Madras High Court
M.S.Mohamed Ibrahim vs The Assistant Commissioner on 21 January, 2016
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON : 18/12/2014
DATED : 21/01/2016
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.11922 of 2011
and
M.P.Nos.1 & 2 of 2011
1.M.S.Mohamed Ibrahim
2.M.Amjath Ali
3.M.Sagubar Nisha
All are residing at Door No.27C,
Qauide Milleth Nagar 3rd Street,
Madurai-1, Represented by Power Agent
Tmt.Thanavathi,
W/o.Thiru.S.Sridhar,
No.282/2B, Kandasamy Nagar,
7th Street, Palavakkam,
Chennai-600 041. ... Petitioners
Vs.
1.The Assistant Commissioner,
Urban Land Tax,
No.153, Karuneegar Street,
Adambakkam,
Chennai-600 088.
2.The Commissioner of Urban Land Tax,
Chepauk,
Chennai-600 005.
3.The Principal Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
4.The Taluk Tahsildar,
Sholinganallur Taluk,
Kancheepuram District,
Sholinganallur.
5.The Chairman,
Tamil Nadu Slum Clearance Board,
Kamarajar Road, Chennai. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for a Writ of Mandamus, to forbear the respondents from in any way disturbing the possession of the petitioners land situated at S.No.722/1 situated at Pallikaranai Village, Sholinganallur Taluk, Kancheepuram District, other than due process of law.
For Petitioner : Mr.K.Sridhar
For Mr.B.Rabu Manohar
For Respondents : Mr.M.S.Ramesh
Addl. Govt. Pleader for R1 to R4
Mr.V.Balu for R5
- - -
O R D E R
The Power Agent viz., Tmt.Thanavati, representing the petitioners, has submitted that they are absolute, undisputed and exclusive owners of the property to an extent of 6.36 acres comprised in Survey No.722/1 (Old S.No.722) situated at Pallikkaranai Village, Sholinganallur Taluk (Previously Saidapet Taluk), Kancheepuram District. The first petitioner's father Late Thiru.M.S.Sultan Ibrahim purchased the above property under a registered Sale Deed dated 28.05.1963 from one Thiru.M.P.Mohideen Pitchai and the same was registered as Document No.1998 of 1963 at Assistant Sub Registrar's Office exercising Power of District Registrar, Madras-Chengleput. After purchase, petitioner's father was in possession and enjoyment of the property as absolute owner. When the first petitioner's father purchased the above property, it was comprised in patta No.286 in No.149, Pallikaranai Village, Saidapet Taluk. While so, the first petitioner's father Mr.M.S.Sulthan Ibrahim died on 30.12.1993 at Madurai leaving behind the petitioners herein as his legal-heirs and now they have become absolute owners of the property. The petitioners have executed a General Power of Attorney Deed dated 25.03.2011 and appointed Tmt.Thanavathi as their Power Agent to deal with the property and the same was registered as Document No.549/2011 at Sub Registrar's Office, Saidapet, Chennai.
2. While so, the Power Agent, viz., Tmt.Thanavathi understands that the above said property was taken over by the Government under a wrong entry i.e., in the name of one Tmt.Kamala Sathe. The entire formalities implemented by the first respondent herein including [a] serving notice under Section 9(5) Tamil Nadu Urban Land (Ceiling and Regulation Act), 1978, [b] calling for filing of return under Section 7(1), [c] asking for surrendering of excess land under Section 11(5) were wrongly undertaken i.e., without initiating the rightful and absolute owners i.e. the petitioners herein.
3. The Power Agent, viz., Tmt.Thanavathi has further submitted that the proceedings initiated under Section 7(1) of Tamil Nadu Urban Land (Ceiling and Regulation Act) 1978 is illegal since the same was not initiated against the real owners and no notice was served on the petitioners herein. The proceedings initiated after the death of Sultan Ibrahim is unwarranted and ab-initio void. She has further submitted that the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 was repealed under Act 20 of 1999 that came into effect on 16.06.1999. She has further submitted that according to Section 4 of the Act 20 of 1999, all proceedings initiated by the respondents shall stand abated.
