Madras High Court
A.Mallikinisha vs The Assistant Commissioner (Ult)
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: / 07 /2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.13400 of 2014 & M.P.Nos.1 to 3 of 2014 A.Mallikinisha ... Petitioner Vs. 1.The Assistant Commissioner (ULT), 153, Kaarnigar Street, Adambakkam, Chennai. 2.The Sub-Registrar, No.2/71, 1st Floor, Kajara Garden 2nd Street, East Coast Road, Neelangarai, Chennai - 600 041. 3.The Tahsildar, O/o.The Tahsildar, Sholinganallur, Chennai-119. 4.The Secretary, Department of Revenue, Government of Tamilnadu, Fort St. George, Chennai. 5.The Commissioner (ULC), Land Reforms, Ezhilagam, Chepauk, Chennai. ... Respondents (R-4 and R-5 impleaded as per order of this Court dated 20.06.204 made in M.P.No.4 of 2014 in W.P.No.13400 of 2014) PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records of the impugned letter dated 27.09.2013 in Na.Ka.A/364/13, issued by the first respondent and quash the same as illegal and pass such further direct the third respondent to issue patta on the basis of the application dated 28.04.2014 with respect to the petitioner property in Survey No.51/1A1A & 51/1A1C. For Petitioner : Mr.T.Arockia Dass For Mr.C.Anbarasu For Respondents : Mr.S.Diwakar Additional Government Pleader Mr.Y.Kaja Navas (Intervenor) (third party) - - - O R D E R
The short facts of the case are as follows:-
The petitioner submits that she is the owner of the land situated at Old Survey No.51/1-A and New Survey No.51/1-A-2 and 51/1-A-3 (present Survey Nos.51/1A1A & 51/1A1C) to an extent of 3000 sq.mtrs situated at Seevaram, Perungudi Village, Chennai-96. She submits that originally the property belonged to one P.C.Thomas, who obtained the property by way of registered sale deed dated 10.12.2013 from (1) Mrs.S.Vijayalakshmi Ammal and (2) Kasthuri Rangam. She submits that the said P.C.Thomas died on 07.08.1993 and the property devolved on his wife Mary Thomas. The petitioner further submits that her husband siddhiq @ Abubaker had entered into a sale agreement dated 09.03.2004 with Mary Thomas and the said Mary Thomas had delivered possession of the property to her husband on 09.03.2004. Thereafter, he has filed a suit for specific performance of the said agreement in O.S.No.764 of 2004 before the Principal District Judge, Chengalpattu and the same was decreed on 30.08.2006 in favour of her husband, the plaintiff therein. The said Mary Thomas remained exparte in the suit and the Court has passed a well reasoned exparte decree based on merits.
2. The petitioner additionally submits that the said Mary Thomas died on 04.11.2006. The legal-heirs of said Mary Thomas, viz., Reji Chacko, P.C.Kurien, Robin Chacko and Rosh Chacko have impleaded themselves and filed an appeal and the same was remitted back to the trial Court in O.S.No.6549 of 2010 for further proceedings. Thereafter, the parties to the said suit had entered into a compromise and the suit was decreed based on the compromise memo by its decree dated 18.10.2011 and a registered sale deed was executed by the legal-heirs of the said Mary Thomas in favour of her husband Siddhiq @ Abubaker in Doc.No.7282/2011, dated 19.10.2011, on the file of the second respondent. The petitioner additionally added that even at the time of entering into the sale agreement, the said Mary Thomas handed over the possession of the property to her husband. In the year 2001, her husband has constructed a house and obtained electricity connection for the same. She submits that from the year 2001, her husband has been regularly paying taxes to the Revenue authorities. She further submits that her husband has become the lawful owner of the said property and had been in possession over the property from the date of the purchase of the property. She further submits that her husband has executed a registered Settlement Deed in favour of her and settled the property to her in Doc.No.618/2012, dated 06.02.2012, on the file of SRO, Neelangarai. She submits that after the execution of settlement deed in her favour, she is paying taxes to the Corporation of Chennai as the property comes under the Corporation limit of Greater Chennai.
3. The petitioner further submits that the said Mary Thomas handed over the physical possession of the property to her husband on the date of sale agreement and her husband has constructed a small house and paying the taxes which clearly proves that her husband is in possession of the property and after the said settlement deed, she is in continuous possession and enjoyment of the property. She further submits that she wanted to give general power to a portion of her property in favour of one Mr.P.Swaminathan to whom she had already executed sale agreement dated 18.05.2012 in its document No.3105 of 2012, on the file of the second respondent. In this regard, when enquiry was made before the second respondent, in the month of April 2014, she was informed that her property is in land ceiling. Since the sale agreement time has already lapsed, the said P.Swaminathan sent legal notice to execute sale deed in his favour. Hence, she approached the second respondent along with General Power deed dated 30.04.2014. The second respondent refused to register the document saying that the said land has been acquired under the Urban Land Ceiling Act and further informed her that she cannot alienate the property. In this regard, the second respondent has further stated that he has received a communication through a letter dated 27.09.2013 in Na.Ka.A/364/13 from the first respondent stating that the said property has been acquired before 16.06.1999 by the State Government of Tamil Nadu. In this regard, she came to know that an order dated 31.07.1989 under Section 9(5) of the Tamil Nadu Urban Land Ceiling Act, 1978 has been passed by the competent authority i.e., the first respondent. However, she came to understand that further steps have not been taken by the first respondent in this regard.
4. The petitioner further submits that even after the alleged acquisition, the said Mary Thomas has been in possession and she has handed over the possession after the agreement entered with her husband and thereafter, she is in possession of the property. She submits that now she has not been allowed to alienate her property. She submits that the first respondent has not taken possession of the said property till date. She further submits that neither the physical possession of the property had been taken by the respondents nor the petitioner's vendors were paid with due compensation under the Act. She further submits that the learned Principal District Judge, Chengalpattu has observed in the judgment dated 30.08.2006 passed in O.S.No.764 of 2004 in page 21 para 23 that:-
"The observations made by the Hon'ble Supreme Court and our Hon'ble High Court squarely fits into the facts of the present case. Admittedly, the possession of the vacant land had not been taken over by the State Government and the same is with the plaintiff. Even in the written statement at page 5, the defendant has stated that the plaintiff has deliberately intending to trespass into her property and to illegally alter the physical features of the land by raising some unauthorized construction, thus the defendant indirectly admitting the possession of the plaintiff."
The petitioner further submits that the Tamil Nadu State Government has passed a Repealing Act of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1999 and as per the provisions of the Repeal Act, as the possession of the land was not taken over by the State Government, the proceedings under the Act have abated. Therefore, the impugned letter is per-se arbitrary and illegal. It is pertinent to note that it has been stated that on 16.06.1999, the first respondent has taken over possession of the property, however the legal-heirs of Mary Thomas have executed sale deed and after the sale deed, a settlement deed was executed and were duly registered.
