Madras High Court
Mr.C.V.Narasimhan vs The Government Of Tamilnadu on 6 June, 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6/6/2002
CORAM :
THE HONOURABLE MR.JUSTICE S.JAGADEESAN
Writ Petition No.1616 of 2001 and W.M.P.No.2206 of 2001
Mr.C.V.Narasimhan
rep.by his Power Agent
Smt.Jayalakshmi
No.12, Bishop Garden
Raja Annamalaipuram
Chennai-28. :: Petitioner
- Vs -
1.The Government of Tamilnadu
rep.by its Secretary
Revenue Department
Fort St.George, Chennai-9.
2.The Special Commissioner and
Commissioner of Land Reforms
Chepauk, Chennai-5.
3.The Competent Authority
Urban Land Ceiling, Alandur. :: Respondents
Petition under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified Mandamus as
For Petitioner : Mr.V.Ramesh
For Respondents : Mr.R.Chandrasekaran
Government Advocate
* * * * *
: O R D E R
The petitioner has filed this writ petition to quash the impugned proceedings of the first respondent dated 29.5.2000 and consequently to treat the land as falling outside the purview of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.
2. The short facts for the disposal of the writ petition are as follows. The petitioner is the owner of the land in R.S.No.8/3 and 9/9A of Palavakkam Village of an extent of 1 acre. When the proceedings were initiated under the Tamil Nadu Urban Land Ceiling Act, the Government passed an order under Section 9(5) of the said Act, and acquired an extent of 3576 sq.mts and consequently, a notification under Section 9(5) of the Act was also issued. The petitioner made a revision challenging the said acquisition proceedings initiated by the Government. The same was rejected by the first respondent as early as on 18.1.1 987. The petitioner filed a revision under Section 34 of the said Act in June, 1997 stating that the Government had earlier exercised its discretion and exempted the land owned by a few from the purview of the said Act and basing upon the said principle, the petitioner also had to be given the same benefit. The said revision was dismissed under the impugned proceedings on the ground that the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 had been repealed and as such, there is no provision to re-convey the land under the repealed Act. Aggrieved by the same, the present writ petition has been filed. 3. On behalf of the respondents, a counter affidavit has been filed, wherein it is stated that the petitioner's land in excess of the ceiling limit, was taken over from the petitioner on 2.7.1981. The power of attorney of the petitioner filed a return, which was accepted and the acquisition proceeding was completed. The acquired land was also allotted to the Forest Department in G.O.Ms.No.252, Revenue, dated 21.2.1984. When the petitioner's revision was taken up for disposal, the said Act (Tamil Nadu Act 24 of 1978) was repealed and as such, the petitioner's request cannot be conceded. It is further stated that the release in respect of the other persons mentioned by the petitioner was made prior to the repealing of the principal Act and as such, that cannot be taken as a ground to consider the claim of the petitioner.
4. Learned counsel for the petitioner contended that the impugned order of the first respondent is in violation of the principles of natural justice, since the petitioner was not given an opportunity of personal hearing before ever his claim was rejected. It is further contended that when the claim of the petitioner goes to the root of the matter with regard to the classification of the land as it is claimed that the disputed land do not fall within the term of 'urban land' as defined under the said Act, it is for the first respondent to consider the same after getting the report from the revenue authorities, or at least by affording an opportunity to the petitioner to establish the same. The petitioner claims to be in possession of the disputed property, whereas the respondent claims in the counter affidavit that the possession was surrendered by the petitioner and it was taken over by the revenue authorities. This being a factual dispute, requires some consideration in the hands of the first respondent to decide the fact as to whether the claim of the petitioner is barred by virtue of the repealing of the Tamil Nadu Act 24 of 1978. It is also contended that the impugned order suffers from non application of mind since the revision filed by the petitioner was dismissed without considering the implications of the repealed Act.
5. On the contrary, the Government Pleader vehemently contended that when the possession of the disputed land was taken over by the revenue authorities by virtue of the repealed Act, the entire proceedings initiated under the Tamil Nadu Act 24 of 1978 abated. Hence, the first respondent has no jurisdiction to entertain the revision filed by the petitioner on merits and consequently, the impugned order is quite valid and did not suffer from any error apparent on the face of the record.
