Madras High Court
Dr.T.Azhizuddin (Died) vs Government Of Tamil Nadu on 22 July, 2009
Author: Prabha Sridevan
Bench: Prabha Sridevan, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2009 CORAM:
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR. JUSTICE C.T.SELVAM Writ Appeal No.1478 of 2005 and WAMP.No.2752 of 2005
1. Dr.T.Azhizuddin (died)
2. A.Hamid Sultan
3. A.Rafiuddin
4. A.Moinuddin
5. A.Shabuddin
6. A.Akthari Begum
7. A.Tajuddin
8. A.Nasreen Sultan
9. A.Faizuddin
10.A.Saifuddin .. appellants 2 to 10 substituted as legal representatives of the deceased sole appellant vide order dt.1.4.2009 made in WAMP.No.71 of 2008. .. Appellants vs.
1. Government of Tamil Nadu rep. by its Secretary Revenue Department Fort St. George, Chennai-9.
2. The Assistant Commissioner ULT, Tambaram 169, Sannathi Street Adambakkam, Chennai 600088. .. Respondents Writ Appeal against the order dated 24.03.2005 passed in Writ Petition No.14368 of 2002 on the file of this Court.
For Appellants : Mr.AR.L.Sundaresan, Senior Counsel for Mr.M.Jayaraman For Respondents : Mr.M.Dhandapani Spl. Govt. Pleader and Mr.P.Gurunathan, Govt. Advocate.
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Judgment (Judgment of the Court was delivered by PRABHA SRIDEVAN,J.) The wife of the first appellant was the owner of an extent of 2.05 acres of agricultural land comprised in S.F.No.387/1 in Zamin Pallavaram Village. We are concerned herewith an extent of 1750 sq.mts., which were declared surplus on 28.05.1983 under Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. The question is, whether the appellants can claim to be still in possession of the lands to take advantage of the Repeal Act, 20 of 1999, by which, the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, (hereinafter referred to as "the Act") was repealed.
2. The learned Single Judge was not convinced that possession was still with the owner and therefore, dismissed the writ petition. Against that the present appeal has been filed.
3. The learned Senior Counsel Mr.AR.L.Sundaresan appearing for the appellant submitted that the service of notice under Section 11(5) of the Act, was not effected in accordance with law and the possession as per Section 11(6) of the Act, was not taken by the Government since there is no evidence to show that possession was actually taken. The learned Senior Counsel submitted that there must be contemporaneous evidence to show that physical possession was taken and without that, possession cannot be said to have been taken from the appellant and so long as possession remains with the appellant, he is entitled to take advantage of the Repeal Act. The learned Senior Counsel submitted that the learned Single Judge was persuaded to hold against the appellants by an earlier order between the same parties, where the words "possession was actually taken" were used. The learned Senior Counsel submitted that in the earlier proceedings, the question of possession was not germane to the issue actually involved and a passing observation that possession was taken would not bind this Court. According to the learned Senior Counsel, the learned Single Judge erred in allowing himself to be persuaded by this observation. The learned Senior Counsel submitted that till date compensation has not been paid and if actually possession had been taken as contended by the State, the compensation proceedings would have reached finality. The learned Senior Counsel submitted that it is true that the appellant had requested for restoration and had also in his letter referred to the Government dealing with the property, but those words should be understood only in the context of "vesting" as in Section 11(3) of the Act, and not in the context of "restoration of possession" as in Section 11(5) of the Act. Since under Section 11(3) of the Act, the vesting in the Government takes place free from all encumbrances, it was in that sense restoration was asked. The learned Senior Counsel submitted that therefore both the words "restoration" and "dealt with in any manner or taken by the Government" should not be construed as taking possession or being in possession, but only in so far as the Government becomes entitled to deal with the property upon the vesting under Section 11(3) of the Act.
4. Several judgments were referred to, where this Court has considered how possession should be taken and that when physical possession is not taken, then possession continuous to remain with the land owner for the purpose of the Repeal Act taking effect. The learned Senior counsel also referred to certain decisions to show how the issue of res judicata should be applied and in this regard relied on AIR 2000 SC 1238 (Sajjadanashin Sayed Md.B.E.Edr. v. Musa Dadabhai Ummer), where Supreme Court had held that if a matter that was only collaterally or incidentally in issue in an earlier proceedings, any finding rendered therein would not be res judicata in a later proceeding, where the matter is directly and substantially in issue.