5. The petitioner further submits that it is very important to note that the husband of the petitioner is regularly paying the property tax till date. The electricity connections were also given to the property and the consumption charges has also been paid till date. She further submits that as the legal-heirs of the said Mary Thomas executed sale deed in favour of the petitioner's husband in the year 2011 and as the petitioner's husband has executed settlement deed in the year 2012 and paying property taxes till date, it is legally impossible for the respondents to claim that the possession has been taken on 1999 and it is completely false. All the above clearly goes to prove that the State authority has not taken possession of the property before the crucial date viz., 16.06.1999 and as matter of fact even thereafter, the petitioner's predecessor was in possession. Subsequent to her purchase she has been in physical possession of the property. The petitioner further submits that in the mean time, she applied for the patta before the third respondent on 28.04.2014, along with the related document to substantiate her right and paid prescribed fee to issue patta. The same was accepted by the third respondent but so far the third respondent has not issued patta. In this regard, she has met the respondent several times in person but till date there is no positive response from him. The act of the third respondent is willful, wanton and against the provision of law and in violation of Article 14 of the Constitution of India.
6. The petitioner further submits that the act of the second and third respondents refusing to register the alienation of the said property and issue patta is illegal, arbitrary and unsustainable in law. She further submits that the petitioners are having uninterrupted possession of the property and the respondents have not at all taken possession of the property nor paid compensation to the petitioner's predecessor and as such, the impugned order is nothing but nullity in the eyes of law and does not have statutory force. Hence, the petitioner has filed the above writ petition.
7. The first respondent has filed a counter statement on behalf of all the respondents and himself and resisted the writ petition. The first respondent submits that Thiru.P.C.Thomas, residing at Manadi Post, Thiruvalla, Kerala State, filed return under Section 7(1) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 (herein after called as the Act) on 09.09.1978 for the land held by him in S.No.51/1A of Seevaram Village. He also applied to Government for exemption under Section 21(1)(a) of the Act to retain the excess vacant land for industrial purpose. The Government in G.O.Ms.No.565, Revenue, dated 28.04.1986, granted exemption under Section 21(1) of the Act to hold an extent of 3500 sq.mts of excess vacant land in S.No.51/1A of Seevaram Village for industrial purpose with the condition that the exempted land should be utilized within a period of two years for the purpose for which exemption was granted. Since the Urban Land Owner did not utilize the exempted land within two years for the purpose for which exemption was granted, a notice under Section 9(4) of the Act along with statement under Section 9(1) of the Act were issued in this office Ref.4129/87, dated 15.05.1989 to acquire the excess vacant land of 3500 sq.ft in S.No.51/1A of Seevaram Village. It was sent by RPAD and the Urban Land Owner received it on 05.06.1989. He sent a reply by a letter dated 28.06.1989 stating that he had no objection for acquisition of excess vacant land by the Government and requested to pay the compensation amount in one lumpsum without delay.
8. The respondents further submit that subsequently orders under Section 9(5) of the Act were issued in Rc.No.4129/87, dated 31.07.1989 to acquire 3000 sq.mts of excess vacant land after allowing the family entitlement of 1000 sq.mts. It was sent by RPAD and received by Tmt.Mary Thomas W/o.P.C.Thomas, the Urban Land Owner on 29.08.1989. Final statement under Section 10(1) of the Act was issued on 30.08.1989 and sent by RPAD. It was also received by Tmt.Mary Thomas on 01.11.1989. Notifications under Section 11(1) and 11(3) of the Act were issued on 30.12.1989 and 26.03.1990 respectively and sent for publication in the Tamil Nadu Government Gazette. The notification under Section 11(3) of the Act was published in Tamil Nadu Government Gazette dated 25.04.1990. Notice under Section 11(5) of the Act was issued on 31.05.1990 requesting the Urban Land Owner to surrender the excess vacant land. It was received by the Urban Land Owner on 09.07.1990. The respondents further submit that the possession of the excess vacant land of 3000 sq.mts was handed over to the Revenue Department on 17.08.1990. The respondents further submit that Thiru.P.C.Thomas, the urban land owner in his letter dated 28.06.1989 stated that he could not go ahead with his scheme of industry due to his ill health and old age and requested to take over the excess vacant land and to release the compensation amount in one lumpsum. Hence, the Government in G.O.Ms.No.2485, Revenue dated 13.12.1990 withdrew the exemption granted in G.O.No.565, Revenue, dated 28.04.1986 under Section 21(1)(a) of the Act and accorded permission for the payment of the total amount of Rs.9,000/- as compensation on 03.08.1976, in one lumpsum, to Thiru.P.C.Thomas being the amount payable under Section 12(6) of the Act for the excess vacant land acquired under the Act comprised in S.No. 51/1A1A & 51/1A1C of Seevaram Village.
9. The respondents further submit that orders under Section 12(6) of the Act were issued on 08.03.1991 fixing the amount of Rs.9,000/- towards the amount payable for the land acquired and the amount was sent to the urban land owner by Registered post with Acknowledgment Due in Demand Draft No.77/A/73/951609, dated 21.03.1991 in their office Rc.No.4129/87, dated 23.04.1991. It was received by the Urban Land Owner on 26.04.1991. Against the above acquisition proceedings, the husband of the present petitioner Thiru.M.Siddhiq filed two writ petitions in 2004 and 2005 in W.P.No.7505/2004 and W.P.No.16610 of 2005 and both were dismissed by this Court. Now after a lapse of 24 years from the date of taking over possession, the writ petitioner, who is a subsequent purchaser of the land and who has no locus standi to file this writ petition, has filed this petition. Regarding averments in para 2 and 3 of the affidavit, it is submitted that the petitioner has given details about the ownership of the lands in question by Thiru.P.C.Thomas, the erstwhile land owner and about the death of the erstwhile land owner on 07.08.1993. It was stated that the petitioner's husband has entered into a sale agreement with Tmt.Mary Thomas, wife of the erstwhile owner on 09.03.2004, but registration of such agreement was not detailed in the affidavit. The land was vested with Government with effect from 30.04.1990 and possession handed over to Revenue Department on 17.08.1990 making entries in the Revenue records and hence entering into sale agreement after 14 years for the acquired land is unacceptable. Further the amount due has been paid to the urban land owner and thus the acquisition process is complete. The writ petitions filed by the husband of the present writ petitioner in W.P.Nos.7505 of 2004 and 16610 of 2005 were dismissed by the High Court. Hence, the contentions of the petitioner are baseless and untenable.
10. Regarding averments in para 4 of the affidavit it is submitted that the purchase/sale of the acquired land is not valid under Section 6 of the Act. After issuing notices to the urban land owner, the land was acquired on the request of the urban land owner and possession handed over to Revenue Department on 17.08.1990. The amount due for the land was also paid to the urban land owner. The husband of the writ petitioner earlier filed writ petitions in W.P.Nos.7505 of 2004 and 16610 of 2005 which were dismissed by the High Court. Without mentioning about the earlier writ petitions, now the writ petition has been filed again by M/s.Mallikinisha W/o.Siddhiq, the writ petitioner herein with an abnormal delay of 25 years, which is total abuse of process of law and unjustifiable and on this sole ground alone, the writ petition deserves to be rejected. Regarding averments in para 5, 6 and 7 of the affidavit it is submitted that the writ petitioner has stated in para 3 of the affidavit that her husband Siddhiq @ Abu Bakkar entered into a sale agreement dated 09.03.2004 with Mrs.Mary Thomas, wife of erstwhile urban land owner but in the same affidavit in para 5 she has stated that at the time of entering into the agreement in the year 2001, her husband has constructed a house and obtained electricity connection for the same. Hence, the petitioner has given contradictory statement in her affidavit. The other authorities, who have no knowledge about the holdings of the petitioner or her husband, the title of the lands and who are not maintaining any accounts of the lands to verify their right in the lands, have issued the receipts and such kind of receipts could not establish or prove anything about the ownership of the lands and the same may be cleared from the above said points. Hence, the contentions of the petitioner are baseless and untenable. It is submitted that all the copies of the receipts are related to the years after the finality of the acquisition in 1990 and none was related before 1990 and hence, it clearly proves that the petitioner encroached upon the Government land after acquisition process was completed. The acquisition was accepted by the urban land owner during his life time and his wife Mrs.Mary Thomas was also aware of the acquisition and it was unchallenged during his life time. The erstwhile urban land owner also, on his request, received the payment due for the land acquired in one lumpsum amount.
