Madras High Court
K. Ramaneeswari And Anr. vs The State Of Tamil Nadu Represented By ... on 1 December, 1993
Equivalent citations: (1994)2MLJ353
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The writ petition is for the issue of a writ of certiorarified mandamus calling for the records of the 1st respondent in G.O.Rt. No. 70, Revenue Department dated 25.1.1993 and quash the same.
2. The impugned Government Order came to be passed the 1st respondent upon a petition dated 14.8.1991 filed by the3rd respondent under Section 34 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978)(hereinafter referred to as the Act) seeking revision of the earlier proceedings of the competent authority declaring the excess extent held by the 3rd respondent's principal one K.P. Kumara Menon and holding that the excess extent shall vest in the Government of Tamil Nadu under the provisions of the Act.
3. The application under Section 34 of the Act was filed by the 3rd respondent on 14.8.1991. Suits were filed by the 3rd respondent as power of attorney agent of the owner K.P. Kumara Menon and his mother Saraswathi Menon, against the petitioners herein and also fifteen other individuals, who have occupied different plots of land and said to have constructed pucca superstructures. The broad defence of the petitioners and others in the civil proceedings is that inasmuch as the property is vested in the Government under the provisions of the Act, the Government is the owner and neither the 3rd respondent (power agent) nor his principals K.P. Kumara Menon and Saraswathi Menon have any manner of right thereto.
4. According to the petitioners, they are the owners of the houses and premises bearing Corporation Door Nos. 11 and 14, Vandikaran Cross Street, Checkpost, Guindy, Madras-32 respectively, that the area in which the aforesaid property is situate was originally in Velacheri village and has become a Township from about 1963-64 and that all the properties in that village having been converted into building sites, no agricultural operation whatsoever was being carried on from about 1963-64. The petitioners would submit that they came to know that the original owner Elliamma Eapen sold the property to Saraswathi K.P.S. Menon under a registered sale deed dated 10.9.1963 as a house site and Saraswathi K.P.S. Menon executed a General Power of Attorney in favour of one C.K. Somasundaram as late as 31.7.1989 empowering to take charge of the property, manage and sell the same as plots to third parties. Another Power of Attorney was executed by Saraswathi K.P.S. Menon in favour of the 3rd respondent on 12.12.1990and general power was given to the3rd respondent to manage the property and negotiate for sale of the same. K.P. Kumara Menon also in his turn executed a Power of Attorney in regard to the property in question. The 3rd respondent in his turn entered into an agreement of sale with Viswanathan and M.S. Govindarajan on 12.12.1990 agreeing to sell the property in question. When the possession of the petitioners was sought to be interfered with, the petitioners filed O.S. Nos. 8801 to 8807,8835 to 88429284 and 9285 of 1990 in the City Civil Court, Madras, for recovery of possession of the plots.
5. It is contended on behalf of the petitioners that in view of the fact that the properties in question are vacant lands and building sites arid not agricultural land, the authorities under the Act took proceedings against Saraswathi K.P.S. Menon and K.P. Kumara Menon and declared the lands in question as surplus. The lands have also subsequently vested in the State Government under Section 11 of the Act. After the land has thus become vested in the State Government, the owners and their Power of Attorney viz., the 3rd respondent, ceased to have any interest in the property which was declared as excess land and the occupation of the. lands in question by the petitioners could be questioned, if at all, only by the Government, in which the property has vested. It is further contended that the land owners in order to get over such a situation and long after the period granted to the land owners to file any appeal before the Commissioner under Section 33 of the Act, have filed a revision petition before the 1st respondent on 14.8.1991 contending that the land in question is an agricultural land and not a vacant land and that the same does not fall within the purview of the Act. The petitioners were not made parties in the revision petition filed by the 3rd respondent and the 1st respondent also in its turn did not give any notice to the petitioners while dealing with the revision petition nor did they inspect the property and found out the State on ground before dealing with the revision petition. Based upon the wrong and untenable statement of the 3rd respondent and the report of the 2nd respondent, the 1st respondent has purported to have issued the impugned Government order dated 25.1.1993 purporting to declare the land in question as an agricultural land not falling within the purview of the Act. It is, therefore, contended that the impugned Government Order is vitiated by patent errors apparent on the face of the records, illegal and also vitiated by non-observance of the principles of natural justice, equity and good conscience and as such, the same is liable to be quashed and set aside by this Court. 6. Two counter-affidavits have been filed by the contesting 3rd respondent, one in the petition to vacate the interim stay in W.M.P. No. 21582 of 1993 and the other in the main writ petition. When the stay petition W.M.P. No. 20561 of 1993 and the vacate stay petition W.M.P. No. 215S2 of 1993 came up for orders before this Court, both parties requested the court to take the main writ petition itself for final hearing so that the matter could be finally adjudicated upon between the parties. Hence, by consent of both parties, the main writ petition itself was taken up for hearing and was heard on various dates.
7. According to the 3rd respondent, from the beginning the land was used for agricultural purposes and depending upon the availability of water, cultivation was carried on. The lands were declared by the Government as non-urban lands and proceedings were subsequently dropped. In all those cases, the lands were treated as agricultural lands even though the description of the property was shown as house site. On 4.2.1964, Saraswathi K.P.S. Menon settled half of the land on her son K.P. Kumara Menon, who has not been impleaded in the present writ petition. The land owners were non-residents of Madras and they were not in a position to look after the land and cultivate the same. So through their servants agricultural operations were carried on. Under such circumstances, the power of attorney was executed on various dates. The allegation that none of the records of the village accounts reflect cultivation in recent times is not correct. What is essential is cultivation during any one of the five faslis preceding 3.8.1976. If the land is cultivated during any one of these five faslis i.e. between 1381 and 1386, then the land shall be construed as agricultural land and the same is outside the purview of the Act.
