Madras High Court
Haripriya Rayaningar vs The Secretary To Government on 11 November, 2010
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.11.2010
CORAM
THE HONOURABLE THIRU JUSTICE S. MANIKUMAR
W.P.No.250 of 2010
M.P.Nos.1 and 3 of 2010
1. Haripriya Rayaningar
2. Parmasani Rayaningar
3. Raghava Varma ... Petitioners
Vs.
1. The Secretary to Government,
Department of Revenue,
Government of Tamil nadu,
Secretariat, Chennai 600 009.
2. The Special Commissioner &
Commissioner of Land Reforms,
Chepauk, Chennai 600 005.
3. The Assistant Commissioner,
Mylapore ULC,
No.345, Arcot Road,
Kodambakkam, Chennai 600 024.
4. The Managing Director,
Tamil Nadu Adi-Dravidar Housing
Development Corporation Ltd.,
Tamil Nadu Housing Shopping Complex,
Thirumangalam, Chennai-101. ... Respondents
(R4 impleaded as per the order, dated 05.07.10,
in M.P.No.2 of 2010)
Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of declaration, declaring that the petitioners are entitled to restoration of ownership of the lands measuring an extent of 641 Sq.mts., comprised in Survey No.3847/96, Block No.76, in Cenotoph Road, 2nd Lane, Chennai 600 018, in terms of the Sub-Section 3.2 and Section 4 of the Repeal Act, 1999 and further direct the petitioners to pay compensation whatever received from the respondents with interest and annul all proceedings prior to the date of Repeal Act, i.e., 16.06.1999.
For Petitioner : Mr.P.Subba Reddy
For Respondents 1 to 3 : Mr.R.Murali, GA
For 4th Respondent : Mr.R.Subramanian
O R D E R
On the basis of a Will executed by Rangamma Gayathiri Devi probated by this Court in O.P.No.175 of 2009 the petitioner's sisters and brother of the testatrix claiming to be the beneficiaries of the will, have filed the present writ petition for a declaration that they are entitled for restoration of ownership of the lands measuring an extent of 641 sq.mts comprised in Survey No.3847 of 1996, Block 76 in Senatop Road, 2nd lane, Chennai, in terms of sub section 3(2) and (4) of the Repeal Act, 1999 and sought for a further direction to the petitioners permitting them to repay the compensation, what ever paid by the respondents with interest and to abate all proceedings prior to the date of Repeal Act i.e., 16.06.1999.
2. The submissions of the contesting parties are summarised as follows:
3. Under a Deed of Settlement executed by Mr.Rajah D.K.Varma on 11.06.1956 Registered as Document No.688 of 1956 in the Office of the Sub Registrar, Mylapore, Chennai, the petitioner's sister, late Mrs.Rangamma Gayathri Devi became the absolute owner of the property in Door No.4-B Cenotaph Road, Adyar, and situated in R.S.No.3847, Mylapore Registration Sub-District and Registration District of MadrasChengalpet. Petitioner's late sister had obtained Patta on 05.03.1965 relating to the above property for 17 grounds 1264 Sq. Ft in R.S.3847/1 and she was the owner of the property. She died on 22.04.2000. The petitioners, who are sisters and brother are the beneficiaries of her will and the same was probated by this Court in O.P.No.175 of 2001.
4. When the Principal Act, viz., Tamil Nadu Urban Land (Ceiling and Regulation) Act (Tamil Nadu Act 24/78), was in force many urban land owners applied for exemption and obtained it. The Petitioner's late sister also applied for exemption and the same was dismissed by the Commissioner in his Letter D.Dis.32639/81, dated 25.9.1982. Aggrieved by the same, she filed W.P.No.10810 of 1982 before this Court and an order of interim stay was granted. Reposing faith in Government's objectives, as set out in the Preamble to the Principal Act, the petitioner's sister submitted an Appeal Petition, dated 19.09.1986, under Section 33 of the Principal Act to the Special Commissioner for Urban Land Reforms, Chennai, surrendering 641 sq.mts in the rear side, as shown in the sketch referred to, by the second respondent, in R.S. No.3847/96, Block 76, in his order, dated 14.11.86. This petition came up for hearing on 07.11.1986 before the Special Commissioner and Commissioner for Land Reforms, Chepauk, Chennai, second respondent herein, who accepted her offer and passed an Order No.D.Dis.33122/86, dated 14.11.1986, subject to usage of passage being allowed. When this order was issued, it was within the purview of the Principal Act, when it was in force. Therefore, the second respondent herein had a mandatory obligation to take actual physical possession of the land, in accordance with Section 24 of the Principal Act and the rules framed thereunder, to meet the objective of the construction, as set out in the Preamble.
5. The petitioner's sister, late Rangamma Gayathri Devi, on her part kept her word and more than that, by a Deed of Gift dated 09.02.1988 and a Rectification Deed dated 13.05.1988(Registered as Documents No. 168 and 527 of 1988 respectively), gifted to the Corporation of Madras, a total of 853.5 Sq.m. of land for the use of passage. She also paid Rs.47,544/- to the Corporation of Madras as fees. However the second respondent did not ensure compliance with his own order by taking actual physical possession of the land legally in accordance with the provisions of the Principal Act, its preamble and Rule 23.6 of The Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, when they were in force.
6. Compliance of the order, dated 14.11.1986, passed by the second respondent, should be mutual and not one sided in favour of the Government, which violated the provisions of the Principal Act, 1978 and the rules regarding acquisition and distribution whereas the petitioner's late sister had to surrender the 641 sq.mts of the land and comply with the second Respondent's order.
7. On the aspect of taking over possession and the competent authority, who has to take possession of excess land, learned counsel for the petitioners submitted that as per the Principal Act, the Collector was the designated Official for taking over possession of the land and hand it over to the allottee, according to the Rule 23(6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules. The Collector neither took possession of the land nor did he hand it over to the allottee pursuant to the second respondent's order, dated 14.11.1986.
8. According to the learned counsel, possession said to have been taken was only a paper possession and not actual physical possession, during the lifetime of the Principal Act. Physical possession of the land in terms of Section 24 was never taken and therefore, the purported acquisition has lost its statutory sanction, when the Principal Act was repealed. The Principal Act and the Repeal Act, 1999 do not permit the Government to, hold on to the land indefinitely keeping it vacant, as happened in respect of the petitioner's land. Upto Sections 12 of the Principal Act were intermediate stages, in implementation of the Principal Act and without implementing properly before it was repealed, the Government have abandoned its mandatory obligations, under the Principal Act and therefore, they cannot claim that paper possession of the land under the Sub-Section 11.5 and the Transfer Certificate issued by the SDT/RI on 29.04.1988 are final and irrevocable. The Transfer Certificate issued by the SDT/RII is null and void for the following reasons:
"(a) It did not quote the authority under which it was issued. It did not even refer to the Section 11.5 of the Principal Act.
(b) It was issued by the unauthorised officials. The Principal Act' was repealed entirely including the Transfer Certificate issued and the entry in the Land Register, by Section 2 of the Repeal Act 1999.
(c) It was a possession on paper (book transfer), whereas, the Preamble and Section 24 of the Principal Act stipulate actual physical possession, by the allottee for construction of any building on the acquired land. The State Government or any person authorised by the State Government in this behalf or Competent Authority never took such actual physical possession.
(d) The-savings Clause 3.1 of the Repeal Act does not save the land Transfer Certificate and any entry in the land Register. Therefore, they are lapsed and became reversible on 16.06.1999 for restoration to the petitioners in terms of Section 3(2) of the Repeal Act 1999.
9. Since the taking over proceedings of the land were pending before the Collector, immediately before the commencement of the Repeal Act, 1999, they are also abated under Section 4. In view of the above, the land was never acquired by the State Government. Therefore, the action taken for acquiring the land by the Competent Authority pursuant to the second Respondent's order dated 14.11.86, by issue of notice under Sub-Section 11.5 of the Principal Act and the consequent issue of Transfer Certificate are null and void. Further, the transfer certificate issued pursuant to the second respondent's order, dated 14.11.86, became inoperative on 16.06.1999. Therefore, petitioner's late sister's surrender of the land which was not legally acquired stood withdrawn on that date. They are revocable for restoration of the land to the petitioners in terms of the sub-section 3.2 and section 4 of the Repeal Act, 1999 and therefore, the second Respondent's order dated 14.11.86 has become inoperative, insofar as, further proceedings regarding the acquisition of the 641 sq.m land are concerned.
10. Section 2 of the Repeal Act 1999 repealed the entire Principal Act without saving any section, including paper possession under the Sub-section 11.5 held by the SDT/RI. The savings clause under Section 3(1) and 3(2) which do not refer to Sub-section 11.5, while mentioning possession taken over. This means that the Repeal Act does not recognise possession held by the SDT/RI purportedly, under the Sub-section 11.5 of the Principal Act, as possession taken over by the State Government or any person authorised by the State Government in this behalf or by Competent Authority, thus attracting the Sub-section 3.2 of the Repeal Act, 1999 for restoration to the petitioners. As lands were vacant on 16.06.1999, it can be restored to the urban land owners, the phrase, "possession not taken over" in Sub-section 3.2 of the Repeal Act, 1999 means, lands physically not taken over by the State Government or any person authorised by the State Government in this behalf or by Competent Authority before the Repeal Act came into force and lying vacant.
11. The interpretation of the expression, "possession not taken over" would cover only cases, where notice under the Sub-section 11.5 and its sequel transfer certificate were not issued to urban land owners by the Government. The provisions of the repealing Act would apply to all land owners whose lands have been declared as surplus. The question to be considered is whether actual physical possession has been taken over by the Government and it cannot be restricted to a narrow interpretation of issuance of mere notice under Section 11(5) of the Act and the Transfer Certificate, which is only a paper possession. Therefore, possession of the land is not taken over by the State Government or person authorised by the State Government in this behalf or by Competent Authority and therefore, as per Section 3(2) and Section 4 of the Repeal Act, 1999, the land owners can seek for restoration.
12. On the aspect of possession not taken over in accordance with law, the learned counsel has relied on many decisions, which are dealt with in the latter portion of this judgment.
13. Placing reliance on the order made in W.P.No.1616 of 2001, dated 06.06.2002 [Mr.C.V.Narasimhan Vs The Government of Tamil Nadu], learned counsel for the petitioners submitted that statutory vesting of the land in the Government on 5.11.82 after notification in the Gazette as mentioned in the second Respondent's order dated 14.11.86 does not affect the petitioners claim for restoration under the Sub-Section 3.2 of the Repeal Act 1999.
14. Learned counsel for the petitioners further submitted that the words "Restore" and "Refund" apply to urban land owners like the petitioner's late sister to whom or to their legal heirs and the lands lying vacant on 16.6.1999 can be restored, after refund of compensation if any, paid. According to him, even assuming that the landowner had voluntarily submitted returns, the same cannot be treated as estoppel by conduct, as there cannot be estoppel against statute.
15. Elaborating the same, he submitted that as the land is still vacant, it is subject to restoration to petitioners in terms of the Section 3(2) and section 4 of the Repeal Act, 1999. The petitioners undertake to refund the amount of compensation paid to their late sister. Payment of full compensation is no bar for restoration, as it can be clearly seen from the wording of Section 3(2) of the Repeal Act of 1999. According to him, acquisition proceedings that were never completed legally before the coming into force of the Repeal Act, stands abated on 16.06.1999, as per Section 4 of the Repeal Act, 1999. He also submitted that payment of entire compensation is sine qua non for taking over actual physical possession, and when payment of part of the compensation, ie., incomplete, possession cannot be said to have been taken over and in such circumstances, the land owner is entitled to seek for restoration. In this context, he referred to various decisions of this Court to that effect that the payment of compensation is not a bar for restoration of land, as per Section 3(2) of the Repeal Act.
16. Learned counsel for the petitioners further submitted that not only the Government contravened the provisions of the Principal Act and the Rules 23.6 for acquisition, but also contravened Section 24 of the Principal Act, in distribution of the land. As per the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, which stood prior to its repeal in the year 1999, the Government was empowered to acquire excess vacant land on the basis of the whole of the Principal Act, 1978 and not on the basis of Section 12 only. Upto Sections 12, the Principal Act deals with acquisition and distribution of land in terms of Section 24, to meet the objectives, set out in the preamble. The Government made a public commitment, that it was acquiring the petitioner's land for distribution strictly in terms of Section 24. However, the Government did not do so and failed to honour its commitment. The purpose for which the acquisition was made has not been honoured and therefore, it is submitted that the acquisition itself can be questioned by the petitioners.
17. According to the learned counsel for the petitioners, the Principal Act did not envisage the Government to indulge in profiteering by allotting it for any purpose, other than that stipulated in Section 24, which limited the allotment to industries or the employees of industries for residential purposes. However, the Government have wrongly implemented the Principal Act, by allotting the land in contravention of Section 24 of the Principal Act and therefore, the whole proceedings are ultra-vires of the Principal Act.
18. Learned counsel for the petitioners further submitted that the allotment to the Tamil Nadu Adi Dravida Housing Development Corporation (TAHDCO), proved to be infructuous, as the Corporation has failed to comply with the terms of the allotment order and did not take actual physical possession of the land for construction of a building, during the lifetime of the Principal Act, as stipulated in the preamble and section 24 and the lands were left vacant. Therefore, as stated supra, the second respondent's order, dated 14.11.1986 became inoperative, since 16.06.1999, insofar as the acquisition of the 641 sq.m of land is concerned, since actual physical possession was not taken over as per the statutory provisions.
19. He further submitted that no fresh proceedings can be initiated for re-allotment, as the Government has no authority, as Section 24 of the Principal Act is not saved by the Repeal Act and the land was never acquired legally by the Government. The respondents are trying to take steps only from the third week of November' 2009 to show that they are in physical possession. However, Patta shows that the name of the petitioners' late sister, as owner of the above land. The entry in the land register on the basis of the transfer certificate issued by the unauthorised official SDT/RI on 29.4.88 became defunct on 16.06.1999. Therefore, the petitioners' claim for restoration of ownership of the 641 Sq.mts of land in R.S.3847/96 Block 76, Cenotaph Road Second Lane, Chennai-18 is legally defensible.
20. The official respondents and the fourth respondent have filed separate counter affidavits. The contentions are similar.
21. It is submitted that Tmt.Rangamma Gayatri Devi (hereinafter referred as Urban Land Owner) was residing at No.29, Sir C.V.Raman Road, Madras-600 018. As the land in question stood registered in her name, as per the Revenue Records, as on 03.08.1976, she filed a statement on 13.10.1978 under section 7(1) read with rule (4) in Form I of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) (hereinafter referred as the Principal Act) in respect of the property in R.S.No.3847/1 measuring 3907.8 Sq.Metres (17 Gr.1264 Sq.ft.) in Block No.76 of Mylapore Village and also filed an application dated 12.10.79 for exemption of land under Section 21 (1) (b) of the Principal Act. The Government granted exemption for 269.88 Sq.metres under section 21(1) (b) of the Principal Act, vide G.O.Ms.No.2576, dated 14.11.1980 and ordered to acquire the remaining part of land measuring 641 Sq.metres in R.S.No.3847/1. On receipt of the above Government orders, the 3rd respondent had computed the excess vacant land as follows:
1. Total extent : 3907.8 Sq.mts
2. Plinth area of the building : 246.700 Sq.mts
3. Regulation area : 500.000 Sq.mts.
4. Contiguous vacant land for two dwelling units : 1000.000 Sq.mts.
5. Pathway : 250.000 Sq.mts
6. Entitlement area : 1000.000 Sq.mts 2996.700 Sq.mts Exemption granted u/s.21 (l)(b) of the Act for common road vide G.O.2576, dated14.11.1980 269.881 Sq.mts Excess vacant land to be acquired 641 sq.mts.
22. The draft statement under section 9(1) along with notice under section 9(4) of the Principal Act was issued to the land owner by the Assistant Commissioner, Mylapore Urban Land Ceiling, Chennai, 3rd respondent, vide reference No.A2/SRA.327/78, dated 12.2.1981 calling for objections, if any, for the proposed acquisition of excess vacant land and that the same was served on 27.2.1981. Father of the Urban Land owner Thiru R.P. Rayaningar filed an objection petition on 24.3.1981 stating that the common passage of 519.881 Sq.metres had not taken into account and computation of excess vacant land is wrong. The objection raised was examined and observed that the common passage of 269.881 Sq.metres was already exempted by the Government under the provisions of the Principal Act vide G.O.Ms.No.2576, dt. 14.11.1980. Thereafter, the 3rd Respondent being the Competent Authority for Urban Land Ceiling, Mylapore passed Orders, under section 9(5) of the Principal Act, vide Proceedings S.R. A/327/78, dated 7.4.1981 to acquire the above excess vacant land.
23. Aggrieved by the partial exemption granted by the Government, the Urban Land owner, viz., Tmt. Rangamma Gayathri filed a Writ petition in W.P.No.2033/1981, challenging G.O.Ms.No.2576, Revenue, dated 14.11.1980 and it was dismissed by this Court on 10.4.1981. Then, final statement under section 11(1) of the Principal Act was issued on 4.7.1981, by the 3rd respondent and served on the land owner by Registered Post with Acknowledgement Due on 10.7.1981.
24. The Urban Land Owner filed a petition under section 33 of the Principal Act on 3.7.1981 before the Special Commissioner and Commissioner of Land Reforms, Chennai, 2nd respondent stating that the 3rd respondent had failed to note that 519.881 Sq.mts. is covered by a road, while computing the excess vacant land. The copy of appeal petition was communicated to the Assistant Commissioner, Mylapore Urban Land Ceiling, Chennai, 3rd respondent on 13.8.1981 for a report. After examining the records, the Special Commissioner and Commissioner of Land Reforms, Chennai, 2nd respondent dismissed the appeal petition, vide Proceedings No. D.Dis.32639/81, dated 25.9.1982, since 250 Sq.mts had already been treated as pathway and the Government had already granted exemption for pathway of 269.881 Sq.fts under Section 21(1)(b) of the Principal Act, vide G.O.Ms.No.2576, dated 14.11.1980. Hence, the computation of excess vacant land by the Competent Authority was confirmed as correct. Thereafter, further action was pursued by the 3rd respondent to acquire excess of vacant of 641 sq.mts. under sections 9 to 11 of the Principal Act.
25. Thereafter, notification under section 11(1) of the Principal Act was published in the Tamil Nadu Government Gazette No. 4 Part VI Sec.I dated 3.2.1982. The notification under section '11(3) of the Principal Act vesting the land with Government was issued on 12.10.1982 and was published in Tamil Nadu Government Gazette No. 43 Dated 10.11.1982, in Part VI(l)/1224/82 (Page No.559). Then notice under section 11(5) of the Principal Act was issued on 27.11.1982. On receipt of the above notice, the Urban Land owner filed a Writ Petition in W.P.No.10810/82 before this Court and stay was granted on 28.12.1982. When the Writ petition was pending, the Urban Land owner filed an appeal petition under section 33 of the Principal Act before the 2nd respondent on 10.9.1986 stating that she was ready to' surrender' the same extent of excess vacant land in the rear portion of the land 'instead of front portion'. The offer made by the land to surrender the rear portion of the land was accepted. The above petition was allowed by the Special Commissioner and Commissioner of Land Reforms in proceedings No.33122/86 dated 14.11.1986, on condition that the urban land owner should withdraw the Writ Petition.
26. Subsequently, as per the proceedings of the third respondent, in his letter No.A2/SRA/327/78, dated 24.07.1987, an errata to the notifications under sections 11(1) and 11(3) of the Principal Act was also issued and published in the Tamil Nadu Government Gazette No.22 dated 10.6.1987 to read the acquired as R.S.No.3847/96, instead of R.S.No.3847/95. Notice under Section 11(5) of the Principal Act was issued on 14.07.1987 to surrender the excess land, within 30 days and it was acknowledged by the land owner on 04.08.1987. Accordingly, the Writ petition was dismissed as withdrawn, vide order of this Court, dated 18.4.1988 and the land owner surrendered the land on 29.04.1988. Possession of excess vacant land was taken over and handed over by the Special Deputy Tahsildar, Office of the 3rd respondent to the Revenue Inspector of Mylapore-Triplicane Taluk on 29.4.1988. The Urban Land owner had also signed the Land Delivery Receipt.