11. It is further submitted that in the writ petitions in W.P.Nos.7505/2004 and 16610/2005, Tmt.Mary Thomas, wife of Thiru.P.C.Thomas, erstwhile land owner filed an affidavit stating that husband of the petitioner Thiru.Siddhiq has not been authorized by her to file the writ against acquisition and on this ground, the earlier writ petitions were dismissed. Therefore, all the statements of petitioner in the affidavit are false and not acceptable in law and deserve no merits and ought to be rejected. Regarding averments in para 8 of the affidavit, it is submitted that no agreement in respect of the Government acquired lands, is acceptable and allowable under any rules, because the said lands have been acquired and handed over to Revenue Department in 1990, based on the request of the erstwhile owner and the amount due for it was also received by the erstwhile land owner in 1991 itself. The acquisition was also unchallenged during the urban land owner's life time. Further the acquisition details were sent initially to the Sub-Registrar concerned (Adayar) on 11.02.1992 in Rc.No.4129/87 and the same was dispatched on 11.02.1992, as in all other cases, under the Rule 11(5) of the Tamil Nadu Urban Land Ceiling and Regulation Rules 1978. Even then, generally, the Sub-Registrars have allowed to register the transactions in the acquired lands and due to this, the position of the lands acquired under the Act, got complicated and vacant lands could not be allotted for any public purposes like, allotment to Tamil Nadu Slum Clearance Board, Tamil Nadu Housing Board, local authorities, for roads etc. Several purchasers, even after the lapse of more than 20 years, from the date of completion of acquisition proceedings, approached Hon'ble Judiciary against acquisition orders and particularly after the repeal of the Act in 1999, as in this case, because the purchasers, knowing very well that after the repeal of the Act, the cases cannot be remanded back for fresh disposal, filed cases, which resulted in raise in litigations. Therefore, the Government and the Commissioner of Urban Land Ceiling and Urban Land Tax have ordered in Government letter No.13783/ULC(2)/12-Revenue Department, dated 23.04.2012 and in the letter in Rc.No.7955/12/J2, dated 16.07.2012 respectively, to give instructions to all the Sub-Registrars concerned, in this regard. Accordingly, the said instructions were issued to the Sub-Registrars, including Sub-Registrar, Neelangarai in Rc. A/364/13, dated 27.09.2013.
12. The respondents further submit that the petitioner has stated that she has come to know about the acquisition order dated 31.07.1989 and come to understand that further steps have not been taken by the first respondent in this regard. The dismissal of earlier writ petitions prove that the petitioner and her husband have full knowledge about the acquisition of the said lands several years before and after this, the said purchase by them and trying to get relief through filing writ petition is totally against natural justice and against law. Now the petitioner has misrepresented her case with false facts without mentioning about the above said writ petitions and she has filed the present writ petition after a lapse of 25 years. In addition, on 28.06.1989 itself, the erstwhile land owner had informed the Government authorities that he had no objection for acquirement of his land and requested to sanction the amount due for it in one lumpsum as early as possible and accordingly the amount with disbursed with.
13. Regarding the averments in para 9 of the affidavit, it is submitted that the land has been acquired and vested with the Government and possession was handed over to Revenue Authorities on 17.08.1990, making changes in the village accounts. The petitioner has stated that her husband has constructed a house in the land in 2001 and it would be a mere encroachment by the petitioner's husband in the Government land, without any right in it like any other encroachments. The acquisition has been accepted by the erstwhile urban land owner in writing and he had recorded his 'no objection' towards acquisition of the said lands and in his letter dated 28.06.1989 requested to sanction the amount due for it in one lumpsum early. In addition, the erstwhile land owner has not resided in Chennai but in Kerala during the acquisition and the land was vacant. Hence, the petitioner's statement that land was in the possession of the wife of the erstwhile land owner is against the truth, false and cannot be accepted and ought to be rejected. Regarding the averments in para 10, it is submitted that as per Section 35 of the Act, the learned Principal District Judge, Chenglepet, has no jurisdiction in respect of acquisition of the lands in question under the Act. The section 35 of the Act says as follows:-
"35. Bar of jurisdiction - Save as otherwise provided in this Act, no order passed or proceeding taken by any office or authority under this Act shall be called in question in any Court, in any suit or application and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act.
Moreover, with reference to the decision reported in the case of SMT.ANGOORI DEVI v. STATE OF U.P. & ORS (JT 2000 (SUPPL.1) SC 295), the Hon'ble Supreme Court, in the judgment delivered in W.A.No.554 of 2011, dated 15.11.2011, the Hon'ble Division Bench of High Court have observed as follows:-
"7. In view of the repeal of the Act, 1999 on 16.06.1999, all the proceedings including the possession are abated and any order passed subsequent to 16.06.1999 is without jurisdiction. In such circumstances, the order passed by the learned Single Judge is set-aside and the writ appeal is allowed. Consequently, the connected M.P. is closed. However, there shall be no order as to costs."
Therefore, the contention of the petitioner deserve no merits and has to be rejected and from statement of the petitioner in the affidavit it is very much clear that the writ petitioner has encroached the Government land without any right in it and the same has been complained by the erstwhile owner in the referred O.S.No.764 of 2004 and got illegal sale of Government land from the erstwhile land owner. Therefore, it is total abuse of process of law and punishable under the law.
14. Regarding the averments in para 11, 12, 13 and 14 it is submitted that the contention of the petitioner in this paras are totally wrong. After the publication of the notification under Section 11(3) of the Act, the acquired land has been deemed to have been vested with the Government with effect from 1990 and the possession of the land was also handed over to Revenue Department on 17.08.1990. Necessary changes have been carried out in the measurement map with remarks in the map and in the accounts like chitta, adangal etc. of the petitioner field of respective taluk and village, as Government lands. It can clearly be distinguished, whenever it is required for allotment for any other purposes. As possession have been handed over on 17.08.1990 well before the repeal of the Act, the acquisition is saved under Section 3(1) (a) of the Repeal Act. In any land transaction, the possession of the land immovable property would be taken or handed over only by registering documents even by individuals and not by physical possession. The possession of all the Government lands (poromboke lands, Highways, flyovers, sub-ways, public wells seashore etc.,) is kept by Government in records. Any one can use those lands for a particular period and have a physical possession but none can claim any right on it for his/her physical possession of that land for that period or for further period. Likewise, the petitioner has no right to claim for the said land after taking possession of the land by the Government in 1990 itself i.e,. 25 years before. The argument of physical possession, if any, by the petitioner, after publication of notification under Section 11(3), after issue of 11(5) notice, after making necessary changes in Revenue Accounts and after handing over possession by the Government in 1990, ought to be treated only as an encroachment of Government land, like in "poromboke" land. In this case, the Government records have been showing the possession of the land with the Government for the past 25 years since 1990.