4. The Power Agent has further submitted that no notice was ever served on the landowners by the respondents and no compensation was received by Late M.S.Sultan Ibrahim and possession was not taken from Late Sultan Ibrahim. On the other hand, she has submitted that the above said property was acquired by the respondents in the name of one Kamala Sathe, which had no relevance to this property since the petitioner's Late father, while he was alive, had purchased the property. The first petitioner's father viz., M.S.Sultan Ibrahim had purchased 6.67 acres of land in Survey No.722 at Pallikaranai Village, Saidapet Taluk, 6.67 acres of land and other 6 acres of land at Survey No.37/2-A at Perungudi Village, Saidapet Taluk by way of registered sale deed dated 28.05.1963 from the very same vendor. The sale deed executed by M.P.Mahideen Pitchai dated 28.05.1963 very clearly states that two properties were purchased by the first petitioner's father. Subsequently, 6 acres of land comprised in S.No.37/2-A in Perungudi Village, Saidapet Taluk was sold by the first petitioner's father to the third party and the petitioners understand that the last purchaser of lands in S.No.37/2-A at Perungudi Village was Kamala Sathe. The respondents seem to have initiated action of Urban Land acquired property on Kamala Sathe and in the process, the respondents have wrongly included S.No.722 in their proceedings.
5. The Power Agent has further submitted that in order to find out the fact, a letter was sent to the first respondent's Office requesting for certain information like (a) that in the above said Survey No.722, measuring to an extent of 6.67 acres in Pallikaranai Village, which was taken over by the Government, the concerned G.O./proceedings/orders through which the above said land was taken over by Government and (b) also the name of the owner as appeared in their records at the time of initiation proceedings by them. The first respondent, in his reply dated 28.03.2011 had stated that when scrutinizing the records, it was found that vacant land in S.No.722/1 of Pallikaranai Village was taken over by Government from one Kamala Sathe on 12.12.1995 and transferred to Revenue Department. From this, it was crystal clear that the first respondent herein had taken over the said land wrongly in the name of one Kamala Sathe instead of Sulthan Ibrahim's legal-heirs i.e. the petitioners herein and whose father had purchased the property as early as in 1963. Though, the records show that the lands were acquired, the possession still vests with the petitioners. She has further submitted that after acquiring the said land from the wrongful owner viz., Kamala Sathe, the first respondent herein transferred the said land to the Revenue Department on 12.12.1995. The third respondent herein vide his order in G.O.Ms.No.463, Revenue Department dated 20.09.2010 had allotted the said land as part and parcel of the land comprised in S.Nos.722/1, 723 to an extent of 16.900 sq.mts and 12.900 sq.mts respectively to Tamil Nadu Slum Clearance Board, the fifth respondent herein without knowing that no one had come forward to claim the land so far or an appeal lies against the said land.
6. The Power Agent has further submitted that the petitioners gave a representation on 20.10.2010, through the husband of the Power of Attorney, stating that the respondents had wrongly acquired the said property and requested the respondents not to interfere with the title and possession of the property without following the due procedure contemplated under law. The first respondent in his letter dated 28.06.2010 had requested the petitioner to appear before him on 08.11.2010 at 3.p.m. and produced all the original records relating to the title of the petitioners land. The petitioners promptly appeared before the first respondent and furnished all the original documents and explained the fact how proceedings were initiated against the said person by name Kamala Sathe and how the petitioners land were wrongly included in the said proceedings. After this, the respondents have not passed any orders till date, but they are attempting to dispossess the petitioners from possession of the said property and hence, the petitioners have filed the above writ petition.
