Madras High Court
The Secretary To Government vs J.X.Mary Rajam on 25 August, 2021
Author: M.M.Sundresh
Bench: M.M.Sundresh
W.A. No 403 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 09.08.2021
Pronounced on 25.08.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MRS.JUSTICE S.KANNAMMAL
W.A.No.403 of 2021
1.The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai - 600 009.
2.The Principal Commissioner
and commissioner of Land Reforms,
Chepauk, Chennai - 600 005.
3.The Assistant Commissioner,
(Land Reforms, Urban Land Tax
and Urvan Land Ceiling),
3rd cross, Kajanagar,
Mannarpuram,
Thiruchirappalli-20. ... Appellants
Versus
J.X.Mary Rajam .... Respondent
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W.A. No 403 of 2021
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, against
the order passed by the learned single Judge dated 05.10.2018 in
W.P.No.30567 of 2004.
For Appellants .. Mr.D.Ravichander Govt.Advocate
For Respondent .. Mr.V.Ramesh for Dhamodaran
JUDGMENT
S.KANNAMMAL, J.
This Writ Appeal has been preferred against the order of the learned single Judge, dated 05.10.2018 in W.P.No.30567 of 2004.
2. The brief facts, necessary for disposal of the present Writ Appeal, are stated as follows:
2.1 According to the writ petitioner, she is owner of the land measuring 3.25 acres situated in S.F.No.161/1of Kottapattu village, Trichy taluk which is classified as 'government dry land' in the Revenue records.
She purchased the said land vide two registered sale deeds dated Page 2 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 27.11.1967 and 10.02.1969. Since it is a dry land, the petitioner, after purchase, started cultivating the land with dry crops. While so, the 3rd appellant herein, initiated proceedings under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter, referred to 'the Act') and declared that an extent of 10822 sq.mts. of land out of the total extent, as excess of ceiling limit prescribed under the Act and thereby, acquisition proceedings were initiated and a final draft settlement under Section 10(1) of the Act was issued on 11.4.1979. Aggrieved by the same, the writ petitioner preferred an appeal under Section 33 of the Act before the 2nd appellant against the final notification dated 11.04.1979. The 2nd respondent, by order dated 19.02.1999, while admitting the appeal, granted stay of further action. During the pendency of the appeal before the 2nd respondent, the Act, i.e. The Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 itself was repealed by Tamil Nadu Urban Land (Regulation and Ceiling) Repeal Act,1999 (in short, 'the Repeal Act') with effect from 16.06.1999. Hence, the 2nd respondent rejected the appeal on the ground that the appeal is not maintainable and directed the writ petitioner to seek remedy as provided Page 3 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 in Repeal Act 20/1999. Challenging the notification issued under Section 10 (1) of the Act as well as the order passed by the 2nd respondent, the writ petitioner has approached the Writ Court.
3. Resisting the Writ Petition, the 3rd appellant filed a counter affidavit, inter alia stating that since the land of the writ petitioner is a vacant land falling within the meaning of Section 3(p) of the Act, after following the procedure contemplated under the Act, preliminary statement under Section 9(1) and notice under Section 9(4) of the Act were served on the writ petitioner and since the writ petitioner did not raise any objection, after allowing the writ petitioner to retain 2330 sq.mts of land, remaining 10822 sq.mts. of land was declared as surplus. It is further stated that the said surplus land was acquired under Section 11(3) of the Act and thereafter, possession of the said land was taken on 22.11.1980 and allotted to the Tamil Nadu Civil Supplies Corporation, Trichy vide G.O.Ms.No.1702 dated 06.09.1988 and since there was no feasibility to access the land, it was returned to the Government. As such, the land was vested in Government free from all encumbrances and the writ Page 4 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 petitioner was not in possession of the land. It is further stated that the appeal preferred by the writ petitioner under Section 33 of the Act before the 2nd appellant came to be rejected as not maintainable on the ground that the main Act itself was repealed by Tamil Nadu Act 20/99 and directed the writ petitioner to seek remedy available under the Repeal Act.
