N.Seethalakshmi vs The Secretary To Government on 3 November, 2010

[Cites 7, Cited by 1]

Madras High Court

N.Seethalakshmi vs The Secretary To Government on 3 November, 2010

2.In this writ petition, the petitioner challenges the G.O.Ms.No.254 Revenue (Urban Land V2) Department, dated 22.03.2006 and for consequential direction, directing the respondents from interfering with her peaceful possession and enjoyment of the properties in Survey Nos.693/2 and 696/3 and measuring of an extent of 0.54.5 hectares and 0.55.0 hectares in Kulavanigarpuram, Palayamkottai Taluk, Tirunelveli District.

3.The lands in survey Nos.693/2 and 696/3 and 703/1A, of an extent of 1.49.50 hectares situate in Kulavanigarpuram, Palaymkottai, Tirunelveli District, belongs to the joint family of Late L.Nambi Srinivasan, who was the husband of the petitioner herein. As the land owner was holding land in excess of the holding as per Tamil Nadu Urban Land (Ceiling & Regulation) Act 1978, herein after called as Act, proceedings were initiated for acquisition of the excess land over and above the ceiling limit and according to the petitioner, the petitioner is in possession of the excess lands, even though, the order was passed under section 11 of the Act, declaring an extent of 0.54.0 hectares and 0.55.0 hectares in Survey Nos.693/2 and 696/3 as excess. It is further stated that the authorities under the Urban Land (Ceiling & Regulation) Act, also levied the tax on the independent holding of Late L.Nambi Srinivasan, treating the petitioners as holding the entire extent of 1.49.50 hectares and that was challenged by the petitioner before the appropriate authorities and that was negatived by the authority and against that, the petitioner filed appeal to the 2nd respondent, which was also rejected and therefore, the petitioner filed W.P.No.442 of 2001, on the file of the Principal Bench of this Court and the said writ petition was disposed of on 19.01.2007 holding that in view of the Repealing Act, the action taken by the respondents 2 and 3 are liable to be set aside and the 3rd respondent was directed to treat the matter afresh in the light of the Repealing Act 20/1999. The petitioner also filed W.P.(MD)No.2834 of 2006 before this Court for a writ of mandamus, directing the 3rd respondent to handover the lands in survey Nos.693/2 and 696/3 and in that writ petition also it is alleged by the petitioner that they are in possession of the property and the actual possession of the land was not taken as per Section 11(3) of the Act. As per the judgement rendered in W.P.No.442 of 2001, the 3rd respondent issued statutory notification on 28.03.2007 and 08.09.2008 and the petitioner also filed objections and the matter is pending before the 3rd respondent. At that time, the 4th respondent's officials started doing some earth work in the lands and on enquiry, the petitioner came to know that the lands, which are declared surplus as per the provisions of the Act, of an extent of 0.54.5 hectares and 0.55.5 hectares in Survey Nos.693/2 and 696/3 in Kulavanigarpuram, Palayamkottai, Tirunelvelli District, were assigned to the 4th respondent by the G.O.Ms.No.254, Revenue Department, dated 22.03.2006 and on that basis, they are taking action and hence, the writ petition filed for the relief prayed for.

4.The 3rd respondent filed a counter stating that enquiry was conducted under the provisions of the Act and orders were passed under Section 11 of the Act declaring the extent mentioned above in Survey Nos.693/2 and 696/3 as surplus land and the compensation was also paid and received by the petitioner and therefore, it is not open to the petitioner to challenge the same after 20 years and the proceedings initiated under Section 11 of the Act has become final and possession was also taken over by the 3rd respondent. After taking possession, the Government allotted the land to the 4th respondent as per the Government Order and hence, the present writ petition is not maintainable.

5.The 4th respondent filed a detailed counter stating that as per the provisions of the Act, proceedings were initiated against the petitioner's husband and an extent of 1.09.50 hectares was declared as excess urban lands in the hands of the petitioner's husband and the order under section 10(1) of the Act was issued on 29.07.1988 and final order was also issued under section 10 (1) of the Act. Thereafter, a draft notification as per section 11(1) along with tobo sketch came to be published and served on the petitioner on 11.08.1989 and possession was also taken by the Revenue Authorities as early as on 15.09.1989 and notice was also served on the petitioner. The petitioner also received the compensation for the entire land and therefore, the acquisition process was completed even in the year 1989 and possession was taken over and the final proceedings under Urban Land Tax for Fasli 1391 to 1399 viz., upto 1989 were taken as admittedly till 1989, the petitioner's husband was holding the entire land and therefore, there is no illegality in issuing Urban Land tax on the holding for the petitioner's husband. It is further stated that in W.P.No.2834 of 2006, this writ petitioner specifically admitted that pursuant to the proceedings under the Act, the possession has been taken and once possession has been taken, the petitioner is not entitled to claim the land as per the provision of Repealing Act 20/1999. It is further stated that after the vesting of the said land with the Government, the Government allotted the land, which was declared as surplus to the 4th respondent and the 4th respondent has also taken possession of the land and have started work at a cost of Rs.6.70 Crores and the site was also handed over to the contractor on 06.11.2008 and therefore, the petitioner is not entitled to any relief as prayed for.