7. The first respondent has filed a counter affidavit on behalf of him and on behalf of other respondents. The first respondent has further submitted that a draft statement under Section 9(1) along with a notice under Section 9(4) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter called as "the Act") were issued to Tmt.Kamala Sethi and two others residing in Punjab State on 25.04.1984 for the proposed acquisition of excess vacant land measuring 25500 sq.mts. in S.No.722 of Pallikaranai Village after leaving 1500 sq.mts. of land as entitlement area to the Urban Land Owners. The Urban Land Owners did not file any objection for the proposed acquisition of excess vacant land. Further, a notice reminding the Urban Land Owner to file objections for the proposed acquisition was issued on 12.09.1984. No objections were received from the Urban Land Owners. After issuing the above statement under Section 9(1) with the notice under Section 9(4) of the Act, acquisition actions were continued under the Ceiling Act and subsequently, the excess vacant land measuring 25500 sq.mts. was acquired in S.No.722 of Pallikkaranai Village. The Notification under Section 11(1) of the Act was issued on and was published in the Tamil Nadu Government Gazette No.23, dated 16.06.1993. Then, Notification under Section 11(3) of the Act was issued on 28.10.1993 and was published in the Tamil Nadu Government Gazette No.45, dated 24.11.1993. Then, the possession of the excess vacant land was handed over to the Revenue Department on 12.12.1995. The Government in G.O.Ms.No.463, Rev ULC I(2) Department dated 29.09.2010 have allotted 16900 sq.mts in S.No.722/1 and 12900 sq.mts in S.No.723/1 of Pallikaranai Village to the Tamil Nadu Slum Clearance Board for the residential use of slum dwellers. One Satya Nagar Welfare Association has filed a writ petition in W.P.No.7449 of 2009 for early allotment of the above land along with several lands which are not required under this Act for its slum members. In the writ petition filed by them Government, Tamil Nadu Slum Clearance Board, the District Collector, Kancheepuram, The Commissioner of Land Administration, The Special Commissioner and Commissioner (Urban Land Tax & Urban Land Ceiling), Chepauk and the Tahsildar, Shozhinganallur have been impleaded as respondents and the writ petition is pending. Two writ petitions are filed in the names of Mohamed Ibrahim and two others, one by Tmt.S.Dhanavathi, stated as Power Agent of Thiru.M.S.Mohamed Ibrahim in W.P.No.11922 of 2011 and another by Thiru.Mohamed Ibrahim and two others in W.P.No.13821 of 2012 before this Court.
8. The first respondent has further submitted that actions were initiated against Tmt.Kamala Sethi, the Urban Land Owner by the then Competent Authority under Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978. But, the writ petitioner stated that Thiru.Sulthan Ibrahim, the father of the first petitioner had purchased the above land on 28.05.1963, Thiru.Sulthan Ibrahim, died on 30.12.1993. Hence, it is seen from the writ petitioner's contention that Thiru.Sulthan Ibrahim, the father of the writ petitioner was alive at the time of introduction of the Ceiling Act, i.e., on 03.08.1976, but he did not file the return under Section 7(1) of the Act as required under the provisions of the Act. The writ petitioners having stated that they have inherited the land, after death of his father, did not furnish any information of the above land (or) file return under Section 7(1) of the Act to reach the Competent Authority during the course of acquisition proceedings. Since no information was received from the writ petitioner and his father regarding their interest in the land as stated in the affidavit, the actions were initiated by the Competent Authority against Tmt.Kamala Sethi. The appointment of Power Agent is not informed to the office of the first respondent and they have not produced any documents related to this. The first respondent has further submitted that actions under Sections 9-11 of the Ceiling Act were initiated against Tmt.Kamala Sethi by the then Competent Authority. As per 7(1) of the Ceiling Act, every person holding the urban vacant land in excess of the ceiling limit should file a statement before the Competent Authority at the time of commencement of the Act within the appropriate time. In this case, neither the writ petitioner nor the first petitioner's father, Thiru.Sulthan Ibrahim filed any statement with relevant details of the land held by them as on the date of commencement of the Act. Therefore, the acquisition action was initiated against Tmt.Kamala Sethi. As the writ petitioners have not filed return under Section 7(1) of the Act as per the Act and have not furnished any information to the Competent Authority, even after the publication of Notifications under Section 11(1) and 11(3) in Tamil Nadu Government Gazette, Notices were sent to Kamala Sethi, Urban Landowner. Notification under Section 11(1) and 11(3) were published in Tamil Nadu Government Gazette as per the procedure. In the Notification under Section 11(1) all the persons having interest in the land could file their objections. But, the writ petitioners have not made any attempt to file objection. Now, after the lapse of 16 or 17 years, they have filed the writ petitions from the date of possession handed over to Revenue Department on 12.12.1995 and after 11 or 12 years from the date of Repeal of Act. Further, possession of the excess vacant land acquired was handed over to the Revenue Department, on 12.12.1995 well prior to the Repeal Act. Hence, Section 4 of the Repeal Act 1999 is not applicable in this case.