8. In this connection, the 3rd respondent relied on the circular dated 22.8.1978 in Ref. No. 24412 of 1978 issued by the Special Commissioner. The said circular clearly deals with agricultural land, etc. In G.O.Ms. No. 2390, Revenue, dated 27.10.1979, it is stated that the land registered as "Manai" in the villages in Madras City limits but is mainly and actually used to cultivate any crop including trees like mango, coconut, etc., shall be deemed to be non urban or non-vacant land. It is slated that the said lands would not fall under the definition of 'Horticulture'. The revision petition filed by the land owner under Section 34 of the Act is competent and the Government has ample power to revise an order passed by the competent authority either on its own motion or on application by parties exercising power under Section 34 of the Act. The Government after calling for reports from the competent authority through the Special Commissioner and Commissioner of Land Reforms, passed an order treating the land as agricultural land and declared the whole proceedings and the various orders passed by the competent authority null and void. The orders have been passed after thorough examination of the records and the various reports sent by the various officers. The Tahsildar has given an adangal extract and a certificate in the form of adangal extract certifying that the lands in question were under cultivation from the date of purchase by the land owner till 1975. Such document was issued by the Tahsildar after verifying the revenue records besides making local inspection and enquiry. The Tahsildar, who is competent to issue the certificate, has issued the same, which cannot be questioned by the trespassers.
9. It is mainly contended by the 3rd respondent that under the Act even a statutory tenant need not be heard before an exemption or an order Section 34 of the Act is passed. It is purely a matter between the land owner and the Government. In such circumstances, no notice under the relevant sections or rules is required to be served on the persons like the petitioners. Therefore, the petitioners' grievance that they have not been heard and their rights have been affected is not correct and they cannot be allowed to contend the same. The petitioners are not competent to speak about the character of the land as it existed during the commencement of the Act and thereafter. There is no question of fraud or mis-representation on the part of the 3rd respondent in passing the impugned Government order.
10. The 3rd respondent would contend that Section 34 of the Act does not refer to trespassers like the petitioners or third parties. Neither the 1st respondent nor the other authorities are obliged to give any opportunity to the petitioners before orders are passed in accordance with the provisions of the Act. One of the trespassers viz., M.K. Manickam filed W.P. No. 6120of 1993 before this Court and obtained interim order. When the interim order came up for vacating, several contentions similar to the one put forth herein were canvassed before the learned Judge and this Court while vacating the interim order observed that the petitioners have no locus standi to question the order of the Government passed under Section 34 of the Act. This Court has also held that the revision filed under Section 34 of the Act is maintainable. The learned Judge has specifically observed that it is a matter purely between the Government and the land owner and that the petitioners have no locus standi to question the same.
11. Lengthy arguments were advanced by Mr. G. Subramaniam, learned Senior Advocate on behalf of the petitioners and by Mr. R. Krishnamurthi, learned Senior Counsel, on behalf of the contesting 3rd respondent.
12.The following are the legal submissions made by Mr. G. Subramaniam, learned Senior Advocate for the petitioners:
(i) The land has vested with the Government under Section 11(3) of the Act and therefore, the petitioners cannot be thrown out of the premises, more so, when the petitioners have constructed superstructure and assessed to property tax and after obtaining electricity connection.
(ii) No notice to the writ petitioners in the revision filed under Section 34 of the Act.
(iii) Section 33 of the Act gives a right of appeal to aggrieved persons and that Section 34 of the Act, which deals with suo motu power of revision, cannot be invoked by the persons aggrieved. A persons who had committed a default under Section 33 of the Act in not filing an appeal, cannot invoke Section 34 of the Act.
(iv) The definition contained in Section 3(1) to hold Section 3(o) 'Urban land' 3(p) 'vacant land' and the various explanations contained therein were relied on by the learned Senior Counsel for the petitioners. The word' mainly occurring in various explanations were also emphasized to show that the character of the land was not agriculture. The description of the land in various documents was also referred to. (v) The petitioners are in possession even before the Act came into force.
These are the principal submissions made by Mr. G.Subramaniam, learned Senior Counsel for the petitioners.
13. Mr. R. Krishnamurthi, learned Senior Advocate, has met each and every one of the legal submissions made by Mr. G. Subramaniam and mainly contended that the revision petition under Section 34 of the Act is a matter between the Government and the land owner and hence, the petitioners will not be entitled to notice and they have no locus standi to question the impugned Government Order. In reply to the contention of Mr. G. Subramaniam, that the lands have vested with the Government under Section 11(3) of the Act and therefore, the petitioners cannot be thrown out of the premises after the construction of the superstructure, etc. Mr. R. Krishnamurthi would submit that the vesting under Section 11(3) of the Act is by a notification in the Government Gazette, which is preceded by a notification under Section 11(1) of the Act. The publication under Section 11(1) is an information to the general public. Section 11(3) of the Act is followed by a notice under Section 11(5) of the Act to vacate and hand over possession. Taking possession is only on paper and physical possession will be with the owner in most of the cases. Mere vesting of the land with the Government will not give any right to the petitioners. The petitioners are rank trespassers with no right over the land.
