Madras High Court
A.R.Annapurani Achi (Deceased) vs The Assistant Commissioner (Competent ...
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON:11.01.2013 DATED: / 04 /2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.44719 of 2002 and W.P.M.P.No.345 of 2012 1.A.R.Annapurani Achi (Deceased) 2.A.R.Ramanathan 3.A.R.Kasiviswanathan 4.Ar.Murugappan .. Petitioner (P2 to P4 Impleaded in the place of deceased Petitioners vide Court order dated 15.06.2004 by KRPJ in W.P.M.P.No.6020/2004 in W.P.No.44719/02) Vs. The Assistant Commissioner (Competent Authority) Urban Land (Ceiling & Regulations), Ambattur, Chennai 600 053. .. Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus or such other order or orders in the nature of writ calling for the records relating to the impugned order dated 13.02.2001 Ref: ROC:611/98-C signed by the Respondent authority on 11.02.2002 fixing the compensation payable in respect of the land comprised in R.S.No.35, New S.Nos.35/4A1A1A, 35/4A1A1C and 35/4A1A1E, Oragadam Village, Ambattur Taluk at Rs.19,500/- and consequently direct the respondent authority to drop all proceedings initiated as against the Petitioner and her Co-owners in respect of the said lands by following the Tamil Nadu Urban Land (Ceiling Regulation) Repeal Act 1999. For Petitioners : Mr.S.Thankasivam For Respondents : Mr.R.Lakshmi Narayanan Additional Govt. Pleader - - - O R D E R
The petitioner states that originally Mrs.Meenakshi Arunachalam was the absolute owner of all Punja Agricultural land measuring about Ac.1-21 cents comprised in R.S.No.35/4, subsequently in S.No.35/41A1A1 and later New S.Nos.35/4A1A1A, 35/4A1A1C and 35/4A1A1E Oragadam Village, Saidapet Taluk (Now Ambattur Taluk). The said Mrs.Meenakshi Arunachalam had purchased the said land under a sale deed dated 27.03.1962 registered as document No.973 of 1962 from Kannammal and others. The said Mrs.Meenakshi Arunachalam and her husband Mr.M.R.Arunchalam did not have any issue and both of them and her mother-in-laws Mrs.Omayal Achi, unfortunately died in the air crash at Bombay on 12.10.1976. After the demise of the said Mrs.Meenakshi Arunachalam, her husband and her mother in law, all her properties including the above referred land measuring Ac.1-21 cents vested on her legal heirs viz., (1) R.M.Meenakshi Achi (2) A.R.Annapurani Achi (3) A.M.M.Arunachalam and (4)N.Sivagami as per the provisions of Hindu Succession Act 1956. Out of the said four legal heirs, only himself and Mrs.Sivagami Achi are available and Mrs.R.M.Meenakshi Achi and Mr.A.M.M.Arunachalam are no more.
2. The petitioner further submits that immediately after the death of the said Mrs.Meenakshi Arunachalam, the Petitioner and the other legal heirs, constituted a trust known as Mr.OMAYAL Achi and Mr.Arunachalam Trust under a registered Trust deed dated 25.11.1976 and the said property left by Late Meenakshi Arunachalam were made over to the said Trust. The object of the said Trust for establishing, running and maintaining educational institutions, libraries, museums, free boarding houses and hostels, hospitals, nursing homes and providing assistance and grants for destitutes and orphans etc., and as view of the constitution of the said charitable trust, the above said agricultural land in Oragadam village initially became the property of the said Omayal Achi and M.R.Arunachalam Trust and the said property remained as agricultural land for a very long period after the formation of the trust also and it is very important to note that much after the constitution of the said Trust, the Tamil Nadu Urban Land (Ceiling & Regulation) Act 1978, was introduced during the year 1978 and the said act was published in the Government Gazette on 17.05.1978 only. However, the commencement of the Act was given effect retrospectively from 03.08.1976.