9. The first respondent has further submitted that the writ petitioners have not filed return under Section 7(1) of the Act as per the provisions of the Act. After the lapse of 16 (or) 17 years, they have filed the writ petition, but they have not availed any appeal provisions under Section 33 of the Act till the Repeal of the Act in 1999 even though they are stating that the land in question is still in their possession. The possession of the land was handed over to Revenue Department already on 12.12.1995 and allotted to Tamil Nadu Slum Clearance Board. Possession of the acquired land by any person is illegal as per the Ceiling Act because as per the village accounts, the land is with the Government and is liable for eviction treating the occupation as encroachment in the Government land. The first respondent has further submitted that the land in question was acquired from Tmt.Kamala Sethi by the then Competent Authority, Alandur. Then, the Government in G.O.Ms.No.463, Revenue (ULC 1(2) Department, dated 20.09.2010 have allotted the said land along with other lands to the Tamil Nadu Slum Clearance Board as follows:-
Village S.No. EVL acquired Extent allotted to Slum Clearance Board Pallikaranai 722/1 2.55.0 1.69.0 723/1 1.71.0 1.29.0 Apart from this writ petition, one M/s.Satya Nagar Welfare Association have also filed another writ petition in W.P.No.7449/2009 before this Court in respect of this land and some other lands which are not acquired by this Department and prayed early allotment of those lands in favour of its slum dwellers and members of Association and in the said writ petition, Principal Commissioner and Commissioner (Land Reforms), Tamil Nadu Slum Clearance Board, the Tahsildar, Shozhinganallur were impleaded as respondents and it is pending. The appellants have not filed any appeal till the Act was repealed.
10. The first respondent has further submitted that if the land in question has been held by the writ petitioners and their father before the commencement of the Act they should have filed the statement under Section 7(1) of the Ceiling Act or they should have furnished any other information before the then Competent Authority. They have not made any representation till the land was acquired and handed over to the Revenue Department on 12.12.1995. Representation stated as made by the writ petitioners in the affidavit is not received in this office till date of respect of acquisition of the land except for the request for copies of orders. They have not availed any appeal provision before Appellate Authorities. The first respondent has further submitted that similar writ petition has been filed by the writ petitioners in W.P.No.13821 of 2012 for the same relief. Hence, the first respondent entreats the Court to dismiss the above writ petition.
11. The learned counsel appearing for the petitioners has submitted that the first petitioners' father Late.M.S.Sultan Ibrahim had purchased the landed property, comprised in Survey No.722/1 of Pallikaranai Village, Sholinganallur Taluk, measuring an extent of 6.36 Acres, from one M.P.Mohideen Pitchai under a registered Sale Deed, dated 28.05.1993. From the date of purchase, the petitioners' father was in possession and enjoyment of the said property as absolute owner. He expired on 30.12.1993, leaving behind the petitioners as his legal heirs. Now, they have been in absolute possession of the said property by way of intestate succession. They had executed a power of attorney to and in favour of Dhanavathi, which had been registered as document No.594 of 2011, on the file of the Sub-Registrar, Saidapet. She came to know that the subject land had been taken over by the respondents from a third party, namely, Kamala Sathe. The respondents have not observed any legal formality under the Tamil Nadu Urban Land Ceiling Act. Subsequently, the respondents directed the petitioners to surrender the subject land to him. Actually, the respondents have not initiated any acquisition proceeding against the petitioners, who are the absolute owners of the landed property.