14. Mr. R. Krishnamurthi would further submit that the revision under Section 34 of the Act is a matter between the government and the land owner and notices will not be served on the petitioners. In support of his contention, the learned Senior Counsel for the 3rd respondent placed strong reliance on a Division Bench judgment of the Andhra Pradesh High Court reported in India Cable Co. Limited v. The Government of Andhra Pradesh , wherein it is held that the tenant of a premises has no right to be heard but has locus standi to question the Government Order. Therefore, the locus standi is only to question the propriety of the Government Order passed by the Government but no right, accrued to the petitioners while the impugned Government Order is being considered by the Government. In the revision under Section 34 of the Act, the fact that the petitioners have encroached upon the land was clearly mentioned. In the subsequent representation made in April, 1993, the suit, numbers were given in detail and in fact, a copy of the plaint and the list of various cases filed by the petitioners herein as well as by the 3rd respondent herein were given to the Government. Even though all these materials were available with the Government, the Government thought that the petitioners are not persons entitled to be heard before the impugned Government Order was passed. Therefore, the contention of Mr. G. Subramaniam learned Senior Advocate for the petitioners, that no notice was given to the petitioners, in my view, cannot be sustained. In my opinion the petitioners have no locus standi to file the writ petition and that they are not entitled to be heard by the authorities exercising revisional jurisdiction.
15. The ground on which the petitioners can challenge the Government Order is on the ground of fraud and mis-representation. There is absolutely no whisper in the writ petition regarding any fraud or misrepresentation by the3rd respondent to the Government except saying that the 3rd respondent is a Law Professor and is highly connected with the Government Officials/Government. Such an allegation, in my view, is not enough.
16. The petitioners would submit that the above cited decision has no application at all to the facts on hand, and that a tenant in possession of an admitted urban land sought to question the validity of an order of the Government granting exemption in favour of the owner who was holding excess land. The Andhra Pradesh High Court held in that case that the tenant, who claims right through its landlord, has no locus standi. That court has also taken the view that the tenant has no locus standi to oppose the exemption application before the Government and therefore, the Government need not issue notice to him and hear him before granting exemption at the request of the owner. The Bench, however, proceeds to observe that if any fraud or misrepresentation is brought out in securing the order, a-person in possession is entitled to question that order. This is the gist of the argument of Mr. G. Subramaniam about the judgment of the Andhra Pradesh High Court referred to supra.
17. According to Mr. G. Subramaniam, the Andhra Pradesh case has to be distinguished since it is a case of exemption and that the present case is not a case of exemption but it is a revision under Section 34 of Act and that the scope of Section 34 of the Act is totally different from the scope of Section 21, which provides for granting of exemption by the Government. In any event, the learned Senior Counsel would submit that the petitioners are entitled to file the writ petition in the public interest since the property in question is admittedly a property belonging to the Government and that a fraud is perpetrated to take away the property belonging to the Government for private benefit. The learned Senior Counsel would also submit that the very preamble of the Act is to prevent concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. The learned. Senior Counsel also relied on a recent judgment of mine in the case of Cannon Dunkerley and Company (Madras) Limited (In liquidation) represented by the Official Liquidator, High Court, Madras v. The Government of Tamil Nadu (1993) 1 M.L.J. (N.R.C.) 39, wherein it has been held by me as follows:
The object of the Act is to impose a ceiling on vacant land and to regulate the construction of building thereon with a view to prevent the concentration of urban land in a few hands and to prevent speculation and profiteering in such lands apart from the object of achieving equitable distribution of land to subserve common good... By giving the exemption sought for from holding the excess vacant land and for sale of the same, the dominent purpose of the legislature is not at all defeated.
18. Placing reliance on the above judgment of mine and considering the peculiar nature of the case, Mr. G. Subramaniam, learned Senior Counsel for the petitioners would contend that if the impugned Government Order is to be upheld, the dominant purpose of the legislature in introducing the Act viz., the prevention of concentration of urban land in a few hands and equitable distribution of excess urban land, is totally defected as the 3rd respondent, power of attorney agent, would sell the lands by bringing out a lay-out with defined plots after having obtained an order that the lands are agricultural lands. According to the petitioners they are admittedly occupiers of different portions of the property having put up valuable buildings at considerable cost and that under the relevant provisions of the Act, if the property vests in the Government, the petitioners are entitled to approach the Government, for allotment of the lands for consideration. Therefore, it is submitted that the petitioners have sufficient locus standi to maintain the above writ petition and question the legality of the impugned Government Order. They have also relied on some decisions in support of their submissions that they have locus standi to file the writ petition.
19. In the decision reported in India Cable Co. Limited v. The Government of Andhra Pradesh , it has been held that by virtue of the Government Order the right of the petitioner as a tenant is not affected in any way and that it is the nature of the decision that matters and a grant of exemption under Section 20 of the Act does not in any way effect the rights of the petitioner, who claims, to be a tenant nor such an exemption can be equated to final determination of the rights of the parties. Hence there is no violation of the principles of natural justice. It is further held that any judgment or order of an administrative authority is a nullity if obtained by fraud and the same can be questioned before a court. But, where fraud is alleged, the court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned and the deception must be of a decisive character not neutral. On fact, the court held that it cannot be said that fraud has been proved so as to warrant the quashing of the impugned Government Order.
20. The tone of the contention of the petitioners seems to be that they are the persons interested in the land and that they have not been heard before an order is passed. As already stated, the petitioners are mere trespassers. Under the Act, even a statutory tenant need not be heard before an exemption or an order under Section 34 of the Act is passed. It is purely a matter between the land owner and the Government. In such circumstances, lam of the view that no notice under the relevant sections or rules is required to be served on the persons like the petitioners. Therefore, the petitioners grievance that they have not been heard and their rights have been affected, in my view, is not correct and the petitioners cannot be allowed to contend the same. As already stated the impugned Government Order has been passed by the 1st respondent under Section 34 of the Act and there is no public interest involved. It is purely a personal or private interest and therefore, the petitioners have no locus standi to question the same.
21. An allegation has been made in the affidavit to the effect that the contesting 3rd respondent has falsely and ingenuously contended before the 1st respondent in the revision petition that the land in question is an agricultural land and not a vacant land. The petitioners are not competent to speak about the character of the land as it existed during the commencement of the Act and thereafter. Neither they will be in a position to speak about the correctness of the same since they are vitally interested in knocking the land to their benefit. Therefore, there is no question of fraud or misrepresentation of the part of the 3rd respondent or on the part of the 1st respondent in passing the impugned Government Order.