4. The learned Judge, upon consideration of the facts and circumstances and the rival submissions, allowed the Writ Petition, with the following observation.
“6. So far as taking possession is concerned, it is the case of the petitioner that, even though, a declaration has been issued in the year 1979, the possession was not taken from the petitioner, the procedure contemplated under 11(5) and 11(6) of the Act was not followed. In such circumstances, when the actual possession is still with the petitioner, entire proceedings now stands lapsed in view of the Repealing Act, 1999. For that, the respondents filed a counter affidavit stating that, after publication of notice under Section 11(3) of the Act, on 26.09.1979, a notice under Section 11(5) of the Act was issued to the petitioner on 14.10.1980, and the same was Page 5 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 served on the petitioner on 25.10.1980. But, the counter affidavit is not clear as to when possession was taken from the petitioner, and after issuance of notice under Section 11(5) of the Act, the land owner failed to come forward to surrender the land, and action has been taken under Section 11(6) of the Act. Except the above averments, there is nothing available in the counter affidavit to show that whether the notice was served on the petitioner as contemplated under Rule 8 of the rules framed under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. Apart from that, it is also not clear whether after issuance of notice under Section 11(5) of the Act, any proceedings has been taken under Section 11(6) of the Act. In the above circumstances, I am of the considered view that there is no material available on record to show that the actual possession was taken from the petitioner. Hence, the entire proceedings stands lapsed as per Section 4 of the Repealing Act.”
5. Challenging the order of the learned single Judge, Mr.Rajasingh, learned State Government Advocate would contend that after following the due procedure contemplated in the Act, after declaring that the land measuring to an extent of 10822 sq.mts. as surplus, the authorities have acquired the said excess land and possession was handed over to the Revenue authorities on 22.11.1980 and necessary entries were also made in Page 6 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 the revenue records. Therefore, the learned Govt.Advocate would contend that once the possession was taken over and vested in the Government well before the commencement of the Repeal Act, it would not fall under Section 3(1)(a) of the Repeal Act and therefore, the Repeal Act would not apply to the lands already acquired and handed over to the authorities. The learned Government Advocate would therefore, contend that the learned Judge has not considered the fact that even prior to the Repeal Act, the possession was already taken and once such possession was taken over, the Repeal Act would not confer any benefit on the land owner. With these contentions, the learned Government Advocate sought for setting aside the order of the learned single Judge.
6. Heard the learned Government Advocate for the appellants and the learned counsel appearing for the respondent and perused the entire materials available on record.
7. The case of the writ petitioner is that since from the date of purchase in the year 1969, she has been in possession and enjoyment of the Page 7 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 subject land, which was classified as Government dry, by cultivating dry crops and no physical possession was taken over by the appellants/authorities. Therefore, since the actual possession is still with the writ petitioner, entire proceedings would abate by virtue of the provisions of the Repeal Act.Even according to the appellants, after publication under Section 11(3) of the Act, notice under Section 11(5) was issued on the writ petitioner and thereafter, possession was taken over and handed over to the Tamil Nadu Civil Supplies Corporation, Trichy, which, in turn, returned to the Government and as such, till date, it was not utilized nor allotted to any one and kept vacant. In fact, all along the appellants/authorities have maintained that the possession of the subject land has been taken over, but nowhere in the counter affidavit filed in the Writ Petition or grounds of appeal, they have mentioned that actual physical possession was taken over from the writ petitioner/respondent, while, the writ petitioner claims that still she has been in actual physical possession of the subject land.
8. It has been held in catena of decisions of the Supreme Court as Page 8 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 well as this Court that the possession contemplated in the Act only refers to physical possession and not symbolic possession. In “R.Siddiah versus State of Tamil Nadu and others” reported in 2015 (2) CWC 20 (Mad) and in “The Government of Tamil Nadu versus Aaalim Muhammed Salegh Trust, rep. by its Managing Trustee” reported in 2015 (1) CWC 388, this Court has held that symbolic possession is different from physical possession and mere paper possession cannot be construed as the possession meant in the provisions of the Principal Act.