6.It is contended by the learned counsel appearing for the petitioner, Mr.Veera Kathiravan that actual possession was not taken and even assuming that possession was taken, it amounts to constructive possession and as per Section 3 of the Repealing Act 20 of 1999, even after the land has been acquired by the State Government if possession has not been taken over by the Government and even though, compensation has been paid with respect to that land as the land shall not be restored unless the amount paid if any has been refunded to the State Government and therefore, even assuming that compensation was received by the petitioner, having regard to the fact that possession was not taken over from the petitioner, the petitioner is entitled to restoration of land on refund of the amount received by her and therefore, the notification, which is impugned in the writ petition allotting to the 4th respondent is liable to be quashed.

7.The learned counsel appearing for the petitioner further submitted that this Court has held in W.P.No.442 of 2001 directing the 3rd respondent, who was the 2nd respondent in that writ petition, to reconsider the entire matter in the light of the Repealing Act 20 /1999 and proceedings were also initiated to issue notice, dated 28.03.2007 and 08.09.2008 and it has to be decided in those proceedings, whether the petitioner is entitled to retain the lands and till such proceedings are completed, the 4th respondent cannot take advantage of the G.O.Ms.No.254 and claim any right over the petitioner's property. He further contended that the authorities under the Urban Land Tax Act are demanding the tax for the entire holding of the petitioner and that would also prove that the petitioner is in possession of the land and hence, as per provision of Section 3(2) of the Repealing Act 20 of 1999, the petitioner is entitled to claim restoration even assuming that compensation has been paid and therefore, the writ petition is liable to be allowed.

8.The learned counsel appearing for the 4th respondent Mr.R.Prabhu Rajadurai, submitted that possession was taken on 15.09.1989 and compensation was also paid to the petitioner and the same was received. Therefore, the matter has become final and the property vested with the State Government and hence, the Repealing Act has no effect on the property owned by the petitioner's husband and after the passing of the order under Section 11 and taking over the possession of the property, the matter cannot be reopened.

9.The learned counsel appearing for the 4th respondent filed the typed set of papers to prove the taking of possession on 15.09.1989 and it is seen from the typed set of papers that the vacant land was declared as surplus lands belonged to L.Nambi Srinivasan and the possession of the lands were handed over to the Revenue Inspector, Palayamkottai. Further, by the proceedings of the 3rd respondent, dated 30.09.1989, the taking over of possession was also confirmed by the 3rd respondent.

10.It is further submitted by the learned counsel appearing for the 4th respondent that the proceedings initiated under the Urban Land Tax Act, were not in respect of holding of L.Nambi Srinivasan after 1989 and admittedly till 1989 he was the owner of the entire property and at that time, the lands were not taken possession and the possession was taken only on 15.09.1989 and therefore, that cannot be taken advantage of by the petitioner. The learned counsel appearing for the 4th respondent, Mr.R.Prabhu Rajadurai, further submitted that in W.P.No.442 of 2001, this Court has directed the authorities to reopen the Urban Land Assessment in the light of the Repealing Act 20 of 1999 and this Court has not dealt with the proceedings initiated under the Act and the above W.P.No.442 of 2001 was also filed against the proceedings initiated not under the Act but under the Urban Land Tax Act and hence, the petitioner cannot take advantage of the initiation of proceedings under the Urban Land Tax Act and the lands were already vested with the Government and the Government has taken possession of the land and the same was allotted to the 4th respondent.

11.I have given my anxious consideration to the submission made by both the counsels.

12.In this case, we will have to see whether the petitioner is entitled to any relief as per Repealing Act 20/1999 and whether the petitioner is in possession of the land and therefore, she is entitled to retain the possession as per the Repealing Act 20 of 1999.