22. Section 34 of the Act refers to the land owners who are likely to be affected by invoking that section and it does not refer to the persons like the petitioners. Section 34 of the Act is invoked to find out whether the order of acquisition passed by the competent authority is correct or not. For example, the competent authority has passed an order favour ably to the land owner and the Government can exercise powers under Section 34 of the Act to find out whether the order passed by the competent authority is correct or not and whether it can stand the test of law. If the Government decides that the order passed by the competent authority is in accordance with the provisions of the Act. It may drop the proceedings under Section 34 of the Act. If the Government is not satisfied with the order passed by the competent authority and if the Government chooses to revise the same, then it shall give reasonable opportunity to the land owner. Only in this context the word occurring in Section 34 of Act viz., "person affected" should be understood. Therefore, it is absolutely clear to my mind that Section 34 of the Act does not refer to trespassers like the petitioners or third parties. Equally so, neither the 1st respondent nor the other respondents are obliged to give any opportunity to the petitioners before orders are passed in accordance with the provisions of the Act.
23. It is true that the object of the Act is to prevent concentration of urban land in the hands of a few and to ensure equitable distribution to sub-serve common good. In all these cases where the lands were acquired by the Government, the same is handed over to the revenue officials for allotment to certain categories of persons. For the petitioners to get this land, they should fall within that category. It is not a matter of right. The individuals are listed as a last in the priority and the chances of these petitioners getting the land allotment are very remote. They are not allotted free of cost. It is allotted for double the market rate or so and where the land can be allotted for individual housing, it is done by method where there will be number of applicants. The petitioners by occupying the land by illegal method, cannot get the land allotted in their favour and they are trying to use this Court as a tool to achieve their object. Therefore, it is not correct on the part of the petitioners to say that they have a right to get the land assigned in their favour and therefore they are interested or affected persons who will have to be heard etc., cannot be considered.
24. It may not be out of place to point out that the power under Section 34 of the Act is similar to the powers conferred on the Commissioner under Section 33 of the Act. In both the matters, the order passed by the competent authority is out to some scrutiny. It is only a double safeguard to ensure that the persons are not deprived of their legitimate rights to hold the land which is otherwise outside the purview of the Act. One similar provision to that of Section 34 of the Act is Rule 11(3) of the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965. Under the said Rules, there is a suo motu power of revision to the Land Commissioner where no appeal has been filed against the orders passed by the authorities below. Under Rule 11(3) of the said rules, even the affected land owners or persons who were not assigned the land can approach the Commissioner in their applications and such petitions are also entertained.
25. Mr. G. Subramaniam, learned Senior Counsel for the petitioners next contended that Section 33 of the Act gives right of appeal to aggrieved persons and the person who had committed a default in not filing the appeal under Section 33 of the Act cannot invoke Section 34 of the Act. For this proposition, the learned Senior Counsel relied on the Proviso to Section 34 of the Act to point out that the word "person affected" occurring therein would refer to the persons like the writ petitioners. The word "person concerned" occurring in Sections 9(4) and 10(1) were compared with the word "person aggrieved" occurring in Section 33 of the Act. These words in the various provisions were relied on to prove that they refer to different categories of persons and the word "person concerned" would mean landlord as well as persons like the petitioners.
26. I am unable to accept the above contention of Mr. G. Subramaniam learned Senior Counsel for the petitioners. The powers under Sections 33 and 34 of the Act are similar in nature. The power under Section 33 of the Act, is exercised by the Special Commissioner, Land Reforms, Madras, and the power under Section 34 of the Act is exercised by the Government. To show that the powers under Sections 33 and 34 are one and the same, we can refer to the judgment reported in Nagindas Keshavlal Mehta v. The Competent Authority and Deputy Collector, Rajkot , wherein a learned single Judge of the Gujarat High Court observed as follows:
The revisional powers conferred upon the State Government under Section 34 and the appellate powers conferred upon the appellate authority under Section 33 are almost equal as far as the nature of the order to be passed by the respective authority is concerned. The intention of the legislature appears competent authority is not to be treated as final. Wherever the landholder prefers exercise powers under Section 33. In other cases the Government may suo motu take up proceedings in revision under Section 34 and may pass the same or similar orders as may be passed by the appellate authority under the Act. The object of keeping check on the powers exercised by the competent authority is thus achieved by making almost similar provisions under Sections 33 and 34.
27. Since the Act is confiscatory in nature provisions of Sections 33 and 34 of the Act provide double safeguard to the land owner. If the land owner has failed to avail the opportunity under Section 33 of the Act, he can resort to Section 34 of the Act at any stage. There are instances where Section 34 of the Act was invoked even after allotment. If the Government invokes Section 34 of the Act and the original order of acquisition is set aside, the land reverts to the original position. Therefore, what happens in between will not give any cause of action to the writ petitioners if the land is otherwise not attracted by any provisions of the Act. Therefore, it is not a question of committing default in not filing the appeal under Section 33 of the Act as contended by the learned Senior Counsel for the petitioners. Even if the land owner has deliberately not filed the appeal under Section 33 of the Act, still, in my view, he can invoke Section 34 of the Act since Section 34 is not a residuary power. It is an absolute power to Government to deal with the matter. The words "persons concerned" occurring in Sections 9(4) and 10(1) of the Act would only mean the land owner on whom various notices, etc., are served or who is called upon to file objections, etc. Once an order under Section 9(1) of the Act culminates into an order of acquisition acquiring the excess vacant land, the land owner becomes a person aggrieved. Therefore, the various sections refer only to the land owners, who are referred as persons concerned persons aggrieved or otherwise.