27. After taking over possession, notice under section 12(1) of the Principal Act was issued on 31.08.1988 and served on the land owner on 27.09.1988, regarding payment of land value under section 12(6) of the Principal Act. The amount was claimed and paid to the Urban Land owner periodically. The amount sanctioned under section 12(6) of the Principal Act, was calculated at Rs.50/- per Sq. mt. and for 641 Sq.metres the total amount came to Rs.32,050/- and paid as follows:
Payment detail Amount Interest Total Disbursed on Initial payment (25% of amount 8012.5
--
8012.50 25.04.89 1st Instalment 1602.50 166.75 1769.25 25.04.89 2nd Instalment 1602.50 134.60 1737.10 25.04.89 3rd Instalment 1602.50 125.00 1727.50 25.04.89 4th Instalment 1602.50 115.40 1717.90 25.04.89 5th Instalment 1602.50 105.40 1707.65 25.04.89 6th Instalment 1602.50 95.60 1698.10 25.04.89 Difference amount of interest 6394/- 10.11.1989 10357.50 7th Instalment 1602.50 865.35 2467.85 or 2468 04.05.90 8th Instalment 1602.50 769.20 2371.70 or 2372 12.05.91 9th Instalment 1602.50 673.05 2275.55 or 2276 24.09.92 10th Instalment 1602.50 576.90 2179.40 or 2179 18.01.94 11th Instalment 1602.50 480.75 2083.25 or 2083 07.02.94 12th Instalment 1602.50 384.60 1987.10 or 1987 27.05.95 13th Instalment 1602.50 384.60 1987.10 or 1987 01.02.96 14th Instalment 1602.50 35.80 1638.30 or 1638 31.03.97 15th Instalment 1602.50 96.00 1698.50 or 1699 Kept in R.D., on 29.11.04
28. The excess vacant land of 641 Sq.metres in R.S. No.3847/96 was acquired and handed over possession to the Revenue Department on 29.4.88 itself. The land value for taken over by Government was .also paid in instalments and almost completed. The Urban Land Owner received 25% and the 14 Annual instalments. The last and the final 15th instalment of land value was kept in Revenue Deposit. The excess vacant land was allotted to the Tamil Nadu Adi Dravidar Housing Development Corporation vide G.O.Ms.No.778, Revenue, Dated 27.5.1991, for developing housing for the poor and necessary entries have also been made in T.S.L.R., extract in the name of the allottee, Viz., Tamil Nadu Adi Dravidar Housing and Development Corporation. The allottee had also remitted the land value to the Government on 18.09.1991 itself. The Collector of Chennai in proceedings No.J2/33707/91, dated 27.5.1991 granted permission to the allottee to enter upon the above land, pending payment of land value. The allottee had paid a sum of Rs.44,870/- on 8.9.1991 and physical possession of the land was handed over by the Firka Revenue Inspector-III, Office of the Tahsildar, Mylapore-Triplicane Taluk, representing the Collector, on 18.12.1991 to the Junior Engineer on behalf of the allottee Tamil Nadu Adi Dravida Housing Development Corporation and they continue to be in possession.
29. The allottee has applied to the M.M.D.A., on 20.6.1994 for reclassification of the site from Primary Residential to Mixed Residential use zone. As per Gazette Notification published in Tamil Nadu Government Gazette No. 34 dated 31.8.1994, the land was reclassified as 'Mixed residential". The land is now registered in the name of allottee Department as per the Revenue records (Permanent Land Register), Agency which is possession of the land and kept a name board also in the lane and necessary entries have also been made in Permanent Land Register in the name of allottee Department and the physical possession of the land was transferred to them. Hence, the contention of the petitioners that possession of the land was not taken and handedover to the Corporation is false. No proceedings were pending on the date of commencement of the Repeal Act, which came into force on 16.06.1999 and thereafter, Sections 3(2) and 4 of the Repeal Act, are applicable to the facts of this case.
30. The petitioners, Tmt.Haripriya Rayaninger and two others claiming themselves to be the sisters and brother of the erstwhile Urban Land owners have filed this Writ petition, after a lapse of more than 20 years from the. date of taking over possession of the excess vacant land by the Revenue authorities and handing over of land to the allottee viz. Tamil Nadu Adi Dravida Housing Development Corporation (TAHDCO). The Writ Petition filed by them is purely an after thought, time barred and liable to be dismissed in limine.
31. There is no bona fide in the action of the petitioners and it is intended to take away the land acquired and vested in the Government and thereafter, allotted to the Corporation. The land owner has surrendered and delivered possession in 1988, signed the Land Delivery Receipt on her free will and accord, and received the compensation amount as determined under Section 12 of the Principal Act.
32. The petitioners are not the land owners and that the urban land owner had already handed over physical possession of the excess vacant land and received the amount payable under section 12(6) of the Principal Act. Out of 3907 Sq.mts., owned by Urban Land Owner, 641 Sq.mts. only was acquired from Urban Land Owner. As per the provisions of the Principal Act, brothers/sisters of the land owner could not be considered as family members of the Urban Land Owner and they are not entitled to claim any right over the lands acquired since it was taken over by Government. The petitioners being the sisters and brother of land owner cannot claim right over the urban land and they have no locus-standi to file the Writ Petition, especially, when all the proceedings were completed and Urban Land Owner had surrendered possession of the land and accepted payment for the land in instalments, except the last instalment.
33. The petitioners have stated that the will of her sister late Rangamma Gayatri Devi was probated by this court in O.P.No.175/2001. The Principal Act came into force with effect from 03.08.1976 and the excess vacant land was acquired and possession was handed over on 29.4.88 to the Revenue Department. Moreover as per Section 6 of the Principal Act, transfer of land is in contravention of the provisions of the Principal Act and shall be deemed to be null and void and that the will probated in 2001, long after the take over of possession and its allotment to Tamil Nadu Adi Dravida Housing Development Corporation in 1991, would not clothe any right to the petitioners under the Repeal Act, to claim restoration of possession. The contention of the petitioners that they are beneficiaries of the Will probated, after 13 years from the date of taking over possession is of no relevance to the case.
34. Section 3 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Tamil Nadu Act 20 of 1999) (hereafter referred to as " the Repeal Act") is not applicable to the case. In this case, the land was vested on the Government with effect from 05.11.1982 and physical possession was taken over and handed over to the Revenue Authorities on 29.04.1988. The land was allotted to Tamil Nadu Adi-Dravidar Housing Development Corporation, vide G.O.Ms.No.778, Revenue, Dated 27.5.1991 and possession was taken by them on 18.12.1991.
35. Since no proceedings were pending at the time of commencement of the Repeal Act, action taken in this case is saved as per Section 3(1) (a) of the Repeal Act, which came into force from 16.06.1999, which provides, that the repeal of the Principal Act shall not affect the land vested in the Government and possession of which was already taken over by the Revenue Department. Hence, sections 3(2) and 4 of the Repeal Act are not applicable to this case. In this case, the entire acquisition proceedings as per the Principal Act were completed well before introduction of the Repeal Act, ie., on 16.6.1999. As no proceedings were pending on the date of Repeal Act, i.e., 16.06.1999, the contention of the petitioners that in view of the Repeal Act, the land can be restored is untenable.
36. One Mrs.Janet Christine De Penning of Cenetoph Road filed Writ petition No.46961/2002 against C.M.D.A. Corporation of Chennai and Tamil Nadu Adi Dravida Housing Development Corporation objecting to the construction of the building alleging violation of law and development rules. This Court in its judgement dated 21.10.2003 has disposed of the above Writ Petition with the observation that it is for the 1st Respondent (C.M.D.A.) to consider the application of 3rd Respondent (Tamil Nadu Adi Dravida Housing Development Corporation), if the same is permissible. The allottee has remitted necessary charges to the C.M.D.A. for the approval of building plan. The allottee-Tamil Nadu Adi Dravida Housing Development Corporation had obtained Permanent Land Register Extract from Taluk Office Mylapore-Triplicane Taluk vide TK/b/33414/2007, Dated 17.12.07 which shows that the land in question stands registered in the name of the Corporation.
37. The allottee has also obtained Encumbrance Certificate from Sub-Registrar's office which also shows that the land is owned by the Corporation (vide EC.NO.15/2010). Hence, the contention of the petitioners that patta stands in the name of their sister as the owner of the land is not acceptable and deserves to be rejected.
38. The Tamil Nadu Adi-Dravidar Housing Development Corporation applied to the Corporation of Chennai for issue planning permission for construction of buildings and remitted necessary charges to the Corporation of Chennai in the year 2005. It shows that the land is in physical possession of the allottee. No proceedings were pending under the Principal Act on the date of commencement of the Repeal Act, as the excess vacant land was acquired as early as 1988 and was allotted to the Tamil Nadu Adi Drayida Housing Development Corporation and they took possession on 18.12.1991 itself, while the Repeal Act came into force in 1999 only.
39. The allottee has obtained permission from CMDA to put up construction and after calling for tenders, construction work is in progress and therefore, the contention that steps are being taken only in November' 2009 to take possession from the petitioners is false and baseless.
40. The further contention that surrender proceedings were pending with the authorities on the date of commencement of the Repeal Act and stood abated as per Section 4 of the Act and therefore, the contention of the petitioners that they have the right to seek restoration, deserves to be rejected.
41. Restoration of the land to the petitioners would not arise, since actual physical possession of the land was already taken over as early as 29.4.1988, after following the procedure. The transaction relation to taking over the land from the petitioners and handing over to the Corporation are valid, the question of imcompetency does not arise at all. The land is in possession of allottee Viz. Tamil Nadu Adi Dravida Housing Development Corporation from 18.12.1991. Even if the lands remain vacant, as on 16.06.1999, once possession is taken and when no proceedings were pending on the date of Repeal Act, the petitioners have no right to seek for restoration. The action taken under the Principal Act, is saved as per section 3(l)(a) of the Repeal Act which provides that the repeal of Principal Act, shall not affect the land vested with Government, under Section 11(3) of the Principal Act, once possession of the same was taken over and handed over to Revenue Department. As possession has been surrendered and taken, the provisions of Repeal Act would not lend any support to the case of the petitioners.
42. After strictly following the provisions of the Principal Act, the land was taken over and handed over to the Revenue authorities on 29.4.88. The Special Deputy Tahsildar, Office of the 3rd respondent has handed over possession and the Revenue Inspector, Mylapore Triplicane Taluk, who took over possession, were authorized persons of the respective Departments. Moreover, the land owner herself signed the Land Delivery receipt at the time handing over possession. The land value under section 12 (6) of the Principal Act was paid at 25% initially and balance in 14 annual instalments. The Urban Land Owner received the payments except the last instalment which was kept under Revenue Deposit and hence the possession taken is perfectly valid in law.
43. Reliance was also placed on the decision of this Court in W.P.No.11334 of 2006, dated 02.11.2009 [R.R.Nadham -vs- State of Tamil Nadu, represented by the Secretary to Government, Revenue Department], wherein, this Court, held that "physical possession of the land handed over by the Assistant Grade Revenue Inspector, (ULC) Poonamalleee and taken over by the Revenue Inspector, Ambattur and the consequential Land Delivery Receipt duly signed by both the authorities, as valid and further held that the authorities had followed the procedure, before taking over possession of the land, which cannot, at any stage, be found fault with. This Court also observed that the possession of the petitioner therein, if any, has to be treated only as an encroachment on the Government land. Section 4 of the Repeal Act cannot be made applicable to this case, the reason being, no proceedings were pending immediately before the commencement of the Act, before any Court, Tribunal or any authority. Therefore, the possession, which was taken by the authorities way back on 19.1.1984 had become final. As such, there shall not be any abatement of proceedings as contemplated under the said proviso".
44. Placing reliance on the decisions of the Supreme Court in Tamilnadu Housing Board Vs. L.Chandrasekaran (Dead) by Lrs. and others, reported in 2010 (2) SCC 786 and Smt.Sulochana Chandrakanth Galande Vs. Pune Municipal Transport and others reported in CDJ 2010 SCC 660 and this Court in Tamilnadu Housing Board Vs. S.Gajendran and another dated 16.02.2010, CDJ MHC 1637 and G.R. Concrete Blocks Pvt. Ltd., represented by its Managing Partner Vs. State of Tamilnadu, Represented by Deputy Secretary to Government of Tamilnadu and Others reported in 2010 (3) MLJ 643, Mr.K.Murali, learned Government Advocate appearing for the State submitted that once the land is vested in the government and physical possession is taken, it is free from all encumbrances and the land owner has no legal right to question as to how the land has to be used or whether the land is used for the purpose, for which, it was acquired or for any other purpose. He also submitted that once the land is acquired and possession is taken by the Government, all rights are forfeited and no re-conveyance can be claimed on any account, even on the grounds of usage of the lands for a different purpose. He submitted that the writ petition is not maintainable on the ground of latches and estoppel, in view of the conduct of the land owner, in surrendering the land and receiving the compensation amount. The respondents have prayed for dismissal of the writ petition.
45. The fourth respondent, Tamil Nadu Adi-Dravidar Housing Development Corporation has submitted that the Government of Tamilnadu had allotted the subject site to the Corporation by the Revenue Department in G.O.M.S.No.770, dated 27-05-1991. They had taken physical possession of the site, by due process of law and hence the provisions of Section 2 of the TN ULC & R Repeal Act ,1999 will not apply to their case. The Collector, vide his proceedings in J2/33707/91, dated 28-05-1991, permitted them to enter upon the site, after taking an undertaking, dated 30-05-1991.
46. He further submitted that the Corporation had sought for a zone reclassification of the site, as early as on 30.08.1991. They had paid the consideration for the land fixed by the Collector as early as on 08-09-1991 and thereafter, the subject site was handed over to them, as early as 18-12-1991 and they had taken physical possession of the same, on the same day itself.
47. He also submitted that Thasildar, Mylapore-Triplicane Taluk, vide his letter, dated 28-01-2008, has stated that the land records in respect of the land has been registered in the name of the 4th respondent herein, viz, The Tamil Nadu Adi Dravidar Housing Development Corporation. The MMDA, vide its letter, dated 20-07-1994, has intimated the reclassification of the land from "Prime Residential Zone to Mixed Residential Zone". The records in the Sub-registrar office in respect of the land has been incorporated in Doc.No.1/2010.
48. Learned counsel for the fourth respondent has further submitted that they are a corporation created by the Government of Tamil Nadu, to uplift the poor downtrodden people belonging to Adi Dravida and Scheduled Tribes, by sponsoring welfare measures. The corporation is not an individual, but an institution incorporated to pursue developmental activities. The corporation has observed all procedures at every stage and commenced construction and at the time of filing counter affidavit, has reached the roof level ready, for the completion of the concrete slab. They have already spent substantial amounts towards construction and huge sums have been released to the contractor towards the construction. A series of photographs were produced in support of his contention. He further submitted that the lands were already taken physical possession by them as early as 18-12-1991 and the records clearly reveal the same.
Heard the learned counsel for the parties and perused the materials available on record.
49. Section 3 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 deals with the Savings Clause, which states as follows:
"(1) The Repeal of the Principal Act shall not affect:-
(a) the vesting of any vacant land under sub-section (3) of section 11, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.
(b) the validity of any order granting exemption under sub-section (1) of Section 21 or any action taken thereunder.
(2) Where:-
(a) any land is deemed to have vested in the State Government under sub-Section (3) of Section 11 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government."
50. As per Section 4 of the Repealing Act, all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of the Act, before any Court, Tribunal or other authority shall abate. Proviso to the said Section states that the above said Section shall not apply to the proceedings relating to Sections 12, 13, 14, 15, 15-B and 16 of the Principal Act, insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.
51. Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, reads as follows:
"(1) As soon as may be after the service of the final statement under section 10 on the person concerned, the competent authority shal cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and starting that-
(i) such vacant land is to be acquired by the State Government; and
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests of such land, to be published for the information of the general public in the Tamil Nadu Government Gazette,and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification publised under sub-Section (1), the competent authority shal determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification in the Tamil nadu Government Gazette declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-Section (3):-
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) Where any vacant land is vested in the State Government under sub-Section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorised by the State Government in this behalf and may for that purpose use such force as may be necessary."
52. Material on record shows that a statement under Section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, was submitted by the petitioners sister on 13.07.1978. Thereafter, the Board of Revenue in proceedings in (ULC & ULT) I2/57507/79, dated 04.05.1980, had recommended that exemption may be granted to the applicant to retain an extent of 269.881 Sq.mts or 270 Sq.mts as common pathway, subject to the condition that the user would not be disturbed and the remaining extent of 641.219 Sq.mts may be acquired under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.
53. Accepting the recommendation of the Board of Revenue, in exercise of the powers conferred by Clause (b) of sub-Section (1) of Section 21 of the Act, the Government have issued G.O.Ms.No.2576, Revenue Department, dated 14.11.1980, exempting vacant land of 269.881 Sq.mts., to be used as a common pathway, under the provisions of Chapter III of the said Act, subject to the condition that the exempted land should not be transferred by way of sale, gift, etc., and that the users should not be disturbed at any time. The remaining excess vacant land of 641.219 Sq.mts in R.S.No.3847/1 of Mylapore Village would be acquired under Section 9 to 11 of the said Act.
54. Thereafter, a notice, dated 12.02.1981, under Sub-Section 4 of Section 9 of the Act read with Rule 8(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, has been issued to the land owner to make objections if any. Being aggrieved by G.O.Ms.No.2576, Revenue Department, dated 14.11.1980, the petitioners sister filed W.P.No.2033 of 1981 to quash the same. The said Writ Petition has been dismissed on 10.04.1981. Thereafter, a statement, dated 04.07.1981, has been issued, setting out the details of the land exempted and the details of vacant land to be surrendered. As per the statement, 641 Sq.mts in Survey No.3847/1 had to be surrendered. Accordingly, a notification, dated 03.02.1982 under Section 11(1) of the Act, was published in the Tamil Nadu Government Gazette by the competent authority of Urban Land Ceiling and Assistant Commissioner, Urban land Tax, Mylapore. Details of the land acquired as per the notification are as follows:
Excess vacant land held by Thirumathi Rangamma Gayathri Devi Form V [See rule 10(1)] Notification under sub-section (1) of Section 11 (A2/SRA 327/78) No.VI(1)/78/82 I, P.Nataraja, Competent authority of Urban Land Ceiling, Mylapre, hereby notify that the vacant land held by the person noted below has been determined as vacant land held by such person in excess of ceiling limit:-
State Urban agglo-meration Taluk Village R.S./T.S. No., of other indentifi-cation Extent of excess vacant land Hec Acres Sq.mts Description of identity of the lands Name of the person/persons who is/are holding the land Other persons, if any, claiming interest on the land with the nature of interest of such persons Tamil Nadu Madras Mylapore Triplicane Mylapore 3847/95 Block 76 0 0 641 Urban vacant land Boundaries:-North by R.S.No. 3847/1 East by R.S.No. 3847/1
South by R.S.No. 3847/96 and 3847/79 and West by R.S.No. 3847/1 Thirumathi Rangamma Gayathridevi ...
It is hereby notified that the above vacant land is to be acquired by the State Government and that the claims of all persons interested in the land may be made by them personally or by their agents giving particulars of the nature of the interest in such land etc., within thirty days from the date of publication of this notification in the Tamil Nadu Government Gazettee.
P. NATARAJAN, Competent Authority for Urban Land Ceiling and Assistant Commissioner, Urban Land Tax, Mylapore.
Madras, 24th December, 1980
55. Being aggrieved by the Gazettee notification, the petitioners sister preferred an appeal under Section 33 of the Act. After considering the arguments of the learned counsel for the petitioners sister and the records, the Commissioner of Land Reforms, in his proceedings in D.Dis.No.32639/81, dated 25.09.1982, dismissed the appeal. After dismissal of the appeal, a notification under Section 11(3) of the Act has been published in the Government Gazettee on 10.11.1982 and the details are as follows:
Acquisition of excess vacant land held by Thirumathi Rangamma Gayathri Devi (A2/SRA 327/78) FORM VI.
[See rule 10(2).] NOTIFICATION DECLARING THE ACQUISITION OF EXCESS VACANT LAND UNDER SUB-SECTION (3) OF SECTION 11.
VI(1)/1224/82.
Under sub-Section (3) of Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) R.Pakkeerisamy, Competent Authority of Urban Land Ceiling, Mylapore at Madras-600 004, hereby declare that the excess vacant land referred to in the schedule below and having been published under sub-section (1) of Section 11 of the said Act as notification No.VI(1)/78/82, dated 3rd February 1982 in Part VI-Section 1 of the Tamil Nadu Government Gazette, dated the 3rd February 1982 at page 41 shall, with effect on and from the 5th November 1982 be deemed to have been acquired by the State Government and that such land shall be deemed to have vested absolutely in the State Government and that such land shall be deemed to have vested absolutely in the State Government free from encumbrances with effect on and from the date specified above.
