Madras High Court
M.Kandasamy vs The Special Tahsildar (La) on 5 November, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.11.2014 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI W.P(MD)No.9395 of 2012 and M.P.(MD).No.2 of 2012 M.Kandasamy .. Petitioner Vs. 1.The Special Tahsildar (LA), Ellis Nagar Scheme, Madurai, Madurai District. 2.The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Ellis Nagar Scheme, Madurai, Madurai District. 3.The District Collector, District Collectorate, Madurai, Madurai District. 4.The Tahsildar, Madurai South Taluk Office, Madurai, Madurai District. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the second respondent in proceedings made in Letter No.M.H.12/4709/89, dated 11.10.2011, quash the same and consequently direct the respondents 3 and 4 to issue patta in the petitioner's name without insisting the petitioner to obtain no objection certificate from the 2nd respondent, pertaining to the petitioner's properties situated at Madurai District, Madurai South Taluk, Ponmeni Village, Ellis Nagar, S.F.No.10/1A2, 31-1/2 cents, S.F.No.10/1, 31-1/2 cents and S.F.No.10/1, 31-1/2 cents as per G.O.Ms.(D).No.244, Housing and Urban Development (N.A.3(1)) Department, dated 14.07.2008. !For petitioner : Mr.K.Raja For respondents : Mr.S.Satheesh Kumar, 1, 3 & 4 Addl. Government Pleader For 2nd respondent : S.Nagarajan :ORDER
The present writ petition is filed for quashing the impugned order of the second respondent, dated, 11.10.2011 and for consequently directing respondents 3 & 4 to issue patta in the petitioner's name without insisting the production of No Objection Certificate from the second respondent - Tamil Nadu Housing Board (TNHB).
2.The circumstances under which the present writ petition came to be filed are;
(a) The landed property, which are the subject matter of the present writ petition, situated at Ellis Nagar, Ponmani Village, Madurai District, originally belonging to Gopal @ Gopi, Periyakaruppana Ambalam @ Velli Raj, Ravichandran, Senthilkumar, Sethupandian and Pandi. The lands comprised in S.No.10/1-A2 and S.No.10/1 form part of the land acquisition proceedings vide Section 4(1) notification, dated 24.01.1979 and consequential Section 6 declaration vide in G.O.Ms.No.51, Housing and Urban Development, dated 21.01.1982.
(b) The land acquisition proceedings covered under Section 4(1) notification and Section 6 declaration were challenged by several land owners by way of W.P.Nos.1326 of 1982, etc. batch and the writ petitions were filed after the award was passed on 28.04.1982 in Award No.3/82-83. The batch of writ petitions were disposed of by common order, dated 15.07.1982, in and under which Section 6 declaration was held to be bad on the ground of limitation. It was made clear by the High Court that Section 4(1) notification will stand and it is open to the respondents to take further proceedings if permitted by law. On the strength of such order of this Court, the Tamil Nadu Housing Board, which is the requisition body, has, by resolution No.8.06, dated 29.12.2000, dropped the land acquisition proceedings in respect of the remaining lands measuring 64.66 acres which are not so far utilised and further decided not to initiate fresh proceedings in respect of 28.25 acres and that resolution was also approved by the Government under G.O.Ms.No.244, dated 14.07.2008. In pursuance of the same, some of the land owners have approached the respondent authorities for issuing No Objection Certificate (NOC) in respect of their lands. In fact, the Government has under G.O., as above referred to, directed issuance of NOC subject to repayment of award amount and subject to allotment of pathway to the lands already acquired.
(c) As far as the original owners of the lands, which are the subject matter of the present writ petition, are concerned, they approached this Court by way of W.P.(MD) Nos.10608 and 10609 of 2008 for issuing appropriate direction to the third respondent - TNHB to issue NOC for effecting changes in the revenue records in respect of their lands and the writ petitions were, after due contest, disposed of on 21.11.2008 by holding that Section 6 declaration was already held as null and void and thereafter, there was state of uncertainty and no further action has been taken for decades together, as such Section 4(1) of the notification, dated 24.01.1979, got by that time lapsed. It is further held that when there is no land acquisition proceedings relating to the lands of the petitioners pending, they are at liberty to deal with the land, as such there is no clog over the lands of the writ petitioners concerned and the question of obtaining NOC would not arise. The learned Brother Judge has also in paragraph No.11 of the judgment referred to the resolution passed by the Housing Board for dropping the action for acquiring the lands measuring an extent of 28.25 acres.