12. Further, the learned counsel has submitted that the respondents have not served any notice to the petitioners. The proceedings were initiated after the death of the petitioners' father, which is not valid. Further, the Tamil Nadu Urban Land Ceiling Act was repealed under the Repeal Act, 20 of 1999. As per Section 4 of the Repeal Act, 20 of 1999 all the proceedings initiated by the respondents under the Tamil Nadu Urban Land Ceiling Act shall stand abated. Compensation has also not been paid to the petitioners's father and possession was not taken over from their father. Till now, the petitioners are in possession and enjoyment of the same without any interference. The entire acquisition proceedings had been initiated against one Kamala Sathe, who is not the owner of the subject land. The sale deed executed by M.P.Mohideen Pitchai, dated 28.05.1963, revealed that the first petitioner's father had purchased the subject land. The respondents had initiated acquisition proceedings against Kamala Sathe in respect of the property, comprised in Survey No.37/2A of Perungudi Village, to an extent of 6 Acres, but not in the subject matter of land. However, the respondents have wrongly included the subject land. Patta bearing No.286 also stands in the name of the petitioners.
13. The learned counsel has further submitted that a representation was submitted to the first respondent and he was requested to furnish some details regarding when the subject land was purchased and when the same was taken over by the Government. Further, the petitioners sought particulars about the person, against whom acquisition proceedings were initiated. The first respondent had also furnished the details based on the records maintained by him and informed that the subject land was taken over by the respondent from one Kamala Sathe, on 12.12.1995, and the said property was transferred to the Revenue Department. It clearly proves that the land acquisition proceedings had not been initiated against the actual owner of the subject land. Instead, the entire proceedings had been initiated against the third party Kamala Sathe. The petitioners' father had purchased the subject land under a Sale Deed, dated 28.05.1963. Subsequently, he had also obtained Patta in his name. The respondents, without scrutinizing the records pertaining to the subject land, had acquired the same. Therefore, the entire acquisition proceedings are not valid. Therefore, the impugned order cannot be executed against the subject land.
14. Further, the learned counsel has submitted that the third respondent has allotted two portions of the subject land in Survey No.722/1 and another land in Survey No.723, measuring an extent of 16.900 sq.meters and 12.900 sq.meters respectively to the first respondent herein. The allotment itself is not valid. The husband of the power agent made a representation, dated 20.10.2010, to the respondents and requested them not to interfere with the possession of the property and also not to change the relevant records of the subject land. After receipt of the said representation, the first respondent had sent a letter, dated 26.10.2010, to appear before him on 08.11.2010 at 03.00 p.m. Accordingly, the husband of the power agent appeared and furnished all the original documents and also revealed the history of the case. After recording his statement, till date, no order has been passed. However, the respondents attempted to interfere with the subject land. Therefore, the learned counsel has prayed for direction to prevent the respondents from interfering with the subject land.
15. The learned Additional Government Pleader appearing for the respondents 1 to 4 has submitted that the respondents had initiated acquisition proceedings under the Tamil Nadu Urban Land Ceiling Act against one Kamala Sathe. She was the original owner of the subject land. The sale deed bearing No.1497, dated 27.06.1956, has been registered on the file of the District Registrar, Madras-South. The husband of the power agent made an application, dated 20.10.2010, to the first respondent, and requested him to regularize the purchase of the subject land.
