Madras High Court
Latha Bandari vs The Government Of Tamilnadu on 23 April, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON:17.01.2013
DATED:23.04.2014
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.38108 of 2002
Latha Bandari
rep. by Power Agent
S.S.Rajashekar,
Riverview, Kotturpuram,
Chennai-600 085. ... Petitioner
Vs.
1.The Government of Tamilnadu,
represented by its Secretary,
Revenue Department, Fort St. George,
Chennai-9.
2.The Special Commissioner &
Commissioner of Land Reforms,
Chepauk, Chennai-5.
3.The Competent Authority,
Urban Land Ceiling, (Mylapore)
345, Arcot Road, Kodambakkam,
Chennai-600 024. ... Respondents
Prayer: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records of the 3rd respondent especially the impugned notice dated 13.2.2002 vide ref. A1/828/2001 and the proceedings under Section 9(5) and Section 10(1) dated 15.10.1985, 15.3.1989 and the notification under Section 11(3) dated 20.12.1989 vide ref.414/84 and quash the same in respect of the petitioner's land.
For Petitioner : Mr.V.Ramesh
For Respondents : Mr.R.Lakshmi Narayanan (for R1 to R3)
Additional Government Pleader
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O R D E R
The petitioner submits that he is the power agent of the petitioner and he is the owner of the land measuring to an extent of 3800 sq. mts. having purchased the same by means of a sale deed dated 10.09.1960. After purchase, the petitioner has been in possession and enjoyment of the land absolutely in her own right. While so, proceedings were initiated under the Tamilnadu Urban Land (Ceiling and Regulation) Act 1978, by the 3rd respondent who had passed an order declaring an extent of about 762 sq. mts. of land as excess vacant land. This was followed by a final statement under Section 10(1) dated 15.3.1989. Earlier to this, there was one final statement dated 15.10.1985 under which an extent of 662 sq. mts. was declared as excess vacant land. After the final statements referred to above, there was communication between the petitioner and the 3rd respondent and the petitioner had specifically requested the 3rd respondent by a letter dated 15.03.1990 to furnish a copy of the sketch demarcating the land to be acquired. Till date, there is no reply to the letter cited above. Neither sketch as required to be furnished, as per the provisions of the Act, was furnished. The land continues to be uninterrupted and in continuous possession and enjoyment of the petitioner and there were no notices of any sort from the 3rd respondent directing the petitioner to hand over possession of excess vacant land. The fact that the petitioner is in possession and enjoyment of the land is evident from the certificate issued by the Tahsildar, Mylapore dated 01.06.2000. It is an extract from the land register, in the name of the petitioner and the extracts very clearly state that the petitioner is in possession and enjoyment of the entire land.
2. The land of the petitioner is adjacent to the land belonging to her sister viz. Geetha Shenova. By two proceedings the lands of the petitioner and Geetha Shenova were proposed to be acquired. Geetha Shenova filed a writ petition No.15219/91 with regard to her holding and the writ petition was allowed by an order of this Court dated 22.01.1997. However, the petitioner did not file any writ petition questioning the acquisition as she was not served with notice under Section 11(5) of the Act. The land of the petitioner and Geetha Shenova is located in such a way that the petitioner's land cannot be separated and enjoyed from the other land belonging to Geetha Shenova, which served as an access. After the writ petition of the petitioner's sister was allowed, the land of the petitioner had no access, except through the land which was allowed to be retained. Any land without an access cannot be acquired and probably, this is one of the reasons why the 3rd respondent did not serve notice under Section 11(5) of the petitioner and did not take any steps to take possession from the petitioner.
3. The petitioner, as owner and person in possession of the property entered into a development agreement with one M/s.Shiyam Foundations and Housing Private Limited to develop the property into residential apartments. It may not be out of place to point out, that a portion, out of the total extent, was developed previously after obtaining valid sanction from the Corporation of Madras. M/s.Shiyam Foundations and Housing Private Limited, with whom a joint venture agreement was entered into, on 10.3.2000, applied to M/s.Chennai Metropolitan Development Authority for sanction of building plans, to construct 22 dwelling units in plot Nos.38, 39 of Balakrishna Street, Valmiki Nagar, comprised in 1/2, 316/1 Block 365 of Tiruvanmiyur Village belonging to the petitioner and Geetha Shenova measuring a total extent of 6.6 grounds. The CMDA by their communication dated 21.07.2000 accorded sanction originally and the same was revised and approved by the order dated 12.07.2001. The sanction was accorded after payment of enormous fee to the Corporation of Madras and the same is evident from the permission granted by Corporation dated 08.08.2001. The fees stipulated in the approval granted by CMDA and Corporation of Madras were fully paid. The promoters have constructed flats and have started selling the same to the 3rd parties.