5. The learned Special Government Pleader submitted that this is a case, where possession had been taken and the correspondence between the owner and the State Government would also indicate that there have been earlier proceedings, which indicate that the possession had been taken and if it was taken in 1985, it is not open to the land owner to approach this court in 2002 to take advantage of the Repeal Act. The learned Special Government Pleader submitted that it is not as if the Government had not taken steps to pay the compensation. After the decision of the Writ Appeal No.613 of 1995 was passed, 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 abated and had approached this Court by way of this writ petition. Therefore, the Government could not proceed further in the matter of awarding compensation. The learned Special Government Pleader also submitted that the Act does not use the words "physical possession". All that has to be done by the Government after the vesting under Section 11(3) of the Act, is to serve notice on the land owner and take possession. It is submitted that Section 11(6) of the Act, uses the words "police force", but, use of police force is not a must in all cases. Where the land owner refuses to comply with the notice under Section 11(5) of the Act, police force is used only if it is necessary. Therefore, the mere fact that the Government did not use police force to take possession would not mean that the possession was not taken.
6. For proper appreciation of the case, it is apt to refer Section 11(5) and 11 (6) of the Act and Sections 3 and 4 of the Repeal Act 20 of 1999:
11. Acquisition of vacant land in excess of ceiling limit:
(1) to (4) ...
(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 Stated Government in this behalf and may for that purpose use such force as may be necessary.
Sections 3 and 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999.
3. Savings:- (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 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) 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.
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 of any person duly authorised by the State Government in this behalf or by the competent authority."
7. On 20.05.1983, by proceedings in R.C.No.979/83, 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. On 12.05.1988, the compensation was calculated and the first appellant's wife, who was the original owner, was directed to appear in person to receive the compensation. Immediately, a Writ Petition 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. It is true that W.P.No.5630 of 1989 related only to the question of compensation. But, 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". Thereafter, the question whether the compensation can be fixed as per G.O.Ms.No.1375, Revenue Department dated 05.06.1980, was discussed by the learned Single Judge and the writ petition was 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. The first appellant moved the Tamil Nadu Land Reforms Special Appellate Tribunal and on 13.06.2001, they made an endorsement seeking permission to withdraw it with liberty to file a writ petition before the High Court. This was preceded by a letter addressed to the Inspector of Police, where it was stated that actually possession had not been taken and an application has been made by the husband of the original owner, the first appellant herein, for setting aside the order of the competent authority (ULC) in view of the Repeal Act.
8. Against the order passed 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. The Division Bench found that they were in entire agreement with the findings of the learned Single Judge and that they saw no reason in the order of the learned Single Judge. It is relevant to note that by that time, the Repeal Act had already come into force. No attempt was made by the first appellant herein, to submit to the Division Bench that the finding in the writ petition that the possession was actually taken is not correct and all the proceedings including proceedings for which compensation would abate, since they continue to be in possession. On the other hand, they were content to have the direction regarding determination of compensation together with reasonable interest.