SCHEDULE Particulars of the extent and identity of the lands acquired State Urban agglo-meration Taluk Village R.S./T.S. No., of other indentifi-cation Extent of excess vacant land Hec Acres Sq.mts Description of identity of the lands Name of the person/persons who is/are holding the land Other persons, if any, claiming interest on the land with the nature of interest of such persons Tamil Nadu Madras Mylapore Triplicane Mylapore 3847/95 Block 76 0 0 641 Urban vacant land Boundaries:-
North by R.S.No. 3847-1 East by R.S.No. 3847-1 South by R.S.No. 3846/96 and 3847-79 West by R.S.No. 3847/1 of Mylapore Thirumathi Rangamma Gayathridevi ...
R.PAKKERISAMY Competent Authority, Urban Land Ceiling, Mylapore. Madras, 12th October, 1982
56. Thereafter, Form VII notice under Section 11(5) of the Act read with Rule 10(4) of the Rules, dated 277.11.1982, has been issued to the petitioners sister, to surrender possession of the excess land and the same is extracted hereunder:
FORM VII [See rule 10(3) ] Form of notice under sub-Section (5) of Section 11 regarding surrender or delivery of possession of excess vacant land acquired under sub-section (3) of section 11.
Thirumathi Rangamma Gayathri Devi, No.29, Sir C.V.Raman Road, Alwarpet, Madras 600 018.
Please take notice that the vacant land/lands specified in the Schedule below is/are vested with the State Government under sub-Section (3) of Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with effect on and from the 05.11.1982. You are requested to surrender or deliver possession of the said land/lands to the Tahsildar, Mylapore-Triplicane Taluk, Madras 600 004, within thirty days of the service of this notice.
2. If this order is not complied with, the said land/lands will be taken possession of by the authority mentioned above, after using such force as may be necessarily.
If there are any constructions, they may be removed before the date fixed above. If they are not removed by the owner, they will be removed by the officer authorized in this behalf to take possession of the said land, who shall sell them and keep the proceeds thereof in deposit in the name of the person, after deducting the land of removal and other incidental charges.
Signed/-
Competent Authority, Urban Land Tax, Mylapore, Madras 600 014.
57. At this juncture, the petitioners sister has written a letter, dated 19.09.1986, to the Director, Urban and Land Ceiling and Urban Land Tax Act, Ezhilagam, Madras-5, intending to surrender an extent of 641 Sq.mts in Survey No.3847/1 of Mylapore Village of the rear portion as indicated in the plan annexed to the said letter. In the said letter, the petitioners sister has categorically expressed her willingness to surrender the portion marked in the plan and permitted the competent authority to take possession of the same, immediately and process the other modes of payment of compensation. The extract of the letter is reproduced hereunder:
Dated: 19.09.1986 From Tmt.Rangamma Gayatri Devi, No.29, Sir C.V.Raman Road, Madras-18.
To The Director, Urban Land Ceiling and Urban Land Tax Act, Ezhilagam, Madras-5.
Sir, Sub: Tamil nadu Urban Land (Ceiling and Regulation) Act, 1978 -- Madras Urban Agglomeration Mylapore Village R.S.No.3847/1, -- Rangamma Gayadri Devi -- Excess land determined Regarding.
-------------
I am the owner of the land in R.S.No.3847/1 of Mylapore Village measuring an extent of 3907.8 Sq.Mts. By order dated 07.04.1981, the Competent authority had determined the excess vacant land of an extent of 641 Sq.mts to be acquired under the Act and had also sent a plan indicating the area to be acquired. The Xerox copy of the said plan is enclosed. From the plan it could be seen that the mode laid as per the directions of the Commissioner, Corporation of madras in their letter, dated 14.10.1979 in W.DC.No.LA-2/1948 and the area that it is left out in the Eastern side is neither useful nor beneficial to the owner or the proposed taking over. In order to abviate the difficulty I am prepared to surrender an extent of the same area in the back portion of the same land as indicated in the plan annexed. I request that you may be pleased to pass an order directing me to surrender the portion marked in the plan and direct the competent authority to take possession of the same immediately and process the other modes of payment of compensation etc., in due course. Common passage for all the users is also annexed in the plan and the passage could be used by all including the plan to be authenticated of the proposal is asserted. W.P., will be withdrawn.
Yours faithfully, Signed/-
(RANGAMMA GAYADRI DEVI)
58. In the above said letter, petitioners sister has also agreed to withdraw W.P.No.10810 of 1982, challenging the order of the competent authority, dated 07.04.1981, issued under Section 10(1) of the Act and the order, dated 25.09.1982, dismissing the appeal under Section 33 of the Act by the Commissioner and Land Revenue Department, Chennai, upholding the declaration of excess land.
59. Material on record further disclose that after the issuance of the notification under Section 11(3) of the Act and published in the Government Gazettee on 10.11.1982, the petitioners sister filed another appeal petition under Section 33 of the Act. W.P.No.10810 of 1982, challenging the earlier orders, dated 07.04.1981 and 25.09.1982, was already pending. During the pendency of the appeal, the land owner, in her letter petition, dated 19.09.1986, expressed her desire to surrender 641 Sq.mts, in the rear portion (thatched portion) as shown in the sketch furnished by her and she did not insist on her earlier objections. She has also stated that the area that was left out on the Eastern side, would not be useful to her and hence, she had requested to permit her to surrender the same area in the rear portion marked in the sketch.
60. Considering her request and the declaration in the letter that W.P.No.10810 of 1982, challenging the acquisition proceedings, would be withdrawn, the Special Commissioner and Commissioner of Land Reforms, the appellate authority, by accepting the voluntary offer of the urban land owner for surrendering the area measuring 641 Sq.mts., in the rear portion marked in the sketch, allowed the appeal, by order, dated 14.11.1986, subject to the use of passage. Accordingly, the competent authority for the Urban Land (Ceiling and Regulation) , issued an eratta, dated 24th April, 1987 to the notification issued under Sections 11(1) and 11(3) of the Act in Government Gazettee No.22, dated 10.06.1987. The revised notification under Sections 11(1) and 11(3) of the Act, is extracted hereunder:
Excess vacant land held by Thirumathi Rangamma Gayathri Devi (A2/SRA 327/78.) Eratta:- The following errata are issued to the 11(1) and 11(3) notification published at pages 41 and 559 of Tamil Nadu Government Gazette, Part VI Section 1, dated 3rd Febraury, 1982 and 10th November 1982, respectively:-
In column (5), for 3847-95 Block 76, read 3487-96 Block 76 In Column (7), for urban vacant land boundaries:-
North by R.S.No.3847-1, east by R.S.No.3847-1, South by R.S.Nos.3847-96 and 3847-79 and west by R.S.No.3847-1, read urban vacant land boundaries-north by R.S.No.3846-2, east by R.S.No.3847-82, south by R.S.Nos.3847-97 and 98 and west by R.S.No.3847-1.
P.CHELLIAH Competent Authority (Urban land Ceiling).
Madras-14, 24th April 1987.
61. Thereafter, a notice under Section 11(5) read with Rule 10(3), in Form VII has been issued to the urban land owner through registered post, dated 14.7.1987 to surrender or deliver possession of the land measuring 641 Sq.mts, within 30 days from the date of receipt of notice. When W.P.No.10810 of 1982 came up for hearing on 18th April, 1988, the urban land owner had withdrawn the writ petition and accordingly, it came to be dismissed. Following the same, on 29.04.1988, the Urban Land Owner herself has come forward to surrender the vacant possession to the Sub-Divisional Tahsildar, No.2, Urban Land Ceiling, Mylapore and signed the Land Delivery Register. Thereafter, the Urban Land Officer, has accepted handing over possession of the excess land of 641 Sq.mts.
62. Thus, it could be seen from the sequence of events from the date of submission of the statement under Section 7(1) of the Act, dated 13.10.1978, the excess vacant land to be acquired had been determined in the year 1981 itself and accordingly, gazettee notifications under Sections 10 and 11 of the Principal Act have been issued. Notice under Section 11(5) of the Act, dated 04.12.1982, has been issued to the land owner to surrender 641 Sq.mts of land and on receipt of the same, though a writ petition was filed by her, challenging the determination of the excess vacant land, she herself, by her letter, dated 19.09.1986, had voluntarily come forward to exchange the excess vacant land and annexed a sketch also, by surrendering the same to the Urban Land Authorities.
63. It is also evident that accepting her surrender of land, the appellate authority, viz., the Special Commissioner and Commissioner of Land Reforms, in his letter, dated 14.11.1986, has acquired 641 Sq.mts of land as excess land.
64. Material on record shows that petitioners sister has also surrendered an extent of 851 Sq.mts., in Re-Survey No.3847/97, and possession of the said land has been taken over by the Junior Engineer, Division 126, and it reads as follows:
CORPORATION OF MADRAS I, the undersigned owner of land in R.S.No.3847/97, Mylapore, Madras hereby certify that I have personally handedover and I, the undersigned officer of the Corporation of Madras, certify that I have taken over, on this 26th day of August, 1988 the piece of land described as follows:
Municipal Division : 126 Street: Cenotoph Road II Street Re-survey No.3847/97 Area 853.5 Sq.mts Number of demarcation stones Reference to Correspondence: PPA.No.D5/1/87 Signed name in full:
Official designation in full:
Signed/-
Signed, name in full Official designation in full To be made out in duplicate, and copies to be retained by both officers for submission to the heads of the departments.
Handed over Taken Over Signed/- Signed/-
Owner J.E. Div:1 26
65. Thereafter, the Assistant Commissioner, Urban Land Tax, Mylapore, Chennai, in his proceedings in A2/SRA 327/78, dated 10.04.1989, has requested petitioners sister to receive the cheques for Rs.8,012.50 and Rs.10,387.50 for the payment of 25% of the total amount of Rs.32,050/- and six instalments amount payable under Section 12(3) of the Act, 1978, for the excess vacant land of 641 Sq.mts., acquired from her under Sections 9 to 11 of the Principal Act in R.S.No.3847/96 of Block No.76 of Mylapore Village. The petitioners' sister was also cautioned that if she fails to turn up within 10 days from the date of receipt of the said order, the said amount would be kept in revenue deposit, which would bear no interest. Accepting the compensation, petitioners sister has authorized her advocate, Sri.T.S.Ramu, to receive the cheque and she has also issued a stamp receipt, which reads as follows:
Received a sum of Rs.6,694/- (Rupees six thousand six hundred and ninety four only) by means of cheque No.185460, dated 27.10.1989 drawn on the S.B.I., Thousand Lights from the competent authority, Urban Land Ceiling, Mylapore, Madras, being the difference of interest amount for the instalments payable to me further excess vacant land acquired in R.S.No.3847/96 of Block No.76 of Mylapore Village.
(Stamped signature specimen) The cheque may kindly be handed over to my Advocate Sri.T.S.Ramu, B.Sc., M.L., Subsequently, by letter, dated 14.09.1992, she had authorised another Advocate, to receive the cheque, being the IXth instalment for the balance of amount and accordingly, issued the stamp receipt for the amount.
66. Proceedings in Rc.No.2259/98(A1), dated .11.2004, issued by the Assistant Commissioner, Urban land Tax, Mylapore, shows that a sum of Rs.1,052/- (Rupees one thousand and fifty two only) being the 15th instalments in respect of the land acquired, measuring 641 Sq.mts., from the holdings of Smt.Rangamma Gayatri Devi, petitioners' sister, was not received, inspite of repeated letters and therefore, the said amount had been ordered to be kept in revenue deposit. Though the petitioners have submitted that the excess vacant land of 641 Sq.mts in the rear side of the land in Survey No.3847/96 surrendered by their sister and that the competent authority has not taken possession of the same, in terms of Section 11(6) of the Act, material on record categorically prove that erstwhile land owner, Smt.Rangamma Gayatri Devi, herself had voluntarily surrendered the land and signed the land delivery register and handed over possession to the Sub Divisional Tahsildar-III, Urban Land Tax.
67. Though the petitioners have contended that 11(6) notice has not been issued and possession was not taken in the manner as provided in the Principal Act, not even a scrap of paper has been produced before this Court by them to prove that there was any objection for taking over possession of the excess land. It should be noticed that though Section 11(6) contemplates use of minimum force, exercise of power under Section 11(6) would arise, only if there is any objection from the occupants or the land owner from taking over possession by the competent authorities. Otherwise, exercise of power under Section 11(6) is uncalled for. Moreover, in the case on hand, the erstwhile land owner herself has come forward to surrender 641 Sq.mts of land, in lieu of some other land in her letter, dated 19.09.1986 and accordingly, accepting the same, the appellate authority, viz., Special Commissioner and Commissioner of Land Reforms, in his order, dated 14.11.1986 by accepting the surrender, granted exemption. It should be noted that exemption of the alternative land, would not have been granted, but for the surrender of 641.219 Sq.mts., of land.
68. Material on record further shows that, after the acquisition of land, the Secretary to Government, Adi-Dravidar and Tribunal Welfare Department, has reported that the office of the Tamil Nadu Adi-Dravidar Housing Development Corporation Office (TADHDCO) was located in a private building, paying huge rents and therefore, they have requested the Government to allot the land, measuring 641 Sq.mts., in Survey No.3847/96 of Mylapore village, to accommodate TAHDCO. The Government have accepted the proposal and in exercise of powers under Section 24 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act read with Rule 23 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, have issued orders in G.O.Ms.No.778, Revenue Department, dated 27th May 1991, allotting the above said extent of land to the 4th respondent-Corporation, subject to the conditions stated in the above said Government Order, which reads as follows:
(i) The Collector of Madras is requested to permit the Tamil Nadu Adi-Dravidar Housing Development Corporation to enter upon the said lands pending payment of land value, after obtaining an undertaking that it will abide by the conditions imposed by the Government.
(ii) The Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, Madras, should utilize the land for the purpose specified within a period of two years from the date of taking possession of the land. The lands shall not be utilized for any purpose other than the said purpose.
(iii) The lands allotted shall not be transferred by way of sale, gift, mortgage, lease or otherwise to any person or institution.
(iv) The land value shall be paid within 30 days from the date of receipt of orders fixing the land value.
(v) If the Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, Madras fails to remit the amount within a period of thirty days, the allotment is liable be cancelled, without assigning any reason.
(vi) The possession of the lands shall be handed over by the Collector of Madras to the Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, Madras, on remittance of value of land.
(vii) In the event of Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, Madras not complying with any of the above conditions of allotment, the Government shall after giving an opportunity to them to be heard in the matter, cancel the allotment and the lands shall re-vest to the Government free from all encumbrances. No compensation shall be payable in respect of any building or other superstructure constructed on such lands, re-vesting to the Government under this clause.
(viii) The order allotting the said lands to the Tuticorin Alkali Chemicals and Fertilizers Limited, Madras in G.O.Ms.No.170, Revenue, dated 01.02.1990 are hereby cancelled. (emphasis supplied)
69. Section 18 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, deals with the power to enter upon any vacant land and it reads as follows:
"The competent authority or any person acting the orders of the competent authority may, subject to any rules made in this behalf and at such reasonable time as may be prescribed, enter upon any vacant land or any other land on which there is a building with such assistance as the competent authority or such person considers necessary and make survey and take measurements thereof and do any other act which the competent authority or such person considers necessary for carrying out the puposes of this Act."
70. Pursuant to the Government Order in G.O.Ms.No.778, Revenue Department, dated 27th May 1991, the Collector of Madras, in his proceedings No.J2/33707/91, dated 28.05.1991, has permitted the 4th respondent-Corporation to enter upon the land, after giving an undertaking as stipulated in the Government Order. Tamil Nadu Adi-Dravidar Housing Development Corporation has also furnished an undertaking along with the Managing Directors letter, dated 30.05.1991, addressed to the District Collector, Chengalpattu, stating that they would abide by the conditions of the Government, in allotment of the land.
71. Proceedings of the District Collector, Chennai, dated 28.05.1991, granting permission to the Tamil Nadu Adi-Dravidar Housing Development Corporation to enter upon the land is extracted as follows:
In the G.O., cited, the Government have allotted land measuring 641 Sq.mts in S.No.3847/96 of Mylapore Village, Madras to Tamil Nadu Adi-Dravidar Housing Development Corporation to put up office buildings subject to certain conditions.
2. The Government have also permitted the Tamil Nadu Adi-Dravidar Housing Development Corporation to enter upon the said lands pending payment of the land value. The possession of the lands shall be handed over to the Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, Madras, on remittance of the value of the land.
3. Accordingly, permission is hereby granted to the above Corporation to enter upon the above lands, pending payment of land value after giving an undertaking that the TAHDCO will abide by the conditions imposed by the Government. (emphasis supplied)
72. After taking permission to enter upon, the General Manager, of the fourth respondent-Corporation, has issued instructions, dated 03.06.1991 to the Executive Engineer/T/Madras Division and copy marked to Assistant Executive Engineer/T/Madras Division, to provide following things at once, (1) Provide a Name Board at suitable place, indicating that the site is for the construction TAHDCO Head Office.
(2) Prepare estimate for providing temporary Section Office at site under consideration.
(3) Clearing the site.
(4) Prepare the plan approval, so as to hand over the same to the MMDA." (emphasis supplied)
73. Thereafter, by letter No.D2/4696/89, dated 05.06.1991, the Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, has brought to the notice of the Member Secretary, Madras Metropolitan Development Authority, Madras, that the site allotted to the Corporation, had been classified as Primary Residential and that it should be re-classified as Mixed Residential, so that the Corporation can build its own office building. Thereafter, a request has been made to the CMDA by the fourth respondent-Corporation. Since the CMDA, by their letter, dated 11.07.1991, had requested the Tamil Nadu Adi-Dravidar Housing Development Corporation, to re-submit their proposals through the local body concerned with relevant documents, the Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation, by his letter, dated 30.08.1991, has requested the Commissioner of Corporation, Chennai, to forward the necessary proposals for re-classification of the land from residential use to commercial purpose. The fourth respondent-Corporation has also remitted a sum of Rs.44,870/-, being the value of 641 Sq.mts of land allotted to them on 08.09.1991.
74. After remitting the entire value of 641 Sq.mts. of land, the Firka Surveyor, Mylapore-Triplicane Taluk, Madras, has handedover the entire extent of land to the Junior Engineer, TAHDCO, Madras Section, dated 18.12.1991. The transfer of charge certificate is extracted hereunder:
TRANSFER OF CHARGE CERTIFICATE I, Thiru. E.A.Narayanan, Tahsildar, Mylapore-Triplicane Taluk, Madras-600 028, handed over the land mentioned below to-day the 18th day of December 1991 and I, Thiru.R.Rathinasamy, I.A.S., Managing Director, TAHDCO, No.18, 4th Cross Street, Arms Road, Kilpauk, Madras-10, taken over the land mentioned below on this 18th day of December 1991.
District: Madras Taluk: Mylapore-Triplicane
Village: Mylapore Ground Sq.fts.
R.S.No.3847 Area : 2 2103
Sub-Division: 96
Block No: 76
BOUNDARIES FOR THE LAND
North by: 3846/2 East by : 3847/82
South by: 3847/97 and 98 West by: 3847/1
Structures: Nil Trees: Nil
(G.O.Ms.No.778, Rev., dated 27.05.1991)
75. Materials on record further disclose that pursuant to the decision taken by the CMDA, the Government have also issued Gazette Notification No.34, dated 31.08.1994, as follows:
S.Nos.3847-96 of Mylapore Village, Madras district Classified as Primary Residential use zone is now reclassified as Mixed Residential use zone as per this notification. Appropriate notice has also been issued by the Member Secretary, CMDA, Chennai, in Na.Ko.No.R1/8792/93, dated 11.11.1994.
76. In the year 2001, the Commissioner, Adi-Dravidar Welfare, Chennai, has invited the attention of the Managing Director, TAHDCO, Chennai, that the Government in G.O.Ms.No.32, Adi Dravidar and Tribal Welfare Department, dated 20.02.1992, had sanctioned a sum of Rs.50 Lakhs for the construction of Leather Training cum Procurement Centre during the year 1991-92 and that it was kept unutilized and that they have also written to the Government of India, through Government of Tamil Nadu, for getting necessary concurrence for utilisation of the above funds and since it would take some time, directed the Managing Director, TAHDCO, to proceed with the construction of the Leather Training cum Procurement Centre, in the site proposed by the Corporation, pending concurrence from the Government of India.
77. In furtherance of the above, the Executive Engineer, TAHDCO, Chennai, (incharge), in his letter, dated 28.08.2002, has informed the General Manger (Tech), TAHDCO, that the site for construction of Leather Training cum Procurement Centre at Chennai has been handed over to the contractor on 28.08.2002 itself. To that effect, the Contractor has also issued a charge paper, stating that they have taken over the site for construction. Subsequently, on 25.11.2002, the Managing Director, TAHDCO, was permitted to pay the licence fee to the Corporation of Chennai, Works Department.