28. Proviso to Section 34 of the Act was also relied on by the learned Senior Counsel for the petitioners, which runs thus:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter.
The Proviso to Section 34 of the Act will apply only in the following instances. Where the competent authority passes an order treating the land as not falling within the ambit of the Act, the Government can exercise power under Section 34 to find out whether the orders passed by the competent authority are correct or not. If the Government decides to revise the said order of the competent authority, then the person affected viz., the land owner should be given an opportunity before the order which is in his favour is to be revised by the Government. Thus I do not find any merit in the contention of the learned Senior counsel for the petitioners on the above point and hence I reject the same.
29. Next, Mr. G. Subramaniam, learned Senior counsel for the petitioners, refers to the definitions contained in Sections 3(1), 3(o) and 3(p) to mean respectively 'to hold', 'urban land' and 'vacant land' and the various explanations contained therein. According to Mr. G. Subramaniam, the word 'mainly' occurring in the various explanations was also emphasized to show that the character of the land was not agricultural the description to the land in the various documents was also referred to by the learned senior counsel for the petitioners in this context.
30. Section 3(1) runs thus:
to hold with its grammatical variations in relation to any vacant land, means (i) to own such land or (ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a hire purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.
Section 3(o) runs thus:
"Urban land" means (i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration but does not include any s such land which is mainly used for the purpose of agriculture.
Section 3(p) runs thus:
"Vacant land" means, land not being land mainly used for the purpose of agriculture in an urban agglomeration but does not include.
31. The petitioners are in possession of the property in question according to Mr. R. Krishnamurthi, learned Senior Counsel for the 3rd respondent, as trespassers having trespassed into the property after 1987 or so. According to me, the correct meaning of the definition to hold is to own or possess land as owner or as tenant or as mortgagee. If the person is holding the land as tenant, even after the expiry of lease, his holding is valid and recognised as a valid one under the provisions of the Act. As per the scheme of the Act. if the person is a tenant, he can also file a return under Section 7 of the Act. For example, the holding of a land owner may be in excess of the ceiling limit but a tenant, who is running an industry or a factory is entitled to file a statement under Section 7(1) of the Act only to the context of possession alone is recognised by the Act.
32. The word "mainly occurring in Section 3(o) of the Act is emphasized by the learned Senior counsel for the petitioners at the time of argument. In this case, the 3rd respondent has produced evidence at the time of hearing to show that the land was used for agricultural purposes before the Act came into force. The criteria laid down by the authority is that the land must have been used for agricultural purposes in any one of the faslies five year prior to the Act coming into force. When a trespass has been committed by the petitioners, this has become impossible for the land owner to cultivate the same. The whole argument of the petitioners was on the assumption that there was no proof of cultivation. In fact, my attention was drawn to show that enough material was placed before the Government and the Government was also satisfied regarding the character of the land and it has passed the impugned Government Order. The petitioners seems to think that there cannot be any agricultural land in the City of Madras. In this connection, the judgment of my learned Brother D. Raju, J. in W.P. No. 18181 of 1990 dated 2110.1992 may be usefully referred. The learned Judge has held as follows:
The sum and substance of the question that will really fall for consideration in this case is as to whether they very lands, held to be agricultural lands by a learned single Judge of this Court, had ceased to be agricultural lands and were rendered ineligible for the exemption from tax, on the ground that they were converted as urban land and if so to what extent and which portions have been so converted. The reasons assigned in paragraph 3 of the order are said to justify the so-called conversion of the agricultural lands into urban land. In my view, which would be in conformity with the view already taken by the learned Judge in the earlier writ petitions, the mere act of obtaining an approval of a building plan for construction would not per se render the land an urban land if it is shown to be still cultivated with agricultural crops. It is only when the lands have been put to actual constructions work and when thereby the lands ceased to be cultivated, the lands could be said to have been converted as urban land. So far as the case on hand is concerned, there is no dispute from the petitioner side that certain portions of the land, in respect of which permission has been obtained in 1985 and actually multistoried building has been constructed and sold and also the portions in respect of which subsequently approval has been obtained in 1989 for putting up constructions and actually and constructions are going on, as noticed in both the sketch filed by the petitioner as well as the sketch filed by the respondents, alone from the respective dates when construction activities commenced could be said to have lost its character as agricultural land and become converted as urban land. From the said activities, it cannot either generally or for that matter without any specification or particularization, stated that the entire land stood converted into urban land from fasli 1895 (from 1.7.1985). Thesaidstand, in my view, cannot be sustained either on the facts or on law, and it is nothing but an assertion based upon surmise and conjecture and indication of a pre-determination of the issue itself.
33. Further the judgment reported in S. Sarangapani Iyengar v. The Assistant Commissioner of Urban Land Tax, Alandur 1989 T.N.L.J. 371 is also relevant. That order was passed by Chandurkar, C.J. in C.R.P. No. 3615 of 1993. That revision was directed against the order of the Urban Land Tax Tribunal, Chengleput, holding that the agricultural lands in question are liable to be assessed to urban land tax. This assessment has been upheld by the Tribunal holding that the lands have been kept vacant during the Fasli years 1381 to 1385 and the lands cannot, therefore, beheld to be agricultural lands. The learned Government Pleader contended that the only land which is exempted from being assessed is land which is registered as wet in the revenue accounts of the Government and used for the cultivation of wet crops as contemplated by the definition of 'urban land' in Section 2(13). It was further argued that since the lands in question are not wet lands, they were liable to be assessed to tax. The learned Chief Justice held thus:
At the threshold, it is difficult to uphold the finding given by the Tribunal that the lands in question are not agricultural lands. The tribunal seems to have taken the view that merely because the lands were kept vacant during the Fasli years 1381-85, they ceased to be agricultural lands. For such proposition, there does not seem to be any support in any statutory provision. The lands are registered as agricultural lands in the revenue records. There are adangal records which undoubtedly show that the lands were uncultivated. They also show that they are dry lands. Whether it is agricultural land or not will depend on the nature of the land and the purpose to which the lands are normally put. Merely because an agricultural land is not cultivated for some time, the land does not cease to be agricultural land especially when it is not put to any other use. It is difficult to appreciate the reasoning of the Tribunal that since the petitioner has merely stated that the lands in question are dry lands and that they have been reserved for formation of horticultural garden, the lands could be said to have ceased to be agricultural lands.