15. The respondents further submit that the process of possession of the land immovable property taken or handed over under the Act and continuance of the possession by the Government on the basis of entries in Revenue accounts, were accepted, justified and decided as correct in several judgments of Hon'ble Courts, some of them are as follows:-
(i) in the judgment delivered on 14.03.2013 by the Hon'ble High Court in W.P.No.759 of 2007 filed by Thiru Mohamed Aadil Arshi and 4 others Vs. The Competent Authority and Assistant Commissioner Urban Land Tax and Land Ceiling, Thiyagaraya Nagar, Chennai-24, observed as follows:-
"At any rate, the possession, if any, that would have been secured by the petitioner on the advent of the sale deed in his favour would amount to a possession of a trespasser, since the vesting of the title on the Government became complete the taking possession under Section 11(6), which was done on 30.01.1990, as evidenced by the records available in the file produced for the perusal of the Court......... Before even then Repeal Act came into force, the possession was taken by the Government thereby the vesting of the title to the property with the Government was complete....... The proceeding of the competent authority under the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 came to an end confirming the title on the Government on the date of taking possession of the land.... the vesting of the property with the Government in this case is confirmed by the exception clause found in section of the Repeal Act....... Accordingly the writ petition is dismissed...."
(ii) In another judgment of the Division Bench of this Court, the request of the petitioners was rejected regarding possession on 12.01.2009 in a bunch of writ appeal cases in Nos.3357 to 3378 of 2003, filed before the High Court by Thiru.V.Narayanan and 21 others against the judgments dated 04.03.2002 and observed as follows:-
" 15. .... even prior to the passing of the Repealing Act, the lands in question have been taken possession by the Government and were handed over to the Government Department as early as on 19.03.1998. The learned Judge has taken note of the points urged by the writ petitioners in the writ petitions as well as in the Review Applications and found that no interference is warranted in the impugned orders passed by the fourth respondent as well as the impugned orders passed in the writ petitions.
16. We have also independently applied our mind to the entire materials placed on record and find that there is no infirmity or error apparent on the face of the record in the impugned orders passed in the writ petitions. We also find no merits in these writ appeals. Hence, all the writ appeals are dismissed. But in the circumstances, there will be no order as to costs."
(iii) In para 18 and 19 in the judgment of the Hon'ble Division Bench of High Court in W.A.No.2275 of 2011, dated 15.03.2012, referred supra in para 7 above, regarding the possession and non application of Section 4 of the Repeal Act, it was observed as follows:-
" 18. All these circumstances would go to show that due to abnormal rise in price of the land nowadays not go only in the vicinity of Chennai but through the State of Tamil Nadu, the appellants have come forward to file the writ petition assailing the land ceiling proceedings initiated on 18.12.1992 and ended on 04.06.1999 by mala-fide intention and unclean hands to take a chance to get a favourable order from this Court.
19. Both the question of facts and the position of law the writ petition filed by the appellants cannot be maintained ........ a perusal of the records give a clear indication that the competent authority has conducted proceedings strictly in accordance with provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. The possession of the property was also taken and it was handed over to the Revenue Department as early as on 04.06.1999. Therefore, as on the date on which the Repeal Act came into force, there was no proceedings pending before the statutory authorities so as to grant the relief prayed for by the appellants / writ petitioners ......
...... Accordingly the writ appeal is dismissed with costs. The appellants are directed to pay a sum of Rs.1,00,000/- to the Tamil Nadu State Legal Services Authority......"
(iv) In the judgment of the Division Bench of this Court dated 09.09.2009 in the writ appeal No.861 of 2006 filed by Thiru.S.Balasubramaniam and another Vs. The Special Commissioner and Commissioner of Land Reforms, it was observed as follows:-
"10. It is true that sometimes, the records do not reveal whether the officers went to the site in question before finalizing the proceedings. Here we find that the Field Survey Officer concerned had gone to the site, earmarked the land and the exact location of the excess land. In addition, the adjacent plot Nots.15 and 16 are in the possession of the appellants, according to them, where they are running an industry, therefore, their statement that they came to know about the proceedings all of a sudden only in 2005 is not true. The records show that possession has been taken. In these circumstances we are unable to see how we can interfere with the order passed by the learned Single Judge. The decisions referred to by the learned counsel for the appellants are different on facts as we have explained above....."
(v) In the judgment given by the Hon'ble Supreme Court, in Civil Appeal No.492 of 2007 filed by Sulochana Chandrakant Galanda Vs.Pune Municipal Transport and others, it has been observed as follows:-
"34. The aforesaid factual position makes it clear that the appellant is not entitled for any relief whatsoever as per the law, as it exists today. The land once vested in the State cannot be divested. Once the land is vested in the State it has a right to change the user. The appellant cannot be heard raising grievance on either of these issues.
35. Thus, in view of the above, the appeal lacks merits and is accordingly dismissed. No order as to costs."
The above said judgments have clearly explained about the actual possession of an immovable property (land) and particularly by the Government and accepted the procedure of handing over of possession of the acquired lands under this Act as correct and decided that the word added as "Physical" for having possession could not give a different meaning and the possession, if any was stated, ought to be treated only as trespasser's possession. Here the competent authority as Government official has done his duty as per the procedure laid down in the Act commenced from 03.08.1976 and in this case particularly the erstwhile land owner had accepted the acquisition and received the amount due for it in one lumpsum vide Government order, as requested by him. Therefore, the contention of the petitioner has no merit at all and liable for total rejection.
16. It is submitted that the erstwhile Urban Land Owner has not filed objection or appeal under Section 33 of the Act or any writ petition till his life time because he had accepted the acquisition and expressed his desire to get the amount for the acquired land early in one lumpsum and had given letter to this effect on 28.06.1989, which was complied with. But now, the purchaser of the land after lapse of 25 years filed this writ petition, which is not acceptable as observed in the following judgment.
In the judgment deliver by the Division Bench of this Court in W.A.No.998 of 2010, dated 21.06.2010 filed by the Special Commissioner and Commissioner of land reforms & 2 others, it was observed as follows:-
"11. The land was very much available during the pendency of the proceedings before statutory authority. She died only on 11.03.1994.... the land owner was aware of the final order passed by the competent authority on 07.10.1997 even during her life time. The first respondent was not in picture at all during the pendency of the proceeding. When the proceedings has come to an end and the property was taken possession even before the Repeal Act, there was nothing to be agitated thereafter ..... In any case it was not the case of the land owner that she was not aware of the statutory proceedings. The original land owner was very much aware of all the proceedings.....
13. The respondent was attempting to agitate the matter which has attained finality long ago. In view of the Repeal Act, no proceedings could be continued after 16.06.1999. Therefore, we are of the considered view that there were no justifiable reasons made out to interfere in the ULC proceedings. Hence, we have no other alternative than to set-aside the order passed by the learned Single Judge."
Therefore, the contentions of the petitioner are untenable.
17. The respondents submit that the writ petition has been filed after a delay of 25 days, which is totally against the law and not acceptable and deserves to be rejected and in support of his contentions, he cited the following judgments:-
(i) W.P.No.8150 and 8151 of 2004, dated 07.06.2011 (A.Thiagarajan, A.Rajeswari Vs. Competent Authority (ULC), Kunrathur)
(ii) W.No.8147 of 2004, dated 31.08.2011 ( S.Ravi S. Vasu Vs. Government of Tamil Nadu & 2 others)
(iii) W.A.No.2275 of 2011, dated 15.03.2012, (R.Saraswathi and 3 others Vs. Special Commissioner and Commissioner of Land Reforms and two others)
(iv) Civil Appeal No.492 of 2007 (Sulochana Chandrakant Galanda Vs.Pune Municipal Transport and others)
18. The respondents further submit that all the procedures and actions under the provisions of the Act have been completed in respect of the lands in question, very much earlier, i.e, about 25 years ago and before the repeal of the Act and hence, saved under Section 3(i)(a) of the Repeal Act, i.e., 15 years ago. Hence, the petitioner has no locus-standi to question the acquisition and the writ petition has been filed with an abnormal delay. Therefore, all the contentions of the petitioners are false and they are against the law and are unacceptable. Hence, the respondents have prayed to dismiss the above writ petition.