16. Further, the learned Additional Government Pleader has submitted that the acquisition proceedings had been initiated against Kamala Sathe and two others on 25.04.1984, for acquiring the subject land. Accordingly, the subject land had been acquired after allowing 1500 sq.meters to the owners. The owners did not file any objection. As such, the acquisition proceedings have become final. The same was published in the Government Gazette as well as in the newspapers. The acquired properties have been handed over to the Tahsildar by the Assistant Commissioner, Urban Land Tax. Subsequently, two portions of the acquired subject land were allotted to the fifth respondent. The local welfare association had filed a writ petition to allot the acquired lands to the slum dwellers. Therefore, the writ petition is not maintainable. Further, on the same issue, the power agent of the petitioners had filed a writ petition and the father of the first petitioner had filed another writ petition and they are pending. The acquisition proceedings were initially initiated on 03.08.1976, against Kamala Sathe and as per the records she is the owner of the subject land. As such the claim of the petitioners is not maintainable. Hence, the learned Additional Government Pleader has prayed for dismissal of the writ petition
17. The learned counsel appearing for the fifth respondent has submitted that two portions of the subject land has been allotted to the fifth respondent, by the Revenue Authorities, after acquiring the subject land from the actual owner, under Tamil Nadu Urban Land Ceiling Act. The first respondent had acquired the subject land after observing all legal formalities in accordance with law. The father of the first petitioner had purchased the subject land after completion of the acquisition proceedings and the physical possession of the subject land is now vested with revenue authorities as well as the fifth respondent and hence the claim of the petitioners is not maintainable. Therefore, the learned counsel has prayed for dismissal of the writ petition.
18. Per contra, the learned counsel appearing for the petitioners has submitted that the husband of the power agent produced all the original documents pertaining to the subject land. The father of the first petitioner had purchased the subject land under a registered Sale Deed, dated 28.05.1963, from one M.P.Mohideen Pitchai. Subsequently, all the documents have been mutated in the name of the petitioners' father. At the time of initiating the acquisition proceedings, all the relevant records stood in the name of the petitioners' father. As per the proceedings, dated 04.02.2011, it is clearly proved that the the subject land stood in the name of Sulthan Ibrahim. Therefore, the acquisition proceedings initiated against Kamala Sethe is not relevant.
19. On considering the facts and circumstances of the case, arguments advanced by the learned counsel on either side and on perusing the typed set of papers, it is seen that the first petitioner's father Sulthan Ibrahim had purchased the subject land from M.P.Mohideen Pitchai under a registered Sale Deed, dated 28.05.1963, on the file of the Sub-Registrar, Saidapet. Besides, Patta bearing No.286 has been issued by the Tahsildar, Saidapet. Further, there are no records to show that the respondents are in physical possession of the subject land. Therefore, the writ petition is allowed. Further, it is seen that the subject land is still vacant as per the first respondent's proceedings, dated 28.03.2011. Further, the subject land had been handed over to the revenue authorities on 12.12.1995. During the relevant period, the subject land stood in the name of first petitioner's father. Subsequently, the petitioners herein had succeeded the same. Therefore, the petitioners are at liberty to make necessary application to the respondents to discharge the subject land from the acquisition proceedings.
20. In the result, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
21/01/2016
(1/3)
Index : Yes/No.
Internet : Yes/No.
ub
To
1.The Assistant Commissioner,
Urban Land Tax,
No.153, Karuneegar Street,
Adambakkam,
Chennai-600 088.
2.The Commissioner of Urban Land Tax,
Chepauk,
Chennai-600 005.
3.The Principal Secretary to Government,
Revenue Department,
Secretariat,
Chennai-600 009.
4.The Taluk Tahsildar,
Sholinganallur Taluk,
Kancheepuram District,
Sholinganallur.
5.The Chairman,
Tamil Nadu Slum Clearance Board,
Kamarajar Road, Chennai.
C.S.KARNAN, J.
ub
W.P.No.11922 of 2011
and
M.P.Nos.1 & 2 of 2011
21/01/2016
(1/3)