34. A reference to G.O.Ms. No. 288, Revenue Department, dated 13.2.1976 Proceedings of the Assistant Commissioner Urban Land Tax, Saidapet, Madras-600015. in R.Dis. No. 847/80/B3, dated 6.12.1980 and the connected sale deed dated 24.1.1966 and G.O.Ms. No. 1881, Revenue Department, dated 23.8.1990 was also made. In G.O.Ms. No. 288, Revenue, dated 13.2.1976 it has been stated thus:
In exercise of the powers conferred by Sub-section (1) of Section 27 of Tamil Nadu Urban Land Tax Act, 1966 (Tamil Nadu Act 12 of 1966), the Governor of Tamil Nadu hereby exempts the urban lands which are registered house sites and which are under cultivation with wet to dry crops for not less than five years prior to the date of coming into force of the Act in the City of Madras and Belt Area, City of Madurai and the municipal towns of Coimbatore, Salem and Tiruchirapalli and which continue to be under cultivation as per revenue records accounts from payment of the urban land respectively on and from the 1st July, 1975.
35.It is seen from the proceedings of the Assistant Commissioner, Urban Land Tax, Saidapet, Madras-15 in R.Dis. No. 847/80/B3, dated 6.12.1980 that the lands in question have been assessed under the Tamil Nadu Urban Land Tax and aggrieved by this, the land owners appealed to the Board against the assessment order. The Board in G.O.Ms. No. 288, Revenue, dated 13.2.1976, set aside the order and the cases have been remitted for fresh disposal. The contentions of the land owners are that the lands are agricultural ones and so, they are not liable for urban land taxation. The Deputy Tahsildars have reported that the lands are used for agricultural purposes consequently for more than five years and verified and connected documents like Income-Tax assessment order, etc. The Assistant Commissioner has also inspected the lands 29.11.1980 and found that crops like green gram, black gram, etc., were raised. As the lands are proved to have been under cultivation for the past several years the request of the land owners to exempt the lands from the urban land tax was considered and the assessment orders passed already were cancelled with effect from Fasli 1385 Le. from 1.7.1975 to the lands in question.
36. Next, I refer to G.O.Ms. No. 1881, Revenue, dated 23.8.1990. Under the said Government Order, the Government has decided that no distinction need be made between the lands in Madras City and other urban agglomerations and that the orders would have to be made applicable to all urban agglomerations in the State. Accordingly, the Government issued amendment to G.O.Ms. No. 2399, Revenue, dated 26.10.1979. Therefore, the description of the land in the various documents cited by the learned Senior Counsel for the petitioners, as vacant side or house site will not reflect the character of the land especially after the encroachment by the petitioners.
37.Further, it is contended by Mr. G. Subramaniam, learned Senior Counsel for the petitioners, that the analogy of the orders passed under the Urban Land Tax Act based upon G.O.Ms. Nos. 3526, dated 15.6.1973 and 288, dated 13.2.1976, to a case arising under the Urban Land Ceiling Act is not warranted. According to the learned Senior Counsel no such Government Orders have been passed under the Act. I am unable to accept this contention for the reasons stated supra. In fact, some discrepancies in the admissions made by the 3rd respondent in his counter-affidavit have been pointed out regarding cultivation. It is stated in the counter-affidavit that the lands in question were under cultivation from 1963 to 1975. While referring to this statement in the counter-affidavit, it is urged that the Act came into force retrospectively from 3.8.1976 and hence the question whether the land was an agricultural land as on the date of coming into force of the Act or not is relevant and assuming that there was cultivation, the same was only till 1975 and not on the date of the commencement of the Act viz., 3.8.1976. In paragraph 8 of the counter-affidavit it is again stated that "the land in question were under cultivation from 1964 to 1986."
38. Pointing out the above discrepancy, the learned Senior Counsel for the petitioners would urge that the 3rd respondent is estopped from giving his own version now. When there is a contradictory statement and if the land was under cultivation in 1986, there would not have been registered documents from 1963 showing that the lands were only vacant lands. Apart from this, the land owner Kumara Menon himself is a part to the sale deed dated 25.5.1985 wherein he has admitted that the land is a vacant land and some portion have failed within his ceiling limits and certain extent being excess land. Pointing out these statements it is contended by the learned Senior Counsel for the petitioners that the theory of cultivation till 1986 cannot at all be true and both on the question of locus stdndi and on the question that the land is a vacant land house site urban land and not an agricultural land, the order passed under Section 34 of the Act is liable to be quashed. I have already dealt with this point in extenso in paragraphs supra and I reject the contentions of the learned Senior Counsel for the petitioners for the reasons stated supra and for the reasons to be stated infra.
