the impugned order of the second respondent is upheld. The second
respondent shall proceed further and remove encroachments, if any, made by the
writ petitioner and ensure that the road is kept open free from encroachments for
the enjoyment of the public at large.
18. Accordingly, this Writ Petition is dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
(S.M.S., J.) & (V.L.N., J.)
08.12.2023
(2/2)
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
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Yuva/Lm
To
The District Collector,
Office of the District Collector,
Tuticorin District.
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S.M.SUBRAMANIAM, J.
AND
V.LAKSHMINARAYANAN, J.
Yuva/Lm
08.12.2023
(2/2)
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