19. The learned counsel appearing for the petitioner, Mr.T.Arockia Dass has submitted that the petitioner's husband entered into a sale agreement with one Mary Thomas W/o one P.C.Thomas on 09.03.2004. The petitioner's husband filed suit for specific performance in O.S.No.764 of 2004, against the said Mary Thomas. He further submits that the above suit was decreed in favour of the petitioner's husband by order dated 30.08.2006. The LR of Mary Thomas filed appeal and got remitted the matter to a fresh trial in O.S.No.6549 of 2010. He further submits that, on compromise memo, the suit was decreed in his favour on 18.10.2011. He further submits that a sale deed was registered based in Doc.No.7282/2011, in favour of the petitioner's husband on 19.10.2011. Thereafter, the settlement was executed in favour of the petitioner in document No.618/2012, dated 06.02.2012. He further submits that the petitioner executed a sale agreement in favour of the third party for part of property on 18.05.2014.
20. The learned counsel appearing for the petitioner, Mr.T.Arockia Dass submits that the Revenue Records stands in favour of the petitioner and in support of his contentions he submits that it is the admitted fact that the revenue records such as property tax, water tax, EB card, registered documents and encumbrance certificate reflects that the land stands in the name of the petitioner and she is in possession. That apart, in para No.5 it is categorically stated that the petitioner's husband has constructed house for which EB connection and water connection is provided and this shows that the petitioner is in absolute possession and enjoyment of the land. The said fact is not even denied by the respondent. Mere general denial is not sufficient when the petitioner produced the documents of property tax and water tax and EB card.
21. The learned counsel for the petitioner submits that the Acquisition process itself is illegal and in support of his contentions he submits that when the respondents relying on the letter written by the urban land owner dated 28.06.1989, wherein he has stated that his application dated 28.04.1982 for exemption was disposed only after four years as per G.O.Ms.No.565, Revenue, dated 28.04.1986. Even that too, he was not served with the copy of the said order. He received the same more than a year later i.e., in June 1987. Further even though he had made request to the Government by his letter dated 16.04.1988, requesting to grant two years of time to implement his project, that request was neither considered nor rejected but the respondent proceeded without consideration. Therefore, the acquisition process itself is illegal.
22. The learned counsel for the petitioner submits that so far the possession has not been handed over to the respondents and in support of his contentions he submits that the respondents claim that the urban land owner voluntary surrendered the land to the respondent and received compensation amount of Rs.9,000/-. It is pertinent to note that if the Urban land owner voluntarily surrenders the land, where is the question of Section 11(5) notice to the urban land owner. It is well aware that the notice under Section 11(5) will be issued only when possession of the land was not handed over by the land owner. It is useful to extract the provision of Section 11(5) of the Tamil Nadu Urban Land Ceiling Act 1978. At this juncture, the petitioner is very much ready to repay the amount which was allegedly paid by the respondent to the erstwhile owner with interest if she is directed to do so.
Sec.11(5) where any vacant land is vested in the State Government under Sub Section 3 the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the services of the notice."
23. The learned counsel for the petitioner further submits that the process itself is abated and in support of his submissions he added that it is relevant to extract the notice under Section 11(5) produced before this Court.
".... Your are requested to surrender or deliver possession of the land/lands to Collector of Chengai Annai District within thirty days of the service of this notice.
If this order is not complied with, the said land will be taken possession of by the authority mentioned above after using such force as may be necessary."
Accordingly, it is clearly admitted by the respondents that on that date of the notice of Section 11(5), the possession of the land was not delivered or taken possession as on 31.05.1990. Thereafter, there is no forceful taking of possession under Section 11(6) of the Act which clearly indicates that the possession of the land is still vested with the custody of the land owner and land ceiling process was abated even prior to the Repeal Act.
24. The learned counsel for the petitioner submits that no delivery of receipts issued to the petitioner and in support of his submissions, he contends that even assuming but not admitting that the respondent is not in a position to show a single piece of document to prove that the urban land owner surrendered the land either voluntarily or forcefully. The document produced before this Court dated 17.08.1990, claiming that the possession is handed over to the Government is a self serving document. When the possession itself is not vested with the first respondent, it does not have right or title to handover the said land to the third party.
25. Further the learned counsel submits that, after service of notice under Section 11(5) of the Act, if the possession was not surrendered by the possessor within 30 days or any prescribed period, it is the duty of the authority concerned to invoke Section 11(6) of the Act, failing which the entire proceedings would be abated. Here is the case, for the past 24 years the respondent did not take any step to take possession of the land. Therefore, the petitioner is entitled to the benefit of the Repeal Act.
26. The learned counsel for the petitioner submits that the previous two writs were disposed of not on merits and in support of his contentions he submits that as far as the earlier two writ petitions are concerned the present petitioner is not a party at all. The respondents are well aware that the earlier two writ petition has not been disposed of on merits. In writ petition in W.P.No.7505 of 2004, this Court in its order dated 20.04.2004, disposed of with direction directing the party concerned to work out their remedy since there was a title dispute pending at the point of time but without going into the merits of the case. In another writ petition filed by one M.Siddiq @ Abubakkar in W.P.No.16610 of 2005, this Court in its interim order dated 01.05.2005, granted interim injunction and notice was ordered wherein the first respondent herein was made as a party. From perusal of the records, produced by the first respondent, it shows that the writ petition was dismissed for default in the year 2009, but the first respondent has not filed any petition to vacate the interim injunction. Hence, the interim injunction order was alive until it is dismissed. Here too, the above writ petition has not been dismissed on merits but only for non prosecution of the erstwhile owner. Hence, the present petitioner has nothing to do with those two writ petitions.
27. The learned counsel for the petitioner furthermore submits that there is no delay in filing the present writ petition and he added that subsequent to the notice under Section 11(5) of the Act, the respondent did not take any action to get possession of the land from the urban land owner who was in possession and enjoyment of the same and his possession has not been disturbed. Thereafter, the previous owner has constructed building and paying revenue taxes, having electricity connection, and got registered documents all along the years. The erstwhile owner paid property tax from the year 2002, water tax, etc., while that being so, the impugned notice written by the first respondent addressed to the second respondent caused the petitioner to file present writ petition. Therefore, it cannot be said that the petitioner approached this Court with delay. It is relevant to state that the present owner dug bore well, put compound wall, has neem trees, coconut trees and country tree, banana trees and vegetable garden for domestic purpose besides the house. When such being the position, the claim of the respondents is untenable and unacceptable.