(d) Though the order was passed after due contest, the order was not challenged by the respondents officials. Thereafter, the power of attorney holders of the original owners approached the second respondent - TNHB for issuing NOC for effecting change in the revenue records of the lands in question. On the failure of the second respondent - TNHB to dispose of the same, they filed W.P.No.3637 of 2011 for appropriate direction and this Court by order dated 16.06.2011 directed the second respondent to duly consider the petitioner's representation in the light of G.O.Ms.No.244, dated 14.07.2008. The petitioner's representation was rejected through the impugned order, dated 11.10.2011, stating that as the patta in respect of the lands in question has been already transferred in the name of TNHB and as the lands are required for future projects, no objection certificate cannot be issued for effecting change in the revenue records. Aggrieved against the same, the petitioners, who are the present land owners, have come forward with the present writ petition for the relief as stated supra.
3.It is sought to be contended on the side of the petitioner before this Court that as Section 6 declaration is already declared to be null and void, it would enure to the benefits of the land owners, who are not the parties to the earlier orders and that is why it is categorically observed in the order, dated 21.11.2008, in W.P.(MD)Nos.10608 and 10609 of 2008 that when there is no valid acquisition proceedings pending, there is no necessity to obtain NOC from TNHB and the land owners are at liberty to deal with their lands as absolute owners thereof.
4.Per contra, the learned Additional Government Pleader representing the respondents 1, 3 & 4 and the learned standing counsel for the 2nd respondent TNHB would contend that as the patta has already been changed in favour of TNHB, the question of effecting changes in the revenue records does not arise herein.
5.Heard the rival submissions made on both sides.
6.The relief sought for herein is for directing the third respondent - District Collector and the fourth respondent - Tahsildar to issue patta in respect of the lands in question in the name of the petitioner without insisting for NOC from the second respondent TNHB. The relief is based on the following orders; (a) the order made in W.P.No.1326 of 1982, etc. batch, dated 15.07.1982; (b) the order made in G.O.Ms.No.244, Housing and Urban Development (NA.3(1)) Department, dated 14.07.2008 and (c) the order made in W.P.(MD)Nos.10608 and 10609 of 2008, dated 21.11.2008. Here is the case wherein Section 4(1) notification was dated 24.01.1979 and Section 6 declaration was dated 21.01.1982 and the same was declared to be barred by limitation by this Court in the common order, dated 15.07.1982, made in the batch of writ petitions in W.P.Nos.1326 of 1982, etc. batch. One of the writ petitions in the said batch cases i.e., W.P.No.1326 of 1982 was filed for quashing the entire Section 6 declaration and the same was accordingly allowed. If that is so, the same, as per the judgment of the Hon'ble Apex Court reported in 1997 (5) SCC 421 (Abhey Ram rep. by LRs and others Vs. Union of India and others), would enure to the benefits of others, though other land owners did not file any petition. In pursuance of quashment of Section 6 declaration, no fresh proceeding was initiated in furtherance of Section 4(1) notification, dated 24.01.1979. The learned Brother Judge has in the earlier writ petitions in W.P.(MD).Nos.10608 & 10609 of 2008 filed by the original owners of the lands in question categorically observed that Section 4(1) notification got elapsed and no acquisition proceedings is pending as on the date of the order dated 21.11.2008. If that is so, by virtue of the order made in W.P.(MD)Nos.10608 and 10609 of 2008, Section 4(1) notification was also set aside, particularly, in respect of the petitioner's lands. It was made very clear in the order that as there is no valid acquisition proceedings pending relating to the lands of the petitioner, there is no clog over the lands of the petitioner and the question of obtaining NOC from TNHB also does not arise herein. The respondent as well as the Tamil Nadu Housing Board did not prefer any appeal against the order so made and they allowed the same to become final and binding on both sides.