78. Material on record further shows that subsequently, one Ms.Janet Christine De Penning, has filed a writ petition in W.P.No.4696 of 2002, for a Mandamus, forbearing (1) The Chairman, Chennai Metropolitan Development Corporation, Chennai, (2) The Commissioner, Corporation of Chennai, Chennai and (3) The Tamil Nadu Adi-Dravidar Housing and Development Corporation, Tamil Nadu Housing Board Commercial Complex, Chennai, respondents 1 to 3, from permitting, allowing or proceeding with any construction or using such construction in violation of the Development Control Rules framed under the Town and Country Planning Act and from further proceeding with any construction on Cenotaph Road 2nd Lane, without submitting necessary plans to the first and second respondent therein and obtaining necessary sanctions, as enjoined under Section 56 of the Town and Country Planning Act, 1972. A detailed counter affidavit has been filed by the fourth respondent-Corporation therein. By an order, dated 21.10.2003, this Court has disposed of the Writ Petition, with an observation that, it is for the first respondent therein to consider the application of the Corporation, if the same is permissible. Thereafter, the TAHDCO has remitted a sum of Rs.1,01,600/- towards building licence fee and scrutiny fees on 07.01.2005. By letter No.C4/17672/2007, dated 21.0.2008, the Member Secretary, CMDA, has granted permission to put up construction of the Leather Training cum Procurement Centre.
79. Material on record further disclose that the Tahsildar, Mylapore-Triplicane Division, Chennai, has informed the Executive Engineer, TAHDCO, that mutation has also been effected in the registers. Pursuant to the request made by the Managing Director of the Housing Corporation, the Inspector General of Registration, Chennai, in his Letter No.63966/C1/2009, dated 22.12.2009, has replied that when the acquisition order was passed by the Government, the order copy shall be appended in Book-I File Volume maintained in the Office of the Sub-Registrar and it shall be a indexed under Section 89(7) of the Registration Act. The Tahsildar, Mylapore-Triplicane Taluk, Chennai, in his letter No.Rc/B1/29281/09, dated 23.12.2009, addressed to the Sub-Registrar, Tripline, Chennai-5, has also requested the Registration Department to make necessary entries. The contents of the above said letter is re-produced hereunder:
With reference to the above, I enclose herewith copy of Permanent Land Register maintained in the Office of the Tahsildar, Mylapore Triplicane Taluk, Chennai-28, in respect of Mylapore Village, Block No.76, T.S.No.3847/96 measuring an extent of two grounds 2101 Sq.fts. The PLR shows the name of the Occupier as Tamil Nadu Adi Dravidar Housing Development Corporation as per G.O.Ms.No.778, (Revenue Department), dated 27.05.1991, and TK/B1/33414-07, dated 17.12.2007.
I request that necessary entries may be recorded in he records of in the Registration Department.
80. The name of the Tamil Nadu Adi-Dravidar Housing Development Corporation has been registered as an occupier in the Permanent Land Register of the Government land in Block No.76. A Certificate of Encumbrance, dated 05.01.2006 has also been issued.
81. Thus, it could be seen that before the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, came to be passed on 16.09.1999, possession of the land has been taken over by the Urban Land Authorities and handed over to the Revenue Authorities, who in turn have handedover the same to the Junior Engineer, TAHDCO, Madras Section and that all the proceedings have been completed, except the receipt of one instalment, which was directed to be kept in Revenue account.
82. The contention of the learned counsel for the petitioners that possession of the excess vacant land had not been taken over by the competent authority in accordance in law, is without any basis and the further contention that the petitioners were in possession and only recently TAHDCO had entered into possession, is not proved by production of any valid materials. As stated supra, absolutely, there is no evidence to show that at any point of time, the erstwhile land owner, late Rangamma Gayatri Devi, had objected to taking over of the possession of the land and on the contrary, she herself had voluntarily surrendered the land.
83. Thus, it could be seen from the materials produced by the Tamil Nadu Adi Dravidar Housing Development Corporation that no sooner, they were permitted to enter upon the land by the District Collector, Chennai and that they have remitted the value of the land to the Government and as per the directions of the General Manager of the Corporation, put up a Sign Board in the site, stating that the land is in possession of the Corporation since 1991.
VESTING
84. The terms "vest" and "vested absolutely" have been used both under the Principal as well as the Repealing Act and in the light of submissions of the learned counsel for the petitioners that on refund of compensation amount, received either in part or full, by the land owner to the Government, the land owner is entitled to get back possession and of the contention that the entire compensation amount must be paid before taking over possession, though the excess land is vested in the government and taking over possession by the government, does not confer any right to retain the land, it is necessary to consider the meaning of the term 'vest' used in the Principal Act and the Repealing Act, in the context and the object of the enactments.
85. The word 'vest' as defined in Chamber's Twentieth Century Dictionary reads as follows:
"To settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right."
86. In Concise Oxford Dictionary, "vest" means, "Confer formally on him an immediate fixed right of present or future possession of it (vested rights, interest, estate, etc., possession of which is determinately fixed in a person and is subject to no contingency); (of property right etc.) vest in (person) came to him."
87. Wharton's Law Lexicon gives the following meaning of the term "vest" :--
"(1) Either to place in possession; to make possessor of or; to give an absolute interest in property when a named period or event occurs.
(2) of a right or interest. Its coming into the possession of any one; ensuring to the benefit of any one."
88. Meaning of the word, "vest", as per the Stroud's Judicial Dictionary is as follows:
"(1) "To vest", generally means to give the property in, (2) "vest" in the absence of a context, is usually taken to mean vest in interest rather than vest in possession."
89. In P. Ramanata Aiyer's Law Lexicon has given the meaning of the word 'vest' as under:--
"To place in possession to take possession of; to take an interest in property when a named period or event occurs."
90. In F. & V. Merchants Union v. Improvement Trust, Delhi reported in AIR 1957 SC 344, the Supreme Court explained the word, "vest" as follows:
"The word "Vest" has not got a fixed connotation, meaning in all cases that the property is owned by the persons or the authority in whom it vests. It may vest in title or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation." (emphasis supplied)
91. The Supreme Court in the above reported judgment, at Paragraph 19, further explained that, "19. That the word vest is a word of variable import is shown by provisions of Indian statutes also. For example, Section 56 of the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that such property shall thereupon vest in such receiver. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall vest absolutely in the Government free from all encumbrances. In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word vest has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Sections 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them." (emphasis supplied)
92. In the case of Municipal Committee v. Ramkaran Ganeshilal [AIR 1958 MP 355], the Madhya Pradesh High Court, while interpreting the term 'vest' occurring in Sections 38 and 57 of the Central Provinces and Berar Municipalities Act (2 of 1992), held the word 'vest' has only a limited effect.
93. In the case of Mrs.Daya Wansi v. New Delhi Municipal Committee [AIR 1982 Delhi 534], the Division Bench of Delhi High Court, while interpreting the term 'vest', as synonymous with 'title', held that, "Under the terms of the lease deed the land vests in the lessor, ie., the President of India. "Vesting" is a word which has many meanings. The word "vest" has several meanings with reference to the context in which it is used. Ordinarily vesting means, "having obtained an absolute and indefeasible right as contra distinguished from not having so obtained it (Richardson or Robertson, 1862 (6) LT 75 (76) per Lord Cranworth). The word "vest" has no fixed connotation. It may vest in title, or it may vest in possession, or it may vest in a limited sense. It will depend on the context in which it is used in a particular piece of legislation. It appears to us that the word 'vest' as used in S.193(2) means vesting in the sense of title. It means that where the property is owned by the Government, Government consent must be obtained. Without the consent of the Government the plan may not be sanctioned. The section uses the expression 'vest' in a sense synonymous with title. It is concerned with the title."
(emphasis supplied)
94. The word "vest" used in Andra Pradesh (Andra Area) Inam (Abolition and Conversion) into Ryotiwari Act, 1956, (37 of 1956), came up for consideration before the Supreme Court in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu reported in 1991 Supp (II) SCC 228. After extracting the dictionary meaning of the word 'vest', 'vesting', the Supreme Court held that, the word "vest" bears variable colour, taking its content from the context, in which it came to be used. At paragraph 10 of the judgment, the Supreme Court held that, "10. The word vest clothes varied colours from the context and situation in which the word came to be used in a statute or rule. Chambers Mid-Century Dictionary at p. 1230 defines vesting in the legal sense to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right. In Blacks Law Dictionary, (5th edn. at p. 1401) the meaning of the word vest is given as : to give an immediate, fixed right of present or future enjoyment; to accrue to; to be fixed; to take effect; to clothe with possession; to deliver full possession of land or of an estate; to give seisin; to enfeoff. In Strouds Judicial Dictionary, (4th edn., Vol. 5 at p. 2938), the word vested was defined in several senses. At p. 2940 in item 12 it is stated thus as to the interest acquired by public bodies, created for a particular purpose, in works such as embankments which are vested in them by statute, see Port of London Authority v. Canvey Island Commissioners in which it was held that the statutory vesting was to construct the sea wall against inundation or damages etc. and did not acquire fee simple. Item 4 at p. 2939, the word vest, in the absence of a context, is usually taken to mean vest in interest rather than vest in possession. In item 8 to vest, generally means to give the property in. Thus the word vest bears variable colour taking its content from the context in which it came to be used. Take for instance the land acquired under the Land Acquisition Act. By operation of Sections 16 and 17 thereof the property so acquired shall vest absolutely in the government free from all encumbrances. Thereby, absolute right, title and interest is vested in the government without any limitation divesting the pre-existing rights of its owner."
(emphasis supplied)
95. The word 'Vest' came up for consideration in M. Ismail Faruqui (Dr) v. Union of India reported in (1994) 6 SCC 360. The Constitutional Bench of the Apex Court, with reference to Section 3 of the Acquisition of Certain Areas at Ayodhya Act, 1993, at Paragraph 21, held as follows:
"21. Section 3 provides for acquisition of rights in relation to the area defined in Section 2(a). It says that on and from the commencement of this Act the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government. It is well-settled that the meaning of vest takes colour from the context in which it is used and it is not necessarily the same in every provision or in every context. In Maharaj Singh v. State of U.P., reported in 1977 (1) SCC 155 , it was held: (SCR p.1081 : SCC pp.164-65, para 16) Is such a construction of vesting in two different senses in the same section, sound? Yes. It is, because vesting is a word of slippery import and has many meanings. The context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions. The meaning of vest in Section 3 and in Section 6 is of significance in the context of the constitutional validity of the statute. It can vary in different parts of the statute or even the same section, depending on the context of its use."
96. In R.Shanmugam and others Vs. State of Tamilnadu represented by its Secretary, Housing and Urban Development Department, Chennai and others, reported in 2006(4) CTC 290, a Division Bench of this Court, dealing with the word, "Vest" employed in Section 72 of the Housing Board Act, at Paragraph 16, held that, "16. Coming to the word "vest" employed in Section 72 of Housing Board Act, again the said word must be construed in the context it is used. The object of the Act is only to enable the Board to frame a Housing or Improvement Scheme and execute such scheme. In the above context, the word "vesting" may relate to title or possession or some limited purpose of disposing of the same as contemplated under Section 72. As the Board has also the power to sell or dispose of the plots/flats as the case may be, the word "vesting" employed in Section 72 shall be construed to mean and include only the purpose of discharging its functions under the scheme. Such power of vesting cannot be equated to the power of vesting of the land in Government under Section 16 of the Central Act, where the lands acquired shall vest absolutely in Government free from all encumbrances." (emphasis supplied)
97. Sub-Sections 3 and 4 of Section 11 of the Principal Act states that once a notification is issued under sub-Section 1 of Section 11 of the Act, declaring excess land, and a date is specified in the declaration, the excess lands would be deemed to have been acquired by the State Government and upon publication of the declaration, such land shall be deemed to have been vested absolutely in the State Government free from all encumbrances with effect from the date so specified and as per sub-Section 4 of Section 11 of the Principal Act, during the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-Section (3), (i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and (ii) no person shall alter or cause to be altered the use of such excess vacant land.
98. "Encumbrance" actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon the property or a claim or lien on the land. It means a legal liability on the property. Thus, it constitutes a burden on the title, while diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. Reference can be made to Collector of Bombay v. Nusserwarji Rattanji Mistri reported in AIR 1955 SC 298, H.P.Seb v. Shiv.K.Sharma reported in 2005 (2) SCC 164 and AI Champdany Industries Ltd., v. Official Liquidator reported in 2009 (4) SCC 486.
99. The expression "free from all encumbrances" used in Section 16 of 1894 Act (Land Acquisition Act) has been explained by the Apex Court in State of H.P., v. Tarsem Singh reported in 2001 (8) SCC 104, as wholly unqualified and would empass the extinguishing of "all rights, title and interest, including easementary rights, when the title vests in the State. A combined reading of sub-Sections 3 and 4 of Section 11 of the Act and the restrictions placed on the land owner not to sell, mortgage, gift or otherwise of any excess land, including any part thereof, and the further prohibition that no person shall alter or cause to be altered the use of such vacant land and making of any such transfer, in contravention of the provision as null and void, makes it abundantly clear that the moment, the excess land is vested in the government, under Section 11(3) of the Principal Act, the right, title and interest, in relation to the excess land held by the land owner by operation of law, stands transferred to the Government and the land owner shall not deal with the property in any manner, whatsoever, including alteration. Insofar as taking over possession is concerned, if there is any objection or protest from the land owner, the government is empowered to use such force as required. Upto Section 11(3)of the Principal Act, what is divested from the land owner is his right, title or interest in relation to the excess land declared.
100. Section 3(1) of the Repeal Act shall not affect, where there is, (1) vesting of the land under Section 11(3) of the Act, (2) possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority, (3) the validity of any order granting exemption under sub-section (1) of Section 20 of any action taken thereunder, notwithstanding any judgment of any court to the contrary and (4) any payment made thereof.
101. Section 3(2) of the Repeal Act comes into operation when, (1) any land is deemed to have vested in the State Government under sub-Section (3) of Section 11 of the Principal Act; (2) but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; (3) any amount has been paid by the State Government with respect to such land; and (4) such land shall not be restored unless the amount paid has been refunded to the State Government.
102. The important difference between Sections 3(1) and 3(2) is that, if possession is still retained by the land owner and compensation amount had been paid by the Government, with respect to such land, then such land shall not be restored, unless the amount paid not is refunded to the State Government. Thus it could be seen that if possession is not taken over by the State Government, then the word "restore" used in Section 3(b)(2) refers only to vesting of the title and not physical possession.
103. The Repeal Act will not have any effect on the Principal Act, if possession is not taken. It may be one thing to contend that the actual taking over possession is not in accordance with the statutory provisions and therefore, it would be still open to the land owner to contend that the Court can examine the aspect as to whether taking over possession is valid or not. It is altogether a different thing to contend that in all cases, where possession has already been taken over in accordance with law, there exists a right for restoration of the land, on payment of any amount received, by way of compensation.
104. A conjoint reading of Sections 3 and 4 of the Repealing Act, 1999, would make it abundantly clear that the proceedings relating to any order or purported to be made under the Principal Act, immediately before the commencement of the Repealing Act, before any Court, Tribunal or any authority shall abate, if possession is not taken over by the Government.
105. Once the land is vested in the State Government, as per Section 11(3), the title is vested with the Government by operation of law, free from all encumbrances and that the title to the land can be restored subject to the refund of the compensation amount received, if any. But once, payment of compensation commences, after taking over possession, then the land owner loses his claim for restoration and the proceedings under Section 12 of the Act follows. By virtue of Section 4 of the Repeal Act, it is saved. In otherwords, after vesting under Section 11(3) of the Act and payment of compensation under Section 12 of the Act, whether it is in the process or completed, there is no statutory right for restoration of physical possession of the land taken over by the Government.
106. In the case on hand, it should be noticed that the land had been surrendered on 29.04.1988 and physical possession had been taken over and the allottee has been given possession by the Collector of Chennai, to enter upon and thereafter, on payment of land value, possession has been taken over by the allottee, the details of which have been discussed in the earlier paragraphs. The orders of the competent authority have been accepted by the land owner, without any protest and the compensation amount awarded from 1989 had been received by the land owner without any protest, till the last payment, before which, she died. Having knowledge of the surrender of land in the year 1988 and when the land owner herself had quietly received the compensation amount, it is not open to the petitioners, after 22 years, to contend that the possession has not been taken over by the Government.
107. The word "restore" which occur in Section 11(3) of the Principal Act, has to be understood only in the context of restoring "vesting" of title, interest or rights in the excess land and not in the context of restoring possession, because, if possession had been taken over, then nothing remains to be adjudicated under the Principal Act and as per Section 4 of the Repeal Act, Sections 11, 12, 13 and 14 of the Principal Act, would continue to operate and shall not abate.
POSSESSION:
108. Much is argued about possession and therefore, it is necessary to consider the case laws on this aspect.
109. In Balwant Narayan Bhagde v. M.D.Bhagwat reported in AIR 1975 SC 1767, Hon'ble Justice P.N.Bhagavathi, while dealing with a question as to how possession has to be taken by the authorities, under Land Acquision Act, in his supporting judgment has held that, "when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule lying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."
(Emphasis supplied)
110. The Hon'ble Justice Untwalia in his separate judgment, whose conclusion was agreed by other learned Judges, held that, "When a public notice under s. 9(1) of the Act is published at a convenient place or near the land to be taken that Government intends to take possession, ordinarily there would be no question of resisting or impeding the taking of possession. Delivery of possession by the owner is not required and the Collector can enforce surrender under s. 47 if impeded. On taking possession either under s. 16 or s. 17(1), the land vests absolutely in the Government free from all encumbrances. Therefore, in a proceeding under the Land Acquisition Act for acquisition of land all interests are wiped out, and hence, the taking of possession must be taking actual possession on the spot and not symbolical possession; and surely it cannot be a possession merely on paper..........
As to the mode of taking possession, the Act is silent. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that possession has been taken. The presence of the owner or the occupant is not necessary to effectuate the taking of possession."
(emphasis supplied)
111. In Tamil Nadu Housing Board v. A.Viswam (Dead) reported in JT 1996 (2) 549 (SC) = 1996 SCALE (2) 418, the Supreme Court considered the case, arising out of Land Acquisition Act. One of the contentions raised therein was that possession was not taken over by the Land Acquisition Officer from the respondents therein. After considering the statutory provisions, the Supreme Court held as follows:
"It is true that normally possession is nine times the title. If that principle is extended to public acquisition by illegal squatting, erstwhile owner has compensation as well as possession of the land by encroachment upon its erstwhile land and claim that he remained in possession. Such construction would defeat the public purpose." (emphasis supplied)
112. In the said decision, the Supreme Court further observed as follows:-
"Would it be possible for the appellant, without delivery of possession to the Housing Board, to construct such massive constructions and leave out only this part of the land bearing survey No.140/4, which was set a part for public purpose, namely, public amenity of part? The making of the plan would emerge only after the land is taken possession and demarcation thereof is made and constructions are carried out. It is erroneous to believe that possession still remained with the respondents and the LAO had not taken possession only of this piece of land. It is not the case of the respondent that he resisted taking possession of the land by LAO and thereafter the LAO took no action to have him dispossessed."
(emphasis supplied)
113. In the present case, the land owner, Smt.Rangamma Gayatri Devi, has received the compensation amount, except the last instalment and after obtaining sanction from the CMDA and Corporation, the fourth respondent-Corporation has also raised construction. The photographs produced before this Court, support their case that possession is with them. The judgment of the Supreme Court in Tamil Nadu Housing Board's case, squarely applies to the facts of this case.
114. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab reported in 1996 (4) SCC 212, at Paragraph 4, held as follows:
"4. It is seen that entire gamut of the acquisition proceedings stood completed by 17.4.1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the Presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."
(emphasis supplied)
115. In Larsen & Toubro Ltd., v. State of Gujarat and Ors., reported in 1998 (4) SCC 387, mode of taking of possession of land also considered. Possession of the Company was recorded in revenue papers. It was held that, "possession was handed over to the Company panchnama was supported by revenue entries, it was not open to the High Court to convert itself into a revenue Court and to hold that in spite of panchnama and revenue record, actual physical possession of the acquired land had not been handed over to the acquiring body, that is the Company."
(emphasis supplied)
116. In the above reported judgment, the Apex Court, at Paragraph 13, further held that, "13. It was not disputed that in the revenue records it was L&T Ltd. who was shown in possession of the land. Affidavits of the panchas filed in the High Court which contained statements contrary to what was recorded in Panchnama and against the revenue entries quite meaningless and in our opinion the High Court. unnecessarily put undue reliance on the same. The High Court could not convert itself into a revenue court and hold that in spite of the panchnama and the revenue records actual physical possession of the acquired land had not been handed over to the acquiring body. The High Court, in our opinion, has not correctly analysed the two judgments of this Court in Balmokand Khatri Educational and Industrial Trust v. State of Punjab [1996 (4) SCC 212] and Balwant Narayan Bhagde v. M.D. Bhagwat, to come to the conclusion that actual physical possession of the land was not taken over by the State."