3. The petitioner further submit that as per the provisions of Section 7 of the said Act, read with rule 4 of the Tamil Nadu Urban Land (Ceiling & Regulation) Rules 1978, every person holding land in excess to the ceiling limit on the date of the commencement of the act, within a period of 121 days from the date of publication of the Act in the Government gazette is to file a statement before the competent authorities intimating them the extent of excess land held by him/her. In view of the provisions of Rule 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules 1978, last date for filing a statement under section 7(1) was declared as 16.09.1978 and therefore on 12.09.1978 though the land was not a urban land in view of the fact that the same remained as an agricultural land factually and as per the revenue records, by way of abundant caution, a representation was submitted by the said trust, to the Commissioner of Urban Land Ceiling and Member Board of Revenue, Chepauk, seeking to exempt the said land under Section 20 (IV) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 as the land was then owned, required and used by the Public Charitable Trust, viz., Mr.Omayal Achi and Mr.Arunachalam Trust. Moreover, by way of abundant caution, a statement under section 7(1) was also filed with the respondent in Form and without prejudice to the claim for exemption by the Trust under Section 20 (iv). After continuous correspondence and follow-up by the Trust, the board of Revenue (Urban Land Ceiling & Urban Land Tax), by an order dated 31.03.1979 held that the transfer of the property in the name of the said trust itself was void as the creation of the trust was on 25.11.1976 i.e., after the retrospective commencement of the act on 03.08.1976. However, contrary to the said order, later, a notice dated 23.05.1979 was issued under Section 9(4) of the said Act, by the Respondent herein in the name of the said trust stating that about 3000 sq.mtr of land owned by the trust was found to be in excess under the Tamil Nadu Urban Land (Ceiling & regulation) Act 1978 and a written objection dated 20.06.1979 was submitted by the said Trust to the respondent claiming complete exemption. In the mean time, the trust continued to pursue its representations with the concerned Government authorities for grant of exemption for the said land under Section 20 (iv) of the Urban Land Ceiling Act 1978, and such representations were kept pending by the authorities. Subsequently, quite contrary to the earlier notice under Section 9(4) of the act issued by the Respondent, a fresh notice dated 31.10.1985 under section 9(4) was issued in the name of Late Meenakshi Achi holding that the total extent of 3900 sq. ft was in excess without considering the fact that the representations of the said trust claiming exemption under Section 20(iv) of the Act were under the consideration of the higher authorities.
4. The petitioner further submit that thereafter, in view of the inordinate delay in disposing the application seeking exemption, the said trust also filed an application with the Government of Tamil Nadu seeking to exempt the said land from the purview of Urban Land Ceiling Act 1978 and the said application was finally rejected by the Government of Tamil Nadu vide G.O.M.S.No.776 dated 26.05.1989 issued by the Revenue Department holding that the transfer of the said lands to the said trust was void. Thereafter by an order dated 28.09.1989, the Respondent authority passed a fresh order holding that only 1000 sq.mtrs of land was the eligible extent available to Late Mrs.Meenakshi Arunachalam and her legal heirs and 3900 sq. mtrs was held to be in excess as per her eligibility under the Urban Land Ceiling Act. Immediately, after the receipt of the said order, a further appeal dated 29.03.1990 was filed before the Commissioner of Land Reforms by the Petitioner and the other legal heirs of Late Mrs.Meenakshi Arunachalam above named. In the said appeal, important revenue documents like Adangal extract for the faslis 1381 to 1385 were also produced to establish that till 1978, the subject land was an agricultural land. Apart from the above, exemption was sought under Section 20 (iv) of the UL (C & R) Act 1978. however, the said appeal was dismissed by an order dated 20.06.1990 by the Special Commissioner of Land Reforms. By virtue of the above referred orders, it was categorically held that the transfer of the subject land to the Trust constituted by himself and the other legal heirs referred to the above were held as Co-owners of the subject land. As such, one of the Co-owners of the subject land having 1/4th undivided interest each.
5. Thereafter, under Section 11 (1) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, the Respondent made a publication in the Tamil Nadu Gazette dated 01.01.1992 holding that the land owned by the Petitioner and her Co-owners measuring 39 acres equivalent to about 96.33 cents in S.No.35/4A1A1C and 35/4A1A1E was in excess under the Urban Land Ceiling Act and the same was proposed to be acquired. Subsequently, an errata was published regarding some error in the description of boundaries to the said land in the Government Gazette dated 17.06.1992. Later the notification under Section 11 (3) was also published in the Gazette dated 03.03.1993 declaring that the said land would be deemed to have been acquired with effect from 10.06.1992. The entire proceedings were taken by the Respondent authority on the footing that the said M.R.Omayal Achi, Mr.Arunachalam Trust does not have any right with the said land. It is very important to note that in view of the said stand by the Respondent authority, the Trust would not have any right to the subject land and admittedly the land was in the joint possession of the Petitioner and her Co-owners viz.., the other legal heirs of Late Mrs.Meenakshi Arunachalam. Factually also the subject land was in the possession and control of the Petitioner and the other legal heirs of Late Mrs.Meenakshi Arunachalam and the fact remains so till today. In fact a pucca fencing and a well have been put up therein by the petitioner therein and introduced during the year of 1978 and the said Act, Late S.Mohamed Sultan was Proprietor of Sulthan Modern Rice Mill and the said well is being used for the Agricultural activities in the said land. Further at no point of time, the Respondent authority have taken the possession of the said land from the petitioner or the other legal heirs of the said Late Mrs.Meenakshi Arunachalam. In view of the continuous possession and enjoyment of the land by her and her family members, who are all the legal heirs of the Late Meenakshi Arunachalam, till today, the patta, Chitta and adangal in respect of the said land are maintained by all concerned Revenue authorities in the name of Mrs.Meenakshi Achi only.