39. I now proceed to consider the contention of Mr. G. Subramaniam, learned Senior Counsel for the petitioners, that the petitioners are in possession even before the Act came into force. It is stated that the 1st petitioner is the owner of the house and premises bearing Corporation Door No. 11, Vendikaran Cross Street, Check Post, Guindy, Madras-32. According to her, her mother-in-law occupied the plot in or about 1978 and has constructed a superstructure and building sometime after her occupation and herself, her husband and her mother-in-law and other members of the family have been living in the place from 1978. Subsequently, after her mother-in-law's death, the 1st petitioner renovated and effected additional constructions spending further huge amounts in 1986-87. The building thus renovated and reconstructed has also been assessed to Corporation property tax from 1988 and she has paying the property tax therefor. She has also electrified the house and obtained electricity service connection 1988 and has been paying electricity bills to the Tamil Nadu Electricity Board from 1988. Even long before 1978 when the 1st petitioner's mother-in-law first occupied the place, the land on which she has constructed the building, ceased to be an agricultural land and became vacant land and building site.
40. Likewise, the 2nd petitioner also states that he is the owner of the house and premises bearing Corporation Door No. 14, Vandikaran Cross Street, Check Post, Guindy, Madras-32. His grandmother occupied the plot two decades age and sometime thereafter put up hut with mud walls which was later ruined during 1985 heavy floods. Subsequently, it was gradually converted into pucca superstructure with brick and cement mortar. The 2nd respondent has been living in the place with his grandmother and continued the occupation even after her demise. The building of the 2nd petitioner is also assessed to property tax. According to Mr. G. Subramaniam, learned Senior Counsel for the petitioners the occupation of the plots, in which the petitioners have constructed building, could be questioned, if at all, only by the government in which the property has vested and that the 3rd respondent has no say in the matter.
41. Mr. R. Krishnamurthy, learned Senior Counsel for the 3rd respondent drew my attention to the various civil proceedings initiated by both parties and contended that even if the contention of the petitioners is to be accepted, the Act, has no application to the land as the petitioners have suffered a decree for eviction. If they are in possession of the property by erecting hut, etc., the hut or superstructure as the case may be, is entitled for appurtenant and contiguous area. If contiguous and appurtenant area are given to each of the hut or superstructure, which is in existence even prior to the Act coming into force, the act has no application and the whole proceeding under the Act is without prejudice to the fact that the land was originally agricultural in character and ceased to be so after the trespass committed by the petitioners after 1986 and without prejudice to the stand taken in the suit. The description of the property either in the return or in any other documents even voluntarily by the parties will not affect the rights of the parties under the Act. If the Act is otherwise not applicable even voluntarily if a party had disclosed a fact viz. the land is vacant such a disclosure in the return would not make the act applicable.
42. Reliance was placed by Mr. R. Krishnamurthi in support of the above contention on a decision reported in Benjamin Mohanty v State of Orissa A.I.R. 1982 On. 236, wherein a Division Bench consisting of R.N. Mishra, C.J. (as he then was) and B.K. Bchera, J. held as follows:
The law being new and the situation being uncertain, the petitioner seems to have filed a statement with a view to avoiding the liabilities arising out of default and wanted a determination by the competent Authority as to his claim of exclusion. If as a fact the petitioner was not liable on admitted facts, his filing of a statement voluntarily would not make the Act applicable. We are inclined to agree with Mr. Das for the petitioner that both the items have to be excluded and the determination of the statutory authorities has to be quashed.
The Division Bench allowed the writ application quashed the order of the competent authority and the appellate authority and held that the petitioner is not possessed of urban land in excess ceiling limit.
43. Persons like the petitioners or even a statutory tenant cannot file an application under Section 34 of the Act. Therefore, the petitioners have no right lo move this Court under Article 226 of the Constitution questioning the impugned Government Order. In this connection, Mr. R. Krishnamurthi learned Senior Counsel relied on a judgment of this Court in W.A. No. 1177 of 1992 dated 12.7.1993. The above judgment was rendered by Mr. Srinivasan, J. and A. Thangamani, J. who have held that the tenant has no locus standi to question the exemption order. The learned Judges have observed that the Government before granting exemption has to be satisfied having regard to the locating of such land, the purpose for which the land is being used or is proposed to be used and such other relevant factors as the circumstances of the case may require, that it is necessary or expedient in the public interest so to do. Proceeding further, the Bench has observed that the State Government thus, cannot grant exemption for no predictable reason and the reason for which exemption is granted must satisfy the public interest and whether the purpose for which such land is sought to be exempted will serve the public interest or not must be judged by the State Government in every case before the order of exemption is passed and it will be deemed, on the facts of the case, that the state Government granted the exemption having regard to the specified industrial purpose in the application for exemption filed.
44. It is seen from the impugned Government Order dated 25.1.1993 passed by the Government under Section 34 of the Act, that the Government has also satisfied that the reason for which the benefit is granted to the 3rd respondent was in public interest and that the order will serve the public interest. The Government is the proper authority to judge and grant the benefit and once benefit is granted to the person concerned, it will be deemed, on the facts of the particular case, that the State Government granted exemption having regard to the facts and circumstances of that case. Applying the above test, in my view, it is not open to the petitioners to question the decision of the Government in writ proceedings.
45. It is also pointed out by Mr. R. Krishnamurthy learned Senior counsel that the property vested with the Government on 12.10.1989 and the suit came to be filed after that. However, the revision under Section 34 of the Act was filed on 14.8.1991, prior to be written statement and additional written statement filed by the writ petitioners. Therefore, nothing flows from the argument that filing the revision on 14.8.1991, the land owner has no right in the property and cannot maintain their right in the civil action. It is also admitted by the petitioners that even the trespassers without title can maintain their possession against the entire world except the true owner. As seen above, K.P. Cumara Menon and Saraswathi K.P.S. Menon are the owners of the property can admit of no doubt. As stated already, the petitioners entered the property even prior to the vesting with the Government i.e. 12.10.1989. Under these circumstances, it is open to the land owners to fight against the Government to get the lands out of the Act and also maintain a civil suit against the trespassers. Only under this context, there is a finding by the civil court that the owners have not lost their claim over the property by virtue of the Act.
