Madras High Court
Mrs.S.Pasumpon vs The Assistant Commissioner on 16 October, 2012
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.10.2012 CORAM: THE HONOURABLE MR.JUSTICE T. RAJA W.P.No.15493 of 2002 Mrs.S.Pasumpon ... Petitioner Vs. 1.The Assistant Commissioner, Urban Land Tax, Ceiling Tambaram at Adambakkam, Chennai. 2.The Special Commissioner and Commr. Land Reforms, Chennai 5. ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying to issue a writ of certiorari calling for the records of the first respondent in RC.No.16822 of 1986 in Form No.VII dated 21.08.1990 issued under Section 11 of Sub-Section 5 of the Tamilnadu (Ceiling and Regulation) Act, 1978 which now repealed and quash the same. For Petitioner : Mr.J.R.K.Bhavanantham For Respondents : Mr.S.Gunasekaran (GA) ORDER
1. This writ petition was filed in the year 2002 by Mrs.S.Pasumpon, challenging the impugned proceedings passed by the first respondent, The Assistant Commissioner, Urban Land Tax Ceiling Tambaram at Adambakkam, Chennai in RC.No.16822 of 1986 in Form No.VII dated 21.08.1990 issued under Section 11 of Sub-Section 5 of the Tamilnadu (Ceiling and Regulation) Act, 1978 which has been repealed now and to quash the same and pass any further order.
2. The learned counsel appearing for the petitioner in support of his submissions to quash the impugned proceedings narrated that the land covered in Paimash No.318/4 measuring Cawnis 0.341 at Kilakattalai Village, Saidapet District, Changai Anna District originally belonged to one Kuppan who for valid consideration sold the same to Unnamalai Ammal under document No.1785 of 1943 dated 05.08.1943. In respect of Cawnis 0.1.14 comprised of Paimash No.313 of Keelakattalai Village, it belonged to one Chinna Kutty and on his demise, this had been enjoyed by his sons (1)Govindaraj (2)Appadurai and (3)Ekambaram, who for their part on 11.05.1951 sold the same to Rangaswamy Mudaliar bearing Document No.804 of 1951.
3. During the course of their enjoyment of the above holdings, the land covered in Paimash No.318/4 has been reclassified as S.No.276/18. Subsequently, on the demise of Unnamalai Ammal and Rangaswamy Mudaliar their sons Venugopal Mudaliar, Purushothaman and Madurai who were in possession of the land measuring an extent of 50 cents comprised in S.No.276/1B, entered into an agreement of sale on 05.01.1980 with a partnership firm, namely, Selvamuthu Kumaran Industries Company consisting of six partners the petitioner being one among them. The firm had been in possession and enjoyment of the said land with a plan for construction of factory, to be operated with 30 H.P.Motor and had also submitted the plans to the authorities concerned. But due to some difference of opinion among the partners, the partnership firm dissolved on 06.04.1984, and the property had been offered as security to the Tools India Ltd., who availed loan from Indian Overseas Bank. On dissolution of the partnership firm, the petitioner was directed to discharge the liability of the firm including the liability of Tool India Ltd., for which the firm had given the firm's property as security.
4. It is further contended by the learned counsel for the petitioner that even when the property was mortgaged to Indian Overseas Bank, they have issued a notice under the SARFAESI Act 2002, (Act 54 of 2002) and under Section 13(2) r/w. Rule 9 of the Security Interest (Enforcement) Rules, 2002 on 31.01.2003, to the petitioner, directing the petitioner not to deal with the property as it has become subject matter of charge of Indian Overseas Bank for an amount of Rs.14,04,788.82 along with interest thereon. It is further stated that on reaching one time settlement with the bank on 30.11.2005, by paying a sum of Rs.3lakhs, the petitioner had also redeemed the property. On that basis it was pleaded that when the petitioner has become the owner of the said lands in the year 1980, the entire proceeding for assessing the land is vitiated for the reason that on the date of assignment made by the respondent under the Act, the land covered in S.No.276/1B was not at all owned by Venugopal Mudaliar, since it was already purchased and transferred to the hands of the partnership firm namely, Selvamuthu Kumaran Industries Company. It is further contended that the proceeding initiated by the Indian Overseas Bank under the SARFAESI Act 2002 on 31.01.2003, discharge certificate of the loan dated 30.11.2005 and the certificate dated 14.02.2006 handing over documents in respect of the property clearly show that the petitioner is in continuos possession of the property in question. On that basis the learned counsel for the petitioner prayed for allowing the writ petition by setting aside the impugned proceedings passed by the first respondent.