6. It is further stated that M.R.Omayal Achi, M.R.Arunachalam Trust has already established and run in the following charitable institutions are as follows:
1.Omayal Achi College of Nursing offering B.Sc., and M.Sc Nursing Degree courses approved/affliated by the Government of Tamil Nadu and Dr.M.G.R.Medical University.
2.Omayal Achi community Health Centre which caters to the poorer section of the society by providing medical care for thousands of persons every month.
7. It is very important to note that various representations made to the State Government by the said trust requesting them to allow the alleged excess land to the trust itself in view of the fact that the trust is carrying out various charitable activities including the running of an approved nursing college for the benefit of the poorer section of the society was being considered and various hearings were also held. The applications were kept pending by the Government for a long time and finally by an order dated 19.05.2001 was confirmed by the Board of Revenue informing that no order can be passed for the allotment of land to the trust itself in view of the fact that steps were being taken for payment of compensation in respect of the said land by the respondent authority. It is very important to note that though the Gazette publication was given during the year 1992-93, no compensation was paid to any person in respect of the said land by the respondent authority. It is very important to note that though the Gazatte publication was given during the year 1992-93, no compensation was paid to any person in respect of the said land and admittedly the said lands remains in the hands of the Petitioner and her said family members. Moreover, the payment of compensation is mandatory as per Section 12 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act. In fact, as per Section 12 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act 1978 read with Rule 11 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act 1978, compensation should be fixed and paid to the owners of the land, within a period of one year from the date of acquisition of the said land. Now, in the present case, though according to the respondent the alleged notional acquisition was made on 10.06.1992 itself, the physical possession was not at all taken over by the respondent authority from myself and my Co-owners. Consequently, no amount was paid towards compensation as per Section 12 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act 1978.
8. In the mean time, the Tamil Nadu Urban Land (Ceiling & Regulation) Act 1978 was repealed by Act 20 of 1999 known as the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act 1999. As per Section 3(2) of the Tamil Nadu Urban Land (Ceiling &Regulation) Repealed Act, 1999, even when the land is acquired by the Government and compensation is paid to the owners, such land has to be restored to the owner himself if the compensation is refunded by the owner who has already received the same. Further as per Section 4 of Repeal Act 1999, all pending proceedings under the Principal Act got abated with effect from 16.06.1999. While the facts remain so, by an order dated as 13.02.2001 and signed by the respondent on 11.02.2002 and dispatched on 20.05.2002, the respondent has informed that the amount of compensation payable to her and the other family members would be Rs.19,500/-. She further submits that on the coming into force of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act 1999, himself and the other family members (Co-owners) have become entitled to own the said land without any claim by the respondent authority in view of the fact that no compensation whatsoever have been paid by the respondent under section 12 up to this date and further the physical possession have not been handed over by her and other co-owners, to the respondent. Moreover, after the repealing of the Principal Act, the respondent authority is not entitled to pass any order with regard to the fixation of compensation. Now, in the year of 2002, after issuing a manipulated order dated as 13.02.2001, the respondent is from 01.06.2002 onwards, attempting to take physical possession of the said land claiming that the Gazette publications have already been made and they are entitled to take possession of the said land. The said action of the respondent authority is illegal, arbitrary and high handed. Therefore, she approached the respondent authority that they have no legal right to interfere with the ownership of physical possession of the said land. However, the authorities of the respondent's office were indifferent and the respondent authority also evaded to meet her representative stating that he has to look after four Assistant Commissioner's areas. Therefore, finally she sent a detailed representation dated 09.11.2002 to respondent through registered post informing him that he has no authority to interfere with her ownership or possession of the said lands. However, now again she reliably understands that the respondent authorities are taking steps to forcibly take possession of the said lands from her, due to the influence of certain politically powerful persons who aim at getting the said lands allotted to them under some pretext. Unless, a suitable prohibitory order is obtained by the Petitioners as against the respondent, the respondent would disturb the possession of the Petitioners arbitrarily and the petitioner and her Co-owners would be put to irreparable loss and hardship.