28. The learned counsel for the petitioner contends that the Judicial finding is in favour of the land owner and in support of his contentions, he submits that while decreeing the suit for specific performance in O.S.No.764 of 2004, the learned District Judge Mrs.Aruna Jegadeesan (as she then was) framed a specific issue whether the plaintiff therein was entitled to the benefit of the Repeal Act and observed in para 22 as follows:-
"Issue No.4: Admittedly in view of Repealing Act of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1999, the proceedings in R.C.No.4129/87-A, dated 31.07.1989 got abated. In the judgment reported in Smt.Angoori Devi Vs. State of Cup. and other (2001 AIR SCW 5128) The Apex Court held that in view of the provisions contained in Section 3 of Repealing Act and the fact that the possession of vacant land was not taken over by the State Government, the proceedings under the Act should be held to have abated. The same view is expressed by Hon'ble High Court in Allind metal fabrications Pvt. Ltd., vs. The Secretary to Govt., Revenue Dept., Govt. of Tamil Nadu 2002(2) CTC 716
23. The observations made by the Hon'ble Supreme Court and this Court squarely fits into the facts of the present case.
Admittedly, the possession of the vacant land had not been taken over by the State Government and the same is with the plaintiff. Even in the written statement at para 5, the defendant has stated that the plaintiff was deliberately intending to trespass into her property and to illegally alter the physical features of the land by raising some unauthorized construction, thus the defendant indirectly admitted the possession of the plaintiff.
24. Therefore, in view of the Repealing Act, the proceedings taking over of the suit land got abated."
The observation which is a judicial finding is binding on the respondents. So far, against the finding, the respondents did not agitate or challenge it before the appropriate forum. That apart, the trial Court is the correct and competent forum to decide the possession of land. In the said judgment, it was correctly decided with valid reasons after perusal of all necessary records and an observation was given that the petitioner's erstwhile owner is in possession.
29. The learned counsel for the petitioner submits that the citations produced by the respondents are not relevant to the present case.
(i) The decision reported in Smt.Angoori Devi Vs. State of UP and others reported in JT 2000 (Suppl.1) SC 295 is fully supporting the case of the petitioner. In the judgment itself, it is categorically stated that in view of the Repeal Act, 1999 all the proceedings are abated and any order subsequent to 16.06.1999 is without jurisdiction. While that being so, the above observation squarely applicable to the petitioner case. Before the Repeal Act came into force, the respondent has not taken any step to take possession under Section 11(6). Therefore, the petitioner is entitled to the benefit of the above decision. The other unreported decisions cited by the respondents, viz., Mohamed Aadil Arshi and 4 others Vs. The competent authority in W.P.No.759 of 2007, Thiru.V.Narayanan and 21 others, the case in W.A.No.2275 of 2011. The case in S.Balasurbramanian and others Vs. Special Commissioner Land Reforms. The case in Civil Appeal No.492 of 2009, Sulochana Chandrakant Galanda Vs. Pune Municipal Transport and others stand on different footings and those cases are not relevant at all to the facts of the present writ petition. The above cases were decided after the entire land ceiling proceeding were over including Section 11(6). Proceedings were completed and physical possession also taken but in the case on hand, possession has not been taken and the delivery receipt has not been obtained and still the possession of the land is in the hand of the petitioner. Therefore, the above cases are not in anyway helpful to the case of the respondents.
(ii) The case cited in A.Thiagarajan Vs. Competent Authority and S.Ravi Vs. Govt. of Tamil Nadu and R.Saraswathi and three others Vs. Special Commissioner and Sulochana Chandrakant Galanda Vs. Pune Municipal Transport and others were decided on different aspects and not connected to the case on hand. Therefore, the respondents failed to take shelter from the above cases.
30. The learned counsel for the petitioner has cited the following judgments in support of his contentions:-
(i) Gajanan Kamlya Patil Vs. Addl. Collector & others reported in 2014(2) CTC 665
(ii) Vinayak Kashinath Shilkar Vs. Dy. Collector and other reported in 2012-3 LW 582
(iii) G.Krishnamoorthy and others Vs. Govt. of Tamil Nadu reported in (2009) 8 MLJ 85
(iv) Govt. of Tamil Nadu rep. by the Commissioner and others Vs. Mecca Prima Tannery and others reported in 2012 6 MLJ 273
(v) V.Somasundaram and others Vs. The Secretary to Govt. and others reported in 2007 2 LW 109, In the reported judgment in Gajanan Kamlya Patil Vs. Addl. Collector, the Hon'ble Apex Court has held that if the possession was not surrendered it could be taken by necessary force, if forcible possession is to be taken, certain procedure have to be followed. The respondents have no case to say that such procedures were followed and forcible possession was taken.
In the case reported in 2012-3 LW 582 (Vinayak Kashinath Shilkar Vs. Dy. Collector and other) it is held that where possession of the vacant land has not been taken over by the State Government, or by any person duly authorized by the competent authority, the proceedings under the Act would not survive. Mere vesting of the vacant land with the State Government by operation of law, without actual possession is not sufficient for operation of Section 3(1)(a) of the Repeal Act.
In another case reported decision in (2009) 8 MLJ 85, where it is held that taking over of possession of excess Urban land notice under Section 11(5) is mandatory and in absence of Section 11(5) notice, entire proceedings would get vitiated. In the present case, since notice under Section 11(5) was not even served, the symbolic possession is not taken as contemplated under Section 11(5) and 11(6). Take over of possession will be completed only when it is signed by land owner while delivering excess land pursuant to notice under Section 11(5) in prescribed form, if no such delivery of possession took place, the respondents has to resort to 11(6) of the Act. Admittedly, in the present case petitioner's erstwhile owner did not sign in land delivery receipt. The respondents failed to comply with mandatory provisions of Section 11(5) and 11(6) since there was no actual takeover of possession and hence, the present writ petitioner is entitled to benefits of the Repeal Act, 1999.
Yet another decision reported in (2012) 6 MLJ 273 where batch of cases were disposed by this Court and held as follows:-
In the cases where although the competent authority issued the notice under Section 11(5) of the Act to the land owners and person in possession to surrender or deliver the land to the authority of the state if it did not take action under Section 11(6) of the Act for taking delivery of possession then in such cases, the State Government shall not be deemed to be in possession of those lands.
In a case reported in 2007(2) LW 109 it is held that the second respondent who is fully aware of the appellants land holds in S.F.No.130/21 has failed to issue notices to the appellants. Appellants claimed to be interested persons as they have purchased the lands from the third respondent and are in possession of their respective extent of land and hence the second respondent ought to have issued notice to the appellants.
Here in the present case, the respondents are well aware of the petitioner's suit and subsequent two writ proceedings wherein the petitioner erstwhile owner stated that the property was purchased and third party interest is created, while that being, without any notice on the petitioner, the respondent straight away claims that it is in possession of the property which is unsustainable and not tenable.
The respondent produced a document dated 17.08.1990 whereby it is alleged that the respondent had taken possession and handed over the same to the Revenue Inspector, Palikkaranai but the said proceedings did not indicate as to when the possession has been taken from the land owner and it is self serving document between the officials. Either before such document or after such document there is no single paper to show that the respondent received delivery receipt from land owner.
When the above decision of the Hon'ble Apex Court as well as this Court clearly indicates that before the Repeal Act, possession has not been taken, the land owner is entitled for the benefit of the repeal Act. Therefore, the petitioner prays for allowing the writ petition.