46. My attention was also drawn to the relevant findings of the civil courts. Therefore it is not correct to state that only to get over the consequence arising out of the civil proceedings, a revision under Section 34 of the Act was filed. There is no allegation of fraud or misrepresentation either in the writ affidavit or during the argument by the learned Senior Counsel for the petitioners. Even assuming that such a ground of fraud, or misrepresentation is alleged, I am of the view, mere reference to the words fraud or misrepresentation is not enough to set aside the impugned Government Order. There should be specific reference to the instances of fraud and misrepresentation.
47. It is also argued on behalf of the petitioners that the prayer in the revision petition is for de novo enquiry to find out what are agricultural lands and what portions are vacant lands. This is denied by the learned Senior Counsel for the 3rd respondent. The averments in the revision are to the effect that the entire lands are agricultural and only under these circumstances, the proceedings were sought to be set aside. It is further contended by the learned Senior Counsel for the 3rd respondent that the mere sale in favour of various parties would not go to show that these were deliberate and intentional cessation of agricultural operations and by such sales, the Character of the land also passed on to the purchased.
48. It is true, as contended by Mr. G. Subramaniam, that the object of the Act is to bring about equitable distribution of lands in urban agglomerations to sub-serve the common good. My judgment in Gannon Dunkerley and Co. (Madras) Limited (In liquidation) represented by the Official Liquidator, High Court, Madras v. The Government of Tamil Nadu (1993) 1 M.L.J. (N.R.C.) 39, was also relied on. In the above judgment, I have held that by grant of exemption, the dominant purpose of legislation is not at all defeated. This Court has also taken the view that by the grant of exemption under Section 21 or exclusion of the land under Section 34 would not frustrate the object of the Act. Therefore, the competent Authority having satisfied regarding the character of the lands based on the Adangal Certificates produced before him by the land owner and based on the local inspection and enquiry, has come to the conclusion that the lands could have been cultivated prior to trespass. The Government also, in accordance with my direction, placed before the court all the files relating to the above proceedings. The above fact in regard to local inspection can be seen from pages 115 to 117 of the records produced by the Government, which has come to the conclusion that the lands could have been cultivated prior to trespass.
49. There is also a reference to a lake abutting the lands. Therefore, exclusion of the land by the Government by the impugned Government Order would not frustrate the object of the Act and is in consonance with the provisions of the Act.
50. The petitioners have further staled that they are entitled for allotment of the lands under Sub-rule 3(2) of the Rule 23. In this connection, my attention was drawn to G.O.Ms. No. 1908, Revenue, dated 28.8.1990. It is seen from that Government Order, that the Government is also aware of the possibilities of receipt of thousands of applications for allotment against few available plots and that the excess vacant land of more than 2 grounds can be allotted only a co-operative society, private housing organisations, etc., and not to individuals. It is seen from the impugned Government Order that the land declared is nearly six grounds, it is also not out of place to point out that the trespass committed by the petitioners is not only in the portion declared as excess vacant land but also in the places allowed to be retained by the land owner. The concept of tax and acquisition of lands under the Act in regard to urban land is one and the same. What is sought to be excluded under the Act is land used for agricultural purposes. In both the acts, there is a proviso by which the agricultural lands are excluded. They are similar in nature. Therefore, it is not correct to contend that the Government Orders and the decisions of civil courts referred lo in this order, would not apply since they arise under the Urban Land Tax Act. Even under the Urban Land Ceiling Act, there is a Government Order viz., G.O.Ms. No. 1881, Revenue, dated 23.8.1990, by which the lands described as house site are excluded if it is cultivated. This Government Order is also similar to the Government Order and judgments arising out of the Urban Land Tax Act.
51. Learned Senior Counsel for the petitioners then reliance on the decision reported in Pratima Paul v. The Competent Authority . As observed in that case, there is no intentional or deliberate cessation of cultivation in this case, the lands could not be cultivated only because of the trespass, as rightly contended by Mr. R.Krishnamurthi, learned Senior Counsel for the 3rd respondent. It is further urged that no evidence is produced to show the factum of cultivation, which according to the learned Senior Counsel for the 3rd respondent, is wrong. Adangal Certificate given by the Tahsildar was produced before the authorities, the competent authority has also inspected the lands and opined that the lands were cultivated. Further, as rightly pointed out by Mr. R. Krishnamurthi, the present writ petition is the third one in the series and also by the persons who have suffered a decree for eviction. Firstly, W.P. No. 6120of 1993 was filed and interim orders were obtained. The same was vacated by Kanakaraj, J., on 12.4.1993. It is seen from the judgment of my learned Brother that all the contentions similar to the one raised herein were taken and they were rejected. Later, one person by name Narayanaswami filed W.P. No. 7737 of 1993 and obtained interim orders suppressing the vacation of interim orders in W.P. No. 6120 of 1993. When the 3rd respondent herein filed a counter, that writ petition was withdrawn. Now, a third writ petition is filed on the same grounds suppressing the vacation of interim orders passed by this Court in W.M.P. Nos. 10800 and 10801 of 1993. It is seen from the records that the first two writ petitions were filed when the suits were pending trial and the present writ petition was filed by the petitioners after the suits were dismissed. Thus, it is seen that the petitioners alone have come to this Court unclean hands.
52. I have carefully considered the arguments in detail and also gone through the documents and the judgments pronounced in the civil proceedings and the earlier writ petitions filed by the parties. I am constrained to write a detailed order since both parties have relied upon the documents filed by them in the civil court and also before the authorities concerned, which compelled me to give a finding on all the points raised by both parties.
53. For the foregoing reasons, I do not find any merit in the writ petition. Accordingly it is dismissed. However, there will be no order as to costs.