9. It was repeatedly submitted by the learned Senior Counsel that when actual possession is not taken and mere exchange of letters between two officers of the Revenue Department would not amount to taking of possession. As regards the contention that the earlier finding regarding possession was not a relevant factor for deciding the issue of compensation since as far as Section 12 is concerned, Section 11(3) alone is a criteria. We cannot accept the same, since the question of possession as per law, is the next step in the proceedings of Section 11(3). Further, this was a fact that was very relevant as far as the appellant's interest was concerned, when the writ appeal came to be heard. When a finding has been given regarding actual possession in an earlier proceedings, which was confirmed by the Division Bench, to say that we are not bound by it would not be proper. The learned Senior Counsel appearing for the appellant referred to the decision of the Supreme Court in Shakuntla Devi v. Kamla & Others [(2005) 5 SCC 390], where, when the declaratory decree delivered without jurisdiction or contrary to existing law came up for reconsideration, the Supreme Court held that cannot operate as res judicata in a subsequent case between the same parties, unless it is protected by a special enactment. The reason was that a declaratory decree simpliciter would not attain finality if it has to be used for obtaining any future decree like possession. This does not apply to the present case. Here, it is a finding of fact and there is a categoric finding that possession was actually taken in 1985 and it was accepted. We find that the manner in which possession has been taken is by handing over of the land delivery receipt. We also find that the area had been checked and actually excess land had been demarcated. Thereafter, in the revenue records as far as Survey No.387/1A, it stands in the name of the Government "muR epyk;;". We also find that on 11.11.1998, the appellant sent a registered letter to the Government of Tamil Nadu, where he had stated that "so far as we know that the Government has not dealt with the land taken in any manner as provided under the Act". When we put this to the learned Senior Counsel appearing for the appellant, he submitted that the word "taken" in this letter as well as in the later letter dated 15.06.1999, where the words used "excess land has not been dealt with in any manner by the State Government" should be understood as the excess land that vested with the Government, has not been dealt with by the Government and similarly "taken" should be understood as having vested. The learned Senior Counsel submitted that this Court must understand that the appellant himself addressed the letter and he was not well versed in legal jargon. It is difficult to accept this. If the appellant had been in possession of the said land, he would have said that "we are in possession and nothing has been done on the land" and words to that effect. But, the very fact that he used the words, "so far as we know that the Government has not dealt with the land taken", we are strengthened in our view that possession was indeed taken in 1985 and all that he was seeking was either compensation or perhaps exchange of land. Even with regard to the request for exchange of land, it cannot be understood to mean that he still retained the land in his possession and were seeking exchange only in so far as it had vested with the Government.
10. In all the judgments that have been cited on behalf of the appellant, there was a factual funding regarding possession. In this case, what stands in the way of the appellant to get the benefit of the Repeal Act, is what had happened in the earlier proceedings. In the decision cited, the Government appears to have considered that the possession taken was only paper possession and physical possession was not taken in many of the cases. In some cases, of course, this Court had gone through the files and was not satisfied that possession had been taken and some of the statements in the counter that possession was taken on a particular date was disbelieved. 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. As rightly contended by the learned Special Government Pleader that when the lands are lying vacant and there is no resistance, it is not necessary for the State to unnecessarily use police force. This is why the learned Single Judge observed that the appellant was well aware that the possession was taken over by the Government and only thereafter, he had approached the Court questioning the determination of zonal value.
11. In fact, in an almost identical case, a Division Bench of this Court in Tamil Nadu Consumers Co-operative Federation Ltd. vs. T.A.Jayalakshmi [(2009) 2 MLJ 53] considered the earlier proceedings questioning the final statement under Section 10(1) as well as the notifications thereafter. The challenge was unsuccessful upto the Supreme Court. It was contended before the Division Bench that in the earlier proceedings, the question regarding compliance of Section 9(5) was neither raised nor argued and therefore, principle of constructive res judicata would not apply. In that case also, there was an earlier finding that "... the formalities prescribed under Sections 9 to 11 of the Act, have been meticulously observed and after acquiring the land and taking over possession of the same, a formal order also appears to have been made...". Therefore, the Division Bench rejected the contention that the earlier findings would not amount to res judicata and observed that "if such a challenge is allowed, the possibility of further litigation will be always hanging over the State Government and no matter could reach its finality".
12. In view of the facts of this case, we accept the stand of the State that possession had been taken in 1985 and therefore, when the Repeal Act came into force, the possession was not with the appellant for him to take advantage of the Repeal Act. Therefore, the writ appeal is dismissed. However, the appellant is entitled to compensation and the earlier judgment of the Division Bench in W.A.No.613 of 1995 is final. Therefore, compensation must be calculated as directed by the learned Single Judge and confirmed by the Division Bench and the amount shall be paid as expeditiously as possible. No costs. Consequently, WAMP.No.2752 of 2005 is closed.
ATR To
1. The Secretary Government of Tamil Nadu Revenue Department Fort St. George, Chennai-9.
2. The Assistant Commissioner ULT, Tambaram 169, Sannathi Street Adambakkam, Chennai 600 088