(emphasis supplied)
117. In Smt.Angoori Devi Vs. State of U.P and others, reported in JT 2000 (Suppl.1) SC 295, the Supreme Court was called upon to decide the interpretation of different provisions of the Urban Land (Ceiling and Regulation) Act, repealed by Act 15 of 1999, which was adopted by the State of U.P., by a resolution. In view of the provisions contained in Section 3 of the Repealing Act 1999, and the fact that the possession of the vacant land had not been taken over by the state Government and having regard to Section 4 of the Repealing Act, the Apex Court held that all proceedings under the Principal Act must be held to have abated.
118. A reading of Smt.Angoori Devi's case, makes it explicit that if possession of the land is not taken over, then by virtue of the Repealing Act, all proceedings are abated. Therefore, the converse is that, if possession is taken over, then not all proceedings would abate, but some proceedings would still be alive, and that they are covered by Section 4 of the Repealing Act.
119. In Ramakrishna Reddy v. Addl. Revenue Divisional Officers reported in AIR 2000 SC 2723, the Supreme Court considered a case where there was a surrender of lands, by the land owners, under the Andra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, (1 of 1973) and the payment of compensation thereon. After considering the statutory provisions, the Apex Court, at Paragraph 19, held as follows:
"19. From the conspectus of the relevant provisions in the Act and the Rules noted in the preceding paragraph it is clear that the surplus land which is surrendered or deemed to have been surrendered shall vest in the State on communication of the order passed by the Revenue Divisional Officer to take over possession of such land to the owner/holder/occupier of the said land. The word 'thereupon' in Section 11 refers to such order of the Revenue Divisional Officer. The order in Form 'IX' and the manner in which the said order will be served on the owner are prescribed in sub-rules (1) and (2) of Rule 8. The provisions incorporated in sub-rules (3) to (7) of the said rule are steps to be taken after the surplus land has vested in the State. Vesting of the surplus land in the State is not dependent on taking over physical possession of the land which may be immediately after the vesting or sometimes subsequent thereto. It is our considered view that this conclusion emanates from a harmonious construction of the provisions in Section 11 and Rule 8 and it is in accord with the object and purpose of the Act." (emphasis supplied)
120. In an unreported judgment in the Special Commissioner, Revenue Secretary to Government, Chennai and two others Vs. N.Kannan, [W.A.No.1133 of 2002 dated 10.06.2002], the Division Bench having regard to Section 4 of the Urban Land (Ceiling and Regulation) Repealing Act, 1999, held that "Section 4 says only such action by which the excess land holder has been deprived of his possession and vested the property with the Government. But in so far as the proceedings before any Authority/Tribunal etc., arising under the Act, the legislative policy expressly states that such proceedings shall abate. Such abatement will enure to the benefit of the party who has filed a declaration and as such the question of the appellate authority hearing the appeal does not arise at all, as the order holding the first respondent as excess land owner under the Urban Land (Ceiling and Regulation) Act, had become non-est in law. In the above case, a proceeding pending before the appellate authority was declared as abated. Hence, the said judgment is not applicable to the facts of this case.
121. In Alliend Metal Fabricators Pvt. Ltd., represented by its Managing Director Vs. The Secretary to Government Revenue Department, Government of Tamilnadu reported in 2002 (2) CTC 716, this Court held as follows:
"The Tamil Nadu Urban Land (Ceiling and Regulation) Act has been repealed by the repealing Act (Act 20 of 1999) and all proceedings also having been declared to have abated. As held by the Supreme Court in the case of Angoori Devi Vs. State of U.P., JT 2000 Supp 1 (SC) 295, if the possession of the land had not been taken prior to the repeal, such possession cannot be taken thereafter and no proceedings can be thereafter initiated under the repealed enactment. During the pendency of this writ petition the petitioner had the benefit of an interim order protecting his possession. It is also not the case of the respondents that they have taken possession."
122. In C.V.Narasimhan represented by his Power Agent Vs. The Government of Tamilnadu represented by its Secretary, Revenue Department, reported in 2002-2-L.W.764, wherein, this Court held as follows:
It is clear that the repealed Act gives certain right to the owners of the land where the physical possession of such land continues to be with the owner. The statutory vesting is of no relevance. In the case on hand, the petitioner claims to be in possession of the disputed land. When sub-section (2) of Section 3 of the repealed Act specifically makes a provision to refund the compensation and retain possession if possession remains with the land owner. Hence it is for the first respondent to consider the question of physical possession and decide the issue.
(emphasis supplied)
123. Relying on paragraph No.10 of the Judgment in Mrs.Ayesha Haque, represented by her power agent Vs. State of Tamilnadu represented by its Secretary to Government, Revenue Department, Chennai, and two others, reported in 2003 W.L.R 193, learned counsel for the petitioners submitted that if possession had not been taken in accordance with the provisions of the Act, then the whole proceedings are vitiated. In Paragraph No.10 of the said judgment, this Court held as follows:
In this case, though orders have been passed, declaring the land as excess, there are two facts which would militate against the continued applicability of the Ceiling Act. Firstly, the possession remains with the petitioner and therefore no complete vesting has taken place in favour of the State Government. Secondly, as against the order passed by the third respondent, an appeal has been filed before the Principal Commissioner, the second respondent herein, and therefore the proceedings declaring the excess land cannot be stated to have become final. Therefore, I am inclined to hold that Section 3 of Act 20 of 1999 cannot apply and in terms of Section 4, the proceedings have to be held as abated." (emphasis supplied)
124. In an unreported judgment in S.Ramasamy Vs. State of Tamil Nadu, represented by its Secretary, Revenue Department, Chennai, and three others in W.P.No.6641 of 1997 dated 09.09.2004, the petitioner therein challenged the order of confirming the notice issued under Section 9(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, as well as the allotment of lands to the Director of Vigilance and Anti Corruption Department in G.O.Ms.No.27 dated 13.01.1995. It was mainly contended that by virtue of the Repealing Act 20/1999, the whole proceedings were non-est in law or even if a notice under Section 11(5) of the Act was issued, in view of the fact that possession continued with the petitioner, the proceedings would stand abated. Per contra, the respondent had contended that in view of the fact that, subsequent to Section 11(5) notification, the appeal had been filed after four long years and in the meantime, lands in question were allotted to the Vigilance Department under the abovesaid Government Order and possession had already been taken. At Paragraph 10, this Court has held as follows:
"On a perusal of the counter affidavit filed on behalf of the respondents also there is no special averment to the effect as to how the physical possession of the land was taken on 30.10.1991, by following the procedure prescribed under the provisions of the Act in such circumstances, it will have to be necessarily held that though the declaration under Section 11(3) of the Act came to be issued on 07.03.1991, the possession after issuance of 11(5) notice had not been validly taken as contemplated under the provisions of the Act."
(emphasis supplied)
125. On the plea of not taking actual physical possession of the land as required under law, learned counsel for the petitioners also invited to paragraph No.13 of the unreported judgment in Vijayakumar and five others Vs. the Principal Commissioner and Commissioner for Land Reforms, Chennai, in W.P.No.22553 of 2003 dated 09.09.2004, wherein, this Court held as follows:
"13. Thereafter, possession of the lands is stated to have been taken. By proceedings dated 20.01.1998, the Assistant Commissioner, Urban Land Tax has sent a communication to the Tahsildar, Tambaram Taluk stating that the notice under Section 11(5) of the Act was served by way of affixure. The date on which the affixture was made is left blank. And the Tahsildar has directed to instruct the Firka Revenue Inspector and Village Administrative Officer to take possession of the excess vacant land immediately. On 12.03.1998, the Deputy Tahsildar (Urban Land Ceilinjg) submits a report that the excess land was taken from Tmt.Nagalakshmi Ammal and at that time, the land was vacant and possession thereof was taken on 12.03.1998. Of course, there is a land delivery receipt in which the name of the urban land owner is shows as Nagalakshmi Ammal, the mother of the petitioners and the details of structures, if any, is shown to be vacant. The Deputy Tahsildar (Urban Land Ceiling) has affixed a stamp over the words, "handed over by" the adjacent to that the Revenue Inspector has signed. In the order of the second respondent, there is a clear mention of a dilapidated building in Survey No.14/2A. Whereas, the land delivery receipt which is purported to be the record of taking delivery shows that the land is vacant. It is clear that there was no actual taking of possession."
(emphasis supplied)
126. In the above judgment, it could be seen from the Land Delivery Receipt, that the property was shown as vacant land, whereas, there was a building in a dilapidated condition. In view of the glaring difference in the description of the property said to have been in possession, this Court had come to the conclusion that actual possession had not been taken. The said judgment would not lend any support to the case of the petitioners.
127. Taking this Court through an unreported judgment in Sukumar Ramanan Vs. the Competent authority of Urban Land Ceiling and Assistant Commissioner of Urban Land Tax, Chennai, in W.P.No.27432 of 2004, dated 04.11.2004, learned counsel for the petitioners submitted that in the above case, the Court found that the land in question was allotted to the Housing Board, the land continued to remain in possession of the land owner.
128. In the abovesaid judgment, the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, were challenged on the ground that possession of the land continued with the petitioner. Though it was contended that the land was allotted to the Housing Board, this Court on perusal of the report of the Assistant Commissioner, Tamil Nadu Urban Land (Ceiling and Regulation), found that the land allotted to the Housing Board was not used by the Board and it remained vacant. Besides, it was covered by compound walls on all sides confirming that the petitioner was in possession of the lands. On this factual finding and in the absence of any other acceptable material documents on record to prove that the possession of the land was taken over by the Urban Land Ceiling authorities or the department to which, the lands were allotted, the Court quashed the proceedings.
129. Referring to a decision in K.R.Kothandaraman vs. the Special Commissioner and Commissioner for Land Ceiling and Urban Land Tax and another [2005 4 L.W. 299], the learned counsel for the petitioners has submitted that the contention of the respondents therein that symbolic delivery of possession must be taken, as possession of the respondent has been rejected. In the above case, even though it was claimed by the respondent therein that possession had been taken, since the Urban Land Authorities had demanded payment of tax and received such payment from the various occupants, this Court held that the above act clearly militates against the case of the respondents that possession had been taken in a manner known to law. The Court also observed that the fact that the petitioner therein was continuing in physical possession was also not challenged in any manner in the counter.
130. There is no quarrel over the point that symbolic possession is not intended under the Principal Act, when use of such force was permissible to take actual physical possession, if necessary. In the absence of any counter regarding rentention of possession by the land owner, in the above case, this Court has rejected the case of the government. This judgment is not applicable to the facts of this case.
131. In W.P.No.14368 of 2002, dated 24.03.2005 [Dr.T.Azizuddin Vs. The Government of Tamilnadu, Represented by its Secretary, Revenue Department and The Assistant Commissioner (Urban Land Tax)], the wife of the writ petitioner Smt.Mahboob Bi, purchased agricultural lands, an extent of 2.05 acres comprised in S.F.No.387/1 in Zamin Pallavam village by a sale deed, dated 05.02.1962. An extent of 1750 sq.meters of the said land was declared as surplus on 28.05.1983, under Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1977. In terms of section 11(3) of the said Act, the excess land absolutely vested with the State Government free from all encumbrances. The competent authority (ULT) by order dated 12.05.1988, fixed the compensation payable at Rs.17,500/-. A Writ Petition was filed in W.P.No.5630 of 1989, questioning the orders passed by the Government in G.O.Ms.No.1375 Revenue dated 05.06.1980, determining the zonal value. The said writ petition came to be allowed on 10.02.1995, with a direction to the respondents therein to hear the petitioners therein fully regarding the fixation of the amount. Questioning the said order, a Writ Appeal was also filed in W.A.No.613/1995, which was dismissed on 19.09.2001.
132. In the mean time, after passing of the orders in Writ Petition and before the said Writ Appeal was disposed of, Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 20/1999) came to be enacted. By virtue of the said Act, all proceedings that were pending and where no possession was taken, were deemed as abated. Claiming that possession was not taken, not only on the date (16.06.1999) when the Repealing Act came into force, the petitioner approached this Court by way of another Writ Petition for a direction to the respondents to restore the land in question to the petitioner and in accordance with the provisions of Act 20 of 1999. In the above case, it was the contention of the petitioner that he was not issued with a Notice under Section 11(5) of the Act, before possession was taken and no physical possession was taken before the Repealing Act.
133. Per contra, the Government, on the basis of the records, contended that the possession of land in question was taken over on 15.10.1985, after serving Notice on the owner. While considering the mode and whether possession was taken prior to the introduction of the Repealing Act, this Court on facts has recorded as follows:
"From the Communication of the Assistant Commissioner (ULT) dated 21.05.1985 at page 189 of the file, it is seen that Notice under Section 11(5) of the Act was already issued and inspite of acknowledgement by the petitioner on 24.08.1983, she has not handed over possession. Even after one year and six months lapsed, she did not hand over possession and hence, the Deputy Tahsildar No.II was requested to hand over possession to the Tahsildar, Saidapet to carry out the change in the village and taluk records. At page 193 it is seen that there is an endorsement stating that "the above extent of vacant land declared by me and taken possession of the above land by the Revenue Inspector". The said land delivery receipt contains the name of Tmt. Mahaboob Bee. From this it is clear that though notice was served in the address belonging to the petitioner and the same was acknowledged by one Naazirunissa, wife of the petitioner did not deliver vacant possession for almost all the period of one year and six months and thereafter only possession was taken in terms of sub-section 6 of Section 11.
(emphasis supplied)
134. Following the judgment of Supreme Court in Gunwantal v. State of M.P., reported in 1972 (2) SCC 194, this Court held that possession had already been taken and therefore, the petitioner therein was not entitled for the relief sought for. It could be seen from the above judgment that this Court has accepted the mode of taking over possession by the revenue authority and the consequential Land Delivery Receipt, containing the name of the petitioner.
135. The decision of the learned Single Judge was challenged in Writ Appeal No.2752 of 2005, dated 22.07.2009. Legal Representatives of the deceased inter alia contended that service of notice under Section 11(5) of the Act, was not effected in accordance with law and that possession as per Section 11(6) of the Act, was not taken by the Government, as there is no evidence to show that possession was actually taken. It was further contended that the words "restoration" and "dealt with in any manner or taken by the Government" should not be construed as taken possession or being in possession, but it restricts only in so far as the entitlement of the Government to deal with the property upon vesting under Section 11(3) of the Act. Per contra, learned Special Government Pleader has submitted that it is not as if the Government had not taken steps to pay the compensation. After the dismissal of Writ Appeal No.613 of 1995, the Government had issued notice to the land owner and in response to that, the appellant had sought for time and thereafter, wrote to the Government that in view of the Repeal Act, all proceedings were abated and approached this Court by filing the second writ petition. In such circumstances, it was pleaded that the Government could not proceed further in the matter of awarding compensation. The learned Special Government Pleader has also submitted that use of police force is not necessary in all cases and it has to be used only when the land owner refuses to comply with the notice under Section 11(5) of the Act. Therefore, it was contended on behalf of the Government that merely because, the Government did not use police force to take possession that would not mean that possession was not taken. On the facts of the case, it was noticed by the Division Bench that by proceedings, dated 20.05.1983, the competent authority (ULC) has declared that the excess vacant land in Survey No. 387/1A measuring 1750 sq.mt in Pallavaram Village shall be acquired under the provisions of the Act and that on 12.05.1988, the compensation was calculated. The first appellant's wife therein, who was the original owner, was directed to appear in person to receive the compensation and immediately thereafter, a Writ Petition in W.P.No.5630 of 1989 was filed. Pending the writ petition, the original owner Tmt.Mahboob Bi died and her husband and children were brought on record. W.P.No.5630 of 1989 related only to the question of compensation. However, while dealing with the facts, the learned Single Judge observed that "original petitioner's lands were acquired in 1983 as stated earlier, possession was actually taken in 1985". The above Writ Petitions were allowed, directing the competent authority not only to determine the amount payable to the petitioner, but also to pay a reasonable interest on such amount. Subsequently, they made a complaint to the Inspector of Police that actual physical possession had not been taken and an application was made by the husband of the original owner, for setting aside the order of the competent authority (ULC) in view of the Repeal Act. Aggrieved by the order made in W.P. No. 5630 of 1989, the Government filed W.A.No.613 of 1995 and final orders were passed on 19.09.2001. No attempt was made by the husband of the original owner, challenging the finding recorded in the Writ Petition No.5630 of 1989 that possession actually taken over is not correct and all the proceedings including proceedings, by which compensation was determined, stands abated.
136. In the above unreported judgment made in W.A.No.2752 of 2005, dated 22.07.2009, possession was taken over and Land Delivery Receipt was recorded and thereafter, the area had been checked and the actual excess land had been demarcated. The Revenue Records also stood in the name of the Government and subsequently, the appellant therein sent a letter, dated 11.11.1998 to the Government of Tamil Nadu, stating that they were not aware as to how Government had dealt with the land taken over from them. On these facts, the Division Bench held that, "Here, not only there is a finding/observation of this Court in the earlier writ petition, but the subsequent correspondence emanating from the appellant also indicates that possession was indeed taken. ........when the lands are lying vacant and there is no resistance, it is not necessary for the State to unnecessarily use police force."
(emphasis supplied)
137. In Sosamma Thampy Vs. The Assistant Commissioner (ULT) and others reported in 2006 (3) L.W. 50, the finding of the Court was that the respondents were not in a position to show from the records that actual possession of the lands in question had been taken over by the Government or that any compensation was paid to the land owner for the lands sought to be acquired. Therefore, on that basis, this Court held that the proceedings initiated by the respondents for acquiring the lands of the land owner under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, stood abated on the passing of the Repealing Act 20 of 1999.
139. In view of the specific finding recorded in the present case, regarding taking over possession, the above decision inapposite to the facts of ths case.
140. In S.Subramamium Vs. State of Tamil Nadu, represented by its Secretary, Revenue Department, Chennai, reported in 2006 (3) L.W. 445, at paragraph No.4, this Court held as follows:
It is clearly noted that in Section 2 of the Repeal Act that the 1978 Act has been repealed. Therefore, nothing is saved except for what is expressly stated above in Section 3. Furthermore, Section 4 of the Repeal Act states that all proceedings relating to any order made or purported to be made under the Principal Act, pending immediately before the commencement of this Act before any Court, Tribunal or any other Authority, shall abate and the said provision also contains a proviso which states as follows:
"Provided that this section shall not apply to the proceedings relating to Sections 12, 13, 14, 15, 15-B and 16 of the Principal Act in so far as such proceedings are related to the land possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority." (emphasis supplied)
141. In C.N.Chandran and others Vs. the Government of Tamil Nadu represented by its Secretary, Revenue Department, Chennai, reported in (2006) 3 MLJ 1050, this Court held as follows:
"As rightly pointed out by the learned counsel for the petitioners, Section 3 of the Repeal Act should not be read in isolation, it should be read with Section 4 of the Repeal Act. Section 4 of the Repeal Act contemplates that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of the Act, before any Court, Tribunal or any authority shall abate, which means that any orders passed by the authorities including the impugned notifications issued under Section 11(3) of the Act, against which any proceeding is pending before any Court, Tribunal or any authority shall abate. It means that if the possession has not been taken over by the Government, even after an order is passed under Section 11(3) of the Act, the proceedings must be held to have abated. The proceedings must be held to have abated. The possession of the petitioners is asserted by the learned senior counsel for the petitioners and it is also apparent from the document mentioned above and also from the interim orders passed by this Court. It is also not in dispute that no compensation was paid to the petitioners."
(emphasis supplied) In this case, two documents, viz., Chitta and Adangal were produced before the Court to prove that the petitioner therein, continued to remain with the possession of the lands and no compensation amount was paid.
142. In P.T Madan Swaroop Shrotiya Public Charitable Trust Vs. State of U.P. and others, reported in (2006) 6 SCC 325, a challenge was made to the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976. The prescribed authority declared an area of 4314.60 sq.mt of land as surplus. When the same was challenged in appeal, the appellate authority rejected the appeal. Thereafter, a writ petition was filed in the High Court and that the same was also dismissed. While testing the correctness of the dismissal order, the Supreme Court granted an order of status-quo in respect of possession of the surplus land. By Urban Land (Ceiling and Regulation) Repeal Act, 1999, the Principal Act 33 of 1976 was repealed and that the legislature of the State of U.P., had also adopted the same, by a resolution under Article 252(2) of the Constitution of India and the Repealing Act came into effect from 18.03.1999. The appellant before the Supreme Court filed a supplementary affidavit dated 31.10.1999, praying that the proceedings be declared as abated. The State did not choose to file any reply. As there was nothing on record to indicate that the State had taken possession over the surplus land and finding that there was no counter affidavit about the possession of land stated to have been maintained by the appellant therein and having regard to Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the Apex Court declared the proceedings as abated. In this case, there was no record to substantiate that possession was taken over.