13.It is not in dispute that proceedings were initiated under the provision of the Act and notification under Section 9 was issued and statement under Section 10 was also issued and as per Section 11(3), excess land was also declared by the Government as per the notification published under Sub Section 1 of 11. Therefore, the land vested with the Government and the Government can direct the party, who is in possession of the property, to surrender the possession. It is also seen from the typed set of papers filed by the 4th respondent that as per Section 12 of the Act, compensation was arrived at by proceedings, dated 06.06.1990 at Rs.5,475/- and that was also communicated to the petitioner by order, dated 06.12.1991 and N.Seethalakshmi, the petitioner herein received a sum of Rs.1,080/-, dated 10.11.1992. Therefore, there is no doubt about the proceedings initiated under Section 11 of the Act and the land also vested with the Government and as per the proceedings of the 3rd respondent, possession was also taken over on 15.09.1989 and the same was also confirmed by the 3rd respondent on 30.09.1989. Once possession was taken prior to 1999, then the land owner cannot take shelter under the provisions of Section 3(2) of the Repealing Act 20 of 1999. In my opinion, as per the records produced by the 4th respondent, the possession was taken over by the Revenue Officials on 15.09.1989 and therefore, it cannot be contended that the possession was not taken over and the petitioner is in possession of the land.

14.Further, the lands are vacant lands and only constructive possession can be taken and by the proceedings of the respondents, dated 15.05.1989 and 30.09.1989, it is proved that possession was taken by the respondents and therefore, the process of acquisition of surplus land has been completed even in the year 1989 and thereafter, the petitioner also received the compensation accepting the acquisition. The factum of taking over the possession was also admitted by the petitioner in the W.P.No.2834 of 2006 wherein the petitioner has prayed for handing over of the lands, which also would prove that possession was already taken over by the respondents.

15.As regards the contention of the learned counsel appearing for the petitioner that as per the order passed in W.P.No.442 of 2001, proceedings are to be initiated in the light of the Repealing Act 20 of 1999 and therefore, till such proceedings are concluded, the 4th respondent should not take advantage of the G.O.Ms.No.254 Revenue (Urban Land V2) Department, dated 22.03.2006 and interfere with the possession of the petitioner, in my opinion, that direction cannot also be accepted.

16.The learned counsel appearing for the 4th respondent has rightly submitted that against the proceedings under the Urban Land Tax Act, the writ petition was filed and in that context only, this Court passed the order in that writ petition having regard to the fact that the possession was also taken over by the respondents even in the year 1989 and the land became vested with the Government and the Government become the owner of the land and therefore, the allotment of the land to the 4th respondent as per G.O.Ms.No.254 referred to above, is perfectly valid and the 4th respondent is entitled to proceed with the work over the land, which was assigned to each. As a matter of fact, it has been stated in the counter filed by the 4th respondent that the tenders were invited and the site was handed over to the contractors on 06.11.2008 and the respondents also incurred an expenditure of Rs.175 lakhs and 99.26 lakhs as on 28.02.2009. Therefore, these facts would prove that possession was taken over by the 4th respondent from the Government and when the Government has taken possession of the land even in the year 1989, it cannot be contended by the petitioner that they are in possession of the property having regard to the character of the land, which is a vacant urban land.

17.Further, the contention of the learned counsel appearing for the petitioner that Urban Land Tax was levied cannot also be accepted for the reason that till 1989, the petitioner's husband was in possession of the land and only after orders were passed under Section 11(3), possession was taken over on 15.09.1989 and till such time, the petitioner's husband was liable to pay the urban land tax on the entire holding and proceedings were initiated for collecting the urban land tax for such period, which is challenged in W.P.No.442 of 2000. Therefore, in my considered opinion, the petitioner cannot take advantage of the same and the land has already vested with the Government and taken possession in the year 1989. Therefore, the Government become the owner of the property and in that capacity, the land was allotted to the 4th respondent by the impugned Government Order and hence, the petitioner cannot challenge the same.

18.In the result, the writ petition is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.

er To,

1.The Secretary Government of Tamil Nadu Revenue Department, Fort St. George, Chennai-600 009.

2.The Commissioner of Land Reforms, Chepauk, Chennai-5.

3.The Assistant Commissioner of Urban Land Tax, Trivandrum High Road, Murugan Kurichi, Palayamkottai, Tirunelveli.

4.The Tamil Nadu Slum clearance Board, Rep. by Executive Engineer, Perumalpuram.

5.The Additional Government Pleader, Madurai Bench of Madras High Court, Madurai.

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