Madras High Court
The Government Of Tamil Nadu vs Mr.Aalim Muhammed Salegh Trust on 3 December, 2014
Equivalent citations: AIR 2015 MADRAS 47, (2014) 8 MAD LJ 741
Author: K.Ravichandrabaabu
Bench: N.Paul Vasanthakumar, K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03-12-2014
(Judgment reserved on 19-11-2014)
CORAM:
THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
Writ Appeal No.297 of 2011 & M.P.No.1 of 2011
1. The Government of Tamil Nadu,
rep. by its Secretary to Government,
Revenue Department,
Fort St.George, Chennai-9.
2. The Principal Commissioner and
Commissioner of Land Reforms,
Chepauk, Chennai-5.
3. The Assistant Commissioner/Competent Authority,
Urban Land Ceiling,
No.5, Sannadhi Street,
Poonamallee, Chennai-600 056. .. Appellants
Vs.
Mr.Aalim Muhammed Salegh Trust,
Rep. by its Managing Trustee,
Mr.Shaik Athullah,
No.813, Anna Salai,
Chennai-2. .. Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 30.4.2009 in Writ Petition No.17445 of 2004 on the file of this Court.
For appellants : Mr.K.V.Dhanapalan, Addl.G.P.
For respondent : Mr.V.Ramesh for M/s.T.Thiyagarajan
JUDGMENT
K.RAVICHANDRABAABU,J The appellants are the respondents in Writ Petition No.17445 of 2004 and they are aggrieved by the order passed by the learned single Judge in allowing the above Writ Petition, which was filed challenging the proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act (hereinafter referred to as 'the Act').
2. Heard the learned Additional Government Pleader appearing for the appellants and the learned counsel appearing for the respondent and perused the materials placed before this Court and also the relevant original files produced by the appellants.
3. The respondent herein is the writ petitioner. It is a registered minority Trust, registered under the Societies Registration Act. The object of the Trust is to promote and develop education in the field of Engineering. They purchased the subject matter lands and established certain educational institutions therein. It is their claim that the lands so purchased by them are agricultural lands and they are not coming under the purview of the Act. However, they came to know from the Revenue officials that the subject matter lands had been proceeded under the Act by initiating proceedings against one Baskara Pillai. On further verification and enquiry, the respondent came to know that proceedings under Section 9(5) and notice under Section 11(3) of the Act have been issued in the name of Baskara Pillai. Consequently, the respondent-Trust filed the above Writ Petition challenging those proceedings mainly on the ground that the possession of the lands is with them all along and not taken away by the appellants herein at any point of time, and therefore, the entire proceedings initiated under the Act will get abated.
4. The appellants herein as the respondents before the Writ Court contested the Writ Petition. It is their specific case that the possession of the lands was already taken from the hands of the owner, and therefore, the respondent-writ petitioner cannot seek for quashing the proceedings as abated.
5. The learned single Judge, after considering the rival pleadings of the respective parties and upon perusal of the records made available, allowed the Writ Petition by observing that the lands in question are agricultural lands and that the notice under Section 11(5) of the Act had not been served on the respondent-Trust. The learned single Judge found that the impugned proceedings had been issued without application of mind and without giving sufficient opportunity to the writ petitioner-Trust.
6. The learned Additional Government Pleader appearing for the appellants submitted that the possession of the lands in dispute, has already been taken, and therefore, the wit petitioner-Trust is not entitled to the benefit of the Repealing Act.
7. On the other hand, it is the specific contention of the respondent-Trust that the possession of the lands is still with them and not taken away at any point of time, and therefore, they are entitled to have the benefit of the Repealing Act to get an order that the entire proceedings get abated under the Act.
8. We have given our careful consideration to the rival submissions made by the learned counsel appearing on either side. In order to satisfy ourselves as to whether the possession was taken over from the land owner or not, as contended by the appellants, we called for the relevant original files and on production, perused the same.
9. It is not in dispute that the entire proceedings at various stages have been initiated and culminated into passing of Notification under sub-section (1) of Section 11 of the Act against one Baskara Pillai and the writ petitioner-Trust was not at all brought into the picture at any point of time. It is the case of the writ petitioner-Trust that the subject matter lands belong to several persons, out of whom, the said Baskara Pillai was only one of the vendors.