143. In Saramathi v. Principal Commissioner reported in 2007 (4) CTC 14], there was no documentary proof of taking over actual physical possession prior to the Repealing Act, i.e., Act 22 of 1999, dated 16.06.1999.
144. In M/s.Sri Vittal Combines, registered partnership firm represented by its partner Vs. the Commissioner and Secretary (Revenue), Government of Tamil Nadu, reported in 2007 4 L.W 349, this Court held as follows:
"Court is of the considered view that once it is found that the actual possession of the land in question had not been taken over by the State Government or by any person authorised by the State Government, the possession would continue to vest with the petitioner, even if a final decision had not been taken, under Section 21 of the Act 1978 Decisions of the Supreme Court and of this Court are to the effect that if the actual possession of the land in question has not been taken over by the Government or by the concerned authority, and if due compensation had not been paid, all pending proceedings with regard to the land in question would abate and the land in question would continue to vest with the petitioner." (emphasis supplied)
145. The above judgment clearly states that the right of the land owner subsists only when possession is not taken over by the Government. In the present case filed by the beneficiaries, compensation amount has been determined and received by the land owner, almost in full, except the last payment, which was kept in revenue deposit, because of her death and refused to be received by the legal heirs to the estate of Mrs.Rangamma Gayadri Devi, the land owner. Once possession of the land is taken, proceedings under Section 12 of the Act, continues to operate and it is saved by Section 4 of the Repeal Act.
146. In Mukarram Ali Khan Vs. State of U.P and others, reported in 2007 (4) L.W 797, having regard to the undisputed position that the State had not taken possession of the land, the proceedings initiated under Urban Land (Ceiling and Regulation) Act, was declared as abated.
147. In V.Gurnathan represented by the Power Agent Vs. Assistant Commissioner of Urban Land Tax and Ceiling, Tambaram area, Chennai and others, reported in (2007) 5 MLJ 103, this Court held as follows:
"Respondents could not produce any record to show that actual possession of the land in question had been taken and due compensation paid. From the records placed before this Court, it is seen that the lands in question had been taken and handed over to Firka Revenue Inspector, Alandur, on 30.06.1993. According to the provisions of the Repeal Act 20 of 1999 and based on their interpretation, as found in a series of decisions of this Court, it is clear that mere vesting of the land in the Government is not sufficient. It should be shown that actual possession was taken over. Taking of actual possession of the land and the payment of compensation thereafter, are the crucial factors. If such taking over of possession and payment of compensation is not shown to have been done, all proceedings pending with regard to the lands in question, ought to be taken as abated on coming into the force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act (20 of 1999)." (Emphasis supplied)
148. In the above reported case, the Court has held that the mere vesting is not sufficient and this Court has not given credence to the certificate of the Firka Revenue Inspector, for effecting taking over possession.
149. In Saraswathi and another Vs. Principal Commissioner & Commissioner of Land Reforms, Chennai and others, reported in (2007) 5 MLJ 1240, wherein, it was contended by the respondents therein that on 23.10.1992, possession was taken over by them. Even assuming that the possession was taken by the respondents, the Court held that it was nothing but only a paper possession.
150. In Tessy John Vs. Principal Commissioner and Commissioner of Land Reforms Chennai and others, reported in (2008) 1 MLJ 838, this Court held that when the acquisition proceedings were not initiated against the real land owner and that when the real owner was not served with proper notices in terms of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, the entire exercise of acquisition is an exercise in futility and it would also amount to deprivation of the property of real owner by misusing the power vested under the Act. Though a contention has been made that physical possession of the property acquired has not been taken over from the land owner and she continued to be in possession and enjoyment of the said property, the very initiation of the acquisition proceedings was found to be erroneous. Except to the issue relating to taking over possession, the judgment is not applicable to the case on hand.
151. In Special Civil Application No.26301 of 2007, dated 16.07.2008 [Govindbhai Naranbahi Patel Vs. State of Gujarat], the petitioner therein challenged an order dated 30.08.2006, passed by the Principal Secretary, Urban Land Tribunal refusing to entertain an appeal of the petitioner on merits, on the ground that after the repeal of Urban Land (Ceiling and Regulation) Act, 1976, with effect from 30.06.1999, no appeal is maintainable. The judgment rendered in the above case is brief and the same is extracted hereunder.
"Undisputed facts emerging from the pleadings are that the petitioner filed declaration in terms of the Urban Land (Ceiling and Regulation) Act before the competent authority, who, by his order dated 15.07.1987 declared that the petitioner was holding total 1350.50 sq.mtr of urban land. After granting one unit to him, therefore, the petitioner was holding excess vacant land to the extent of 355.50 sq.mtrs. This order was never challenged by the petitioner right till the year 2006. Not only that, from undisputed averments made in the affidavit-in-reply filed by the respondent No.3, it emerges that the order of the competent authority was fully implemented. It is stated that notification under Section 10(1) of the Act was issued on 08.01.1988 inviting objections. Notification under Section 10(3) of the Act was issued on 24.11.19888. By notice dated 19.08.1989 issued under Section 10(5) of the Act, the land holder was asked to surrender excess vacant land to the Government. An order under Section 10(6) of the Act was made on 21.06.1990 and possession of the land was taken from the petitioner on 30.06.1990 by drawing Panchnama. Thereafter, compensation under Section 11 of the Act was fixed by order dated 01.09.1992 and the same was also served on the petitioner. It also stated in the affidavit that the compensation so fixed by the Government has been duly paid way back in the year 1995 which has been accepted by the petitioner without any protest.
In view of the above undisputed facts, I do not find any possibility of entertaining the petition. The petitioner has, not having challenged the order of the competent authority in the year 1987, cannot seek to reopen the issues after nearly 20 years, that too, after having accepted the compensation without any protest in the year 1995." (Emphasis supplied)
152. In the above reported case, possession was taken over by drawing Panchnama and compensation was also received without any protest. After 20 years, the land owner challenged the proceedings.
153. Whether subsequent purchasers or persons, who claim any right by virtue of transfers effected after the commencement of the Principal Act, can challenge the proceedings of the authorities under the Land Ceiling Act.
154. On the aspect that, if there is a purchase of property, after coming into force of the Land Ceiling Act, making it invalid, as per Section 6 of the Act and whether notice has to be given before taking over actual possession, a Division Bench of this Court in M/s. Sree. Jayalakshmi Brick Industries represented by its Proprietor Vs. the Special Commissioner and Government of Tamil Nadu represented by its Secretary to Government, Revenue Department, Chennai, reported in 2009 (4) L.W 819, held that in view of the expression "any person who may be in possession" used in Section 11(5) of the Act, notice ought to have been served on the person in possession to surrender or deliver vacant possession and symbolic possession is not sufficient and when actual taking over possession under the provisions of the Act has not been done, the proceedings are abated.
155. In this context, it would be relevant to extract the views of another Division Bench in S.Balasubramaniam and another Vs. the Special Commissioner and Commissioner for Land Reforms, Chennai, reported in (2009) 4 L.W 826 on the above aspect. In the above reported judgment, the appellants therein, had purchased lands in 1989 and 1993 respectively, after the publication of the notification under Section 11(1) of the Act. Dealing with the issue, as to whether purchaser's have any right over the property, purchased after the notification and whether they can maintain a Writ Petition, the Division Bench held as follows:
"The sale in favour of the appellants is null and void as per Section 6 of the Act, which provides that no person who is holding vacant lands in excess of the ceiling limit immediately before the commencement of the Act, shall transfer such land by whatever mode of transfer until he has furnished the statement under Section 7 and notification under Section 11(1) has been published. As the sales effected in 1989 and 1993 are clearly in violation of Section 6 and are therefore null and void no right to flow from such void transactions."
(Emphasis supplied)
156. Facts of the reported case further disclose that the appellants therein had waited from 18.05.1990 till February 2005, to assert their rights and that there was laches on their part. Applying the latter judgment, S.Balasubramaniam's case to the present case, as transfer of property by any mode is prohibited, after the issuance of Section 11(3) notification, this Court is of the view that the Will said to have been executed by the Land Owner and probated in the year 2001, after surrendering possession in the year 1988, will not clothe any right to the petitioners to maintain a writ petition, after nearly 22 years.
157. In W.P.No.11334 of 2006, dated 02.11.2009 [R.R.Nadham -vs- State of Tamil Nadu, represented by the Secretary to Government, Revenue Department], this Court, held that "physical possession of the land handed over by the Assistant Grade Revenue Inspector, (ULC) Poonamalleee and taken over by the Revenue Inspector, Ambattur and the consequential Land Delivery Receipt duly signed by both the authorities, as valid and further held that the authorities had followed the procedure, before taking over possession of the land, which cannot, at any stage, be found fault with. This Court also observed that the possession of the petitioner therein, if any, has to be treated only as an encroachment on the Government land. Section 4 of the Repeal Act cannot be made applicable to this case, the reason being, no proceedings were pending immediately before the commencement of the Act, before any Court, Tribunal or any authority. Therefore, the possession, which was taken by the authorities way back on 19.1.1984 had become final. As such, there shall not be any abatement of proceedings as contemplated under the said proviso".
158. In most of the cases relied on by the learned counsel for the petitioners, there were no records available for the respondents therein to prove that possession of excess lands had been taken over, after preparing Panchanama or memo signed by the official belonging to the Revenue Department in the presence of the land owner nor there were cases of surrender of possession. In the case on hand, the land owner, sister of the petitioners' had surrendered the excess land on 29.04.1988 and also signed the Land Delivery Register and thereafter, physical possession has been taken.
159. Reading of Section 3 of the Repealing Act makes it clear that "taking over possession of the land" is the most relevant factor for the purpose of deciding as to whether all actions taken under the Principal Act are abated or not, and also to decide as to whether the land owner has any subsisting right under the Repealing Act, 1999, to seek for re-conveyance of title, when the excess land vest in the Government, if possession of the same, had not been taken over by the Government.
160. Reading of Section 4 of the Repeal Act, makes it clear that in cases, where possession has already been taken over by the authorities, all proceedings relating to any order made or purported to be made under the Principal Act, pending immediately before the commencement of the Act, before any Court, Tribunal or other authority shall abate.
161. A conjoint reading of Sections 3 and 4 of the Repealing Act, 1999 and its effect is that, any action taken under the Principal Act, 1978, would abate, except in respect of cases, where possession has already been taken over by the Government and in respect of cases, where possession has not been taken over, but the land is deemed to have been vested with the Government under Section 11(3) of the Principal Act and where the compensation amount already paid, had not been refunded, then that is also saved.
162. As stated supra, as per Section 11(3) of the Principal Act, "vesting" means, vesting of right, title and interest, in relation to the excess land declared, free from all encumbrances in the Government. Section 11(3) does not speak about possession. That is why, Section 3 of the Repeal Act, specifically states that, (1) Land should be vested, (2) Compensation should have been paid, (3) The amount received has been refunded, and (4) Restoration of land is permissible, if physical possession had not been taken. It should be noted that in the Principal Act, vesting is followed by possession. If physical possession had already been taken over by the Government, or any person duly authorised by the State Government, in this behalf or by the competent authority, then what follows is only payment of compensation, whether partially paid or fully paid before taking over possession and payment of compensation under the Principal Act, does not get abated, in terms of Section 4 of the Repeal Act.
163. Legislature has conceived a difficulty that in cases, where vesting is done by passing of an order under Section 11(3) of the Principal Act, there would be still be objection from the land owners to vacate and therefore, the authorities were empowered to use such power to vacate them to take actual physical possession.
164. The question of taking over possession under Section 11(6) of the Principal Act, would arise only only when the land owner fails to surrender or deliver possession and if any person refuses or fails to comply with the notice issued under sub-Section 5 of Section 11 of the Principal Act, then the competent authority may take possession of the vacant land and for that purpose, use such force as may be necessary.
165. Thus, it is evident that once statutory vesting is completed, as per Sub-Section 11(3) of the Principal Act, the necessity to take possession arises and if the possession is taken over, either by voluntary surrender or any other recognised mode under law, then the acquisition is completed, except to the extent of payment of compensation, if not fully made prior to taking over. Once possession is taken over, then it cannot be contended that restoration of the land is permissible on payment of compensation already received by the land owner, whether partly or in full.
166. The expression "surrender" or "delivery of possession" used in Section 11(5) of the Principal Act, reflects the intention of the land owner to surrender/extinguish his rights to the property in all forms, including his right, title or interest and by such act of surrendering the land, he forfeits all his rights to the land, declared as surplus.
167. Reading of Section 3 of the Repealing Act would clearly indicate that the legislature has set out two categories of land owners. (1) Whose lands are vested in the Government and possession of which is taken over and the other, land deemed to have been vested, but possession not taken over, inspite of a declaration made under Section 11(3) of the Principal Act. In the former, if compensation had been paid either in part or full, the acquisition of the land by the Government to distribute the same in the manner set forth in the Principal Act is completed and if any compensation amount remains unpaid, vesting and taking over possession are saved and by virtue of Sections 4 of the Repeal Act and Section 12 of the Principal Act, determination and payment of compensation are not abated.
168. Whereas, in the case of latter, where possession is not taken over and even if compensation is paid in part or full, the land owner may seek for restoration of his rights over the property, though it is vested in the Government, after issuance of a notice, specifying the date under Section 11(3) of the Principal Act, provided the land owner, had refunded the compensation amount. As between the two categories, taking over possession is the most important event, which decides the rights of the land owner under the Repealing Act. If possession is not taken over by the Government before the Repealing Act, i.e., 16.06.1999, no action can be taken thereafter under Section 11(6) of the Principal Act and therefore in such circumstances, mere vesting of the land with the Government will not serve any purpose and the competent authority cannot exercise any power under the Principal Act to take possession as per Section 11(6) of the Principal Act, as it has been repealed.
169. The object of the Repealing Act is to give finality to certain proceedings initiated and completed under the Principal Act. The provisions of the Repealing Act makes it clear that the lands which had been vested and possession taken over cannot be reverted to the land owner, even if the compensation amount is not paid in full. If, the arguments of the petitioners are to be accepted, then every part and parcel of land, where possession has taken over by the Government for the purpose of utilisation in terms of the objects of the Ceiling Act have to be returned, thereby making Section 3 of the Repealing Act as redundant and meaningless. Then all dead matters can be resurrected.
170. Whenever action is taken under the provisions of the Principal Act 1978 to declare excess land in possession of the land owner and to take possession and if the land owner comes forward to surrender a portion or the entire extent of land, then the intention of the land owner is to surrender both title and possession with the government without demur and to forfeit of all his rights, title or interest, including possession, in relation to the excess land, is completed and if there is a consent by the government or the competent authority, accepting surrender or delivery of possession, then possession is immediately transferred to the government, in which event, the necessity to issue a notice, under Section 11(6) of the Act, does not arise at all. As stated supra, it is not the case of the petitioners that when their sister surrendered the rear portion of the land in Survey No.3847/96, to an extent of 641 sq.mts, the authorities refused to accept the offer. On the other hand, the authorities have readily accepted the surrender of the rear portion of the land, in lieu of the extent of land sought to be acquired and accordingly, issued errata to Sections 11(1) and 11(3) notifications, as per the directions of the 3rd Respondent, in his letter No.A2/SRA.327/78, dated 24.04.1987 and it was also published in Tamil Nadu Government Gazette No.22 dated 10.6.1987. Thereafter, the Urban land Owner has signed the Land Delivery Register on 29.04.2008.
171. Thus, it is evident that surrender of land by operation of law and by taking over actual physical possession, have been completed as early as on 29.04.1988 itself. If the Government, after acquiring the land, have allotted the same to some other person and permitted such persons to enter upon the land before the Repeal Act, came into force, then surrender of the land and delivery of possession in all respects is completed. Thereafter, all rights, title or interest in relation to the land are extinguished and forfeited, except to the extent of payment of compensation, if any, by the Government for the value of the land. In view of the above, once the land is surrendered on the free will and accord of the land owner, then there is no question of contending that possession has not been taken over by the authorities.
172. Reading of Section 3 of the Repeal Act, makes it clear that Repeal of the Principal Act shall not affect:- (a) the vesting of any vacant land under Sub-Section (3) of Section 11, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. (b) the validity of any order granting exemption under sub-section (1) of Section 11 of any action taken thereunder
173. In the case on hand, after surrender of land, Section 11(5) notice has been issued and the land owner had surrendered possession on 29.04.1988 and thereafter, possession has been taken over and the name of the land owner has been substituted as Tamil Nadu Adi Dravida Housing Development Corporation (TAHDCO) in the Permanent Land Register. It is well settled that when official functions are discharged as per the procedure, presumption is drawn as to the correctness of the entries in the Land Register and no further material is required to prove that possession is not taken over by the authorities.
174. In the case on hand, admittedly, the petitioners' sister had not filed any claim for re-conveyance of the land after the change of ownership effected in the Land Register. No prejudice has been caused to the erstwhile land owner. The offer made by her to the Government to take the rear portion of the lands has been accepted by the Government and the conduct of the land owner in receiving the compensation amount periodically would impel this Court to conclude there was absolutely no protest in any manner to handover possession and to receive compensation amount. The consequential allotment of the land to Tamil Nadu Adi Dravida Housing Development Corporation (TAHDCO) and the further endorsement in the revenue records amply prove that possession of the land had been taken over by the Government in the year 1988 itself and in such circumstances, the petitioners have no right to seek for restoration of possession of the land in question by virtue of Section 3 of the Repealing Act, 1999.
175. At this juncture, it is also pertinent to note that in the same manner the land owner had earlier surrendered 853.5 Sq.mts., in R.S.No.3847/97, to the Junior Engineer, Corporation of Madras. When the petitioners have accepted the mode of surrender of the above extent of land to the Junior Engineer, Division No.126, Corporation of Chennai, by way of a letter, dated 26.08.1988 is stated to be accepted and when the same mode has been followed by the land owner, in respect of 641 Sq.mts., in S.No.3847/1 and possession was taken by the Urban Land Officer, and recorded in the Land Delivery Register and signed by her, following her letter, dated 19.09.1986, this Court is unable to understand, as to how the mode of surrender and taking over possession, can be questioned at this length of time, when the land owner herself had not made any protest of taking over the excess land from 1988 to 2000, when she died.
COMPENSATION:
176. One of the contentions raised in this writ petition is that the entire compensation amount has to be given before taking over possession, otherwise, the whole proceedings are vitiated. The plea has been made on the basis of observations made in few decisions of this Court. Whether payment of full compensation amount is a requirement before taking over possession. On this issue, it is relevant to consider the decisions and the statutory provisions.
177. Placing reliance on a decision of the Apex Court in M/s.Rayala Corporation Pvt Ltd., Vs. the Director of Enforcement, New Delhi, reported in AIR 1970 SC 494, learned counsel for the petitioners submitted that once an Act is repealed unless it is saved by any Saving Clause in the provisions of the Repealing Act, further proceedings cannot be taken under the Principal Act and therefore, when full compensation amount has not been paid by the Government, by virtue of Section 4 of the Urban Land (Ceiling and Regulation) Act, the entire proceedings are to be declared as abated.
178. In this context, he has cited a decision of the Supreme Court in Kolhapur Canesugar Works Ltd., and another Vs. Union of India and others, reported in (2000) 2 MLJ 141 SC, where, it has been held that when a provision is omitted and another case is introduced without a Saving Clause, then the pending proceedings initiated under the omitted provision would lapse.
179. Placing reliance on a judgment in Mothi S.Rajamma and two others Vs. the Secretary to Government, Revenue Department, Chennai, in W.P.Nos.16898 to 16900 of 1999, dated 31.07.2002, learned counsel for the petitioners submitted that it is for the respondents to establish that the compensation was paid before possession was taken over by the State Government or any other person authorised by the State Government. He also drew the attention to this Court in paragraph No.10 of the abovesaid judgment, wherein, it was observed that if the lands had been allotted to Civil Supplies Department in the year 1985, there would have been some improvement to the property and on the basis of the above observation, submitted that, only recently the Tamil Nadu Adi-Dravidar Housing Development Corporation have entered into the lands declared as surplus in 1988 and the respondents have not taken the actual physical possession as per the procedure contemplated under Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978.
180. As elaborated earlier, possession in the present case had been taken on 29.04.1988 itself and if the lands are lying vacant for sometime, the same does not give any cause of action to contend that possession had not been taken. Once the land is allotted by the Government, it is left to the allottee to use the land for any public purpose and when it is put to actual use is not the concern of the land owner.