4. Meanwhile, some 3rd parties filed a suit in O.S.No.4400/2001, on the file of the XVIII Assistant City Civil Court, Madras, for an injunction restraining the promoters from dealing with the land including construction. The said suit was dismissed by an order of the City Civil Court dated 03.10.2001. In the judgment, it has been very clearly held that the petitioner is the owner of the property and the builder is the promoter of the property through the power agent S.S.Rajashekar. Thus the possession and enjoyment of the petitioner and the builder is clinchingly proved. At this juncture, the 3rd respondent appears to have issued a notice dated 13.02.2002 to the builder directing him to appear before the competent authority. The said notice was replied by the builder immediately and he has produced all the evidence before the competent authority in support of his claim. Notwithstanding the said explanation and evidence of possession etc., the competent authority has visited the site and has directed the workers to stop the work immediately. The act of the competent authority is patently without jurisdiction especially after the repeal of the Tamil Nadu Urban Land (Ceiling and Regulation) Act with effect from 16.06.1999. In view of the repeal of the Act and in view of the continued possession of the land by the petitioner, all proceedings shall abate under Section 4 of Act 20/99. Thus, the action of the respondents would tantamount to an act without jurisdiction and hence the petitioner is constrained to file this Writ under Article 226 of the Constitution of India. The Tamil Nadu Urban Land (Ceiling and Regulation) Act viz. Act 24 of 78 has been repealed with effect from 16.06.1999 by Act of 20/99. Section 4 of the Repealing Act, very clearly states that all proceedings shall abate, especially when the land owner is in possession and enjoyment of the land. Even as on date, the petitioner is in possession of the land and the same is evident from the records filed in the typed set of papers. The Revenue Department still recognizes the petitioner as the owner of the land. The owner, through the builder, has put up a construction and the same being sold to 3rd parties. This position is very clearly admitted in the letter of the 3rd respondent dated 13.02.2002. Therefore, when the petitioner is in possession and enjoyment of the land, the impugned notice of the 3rd respondent dated 13.02.2002, is obviously without jurisdiction and all proceedings therefore shall abate under Section 4 of Act 20/99.
5. From the impugned notice, the petitioner was directed to submit an explanation and the same was submitted immediately thereafter. Inspite of the explanation to the impugned notice, the 3rd respondent has not treated the proceedings as closed. On the contrary, there was a personal inspection and a direction by the 3rd respondent to the workers of the builder to stop construction. There was also an open threat by the 3rd respondent that the building would be demolished and the land would be recovered as per the notice dated 13.02.2002. This visit and threat of the 3rd respondent is wholly unwarranted and therefore, the impugned notice of the 3rd respondent which is now construed as an order may be interfered by this Court.
6. The original orders of the acquisition are not available with the petitioner and its production may please be dispensed with. However the copies are filed in the typedset of papers. The production of the original orders of the 3rd respondent dated 15.10.1985, 15.03.1989, 20.12.1989 and 13.2.2002 may please be dispensed.
7. As stated already, the petitioner has developed the property by obtaining valid sanction from the CMDA. The petitioner has paid developmental charges under several heads including a sum of Rs.9,51,000/- towards open space reservation charges. In addition to above, more than Rs.2,00,000/- have been paid to the CMDA towards water supply and sewage infrastructure and security deposit of Rs.1,14,000/- and another Rs.10,000/- towards display board. Thus, when one wing of the Government recognizes the right of the petitioner's ownership to the land, the other wing of the Government viz. the 3rd respondent herein cannot deny the ownership to the land of the petitioner. Hence, this writ petition has been filed.
8. The 3rd respondent filed this counter affidavit on behalf of other respondents also. He had read the affidavit filed by the petitioner and he denies all the allegations contained therein except those that are specifically admitted here under.
9. The petitioner further submits that the petitioner filed the above writ petition seeking for issuance of writ of Certiorarified Mandamus to quash the notice issued by the 3rd Respondent in reference No.828/2001/A1, dated 13.02.2002. It is submitted that Tmt.Latha Bandari filed the statement under Section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as the Act) in respect of the land held by the petitioner in S.No.210/2A1A1A (Part) of Thiruvanmiyur village in Madras Urban Agglomeration measuring 0.94 acres (3,800 sq.mts.). The urban land owner had also applied to the Government for grant of exemption under Section 21(1)(b) of the Act for retaining the excess vacant land. The Government in their letter No.31250/T2/80-16/Revenue, dated 06.04.1983 had rejected the request of exemption of Tmt.Latha Bandari.