10. In our considered view, all the above issues need not be gone into at this stage, as the only relevant issue for consideration is as to whether the land owner was dispossessed by the appellants in pursuant to the impugned proceedings or not. For such purpose, we have perused the files. The files disclose that a notice under Section 11(5) of the Act was issued on the said Baskara Pillai on 28.12.1992, calling upon him to surrender or deliver possession of the subject matter lands. Further, the competent authority addressed the District Collector of the then Chengalpet-MGR District at Kancheepuram, through proceedings dated 28.12.1992, requesting that the Tahsildar, Saidapet may be instructed to take possession of the lands from the urban land owner. Similar proceedings were also addressed to the Tahsildar of Saidapet on the very same day. Thereafter, there is nothing in the files to show that the land owner has either voluntarily surrendered the possession or the authorities have taken steps to take physical possession of the lands forcibly as per the procedures contemplated under the Act. On the other hand, only a Land Delivery Receipt, dated 24.2.1994 is available in the files, which shows that the subject matter lands have been handed over by the Revenue Inspector, Poonamallee and taken over by Firka Revenue Inspector, Mori Firka. The said Land Delivery Receipt does not show anywhere that the said Baskara Pillai delivered the possession of the lands on his own or he was dispossessed forcibly, except showing him as the owner. Therefore, it is evident from the perusal of the files that only a symbolic or paper possession was taken by the Revenue officials of the appellants and factual and physical possession was never taken from the hands of the original owner or from the writ petitioner at any point of time.
11. Whether symbolic or paper possession is a valid possession to sustain the proceedings initiated under the Act, has already come up for consideration before this Bench in Writ Appeal No.949 of 2013 and by judgment dated 3.9.2014, we have observed in paragraphs 8 to 10 as follows:
"8. The issue as to whether taking over of the land by symbolic possession can be construed as possession taken and based on such act, whether the authorities can claim right over the land after the Repeal Act, has already been considered and decided by the Hon'ble Supreme Court in the case of State of U.P. vs., Hari Ram reported in 2013-3-MLJ-408(SC) at para 38 and 39, which reads as follows:-
"38. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
39. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."
9. Likewise in a decision rendered by the Hon'ble Division Bench of this Court in the case of Government of Tamil Nadu vs., Mecca Prime Tannery reported in 2012-6-MLJ-273, it has been held at para 33 to 35 as follows:-
"33. The phrases shall be deemed to have been acquired and shall be deemed to have been vested absolutely in the State Government occurring in Section 11(3) of the Act, in our considered opinion, mean that the right, title and interest in respect of the land shall be deemed to have been vested in the State Government and not possession of the land. After the right, title and invested is vested in the State Government by notification under Section 11(3), the State Government has to take further action for taking possession of the land, if the land owner or any person in possession refuses or fails to surrender or deliver possession of the land so vested in the Government.
34. There are cases where after notice under Section 11(5) of the Act, the land owner delivers possession of the land and acknowledges the same in writing, and the State, after taking possession of the land so delivered voluntarily by the land owner, either comes into possession of the same or allots those lands to other persons, then in such cases, even thereafter, if the land owner or any person claims to be in possession of those lands, then we have no hesitation in holding that continuance of such possession even after surrendering or delivering the land to the State is illegal possession and they shall be treated as encroachers.
35. However, there are cases where although the competent authority issued the notice under Section 11(5) of the Act to the land owners or persons in possession to surrender or deliver possession of the land, but the land owner or the person in possession fails to deliver the land and continues to be in possession of such land and the authority of the State 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. "
10. From the perusal of the above said decisions, it is very clear that the mere vesting of land under sub-section (3) of Section 10 of the said Act would not confer any right on the State Government, in the absence of any proof that there was voluntary surrender of vacant land or there was a forceful dispossession under sub-section (6) of Section 10 of the said Act. Symbolic possession is totally different and distinct from physical possession. It is only a paper possession, which cannot be treated or construed as that of possession as required under the Act."
12. Further, the Honourable Supreme Court in the case reported in 2014 (2) CTC 665 (SC) (Gajanan Kamlya Patil Vs. Addl. Collector & Competent Authority), held in paragraphs 12 and 13 as follows:
"12. We may indicate, apart from the affidavits filed by the officials in this case, no other document has been made available either before the High Court or before this Court, either showing that the Appellant had voluntarily surrendered or the Respondents had taken peaceful or forcible possession of the lands............
13. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed."
13. Considering all the above facts and circumstances, we are of the view that the impugned order of the learned single Judge in quashing the impugned proceedings, does not warrant any interference. Accordingly, the impugned proceedings are held to be abated, in view of the Repealing Act, on the reason that the physical possession of the subject matter lands from the hands of the land owner, was not at all taken and it continues with the writ petitioner-Trust, the respondent herein.
14. Accordingly, the Writ Appeal fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.
(N.P.V.J) (K.R.C.B.J)
03-12-2014
Index: Yes
Internet: Yes
cs
Copy to
1. The Government of Tamil Nadu,
rep. by its Secretary to Government,
Revenue Department,
Fort St.George, Chennai-9.
2. The Principal Commissioner and
Commissioner of Land Reforms,
Chepauk, Chennai-5.
3. The Assistant Commissioner/Competent Authority,
Urban Land Ceiling,
No.5, Sannadhi Street,
Poonamallee, Chennai-600 056.
N.PAUL VASANTHAKUMAR,J
and
K.RAVICHANDRABAABU,J
cs
Judgment in
W.A.No.297 of 2011
03-12-2014