31. The highly competent Additional Government Pleader Mr.S.Diwakar submits that the first respondent had initiated acquisition proceedings under the Tamil Nadu Urban Land Ceiling Act, against one Mr.P.C.Thomas, who was the owner of the property as he had excess land of 3000 sq. meters. Subsequently, the said land had been acquired and compensation of a sum of Rs.9,000/- also has been paid to the land owner. Subsequently, the property had been delivered on 17.08.1990 and the owner of the property, viz., P.C.Thomas had also signed in the land delivery chit. As such, the land acquisition proceedings has become final and the entire acquired property is under the control of the revenue authorities, who had taken over the property on 17.08.1990. Further, the husband of the writ petitioner herein had also filed two writ petitions and both were dismissed. The land acquisition proceedings were initiated under the said Act in the year 1989, as per G.O.Ms.No.565, Revenue, dated 28.04.1986, as the said land falls under ceiling. Therefore, the said contentions that the husband of the writ petitioner had purchased the said land on 19.10.2011 is not sustainable under law. Further, the said sale deed had been executed on the strength of the exparte decree obtained by the husband of the writ petitioner in O.S.No.6549 of 2010, wherein the first respondent and other respondents, viz., the respondents 3, 4 and 5 have not been impleaded as necessary parties, which is erroneous, since the said acquired land is under the custody of respondents since 17.08.1990. Subsequently, the husband of the petitioner and legal-heir of the original owner have colluded with each other and obtained decree on a compromise memo, which had been created for their convenience. As such, the said decree is not found to be suitable for execution or to be operated against the respondents herein. The writ petitioner has made wrong entry into the respondents properties and raised a small house and also obtained electricity service connection in an unlawful manner. Further, the house has been constructed recently without sanction plan. As the electricity supply is a basic amenity, the Tamil Nadu Electricity Board was constrained to provide electricity to the petitioner. However, the possession of the petitioner is not a lawful one and his occupation is an unauthorized one. The first respondent's impugned order is only a common direction to the second respondent not to register any documents over the said acquired property and also some other properties, which were also acquired under the said Act. Therefore, the petitioner cannot challenge the said impugned order in an individual capacity. The question of larger delay does not arise in this case since the compensation of a sum of Rs.9,000/- has been paid to the original owner on 21.03.1991 by way of demand draft. Further, the acquired property had been taken over by the first respondent and the same has been handed over to the revenue authorities. In the possession delivery letter, the original owner Mr.P.C.Thomas had duly signed and as such, the acquisition proceedings had been completed without committing any irregularities or illegalities. The husband of the writ petitioner created documents since 2004 onwards, after trespassing into the properties and created self serving documents in his favour with the help of the legal-heir of the Late P.C.Thomas, who was the original owner of the property. The said P.C.Thomas had given his consent for acquiring the said surplus land. Now, the writ petitioner had attempted to grab the property by filing the writ petition. The very competent Additional Government Pleader, in support of his arguments had produced the entire connected files pertaining to the acquisition of the said property. Hence, the highly competent Additional Government Pleader entreats the Court to dismiss the above writ petition as it has been filed as an afterthought , after a delay of 25 years.
32. While the arguments were going on, Mr.Y.Kaja Nivas, learned counsel appearing for one Mr.Anthony Michael (third party) intervened and submits that Mr.Anthony Michael is the owner of the subject property to an extent of 25 cents of land by a sale deed in document No.91 of 2007. From then, he is in possession and enjoyment of the said property. In support of his submissions, he relied an order in I.A.No.713 of 2013 in I.A.No.759 of 2011 in O.S.No.151 of 2011. Therefore, without impleading the said Anthony Michael as a party-respondent, the writ petition should not have been filed and therefore, he entreats the Court to dismiss the above writ petition.
33. Contra to the submission made by Mr.Kaja Navas, learned counsel appearing for the intervenor (third party), Mr.Arockia Dass, learned counsel appearing for the petitioner submits that the intervenor who has no locus standi and he produced documents in support of his contentions.
34. From the above discussions, this Court is of the view:-
(i) Though the writ proceeding cannot decide the title of the property and the issue before this Court is only whether the subject property would get the benefit of the Repeal Act 1999 or not. But on perusal of the documents produced by the both parties, this Court understands that the said Antony Michael S/o.T.Swaminathan has purchased the subjected property from one T.Robert Gnanasekaran who claims to be the power agent of the T.Mary Thomas vide doc.No.194/2004, dated 25.05.2004 for valuable sale consideration to an extent of 25 cents out of which, as of now, he has detained 19 1/2 cent with him, therefore, the said Anthony Michael claims to be the owner of the property to that extent. However, a perusal of a judgment in I.A.No.134 of 2011 in O.S.No.6549 of 2010, passed by the Additional District Judge/Fast Track Court-II, at Chennai decided the status of the said Antony Michael is as follows:-
"Kjy; vjph;kDjhuu; jug;gpy; kiwe;j nkup jhk!; uhgu;l; "hdnrfuDf;F 25/05/2004k; njjp tH';fpa[s;s bghJ mjpfhug;gj;jpuk; v/k/rh/M/1 Mft[k; nkup jhk!;!pd; ,wg;g[r;rhd;wpjH;/ v/k/rh/M/2 Mft[k; jhf;fy; bra;ag;gl;Ls;sJ/ Kjy; vjpu;kDjhuh; jug;gpy; jhf;fy; bra;ag;gl;Ls;s bghJ mjpfhug;gj;jpuk; v/k/rh/M/1Ig; ghu;f;Fk; nghJ uhgu;l; "hdnrfuid tHf;Fr; brhj;jpidg; guhkupg;gjw;fhf bghJ mjpfhuk; tH';fpa[s;sjhf bjupatUfpwJ/ ,jpy; 9 epge;jidfs; fz;Ls;sJ/ mjpfhug;gj;jpuj;jpy; fz;Ls;s brhj;Jk; tHf;fpil brhj;Jk; xd;Wjhd;/ Mdhy; brhj;jpid tpw;gid bra;a[k; mjpfhuj;ijj; jtpu kw;w midj;J mjpfhu';fSk; uhgu;l; uh$nrfuDf;F tH';fg;gl;Ls;sJ vd;gJ bjupatUfpwJ/ kDjhuu; jug;gpy; jhf;fy; bra;ag;gl;Ls;s tpw;gid gj;jpukhd k/rh/M/3Ig; ghu;f;Fk;nghJ v/k/rh/M/1 bghJ mjpfhug;gj;jpuj;jpd; mog;gilapy; Kftu; vd;w jFjpapy; uhgu;l; "hdnrfudplkpUe;J 29/12/2006k; njjp kDjhuu; Md;ldpikf;nfy; 25 brd;l; epyj;ij fpuak; th';fpa[s;shh; vd;gJ bjspthfpwJ/ tpw;gid bra;tjw;F mjpfhuk; ,y;yhky; tH';fg;gl;l bghJ mjpfhug;gj;jpuj;jpy; K:ykhf kDjhuu; fpuak; th';fpapUg;gJk; ,jdog;gilapy; jug;gpduhf nru;f;fntz;Lk; vd;gJk; Vw;fjf;fjy;y/ jpUkjp/nkup jhk!; capUld; ,Ue;jhYk; Tl me;j bghJ mjpfhug;gj;jpuj;jpd; K:yk; kDjhuu; fpuak; th';fpapUg;gij Vw;Wf;bfhs;s ,ayhJ/ Kjy; vjpu;kDjhuu; jug;gpy; jhf;fy; bra;ag;gl; v/k/rhM/2 ,wg;g[r; rhd;wpjiHg; ghu;f;Fk;nghJ jpUkjp/nkup jhk!; 04/11/2006k; njjp ,we;Js;shu; vd;gJ bjhpatUfpwJ/ vdnt nkhp jhk!; cz;ikahfnt tpw;gid bra;a mjpfhuk; bfhLj;jpUe;jhYk; Tl mtu; ,we;jjw;Fg; gpd;dh; mjhtJ 29/12/2006k; njjp kDjhuu; fpuak; bgw;wpUg;gjhy; ,t;tHpf;fpy; jug;gpduhf nru;f;f ,ayhJ/ vdnt elg;g[ kDtpy; tpw;gid bra;tjw;F mjjpfhukpy;yhj bghJ mjpfhug;gj;jpuj;jpd; (v/k/rh/M/1) K:yk; mjpy; fz;Ls;s Kftu; uhgu;l; "hdnrfudplkpUe;J kDjhuu; fpuak; bgw;wpUg;gJ Vw;g[ilajhf ,y;iy/ nkYk; bghJ mjpfhuk; tH';fpa thjpahd nkhp jhk!; ,we;jjw;Fg; gpd;du; 29/12/2006k; njjp bgw;w fpuak; k/rh/M/3d; mog;gilapy; jd;idj; jug;gpduhf nru;f;fntz;Lbkd;w thjk; Vw;fj;jf;fjy;y/"
So far the finding of the Additional District Court has not been challenged, the same is binding on the said Antony Michael, when that being the position, the said Anthony Michael has no locus standi to agitate before this Court for title that too, in the writ proceeding based on the invalid power of attorney therefore his claim is rejected.