7.As a matter of fact, the respondents Government as well as the TNHB have clearly understood the actual position and hence, passed appropriate resolution and appropriate G.O., thereby the land acquisition proceeding in respect of the non-utilished lands was dropped. It is not in dispute that the petitioner's lands are not utilished for the project for which the acquisition proceeding was initiated. When no land acquisition proceedings are pending, the change of patta effected in the revenue records in favour of TNHB conveys no right on TNEB and cannot be legally allowed to continue and the same is liable to be transferred in the name of the owner of the property, that too without insisting for NOC from TNHB. Whereas the impugned order issued herein is totally contrary to the earlier pronouncement of this Court and amounting to violation of the earlier orders made in W.P.(MD)Nos.10608 and 10609 of 2008 to which the respondents are also parties.
8.The learned counsel for the petitioner has at this juncture drawn the attention of this Court to the judgment reported in CDJ 2010 MHC 7064 (V.Chandrsekaran Vs. The Member Secretary, Chennai Metropolitan Development Authority, Chennai), wherein I had an occasion to deal with the similar issues. In the case decided above, Section 6 declaration was challenged and quashed and no fresh proceeding was initiated as in the present case and the property was sold to the writ petitioner therein, who entered into an agreement with the promoter and he obtained planning permission from CMDA for carrying on development activities. In the course of such activities, he filed an application for revised planning permission, wherein CMDA insisted for NOC from TNHB and CMDA also sought to revoke the earlier permission for want of NOC from TNHB. While dealing with such issue, it is observed by me in paragraph No.7 as follows;
"7.As already stated Section 6 declaration was challenged in 1983, the same was quashed in 1984 and the same was also confirmed by the Hon'ble Supreme Court in 1992 and till date no fresh land acquisition proceedings is initiated in pursuance of Section 4(1) notification in respect of the lands not covered under the earlier writ proceedings and no fresh Section 6 declaration is made. Though the award proceeding was initiated and compensation was paid to the erstwhile land owners, the same without Section 6 declaration is necessarily to be held as non est in law and the vesting if any of any land upon TNHB can have no legal sanctity and the acquisition proceedings is for all practical purpose, necessarily to be held as abated. That being so, the requisitioning body, TNHB whose High Level Committee has already recommended for reconveyance of the land cannot legally make any claim that the land acquisition is still pending and possession is with the same and no further activity can be permitted upon the lands."
9.Ultimately the impugned revocation notice issued by the CMDA was held to be illegal, unfair, arbitrary and without jurisdiction. Likewise, the present impugned order issued rejecting the claim of the petitioner for effecting change in the revenue records is contrary to the earlier pronouncement of this Court and is totally arbitrary, illegal, unfair and without jurisdiction. When there is no acquisition proceedings is pending, mere entry in the revenue records in the name of TNHB will give no right to make any claim in respect of the property in question and the land owners are, as per the earlier orders of this Court, entitled to deal with the same without obtaining NOC from TNHB. Hence, for the discussion held above, the impugned order is liable to be set aside and stands set aside.
10.In the result, the writ petition is allowed by setting aside the impugned order, dated 11.10.2011 and by directing the respondents 3 and 4 to issue patta in the petitioner's name without insisting for NOC from the 2nd respondent - TNHB, pertaining to the petitioner's properties situated in S.F.No.10/1A2, 31-1/2 cents, S.F.No.10/1, 31-1/2 cents and S.F.No.10/1, 31- 1/2 cents at Ellis Nagar, Ponmeni Village, Madurai South Taluk, Madurai District, as per G.O.Ms.(D).No.244, Housing and Urban Development (N.A.3(1)) Department, dated 14.07.2008. The above exercise shall be completed within eight weeks from the date of receipt of this order. Consequently, connected miscellaneous petition is closed. No costs.
Index : yes / No 05.11.2014
Internet : yes / No
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K.B.K.VASUKI, J.
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To
1.The Special Tahsildar (LA),
Ellis Nagar Scheme,
Madurai, Madurai District.
2.The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Ellis Nagar Scheme, Madurai,
Madurai District.
3.The District Collector,
District Collectorate,
Madurai, Madurai District.
4.The Tahsildar,
Madurai South Taluk Office,
Madurai, Madurai District.
W.P(MD)No.9395 of 2012
05.11.2014