9. Therefore, mere vesting of the land under Section 11(3) will not confer any right on the Government to have de-facto possession of the land, unless there has been voluntary surrender of vacant land before the Repeal Act, i.e., 16.06.1999. Hence, what is required to be established by the appellants is that possession was taken through voluntary surrender and delivery of peaceful possession under Section 11(5) or forceful dispossession under Section 11(6) of the Act, which in the present case, as rightly held by the learned single Judge that after issuance of notice under Section 11(5) of the Act, it is not clear as to whether any proceedings have Page 9 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 been taken under Section 11(6) of the Act and that there is no material available on record to show that the actual possession was taken from the writ petitioner. We are also of the view that the appellants/authorities have failed to establish that the actual possession was taken from the land owner.
10. If the Government did not take the physical possession of the property, the land owner can claim the benefit of Section 4 of the Repeal Act. In "State of U.P. Vs Hari Ram" reported in 2013-3-MLJ-408 (SC), the Hon'ble Supreme Court has held that the land owner can claim the said benefit of the Repeal Act, if the State fails to establish that the actual possession was taken by voluntary surrender of vacant land or through forceful dispossession. In the said judgement, it is held as under:
“39. The mere vesting of the land under sub- section (3) of sec.10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under Page 10 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 sub-section (5) of section 10 or forceful dispossession under sub-section (6) of section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of section.3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of section.3 of the Repeal Act.”
11. It is pertinent to note that aggrieved by the acquisition proceedings, the writ petitioner/respondent preferred an appeal before the 2nd respondent under Section 33 of the Act and after having satisfied that prima facie case was made out by the writ petitioner, the 2nd respondent entertained the appeal after condoning the delay in filing the appeal and vide order dated 28.11.2003 in RC J2/2592/99, granted stay in respect of all further proceedings. This has taken place even before the commencement of the Repeal Act. Therefore, the proceedings relating to the acquisition of subject land were pending before the appellate authority immediately before commencement of the Repeal Act and hence, by virtue of Section 4 of the Repeal Act, entire proceedings would get abated. As per Page 11 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 Section 4 of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act, 1999, all the proceedings relating to the Principal Act, will get abated if the possession is not taken by the State Government. Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act reads as under:
“4. Abatement of legal proceedings.- 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 authority shall abate:
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 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.”
12. Since the Appellants/authorities could not establish actual taking over of possession as per the provisions of the Act and the possession of the lands continues to be lying with the writ petitioner/respondent, the Page 12 of 15 https://www.mhc.tn.gov.in/judis/ W.A. No 403 of 2021 respondent is entitled to the benefit of Section 4 of the Repeal Act. Since the appellants/authorities have not taken physical possession of the land from the respondent before the commencement of the Repeal Act, it is correct for the Single Judge to hold that the impugned proceedings made under the Principal Act got abated. Since the order of the Single Judge is perfectly in accordance with the provisions of the Principal Act as well as the Repeal Act, more particularly as per Section 4 of the Repeal Act, we do not find any reason for interference.
13. In the result, the Writ Appeal fails and it is dismissed and the order of the learned single Judge dated 05.10.2018 in W.P.No.30567 of 2004 is confirmed. No costs. Connected civil miscellaneous petition is closed.
(M.M.S.,J.) (S.K.,J.)
25 .08.2021
Index: Yes/No
mpa
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W.A. No 403 of 2021
To
1.The Secretary to Government,
Revenue Department,
Fort St. George,
Chennai -600 009.
2.The Principal Commissioner
and commissioner of Land Reforms,
Chepauk, Chennai - 600 005.
3.The Assistant Commissioner,
(Land Reforms, Urban Land Tax
and Urvan Land Ceiling),
3rd cross, Kajanagar,
Mannarpuram, Thiruchirappalli-20.
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W.A. No 403 of 2021
M.M.SUNDRESH, J.
and
S.KANNAMMAL, J.
mpa
W.A.No.403 of 2021
25.08.2021
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