(ii) Now the issue before this Court is whether the petitioner is entitled to get the benefit of the Repeal Act 1999 and entitled to the patta to the property. From perusal of the documents filed along with typed set of papers it is made clear that the petitioner is in possession of the property and the petitioner is paying water tax to her house from September 2001 and is paying property tax from the year 2002 till date having electricity connection to the house and regularly paying the same which clearly proves that she is in possession and enjoyment of the property. That apart, a competent civil forum viz., District Court, Chengalpet in its judgment in O.S.No.764 of 2004, dated 30.08.2006 categorically stated that the petitioner's erstwhile owner was in possession and enjoyment, whereas the respondents failed to prove that they are in possession.
(iii) The first respondent herein had initiated land acquisition proceedings under the Urban Ceiling Act for acquiring petitioner's land to an extent of 3000 sq.mtrs as surplus land. For acquiring the said land, G.O.Ms.No.565, Revenue, dated 28.04.1986, had been issued. The respondents' contention was that they had acquired the said land from the erstwhile owner viz., P.C.Thomas and the said P.C.Thomas had been paid compensation of Rs.9,000/-, by way of demand draft dated 21.03.1991. Further, the respondents stated that the possession has been taken over by the respondents on 17.08.1990, but there is no authenticated document to show that the respondents are in physical possession and they are maintaining the property under their control. As such, the respondents acquisition proceedings have not been completed effectively, i.e. they have not acceded to the property.
(iv) The writ petitioner had produced documents, viz., compromise decree passed in O.S.No.6549 of 2010, on the file of Additional Principal District Judge, Chenglepet, dated 18.10.2011, which reveals that the writ petitioner is having title rights over the said property. Besides this, the legal-heirs of the original owner P.C.Thomas had executed a sale deed in favour of the husband of the petitioner. The registered sale deed bearing document No.7282 of 2011, has been registered, on the file of the second respondent herein / the Sub-Registrar, Neelangarai, Chennai. Subsequently, on 27.09.2013, the first respondent herein had sent a communication to the second respondent not to entertain any sale deed or settlement deed or any other kind of registration or transaction whatsoever. But, it is evident that even prior to communication of the said order, a sale deed had already been registered and which is existing over the said property and as such, the first respondent's impugned order dated 27.09.2013 has become vitiated.
(v) The writ petitioner has annexed the below mentioned documents in order to prove her physical possession and enjoyment of the same, viz., water tax receipt, registered sale deed, property tax, electricity service connection. Besides this, she has also annexed a copy of the decree and judgment passed in O.S.No.6549 of 2010, dated 18.10.2011. Based on the strength of the judicial decree, the sale deed has been registered in favour of the husband of the writ petitioner, which is sustainable under law.
(vi) The respondents are possessing land acquisition proceeding papers but, the petitioner is in physical possession and had constructed a house and enjoying the same with basic amenities, i.e., water connection and electricity service connection without any interference from the third parties especially, the respondents herein. Therefore, it is evident that the petitioner is physically enjoying the civil rights, but the respondents are only in possession of the acquisition documents. For acquiring the said property, the acquisition proceedings were initiated in the year 1986, hence, as of date, it is over 27 years and so far, the respondents have not brought the said property under their control. As such, there is a large delay, insufficiency of service, and negligence, on the part of the respondents/Government. Under the circumstances, the properties of the petitioner should not be disturbed on the strength of the said acquisition proceedings initiated by the first respondent / Government.
(vii) If the respondents have paid any amount to the erstwhile owner as compensation, the said amount can be recovered from the writ petitioner herein, with 12% interest per annum. It will not be prejudicial to both parties.
(viii) The writ petitioner has made an application to the third respondent / the Tahsildar, Sholinganallur, for seeking patta and the same shall be proceeded with within a period of 30 days from the date of receipt of this order.
(ix) In view of the lapse of 27 years, the said land has remained in a dormant state, hence, it is quite apparent that the land is either of no use to the Government or absolutely not required for any other common purpose for the Government as stated in the acquisition proceedings of the first respondent. The petitioner's possession and enjoyment is a lawful one, since the petitioner is protected by a judicial decree passed in O.S.No.6549 of 2010, on the file of Additional District Judge, Chengelpet, dated 18.10.2011.
(x) As far as the status of the third party Anthony Michael is concerned, as already discussed above he has no locus standi, therefore, his claim is rejected.
35. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side and on perusing the documents produced by all parties and this Court's view listed as (i) to (x) mentioned above, this Court observes that the petitioner has proved her possession with regard to the property without any doubt. The Urban Land Ceiling Proceedings initiated against the petitioner's property is abated and she is entitled to the benefit of Repeal Act 1999. Hence, this Court allows the above writ petition. Consequently, the impugned order issued by the first respondent / The Assistant Commissioner (ULT), in Na.Ka.A/364/13, dated 27.09.2013 is set-aside. Hence, the second respondent / the Sub Registrar, Neelangarai, Chennai-41 shall entertain registration with regard to the petitioner's property. Consequently, this Court directs the third respondent herein / The Tahsildar, Sholinganallur, to issue patta to the petitioner on the basis of her application dated 28.04.2014, within a period of 30 days from the date of receipt of a copy of this order. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
/ 07 / 2014
Index : Yes/No.
Internet : Yes/No.
r n s
C.S.KARNAN, J.
r n s
To
1.The Assistant Commissioner (ULT),
153, Kaarnigar Street,
Adambakkam, Chennai.
2.The Sub-Registrar,
No.2/71, 1st Floor,
Kajara Garden 2nd Street,
East Coast Road,
Neelangarai, Chennai - 600 041.
3.The Tahsildar,
O/o.The Tahsildar,
Sholinganallur, Chennai-119.
Pre Delivery Order made in
W.P.No.13400 of 2014 &
M.P.Nos.1 to 3 of 2014
4.The Secretary,
Department of Revenue,
Government of Tamilnadu,
Fort St. George, Chennai.
5.The Commissioner (ULC),
Land Reforms,
Ezhilagam, Chepauk,
Chennai.
/ 07 /2014