190. In A.Joseph Louis and another Vs. State of Tamil Nadu, represented by its Secretary, Revenue Department, Chennai, reported in (2004) 3 L.W. 208, at paragraph No.5, this Court held as follows:
"A combined reading of Section 3(1) and 3(2) of the Repealing Act makes it clear that unless possession had already been taken after payment of entire compensation, the State Government would not have jurisdiction to retain the land. On the other hand, if the compensation had been paid by the Government the person is allowed paid by the Government the person is allowed to take possession of the land provided to refund the amount received. Since in the present case neither possession had been taken not compensation had been paid, there is no jurisdiction for the State Government or for any authority to pass impugned order."
191. Though the learned Judge has observed that unless possession had already been taken, after payment of entire compensation, the State Government will not have jurisdiction to retain the land, in the said judgment, there is no reference to the continuation of the proceedings under Section 12 of the Principal Act, where, after vesting under Section 11(3) of the Act, payment can continue for a long time, even after taking over possession and it is not necessary that full compensation amount has to be paid before taking over possession.
192. In Simpson and General Finance Company Limited., Vs. State of Tamil Nadu, represented by its Secretary, Revenue Department, Chennai, and another, reported in 2006-4-L.W. 787, the writ petitioner therein, had challenged the proceedings of the Assistant Commissioner (ULT) Madhavaram, and consequently, to forbear the respondents therein, or any other officers or subordinates under them from interfering with the lawful possession of the petitioner in respect of the lands declared as excess vacant lands under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, as repealed by Repeal Act, 1999. It was submitted that a notice dated 14.06.2000 issued by the Assistant Commissioner (ULT) Mahhavaram, Chennai, the 2nd respondent therein, calling upon the writ petitioner therein, to appear for an enquiry with details of utilisation of excess vacant land as not valid in law, after the Repeal Act came into force. It was further contended that the petitioner company had applied for exemption of their excess lands held by it to an extent of 1,38,970 sq.mts, in the said village under Section 20(1) (a) of the Tamil Nadu Urban Land Ceiling Act, 1978, and that the Government vide G.O.Ms.No.215, dated 18.03.1998 had granted exemption which was periodically extended upto 17.03.2003. It was further contended that as per the provisions of the Repeal Act, 1999, any person who has been in possession on the date of the Repeal Act which came into force i.e., 16.06.1999 falls outside the purview of the Act, 1978. According to the petitioner therein, the extent of vacant land had been fully utilised.
193. Per contra, the Government had contended that exemption granted with certain conditions were not complied with by the petitioner with the result, the excess land vests with the Government automatically and hence, the Repeal Act cannot be made applicable. It was further contended that Section 21(1) of the Act cannot be read separately and it should be read along with Section 21(2) of the Act and once Section 21(1) is saved, Section 21(2) provide for consequential action in case of default in complying with the conditions and therefore the Government was empowered to send a communication withdrawing exemption. On the facts of the case, this Court at paragraph Nos.9, 11 and 12 held as follows:
"9. Section 3(1) and Section 3(2) of Repeal Act would reveal that the compensation must have been paid and possession been taken pursuant to that Section 3(2) (b) also provides 'then such land shall be restored unless the amount paid, if any, shall be refunded to the State Government "which makes it clear that even in cases where compensation is paid by the Government, the owner is allowed to take possession of the land, but that can be done only after the amount is refunded to the State Government.
11. Section 3(1) (b) of the 1999 Act contemplates that the Repeal Act shall not affect the validity of any order granting exemption under sub-section (1) of Section 22 or any "action taken thereunder". The words "validity of any order granting exemption" under Section 21(1) of the Act, 1978, denotes that the exemption and conditions imposed therein, are unaffected by Repeal Act. The words "action taken thereunder" means that all or any action if any taken against the person who obtained exemption for violation of such conditions prior to the repeal Act is not affected. In this case, admittedly, the State Government has not initiated any action prior to repeal Act. The impugned communication dated 13.03.2003 is one issued by the second respondent, that too, admittedly after the Repeal Act came into force.
12. "Saving Clause" is used to preserve from destruction certain rights remedies or privileges already existing not that it gives any new right. The assumption is that legislature enact laws with complete knowledge of existing laws pertaining to the same subject. The failure to add saving clause indicates that the intent was not to save the existing legislature. In this case, Section 21(2) was not saved in the repeal Act. In view of the fact that no action has been taken by the State Government for the alleged violation of conditions imposed while granting exemption prior to the repeal Act and also the fact that Section 21(2) is not saved, it is not even open to the State Government to take any action for the alleged violation of conditions, even if any. The impugned notice is issued only by the 2nd respondent, which is admittedly after the Repeal Act came into force. It is also a fact that neither compensation is paid to the petitioner nor the lands were taken prior to the Repeal Act. In view of the same, either the 1st respondent or the 2nd respondent has jurisdiction to initiate any action against the petitioner's lands, hence, I hold that the impugned communication is illegal and without any authority of law and the same is quashed accordingly."
(emphasis supplied)
194. In the above reported judgment, the Division Bench, on facts, found that neither the compensation amount was paid nor possession was taken before the Repeal Act and therefore, held that the impugned communication issued, after the Repeal Act, came into force, as without jurisdiction. The Division Bench, at Paragraph 9, held that, "9. Section 3(1)(a) of the Repeal Act says that the Repeal Act not affect vesting of any vacant land under sub-section (3) of Section 11, possession of which has been taken over by the State Government or any person, duly authorised by the State Government in his behalf or by the competent authority. Section 3(1)(b) says that the Repeal Act not affect the validity of any order granting exemption under sub-section (1) of Section 21 or any action taken thereunder. Section 3(2)(a) contemplates that the Repeal Act shall not affect where any land is deemed to be vested in the State Government under sub-section 3 of Section 11 of Act 1978 but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in his behalf or by the competent authority. The Section 3(2)(b) of the Act says that any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government. A joint reading of Section 3(1) and Section 3(2) of the Repeal Act would reveal that the compensation must have been paid and possession been taken pursuant to that. Section 3(2)(b) also provides "then such land shall not be restored unless the amount paid, if any, shall be refunded to the State Government" which makes it clear that even in cases where compensation is paid by the Government, the owner is allowed to take possession of the land, but that can be done only after the amount is refunded to the State Government."
195. Though the Division Bench has held that even compensation amount is paid and possession taken, still the land owner is entitled to seek restoration of possession, this Court is inclined to apply the interpretation made in judgment of the Supreme Court in Angoori Devi's case (stated supra) and the Division Bench judgment of this Court in Writ Appeal No.2752 of 2005, dated 22.07.2009 [Dr.T.Azizuddin (died) vs. The Government of Tamilnadu], stated supra.
196. In an unreported decision in N.S.Jaya Vs. the Revenue Secretary, Government of Tamil Nadu, Chennai, and three others, in W.P.Nos.39713 and 39714 of 2002, dated 06.02.2009, one N.S.Ramaswami, brother of the petitioner was the owner of the lands. The Government acquired lands in Survey No.214/2 under the Tamil Nadu Urban Land (Ceiling and Regulation), Act, 1978. As he was a bachelor, he was allowed to retain some portion of land in Survey No.214/2. He died on 21.02.1987 and thereafter the petitioner succeeded to his estate as his sole legal heir. According to her, physical possession of the land was not taken over and mere vesting of right in the Government will not give any right to the respondents therein, to retain the lands in question. It was also contended that the petitioner and her late brother did not receive the entire amount of compensation and the last payment of Rs.1151/- had been received by the petitioner from the Assistant Commissioner, Mylapore, on 22.12.1996.
197. On behalf of the respondents, it was contended that the Urban Land owner himself had surrendered the excess land and accordingly he had received 25% of the amount payable under Section 12(6) of the Act, as possession was already handed over as early as on 23.02.1982 and therefore, the petitioner has no locus-standi to make a claim to get back possession of the land in question. It was also submitted that full amount of compensation for the surplus land acquired under the Act, has been paid vide Cheques dated 06.11.1996 and that on 24.01.1997. However, the petitioner inter-alia contended that, as physical possession of the land was not taken, she is entitled to protection under Section 3 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.
198. After considering a catena of decisions, a learned single Judge, observed that though the petitioner had claimed that the respondents had not taken actual physical possession of the land in question and that the compensation payable to the petitioner for the lands said to have been acquired by the respondents, had not been paid to the petitioner in full, the learned counsel for the respondents therein was not in a position to refute the claim made by the petitioner with the support of original records. The learned Judge has also observed that even though the respondents therein, had claimed that possession of the land had been taken over and that the same was allotted to All India Service Officers Co-operative Housing Society by way of G.O.Ms.No.26, Revenue, dated 08.01.1993, the respondents were not in a position to substantiate the said claim.
199. In this unreported case also, the finding of the Court is that the respondents were not in a position to substantiate their plea of taking over possession, with the support of original records and hence, the Court has quashed the proceedings. The said judgment is not applicable to the present case, for the simple reason that the respondents therein were not able to substantiate the claim of taking over possession and in such circumstances alone, the judgment has been rendered.
200. In Natwarbhai Magainbhai Patel v. Collector and Ors., reported in 1996 (5) SCC 498, the contention of the land owner was that the land was not immediately put to use, for which, acquisition was done. The Supreme Court held that, "In what manner the lands require to be utilised has been regulated under the provisions of the act. It is not a condition, under the Act, that payment of compensation be made before utilisation of the land of which the petitioner was erswhile owner. Under these circumstances, we do not find any illegality in the order passed by the High Court in Special Civil Appeal No.4093/93 on May 15, 1995. The Special Leave Petition is accordingly dismissed."
201. The payment of compensation before taking over of physical possession or before utilisation of the land is not a condition precedent.
202. Section 3(2) of the Repealing Act makes it clear that even though possession is not taken over by the government, but compensation amount paid if any can be refunded to seek for restoration of the rights, on account of vesting of title, rights or interest in the government, in relation to the excess land, deemed to have been vested in the government free from all encumbrances under Section 11(3) of the Principal Act, and therefore, if compensation had already been paid either in part or full, the land owner is entitled to seek for restoration of the divested rights, on payment of compensation amount, provided he retains possession. As per the decision of Smt.Angoori Devi's case, all proceedings are abated once possession is taken and Repeal Act does not confer any right on the land owner to seek for restoration of physical possession of the land. If physical possession is also meant to be restored to the land owner, after the payment of compensation if any, in part or full then Section 4 of the Repeal Act would become redundant and otiose. That is not the interpretation of the Supreme Court in Smt. Angoori Devi's case.
203. The interpretation of an enactment should serve the purpose for which it is enacted and not to make the provisions redundant. Provisions contained in Section 3 of the Repealing Act has considered and saved two categories of acquisition (1) where lands have been vested in the Government and possession taken, whether compensation paid or not and (2) where lands have been deemed to have been vested in the government and compensation paid, but possession not taken over by government and the land owners, not coming forward to refund the compensation amount.
204. If the land owners, whose lands are vested, but possession not taken over, prior to the Repealing Act, come forward to seek for restoration of the vested rights and refund the compensation received, either in part or full, then their rights are protected under the Repeal Act.
205. Vesting of land in the government comes into operation, the moment 11(3) notification is published, specifying a date in the declaration. As per section 12 of the Principal Act, (1) where any vacant land is deemed to have been acquired by the Government under sub-section (3) of Section 11, the State government shall pay to the person or the persons having any interest therein, the compensation amount for the value of excess land. The method of determination is provided in Section 12 of the Principal Act. Sub-Section (6) of Section 12 states that the competent authority may order in writing, determine the amount to be paid in accordance with the provisions of Section 12, as also the person, or, where there are several persons interested in the land, the persons to whom it shall be paid and proportion if any. Sub-Section 7 of Section 12 states that, "before determining the amount to be paid, every person interested shall be given an opportunity to state his case as to the amount to be paid to him." As per Sub-Section 8 of the said Section, the competent authority shall dispose of every case for determination of the amount to be paid as expeditiously as possible and in any case within such period as may be prescribed. Rule 11 of the Tamilnadu Urban Land (Ceiling and Regulation) Rules, 1978, deals with determination of the amount and disposal of cases by the competent authority under Sub-Sections 7 and 8 of Section 12. Rule 11 reads that, (1) every case for determination of the amount to be paid to the person or persons having any interest in any vacant land shall be disposed of by the competent authority within six months from the date on which such vacant land is deemed to have been acquired by the State Government.
206. The mode of payment of the compensation is provided in Section 16 of the Principal Act and it reads as follows:
"(1) The State Government shall, within a period of six months from the date of the order of the competent authority determining the amount to be paid under Section 12 or, in a case where an appeal has been preferred against such order under Section 13 or where a revision has been preferred under Section 15, within a period of six months from the date of the final order of the appellate or revisional authority, pay the amount referred to in Section 12 to the person or persons entitled thereto."
207. By Act 48/94, the government have made the following amendment to Section 16 of the Principal Act and the amending Act reads as follows:
"(1) This Act may be called the Tamilnadu Urban Land (Ceiling and Regulations) Amendment Act, 1994.
(2) In Section 16 of the Tamilnadu Urban Land (Ceiling and Regulations) Act, 1978, for sub-section 2 the following sub-section shall be substituted, namely:-
"(2)(a) If the amount payable is twenty five thousand rupees or below, it shall be paid in cash forthwith.
(b) If the amount payable exceeds twenty five thousand rupees, the first twenty five thousand shall be paid in cash forthwith and the balance shall, during a period of fifteen years, be paid in cash in annual instalments carrying an interest at the rate of six percent per annum with effect from the date on which the vacant land is deemed to have been acquired by the State Government under sub-section (3) of Section 11 of the Principal Act."
208. Reading of the statutory provisions makes it explicit that the moment a notification is issued under sub-section (3) of Section 11 of the Principal Act, the competent authority has to determine the compensation amount as expeditiously as possible and in any case, within a period of six months from the date on which, the vacant land is deemed to have been acquired by the State government or in a case, where an appeal has been preferred against such order under Section 13 or where a revision has been preferred under Section 15 to the Special Appellate Tribunal within a period of six months from the date of final order of the appellate or the revisional authority, as he case may be, pay the amount, referred to Section 12 to the person or persons entitled thereto. Section 13 deals with an appeal against an order made under Section 12 of the Act. Thus, it is evident from the statutory provisions that the proceedings for determination of the compensation amount is independent of the action taken by the competent authority for taking over possession under Sub-Sections 5 and 6 of Section 11 of the Principal Act.
209. As per sub-section 11(5), possession of excess land has to be surrendered or delivered to the State Government, within thirty days of the service of notice under Section 11(5) and if any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of vacant land or cause it to be given to the State government or to any person duly authorised by the State government in this behalf and may for that purpose use such force as may be necessary. The provisions of the Principal Act makes it mandatory on the part of the competent authority to take possession of the excess land immediately after 11(3) notification is issued, i.e., immediately after vesting of the land in the government, whereas, the time limit for determination of the compensation is within six months from the date on which the vacant land is deemed to have been acquired by the government or in a case, where an appeal or revision has been preferred, within a period of six months from the date of order of the appellate or revisional authority as the case may be. If the amount payable exceeds twenty five thousand, the first twenty five thousand shall be paid forthwith and the balance, during a period of fifteen years, be paid in cash. Section 11(3) of the Principal Act reads as follows:
"(3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification in the Tamil nadu Government Gazette declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified."
210. Therefore, payment of compensation determined under Section 12 of the Principal Act is independent of the action taken under Sub-Section 5 and 6 of the section 11 of the Act and if the amount exceeds twenty five thousand, the period of payment may even extend for a period of fifteen years, in which event, the delayed payment carries six percent interest. When the statutory provisions contemplate determination and payment of compensation, after vesting under Sub-Section 3 of Section 11, and continued payment under Sections 12 and 16 of the Principal Act, even after taking over possession, for which act, the time stipulated is immediately after 30 days, after 11(5) notice, the contention of the petitioners that the Principal Act contemplates entire compensation amount to be paid before the taking over possession of the land, is contrary to the statutory provisions. In view of the statutory provisions, the decisions relied on by the learned counsel for the petitioner, wherein only observations have been made, without there being any specific issue raised and answered, would not lend any support to the case of the petitioners. Therefore, it is the considered view of this Court that the provisions of the Principal Act do no contemplate and stipulate any condition precedent that, before taking over physical possession of the land, the entire compensation amount has to be paid. That is why the Repealing Act has been drafted in such a way, that where possession is taken, provisions under Sections 11 to 14 would not abate, by virtue of Section 4 of the Repealing Act. That is why as per Section 3(2) of the Repealing Act, even if the compensation amount has been paid, before taking over physical possession, the deemed vesting would be saved, under the Repeal Act, if the land owner does not come forward to refund the compensation amount, which would clearly show that taking over possession is independent of determination and payment of compensation as per Sections 12 and 16 of the Act read with Rule 11 of the Principal rules.
USER OF THE LAND:
211. Whether the taken over lands should be utilised immediately before the Repeal Act and if not, whether the acquisition proceedings are vitiated is another point to be answered.
212. Learned counsel for the petitioners submitted that as the land alleged to have been surrendered by the petitioners' sister was not put to use immediately for the purpose for which it was acquired and therefore, an inference has to be drawn to the effect that the possession was not taken over, prior to 16.06.1999, the date on which, the Repealing Act came into force.
213. In Tamilnadu Housing Board Vs. L.Chandrasekaran (Dead) by Lrs. and others, reported in 2010 (2) SCC 786, a part of the land of the respondents therein were acquired by the Government of Tamilnadu for Ambattur Neighbourhood Scheme. A Notification under Section 4(1) of the Land Acquisition Act, 1894, was issued on 23.10.1975 and declaration under Section 6 was issued on 02.11.1978. After finalisation of the acquisition proceedings, the respondents were paid compensation in lieu of their land. Some of the land owners including one Mr.A.S.Naidu, challenged the acquisition proceedings by filing writ petitions. The High Court quashed the declaration issued under Section 6 leaving the preliminary notification intact. Not satisfied with this, Mr.A.S.Naidu and others filed Special Leave Petitions (Civil) in 1988. During the pendency of the Special Leave Petitions, the Act was amended by Tamilnadu Land Acquisition (Amendment) Act 16 of 1997, in terms of which, a declaration under Section 6 was required to be published within three years from the date of preliminary notification. This Court took notice of the amendment made by the State Legislature and held that in view of the earlier order, such publication under Section 6 of the Act, cannot now by made and hence, proceeded to quash the acquisition with liberty to the State Government to issue a fresh preliminary notification.
214. One of the land owners, who had not challenged the acquisition proceedings filed a Writ petition in 1997 for issuance of a direction to the Tamilnadu Housing Board to certify that the acquired land was no longer needed for the purpose for which it was acquired. A Single Judge allowed the writ petition and held that the petitioner, the erstwhile land owner, was entitled to get a no-objection certificate. The Writ Appeal preferred by the appellant Board was disposed of by a Division Bench holding that the writ petitioner therein was entitled to make a representation for re-conveyance of the acquired land in accordance with Section 48-B of the Land Acquisition Act.
215. In furtherance of the directions given by the Division Bench of this Court, the erstwhile land owner submitted a representation to the Secretary, Housing and Urban Development Department, Chennai, with a request to reconvey the land acquired from him, in terms of Section 48-B of the Act. The State Government forwarded the representation to the appellant Board for its comments. The latter sent a report mentioning therein that the land acquired was proposed to be utilised for allotment of housing plots to economically weaker section of the people and for construction of multi storied flats for higher income group. After considering the report, the State Government rejected the representation of the land owner.
216. Being aggrieved by the communication, the erstwhile land owner filed a Writ Petition and prayed that the State Government may be directed to release his land, because the same had not been utilised for the purpose enumerated in the notification issued under Section 4 of the Act. A similar writ petition was also filed. A learned Single Judge dismissed both the writ petitions by separate orders holding that the Government is empowered to decide whether the acquired land is no longer required for the purpose for which it was acquired or for any other public purpose and the decision taken in that regard cannot be nullified by the Court unless it is shown to be totally arbitrary or mala fide. The learned Judge sustained the order made by the State Government, in the light of the report submitted by the Housing Board.
217. On appeal, the Division Bench, reversed the said decision and directed the Board to re-convey the land to the land owner, subject to depositing the amount of compensation together with interest. While setting aside the decision, the Supreme Court at Paragraph Nos.27 to 29, held as follows:
"27. There is one more reason why the impugned judgment deserves to be set aside. Undisputedly, the land of the respondents forms part of large chunk which was acquired for execution of the housing scheme. The report sent by the appellant Board to the State Government shows that the purpose for which the land was acquired is still subsisting. The respondents had neither pleaded before the High Court nor was any material produced by them to show that the report which formed basis of the Government's decision not to entertain their prayer for reconveyance of the land was vitiated by mala fides or that any extraneous or irrelevant factor had influenced the decision-making process or that there was violation of the rules of natural justice. Therefore, the Division Bench of the High Court could not have exercised the power of judicial review and indirectly annulled the decision contained in communication dated 18.03.1999.