6. I have carefully considered the respective submissions of the learned counsel on either side. A perusal of the impugned order reveals that the petitioner's revision was dismissed on the ground that the Tamil Nadu Act 24 of 1978 had been repealed. When the case of the petitioner is that the possession of the land still continues to be with him and the petitioner did not receive any compensation in respect of the land acquired by the Government, it is for the first respondent to consider the claim of the petitioner and to give a finding on that aspect, which is essential to decide as to whether the repealing of the Tamil Nadu Act 24 of 1978 abates the proceedings pending before the first respondent.
7. It is worthwhile to have a glance of the repealed provision of the Tamil Nadu Urban Land (Ceiling and Regulation) Act (Act 24 of 1978), repealed under the Repeal Act, 1999 (Act 20 of 1999). Section 3 of the said Act 20 of 1999 is the Savings clause and Section 4 is Abatement of legal proceedings which are as follows:-
"Section 3: Savings: - (1) The repeal of the principal Act shall not affect(a)the vesting of any vacant land under sub-section (3) of Section 11 possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.
(b)the validity of any order granting exemption under sub-section 1 of Section 21 or any action taken thereunder.
(2)Where (a)any land is deemed to have vested in the State Government under sub-section (3) of Section 11 of the principal Act, the 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; and (b)any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
Section 4: Abatement of legal proceedings :All proceedings to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate; Provided that this Section shall not apply to the proceedings relating to Sections 12,13,14,15,15-B and 16 of the principal Act insofar as such proceedings are relatable to the land, the possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."
Sub-section (1) of Section 3 restricts the application of the act in respect of the land vested with the Government under sub-section (3) of Section 11, where the possession of the land has been taken over by the State Government. Sub-section (2) deals with the land vested with the Government under sub-section (3) of Section 11 of the principal Act, but where possession was not taken over by the State Government. Sub-clause (b) to sub-section (2) contemplates restoration of a land if the compensation is refunded to the State Government.
8. From the above, it is clear that the repealed Act gives certain right to the owners of the land where the physical possession of such land continues to be with the owner. The statutory vesting is of no relevance. In the case on hand, the petitioner claims to be in possession of the disputed land. When sub-section (2) of Section 3 of the repealed Act specifically makes a provision to refund the compensation and retain possession if possession remains with the land owner. Hence, it is for the first respondent to consider the question of physical possession and decide the issue. Virtually, the first respondent has failed to consider this vital factor. This Court is of the view that the non consideration of this vital factor by the first respondent will amount to an error apparent on the face of the record, as well as the impugned order suffers from non application of mind with regard to the legal implications of the repealed Act.
9. It is also contended by the learned counsel for the petitioner that the land did not fall within the purview of the Tamil Nadu Act 24 of 1978 and if that is so, even assuming that the petitioner had voluntarily submitted the return, the same cannot be taken as an estoppel by conduct as there cannot be any estoppel against the statute. When the land did not fall within the purview of the Tamil Nadu Act 24 of 1978, then the authorities have no jurisdiction to proceed with the acquisition of the said land. If any action was taken in respect of the land which do not fall within the purview of the repealed Act, then the said action of the authorities is non est in law, as the petitioner cannot be deprived of the land under a proceedings, which is contrary to the statute. When such a plea is raised, then again the first respondent is duty bound to consider the claim of the petitioner. When once it is found that the land in dispute did not fall within the purview of the Act, then the entire proceedings initiated by the authorities will be void. This aspect was al so not considered by the first respondent. Yet another factor to be decided by the first respondent is as to whether the petitioner had received any compensation and if so, whether the petitioner is entitled for the benefit of sub-clause (b) of sub-section (2) of Section 3 of the repealed Act 20 of 1999.
10. For all these reasons, this Court is of the view that the impugned order of the first respondent cannot be sustained and consequently the same is set aside. The matter is remitted back to the first respondent for re-consideration and for disposal in accordance with law, after giving an opportunity to the petitioner to put forth the factual aspects of his plea. The writ petition is allowed in the above terms. Consequently, connected W.M.P.No.2206 of 2001 is closed. No costs.
6 - 6 -2002 Index : Yes kst. To: 1.The Secretary to Government of Tamilnadu Revenue Department, Fort St.George, Chennai-9.
2.The Special Commissioner and Commissioner of Land Reforms Chepauk, Chennai-5.
3.The Competent Authority Urban Land Ceiling, Alandur.
S. JAGADEESAN, J.
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