6. A detailed counter affidavit has been filed by the respondents, stating that the lands in S.Nos.257/6, 260/11, 276/5A, 276/5C and 276/1B, measuring to an extent of 2.39, 2.69, 0.15, 0.30, 0.50 acres respectively, stood in the name of Thiru Rangasamy Mudaliar. Out of the above five survey numbers, S.Nos.257/6, 260/11 and 276/5A were left out as they were used for agricultural purposes. But S.Nos.276/5C and 276/1B were treated as urban lands and action was initiated by issuing notice under Section 7(2) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, to Thiru Venu Mudaliar S/o.Rangasamy Mudaliar vide Ref.SR.1053/85 dated 25.09.1985, asking him to file return under Section 7(1) of the Act. As the land owner failed to file return under Section 7(1) of the Act, draft statement under Section 9(1) and notice under Section 7(1) of the Act were issued to him on 27.11.1986 and the same were also served on 16.12.1986. In continuation of the above proceedings, one another notice dated 14.10.1987 was sent to the land owner to file his objections, if any, against the proposed acquisition of excess vacant land in S.No.276/5C and 276/1B measuring 3200 sq.mtrs. Again, he did not file any objection to the said notice. Therefore, the order under Section 9(5) of the Act was issued in proceedings No.B/6822/85 dated 25.04.1989, declaring an extent of 2700 sq.mtrs as excess vacant land in S.No.276/1B part of 1500 sq.mtrs and in S.No.276/5C 1200 sq.mtrs that too after allowing 500 sq.mtrs towards entitlement. Again, final statement under Section 10(1) of the Act was issued in Rc.B/6822/86, dated 29.07.1989. Thereafter, notification under Section 11(1) of the Act was published on 08.06.1990 and notification under Section 11(3) of the Act was published in the Tamil Nadu Government Gazettee dated 18.07.1990 in part VI Sec.I at page 603 No.909/90. Thereafter, final notice under Section 11(5) of the Act was issued on 21.08.1990 which was served on the land owner on 14.09.1990. Subsequently, the possession of excess vacant land measuring an extent of 2700sq.mtrs was handed over to the Firka Revenue Inspector, Alandur Firka on 18.12.1990. In view of that, it was pleaded that the writ petition filed after 12 years challenging the acquisition of excess vacant land is not maintainable. Finally, it was argued that when the petitioner became the subsequent purchaser, all transactions made after the crucial date will automatically null and void as per Section 6 of the Act. Further, when the land owner had not informed about the sale of land, it is not necessary to issue notice to the subsequent purchaser of the land who has also no locus standi. In view of that, he prayer for dismissal of the writ petition.
6. Heard both sides.
7. Admittedly, in the present case, Section 7(2) notice under the Act was issued to Venu Mudaliar s/o. Rangasamy Mudaliar on 25.09.1985 asking him to file return under Section 7(1) of the Act as to whether he has got any urban excess vacant land. But before the issuance of this notice, subsequent to the demise of Unnamalai Ammal and Ramgaswamy Mudaliar, their sons Venugopal Mudaliar Purushothaman and Mudaliar who were in possession of the land measuring an extent of 50 cents comprised in S.No.276/1B entered into an agreement of sale on 05.01.1980 with a partnership firm called 'Selvamuthu Kumaran Industries Company' consisting of six partners, wherein the petitioner was one among them. Even though the said firm had been in possession and enjoyment of the said land with the plan for construction of a factory, after some time due to some difference of opinion cropped up among them, the partnership firm was dissolved on 06.04.1984 and thereupon the property was offered as security to M/s.Tools India Ltd., who availed loan from Indian Overseas Bank. On dissolution of the partnership firm, the petitioner being one of the partners was directed to discharge the liability of M/s.Tools India Ltd., since the said partnership firm had given its property as security. Secondly, a notice issued under Section 13(2) r/w Rule 9 of the SARFAESI Act on 31.01.2003 to the petitioner directing him not to deal with the property as it has become the subject matter of charge of Indian Overseas Bank for an amount of Rs.14,04,788.82/- along with interest thereon, also further supports the case of the petitioner that the possession of the property was all along with the petitioner only. It can be further seen that since the petitioner has been in possession and enjoyment of the property, he came forward to reach one time settlement with the bank on 30.11.2005 by paying a sum of Rs.3 lakhs as a result the petitioner also redeemed the property. Therefore, it is to be mentioned that when the petitioner has become the owner of the said land in the year 1980, the entire proceeding for assessing the land is vitiated for the reason that on the date of assignment made by the respondents under the Act, the land covered in S.No.276/1B was not at all owned by Venugopal Mudaliar inasmuch as it was already purchased and transferred to the hands of the partnership firm namely, 'Selvamuthu Kumaran Industries Company'.
8. Further, it is a settled law that even though after notification is issued under Section 11 declaring the excess vacant land, the same shall be deemed to have been vested with the State Government, Section 11(3) does not provide that after the notification, the State Government shall be deemed to have come into possession of the land so declared as excess vacant land, because even after such vesting of the land with the State, under Section 11(3), the state has to initiate action for taking possession of the land. It is evident from the provisions contained in Section 11(5) and 11(6) of the Act. Section 11(5) contemplates issuance of notice by the State Government to any person who may be in possession to surrender and deliver possession of the land to the State Government or any person duly authorised by the State Government in this behalf. If the owner of the land or the person in possession refused to deliver possession of the land to the competent authority, the State Government may take possession of the land by using force if necessary as contemplated under Section 11(6) of the Act. In the present case, no record has been produced before the court that notice under Section 11(5) was issued to the petitioner who has been in possession of the land to surrender and deliver the possession of the same to the State Government or any person duly authorised by the State Government. When the petitioner has been in possession of the land in S.No.276/18 as found earlier in the absence of notice under Section 11(5), this court is not able to find as to how notice could be issued to Venugopal Mudaliar s/o. Rangaswamy Mudaliar. That apart, the notice issued under Section 13(2) r/w Rule 9 of the SARFAESI Act on 31.01.2003 to the petitioner directing the petitioner not to deal with the property also clearly shows that the petitioner has been in possession of the land. In view of that, the benefit of Repeal Act will go to the petitioner.
9. Hence, the petitioner is entitled to the benefit of Section 3(2)(a) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, which clearly states that where any land is deemed to have vested in the State Government under sub-section (3) of section 10 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority, such land will continue to be with the land owner.
In view of the above, the impugned proceedings are set aside and the writ petition stands allowed.
16.10.2012 Internet:Yes/No Index:Yes/No prm To,
1.The Assistant Commissioner, Urban Land Tax, Ceiling Tambaram at Adambakkam, Chennai.
2.The Special Commissioner and Commr.
Land Reforms, Chennai 5.
T. RAJA,J.
Prm W.P.No.15493 of 2002 16.10.2012