28. It need no emphasis that in exercise of power under Section 48-B of the Act, the Government can release the acquired land only till the same continues to vest in it and that too if it is satisfied that the acquired land is not needed for the purpose for which it was acquired or for any other public purpose. To put it differently, if the acquired or for any other public purpose. To put it differently, if the acquired land has already been transferred to other agency, the Government cannot exercise power under Section 48-B of the Act and reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey the land to the original owner if the same can be utilised for any public purpose other than the one for which it was acquired.
29. Before concluding, we may notice the judgment of this Court in T.N. Housing Board v. Keeravani Ammal (2007 (9) SCC 255). The question considered in that case was whether the Division Bench of the High Court could direct release of the acquired land which had been transferred to the appellant Board. While setting aside the impugned order, this Court observed : (SCC pp.261-62, paras 13-16).
"13. It is clearly pleaded by the State and the Tamil Nadu Housing Board that the scheme had not been suspended or abandoned and that the lands acquired are very much needed for the implementation of the scheme and the steps in that regard have already been taken. In the light of this position, it is not open to the Court to assume that the project has been abandoned merely because another piece of land in the adjacent village had been released from acquisition in the light of orders of the Court. It could not be assumed that the whole of the project had been abandoned or has become unworkable. It depends upon the purpose for which the land is acquired. As we see it, we find no impediment in the lands in question being utilised for the purpose of putting up a multi-stories building containing small flats, intended as the public purpose when the acquisition was notified. Therefore, the High Court clearly erred in proceeding as if the scheme stood abandoned. This was an unwarranted assumption on the part of the Court, which has no foundation in the pleadings and materials produced in the case. The Court should have alteast insisted on production of materials to substantiate a claim of abandonment.
14. We have already noticed that in the writ petition, there are no sufficient allegations justifying interference by the Court. Mere claim of possession by the writ petitioners is not a foundation on which the relief now granted could have been rested either by the learned Single Judge or by the Division Bench of the High Court. On the materials, no right to relief has been established by the writ petitioner.
15. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pillai (1997 (5) SCC 432, in a similar situation this Court observed: (SCC p.433, para 4) '4.... The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provisions of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value'."
(emphasis supplied)
218. In The Managing Director, Tamil Nadu Housing Board v. S.Gajendran reported in 2010 (3) MLJ 643, the first respondent therein sought for re-conveyance of the land from the Housing Board on the ground that the lands have not been utilised for the purpose for which, it was acquired and therefore, the Housing Board is bound to re-convey the land to the original owner under Section 48-B of the Land Acquisition Act, 1894. A representation for re-conveyance was made and since no orders were passed, a Mandamus was sought for. Following the order passed by the Division Bench of this Court in W.A.No.2430 of 1999, a learned Single Judge directed re-conveyance. Challenging the same, the Housing Board preferred an appeal, contending inter alia that the land was vested with the Tamil Nadu Housing Board, after finalisation of the acquisition proceedings in the year 1985 and utilised for construction of houses, by approving layout and therefore, prayed to set aside the order of the learned Single Judge.
219. After considering the statutory provisions under Section 16-B of the Land Acquisition Act, relating to forfeiture of land by the Government and the rights of the land owner under Section 48-B of the Land Acquisition Act, the Division Bench in the reported judgment, observed as follows:
"8. It is not in dispute that the Housing Board was given possession after finalising the acquisition proceedings in the year 1985. Till date the Housing Board is not divested of the said land by the Government due to any reason, much less, not utilising the said land for the purpose for which it was acquired. It is the specific case of the appellant Housing Board that the entire land acquired for the Housing Scheme was utilised and layout was also prepared and approved as early as in the year 1988 and lands are used for the purpose for which it was acquired, except the school site. Admittedly the first respondent has not questioned the land acquisition proceedings and as such acquisition of his land has become final. It is also not the case of the first respondent that possession of the land was not handed over to the appellant as early as in the year 1985.
9. On the above said admitted facts, it is evident that the first respondent's land acquired in the year 1982 is vested with the appellant from the year 1985. Section 16B of the Land Acquisition (Tamil Nadu Amendment) Act, 1996, clearly states that if the possession is handed over to the requisitioning body and if the land is not utilised, it is open to the Government by an order forfeiting the lands as penalty and thereafter the land vests in the Government in Revenue Department, free from all encumbrances. Section 16B reads as follows:
16B. Land to be forfeited in certain cases.- Where the Government are satisfied that the land acquired under this Act for any public purpose as referred to in Sub-section (1) of Section 4 not used for the purpose for which it was acquired, they may, by an order, forfeit the land as penalty and the land shall vest in the Government in Revenue Department free from all encumbrances:
Provided that no order under this section, shall be made unless the person or authority aggrieved has had a reasonable opportunity of being heard.
10. It is not the case of the first respondent that the second respondent Government forfeited the land from the Tamil Nadu Housing Board due to the alleged non-utilisation of the land. In such circumstances, the first respondent cannot approach the Government for re-conveyance of the land under Section 48B of the Land Acquisition Act, 1894. Re-conveyance of the land under Section 48B can be considered by the Government only if the land is in possession of the Government and once possession is handed over to the requisitioning body viz., the Tamil Nadu Housing Board, the Government loses its right to consider re-conveyance request made, if any, by the erstwhile land owners. Section 48B of the Act reads as follows:
48B. Transfer of land to original owner in certain cases.- Where the Government are satisfied that the land vest in the Government under this Act is not required for the purpose for which it was acquired, or for any other public purpose, the Government may transfer such land to the original owner who is willing to repay the amount paid to him under this Act for the acquisition of such land inclusive of the amount referred to in Sub-section (1A) and (2) of Section 23, if any, paid under this Act.
12. The contention of the appellant that the first respondent has no enforceable right for seeking direction to re-convey the land by the second respondent is also well founded. Writ of mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled by in series of decisions.
(a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:
10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....
(b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus,
11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)
15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.
Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities...."
18. It need no emphasis that in exercise of power under Section 48B of the Act, the Government can release the acquired land only till the same continues to vest in it and that too if it is satisfied that the acquired land is not needed for the purpose for which it was acquired or for any other public purpose. To put it differently, if the acquired land has already been transferred to other agency, the Government cannot exercise power under Section 48B of the Act and reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey the land to the original owner if the same can be utilized for any public purpose other than the one for which it was acquired.
19. Before concluding, we may notice the judgment of this Court in Tamil Nadu Housing Board v. Keeravani Ammal (2007 (9) SCC 255). The question considered in that case was whether the Division Bench of the High Court could direct release of the acquired land which had been transferred to the appellant-Board. While setting aside the impugned order, this Court observed:
It is clearly pleaded by the State and the Tamil Nadu Housing Board that the scheme had not been suspended or abandoned and that the lands acquired are very much needed for the implementation of the scheme and the steps in that regard have already been taken. In the light of this position, it is not open to the Court to assume that the project has been abandoned merely because another piece of land in the adjacent village had been released from acquisition in the light of orders of the Court. It could not be assumed that the whole of the project had been abandoned or has become unworkable. It depends upon the purpose for which the land is acquired. As we see it, we find no impediment in the lands in question being utilised for the purpose of putting up a multi-storied building containing small flats, intended as the public purpose when the acquisition was notified. Therefore, the High Court clearly erred in proceeding as if the scheme stood abandoned. This was an unwarranted assumption on the part of the Court, which has no foundation in the pleadings and the materials produced in the case. The Court should have at least insisted on production of materials to substantiate a claim of abandonment.
We have already noticed that in the writ petition, there are no sufficient allegations justifying interference by the Court. Mere claim of possession by the writ petitioners is not a foundation on which the relief now granted could have been rested either by the learned single Judge or by the Division Bench of the High Court. On the materials, no right to relief has been established by the writ petitioners.
We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pillai (1997) 5 SCC 432 in a similar situation, this Court observed: (SCC p.433, para 4) "The question emerges whether the Government can assign the land to the erstwhile owners ? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value."
Section 48B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here."
(emphasis supplied)
220. In a recent decision in Smt.Sulochana Chandrakant Galande v. Pune Municipal Transport and Ors., reported in 2010 (8) SCC 467, the suit land was acquired under the Urban Land (Ceiling and Regulation) Act, 1976, in the years 1978-1979 and its possession was taken and handed over to Pune Municipal Transport for establishing a bus depot and staff quarters. In the year 1988, the bus depot was constructed on a part of the suit land, however, the appellant preferred a revision under Section 34 of the Act, 1976, contending that the land ought not to have been acquired under the Act, 1976, on the ground that on the date of commencement of the Act, 1976, i.e. 17.2.1976, the suit land was not within the limits of urban area. The said application was allowed by the Revision Authority. Aggrieved by the same, the Pure Municipal Transport has filed a writ petition in W.P.No.1018 of 1999, before the High Court of Maharashtra and the said writ petition was allowed, in spite of the fact that the Act, 1976 stood repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 with effect from 18.03.1999. The said decision was challenged before the Supreme Court.
221. One of the main contention of the land owner was that originally, the land was allotted to Pune Municipal Transport for establishing a bus depot, though the land was earmarked for residential purposes and thus, it was not permissible for the authority to change the user of the land. It was also contended that if the land is vested in the State free from all encumbrances without any authority of law, the land owner is entitled to possession thereof. Per contra, the Pune Municipal Transport and the respondents therein submitted that the order passed by the prescribed authority, dated 23.05.1979 attained finality as it was not challenged by the appellant by filing an appeal under Section 12 before the Urban Land Tribunal, though the Act, 1976, also provides for a second appeal to the High Court. It was also submitted that the land owner-appellant could not maintain the Revision after expiry of about two decades. On the aspect of vesting, it was submitted that the land, after being declared surplus under the Act, 1976, was acquired under Section 10 of the Act, 1976, and it vested in the State absolutely free from all encumbrances. The land once vested cannot be divested. After vesting the land in the State, in case, the State authority allots the land to any other department or corporation for a specific purpose, it does not loose the competence to change the user of the land and in case, it is changed, the original land owner cannot be heard raising any grievances whatsoever. The Act, 1976, stood repealed, but this fact would have no bearing on this case for the reason that possession of the suit land had been taken in 1979 itself.
222. On the above pleadings, the Supreme Court, after considering the definition of the words, "vesting" in Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust reported in AIR 1957 SC 344, "Encumbrance" in Collector of Bomboy v. Nusserwanji Rattanji Mistri & Ors., reported in AIR 1955 SC 298, H.P. State Electricity Board & Ors., v. Shiv K. Sharma & Ors., reported in AIR 2005 SC 954, and AI Champdany Industries Ltd., v. Official Liquidator & Anr., reported in 2009 (4) SCC 486 and "free from all encumbrances" used in Section 16 of the Land Acquisition Act, 1894, explained in State of H.P., v. Tarsem Singh & Ors., reported in AIR 2001 SC 3431 and the catena of decisions on the point that the land vested in the State absolutely free from all encumbrances and it cannot be divested, at Paragraph 13, held that, "13. So far as the change of user is concerned, it is a settled legal proposition that once land vests in the State free from all encumbrances, there cannot be any rider on the power of the State Government to change user of the land in the manner it chooses."
223. After considering the various decisions on the above issue, at Paragraphs 16, the Supreme Court further held that, "16. In view of the above, the law can be summarised that once the land is acquired, it vests in the State free from all encumbrances. It is not the concern of the land owner how his land is used and whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever."
224. On the aspect of delay in filing the Revision Petition in the year 1998, after nearly two decades of acquisition in the year 1979, after extracting various decisions, at Paragraph 24, the Apex Court held that, "24. If some person has taken a relief from the Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof resorting to legal proceedings belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person."
225. Ultimately, at Paragraps 31 to 34, the Apex Court held as follows:
"31. Undoubtedly, the Act, 1976, stood repealed by the Act 1999. However, it has no bearing on this case for the reason that proceeding pending in any Court relating to the Act, 1976, stood abated, provided the possession of the land had not been taken from the owner. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the owner of the land. [Vide Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors. (2000) 6 SCC 325; Ghasitey Lal Sahu and Anr. v. Competent Authority (2004) 13 SCC 452; and Mukarram Ali Khan v. State of Uttar Pradesh and Ors. (2007) 11 SCC 90].
32. From the above, the following factual situation emerges:
(I) The land was declared surplus under the Act, 1976, and acquired in 1979.
(II) Possession of the land was taken in 1979 by the State of Maharashtra and it was handed over to PMT for construction of the residential quarters for the staff.
(III) Appellant has not stated anywhere in the pleadings as to whether any amount/compensation as provided under the Act, 1976, had been received/accepted by her.
(IV) Appellant, for the reason best known to her, did not file appeal before the Land Tribunal, though Act, 1976 provides for two appeals.
(V) Appellant woke up from deep-slumber only after five years of the judgment of this Court in Atia Mohammadi Begum (supra) and filed revision under Section 34 of the Act, 1976, in 1998.
(VI) The State Government allowed the revision without taking into consideration the point of delay; rather it relied upon its own circulars.
(VII) The State Government did not consider the consequences and particularly the issue of dis-possession of the appellant from the land in dispute in 1978 itself.
(VIII) The judgment in Atia Mohammadi Begum (supra) has been over-ruled by this Court in N. Audikesava Reddy (supra).
33. Therefore, the law, as exists today, is that the land in dispute could be subjected to the provisions of the Act, 1976, with effect from 17.5.1976, i.e. the date on which the suit land came within the limits of the Municipal Corporation. The Act stood repealed in 1999, but the proceedings pending in any court would stand abated provided the tenure-holder was in possession of the land on the date of the commencement of the Act 1999. The High Court has taken note of the fact that the appellant's revision had been entertained only on the basis of the judgment of this Court in Atia Mohammadi Begum (supra), which stood over-ruled by the subsequent judgment in N. Audikesava Reddy (supra).
34. The aforesaid factual position makes it clear that the appellant is not entitled for any relief whatsoever as per the law, as it exists today. The land once vested in the State cannot be divested. Once the land is vested in the State it has a right to change the user. The appellant cannot be heard raising grievance on either of these issues."
226. Reverting back to the case on hand, from the pleadings and material on record, it is evident that they were aware that the lands were surrendered in the year 1988 itself. It is their contention that though an extent of 641 Sq.mts of land was surrendered, the lands were not taken over and used for the purpose. On the contra, pleadings disclose that immediately after the surrender, the authorities under the Land Ceiling Act, have accepted the same. Accordingly, errata to Sections 11(1) and 11(3) notifications were issued by the 3rd Respondent in his Letter No.A2/SRA.327/78, dated 24.04.1987 and it was also published in Tamil Nadu Government Gazette No.22 dated 10.6.1987. Possession of the land was handed over to the Revenue Department on 29.4.88, after following the procedures as laid down under the Principal Act. Necessary changes were also made in the Revenue records and registered in the name of Tamil Nadu Adi-Dravidar Housing Development Corporation. Thus, the subsequent of events and the action taken by the Tamil Nadu Adi Dravida Housing Development Corporation (TAHDCO) supports that possession had been taken over by the Government and it is under construction and in such circumstances, it is impossible to retore possession to the land owners.
227. What is intended under Sections 11(4) and 11(6) of the Principal Act is taking over vacant land, i.e., in the as is where condition, without any alteration. But physical possession of the land by the government is contemplated. After taking over physical possession, what is stated under the Principal Act, as per Section 24, is, "it shall be competent for the State Government to allot, by order, in excess of the ceiling limit any vacant land which is deemed to have been acquired by the State Government under this Act or which has been, or is acquired by the State Government under any other law, or which otherwise belongs to the State Government under any other law, or which otherwise belongs to the State Government, to any person for any purpose relating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall be lawful for such person to hold such land in excess of the ceiling limit." Neither the Principal Act nor the Repealing Act contemplate that the land declared as excess land and acquired by the government should immediately be put to use for, which it was acquired or the allottee should immediately utilise the land for the purpose for which it was allotted.
228. In a given case, where possession of any excess land is taken on 14.06.1999 and allotted to a corporation or agency on 15.06.1999, it cannot be contended that the excess land allotted to the corporation or any agency, has not utilised the land for the purpose of acquisition and therefore, the whole acquisition proceedings are abated. What is relevant for consideration is whether possession has been taken before the commencement of the Repealing Act and handed over to the corporation or agency before the commencement of the Repealing Act and whether the allottee has taken over possession. The usage of the land, before the commencement of the Repealing Act is irrelevant, in view of the decision in Smt. Angoori Devi's case. Even if the lands remain vacant, after the Repeal Act, it is for the Government or the allottee to use the land, for the purpose, for which, the lands are allotted, the Principal Act contemplates possession of vacant land and merely because, it was kept vacant for sometime, till the allottee utilises the land, that will not confer any right to seek for re-conveyance. It is for the concern of the Government and not the concern of the land owner, as to how and when the acquired land has to be used. In the light of the judgment stated supra, the further contention that the entire contempensation amount was not paid before the land was taken over and therefore, the whole proceedings are abated also cannot be approved.
DELAY AND LATCHES
229. After 1988, when possession was taken, the land owner had not made any claim for re-conveyance of the land, by refunding the compensation amount, before the date of Repeal Act, i.e., 16.06.1999, nor she had objected to taking over possession. The petitioners were aware that surrender of land was made in 1988. On the aspect as to whether, a person approaches the Court, is entitled to relief under Article 226 of the Constitution of India, if there is latches ad inordinate delay on his part, this Court deems it fit to consider following decisions.
230. Latches or reasonable time are not defined under any Statute or Rules. "Latches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.
231. The words "reasonable time", as explained in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is as follows:
"13. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word reasonable. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the reasonable time is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyars The Law Lexicon it is defined to mean:
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than directly; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
232. The statement of law has also been summarized in Halsbury's Laws of England, Para 911 , pg. 395 as follows:
"In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
ii) any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
233. In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, the Supreme Court held that it is not either unreasonable delay denies to the petitioner the discretionary extraordinary remedy of mandamus, certiorari or any other relief.
234. In State of M.P., v. Nandlal Jaismal reported in 1986 (4) SCC 566, the Supreme Court, at Paragraph 24, held as follows:
"24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. .........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it."
(emphasis supplied)
235. M/s.Rup Diamonds and Ors. v. Union of India and Ors., reported in (1989) 2 SCC 356, wherein their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, Their Lordships held as follows:
"Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal."
236. In State of Maharastra v. Digambar reported in AIR 1995 SC 1991, the Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows:
"12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
18. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus :
"Now the doctrine of latches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."
21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily."
237. In State of Rajasthan v. D.R.Laxmi reported in 1996 (6) SCC 445, the Supreme Court observed that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner.
238. In Jagdish Lal and Ors.,v. State of Haryana and Ors., reported in (1997) 6 SCC 538 : AIR 1997 SC 2366, this Court reaffirmed the rule if a person choses to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows:
"The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Vir Pal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
239. In Larsen and Toubro Ltd., v. State of Gujarat reported in 1998 (4) SCC 387, the Supreme Court held that a writ petition challenging the notifications issued under Sections 4 and 6 of the Central Act is liable to be dismissed on the ground of delay and laches, if the challenge is not made within a reasonable time.
240. In the case of Government of W.B., v. Tarun K.Roy and Ors., reported in (2004) 1 SCC 347, Their Lordships considered delay as serious factor and have not granted relief. It was observed as follows:
"The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law."
241. In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924, the Supreme Court, after considering a catena of decisions on the aspect of delay, at Paragraph 13, held as follows:
"13. .......Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted."
242. Merely because in the registration department, mutation has not been effected before the Repeal Act, that would not clothe any right to the petitioners to seek for any relief under the Repeal Act, as mutation in the registration department, is only a consequential Act. On that score, it cannot be contended that physical possession has not been taken over.
243. Once the rights of the land owner has reached finality, the request of the petitioners is nothing but an attempt to resurrect a dead matter on the premise of a probate of a will, said to have been executed by the erstwhile land owner and probated in the year 2001, after nearly 23 years of surrendering possession. The Writ Petition is devoid of merits in all respects.
244. Record of proceedings shows that this Court, in M.P.No.3 of 2010, by an order, dated 18.08.2010, directed status-quo to be maintained. The interim order is vacated.
S. MANIKUMAR, J.
Skm
245. In view of the above discussion, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
.11.2010 skm To
1. The Secretary to Government, Department of Revenue, Government of Tamil nadu, Secretariat, Chennai 600 009.
2. The Special Commissioner & Commissioner of Land Reforms, Chepauk, Chennai 600 005.
3. The Assistant Commissioner, Mylapore ULC, No.345, Arcot Road, Kodambakkam, Chennai 600 024.
W.P.No.250 of 2010