9. The highly competent counsel Mr.S.Thankasivam, appearing for the petitioner submits that the 1st petitioner had expired on 07.05.2003. Hence, the other petitioners are brought on record as legal heirs. The subject land was originally purchased by Mrs.Meenakshi Arunachalam on 27.06.1972. She and her husband expired without issues in an air crash accident at Bombay on 12.10.1976. All the petitioners constituted a Charitable Trust namely Umayal Achi , Mr.Arunachalam Trust, which has been registered on 25.11.1976. The very competent counsel further submits that after the constitution of the said trust, the Tamil Nadu Urban Land (Ceiling and Regulation Act) was published in the Government Gazette on 17.05.1978 only. The said Act was given with retrospective effect from 03.08.1976. Further, the said land was not an Urban Land in view of the fact that the same remained as Agricultural Land in the revenue record entries. However, a representation was submitted before the authorities to exempt the said land. On the ground that the land is used by the Public Charitable Trust. The same was rejected by the respondents. Thereafter, an appeal was filed before the Government and also confirmed the same. Subsequently, the Urban Land Ceiling Act was replied with effect from 16.06.1999 by virtue of Act 20 of 1999. As such, the authorities under Urban Land Ceiling Act ceased to have any power to initiate and continue any proceedings under the said repealed Act. Thereafter, an enquiry was conducted and the impugned order has been passed without any authority of law after the introduction of the repeal Act. Further, the physical possession is vested with the petitioners. Further, the building has been constructed by the original owner and her Co-owners are under the occupation of the petitioner and their staff. The revenue authorities had issued Patta and Chitta in the name of the original owner Mrs.Meenakshi Arunachalam. The petitioner had also obtained electricity service connection. Now, the petitioner is maintaining the property under her care and custody after raising a pucca compound wall.
10. Further, the property had not been handed over to the Government. As of now, the physical possession is with the petitioners. Further, the Government had issued Government Order dated 28.09.1989 and the ownership of the said land by the Trust created by the legal heirs of the original owner had not been recognised.
11. The learned counsel further submits that the Ceiling limit detained under section 5 should be applied individually to the said four legal heirs only and all the said four legal heirs were married and they were having individual family consisting of more members. Therefore, as per provision of Section 17 of the Urban Land Ceiling Act, the ownership of the four legal heirs of the subject land by way of inheritance is required to be considered. As such, the impugned proceedings has been initiated originally against the Trust and subsequently against the deceased person is not sustainable under law.
12. The learned counsel has cited a judgment reported in (2012) 6 MLJ 273 in Government of Tamil Nadu rep. By the Commissioner and Secretary to Government, Revenue Department, Secretariat, Chennai 9 and others Vs Mecca Prime Tannery rep. by its Managing Director Tmt.V.Jayakodi, Chennai-44 and others.
(A) Tamil Nadu Urban Land (Ceiling and Regulation) Act (24 of 1978), Section 11(3) Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act (20 of 1999), Section 3-Acquisition of vacant land in excess of ceiling limit -Writ petitions filed by land owners were allowed-Writ appeals arose out of separate judgments delivered by learned single judges in various writ petitions filed by aggrieved land owners-almost all writ petitions allowed manly on ground that physical possession of lands continued with land owners or persons claiming through them-Held, Section 11(3) does not provide that after notification, State Government shall be deemed to have come into possession of land so declared as excess land-After vesting of land in State under Section 11(3), State has to initiate action for taking possession of land Act contemplates actual possession being taken over by State Government Writ Appeals dismissed.
13. The highly competent Additional Government Pleader submits that the subject land has been classified as Punja lands measuring to an extent of 1.21 acres. The original owner Mrs.Meenakshi Arunachalam had expired in an air crash on 12.10.1976. The legal heirs created a Trust on 25.11.1976. The Tamil Nadu Urban Land Ceiling and regulation Act came into force from 03.06.1979. Thereafter, draft statement was issued in the name of Meenakshi Achi represented by Sivagami. The competent authority issued orders and declared that 3900 sq.meters as excess land. Against this order, appeal has been filed before the Special Commissioner, Land Reforms and the same was dismissed. Thereafter, notification was issued under section 11(5) to the petitioners to handover the physical possession dated 28.09.1993 and the trustee handed over physical possession. Thereafter, the trustee sought for amount payable to the land owner. Now, the lands are vested with the Government. As such, the petitioners, as on date, are only encroachers on the land of the Government.
14. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsel on either side and on perusing the typed set of papers, this Court is of the view that the trustee had been established on 25.11.1976 but the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 introduced and the same was published in the gazette on 17.05.1978. However, the Act came into force with retrospective effect from 03.06.1976. Therefore, the proceedings initiated under the said Act is maintainable. As such, the excess land, to an extent of 3900 sq.ft acquired by the Government has been done in an appropriate manner. Further, the learned counsel for the petitioner is claiming that the four legal heirs of the deceased were having family consisting of more members. The petitioners claim was initially that the property was required for the trust and now they are claiming for family members which is only as an afterthought after completion of the land acquisition proceedings. Further, the land has been classified as agricultural land. However, the land is situated within the Urban area. Hence, the above writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
.04.2015 ub Index: Yes/No Internet: Yes/No To The Assistant Commissioner (Competent Authority) Urban Land (Ceiling & Regulation), Ambattur, Chennai 600 053. C.S.KARNAN, J. ub Pre-Delivery Order made in W.P.No.44719 of 2002 and W.P.M.P.No.345 of 2012 .04.2015