10. The petitioner further submits that the Assistant Commissioner (Urban Land Tax), Alandur had initiated action and notice under section 9(4) of the Act along with draft statement under Section 9(1) of the Act were issued on 17.06.83 proposed to acquire 800 Sq.mts an excess vacant land from the total extent of 3800 sq. mts after allowing family entitlement of 3000 Sq.mts. The notice and the statement issued under section 9(1) of the Act was received by S.Balakrishna shetty, power of attorney holder of the urban land owner on 05.07.1983. Tmt.Latha Bandari has requested in her letter dated 01.12.1983 and opted for a change in the portion of the land in question to be acquired an excess vacant land. The Government also accepted the change in the extent in their letter No.7329/T2/84/1 dated 24.08.1984. Consequently, the Assistant Commissioner had issued orders under Section 9(5) of the Act declaring an extent of 662 sq. mts as excess vacant land on 30.09.85. Then final statement under section 10(1) of the Act was issued on 30.12.1985. Both orders and final statement were served in April 1987.
11. The petitioner further submits that the urban land owner has requested in her letter dated 19.01.1988 that location of the portion to be acquired might be changed to southern side of the land so as to enable her to enjoy the remaining property conveniently. The request was accepted and the portion of the land to be acquired was changed to the southern side of the land which was worked out to 762 sq. mts. Therefore, a revised 9(5) orders were issued on 15.11.88 for the acquisition of 762 sq. mts instead of 662 sq. mts on the southern side of the land and it was served on 16.11.88. Then, 10(1) statement was issued on 15.03.1989. Thiru.S.S.Rajasekar, representative of Mrs.Latha Bandari in letter dated 24.07.1989 had requested to furnish the sketch of the portion proposed to be acquired and the same was received by him on 19.08.1989. Notification under section 11(1) of the Act was issued on 19.08.1989 and published on 20.09.1989. Notification under section 11(3) was issued on 25.10.1989 and the same was published in the Tamil Nadu Government Gazette dated 20.12.1989 at page No.699 declaring that the excess vacant land vests with the Government with effect from 27.12.1989. The notice under Section 11(5) of the Act was issued on 30.01.90 and the same was received by Thiru.S.S.Rajasekar, representative of the urban land owner on 2.3.90. The possession of the excess vacant land was handed over to the Revenue Authorities on 20.6.90. In ref. No.Rc.1039/92E dated 26.3.92 the Competent Authority, Alandur had issued notice under section 12(7) of the Act for fixation of amount payable under section 12 of the Act in his proceedings No.1039/93E, dated 18.1.95.
12. It is submitted that the land was allotted to India Eye care centre by the Government in G.O.Ms.No.929 dated 9.11.93. In the course of inspection on 23.1.2002 it was found that one M/s.Shyam Foundations had occupied the excess vacant land by constructing the multistoried flats. Hence, a notice was also sent to the promoters of the building explaining the facts, in this office Rc.No.828/2001/A1 dated 13.2.2002. It was also informed to the builder in this office reference No.828/2001/A1 dated 18.06.2002 explaining the factual position of the land which was allotted to the Eye Care Centre and to stop further construction in the land. Aggrieved by the notice issued by the 3rd respondent, Tmt.Latha Bandari represented by power Agent, Thiru.S.S.Rajashekar filed this writ petition to quash the notice dated 13.2.2002.
13. With regard to the contentions in para No.2 of the affidavit it is submitted that the acquisition proceedings was initiated against the petitioner, who was the urban land owner for the excess vacant land held by her. The possession of the land was handed over to the revenue authorities on 20.06.1990 after observing all the formalities under the Act. The urban land owner had not objected to the acquisition of the excess vacant land instead had opted for change of location of the portion to be acquired to southern side of the land vide his letter dated 19.01.1988. Therefore, necessary orders were passed accordingly by the 3rd respondent. A copy of the revised sketch demarcating the portion of the excess vacant land in question has been furnished to the urban land owner as requested in her letter dated 18.08.1989. Therefore the contention of the petitioner cannot be accepted and the same is not sustainable.
14. With regard to the contentions in para 3 of the affidavit, it is submitted that based on the request of the petitioner only, the change in the portion of the acquired excess vacant land was permitted by the 3rd respondent. Hence, the statement of the petitioner that there is no access to her land is an after thought and does not merit consideration, at this juncture. The acquisition proceedings were initiated against the excess vacant land held by the petitioner and a notice under section 11(5) of the Act was issued on 30.01.1990 and the same was acknowledged by Thiru.S.S.Rajasekar, P.A. holder for the urban land owner on 2.3.1990. The petitioner had participated in all stages of the acquisition proceedings. Hence, the contention of the petitioner that notice under section 11(5) was not served on the petitioner is incorrect, totally false and misleading this Court.
15. With regard to the contentions in paragraph 4, 5 and 6 of the affidavit it is submitted that after following the procedure as contemplated in the Act, the excess vacant land was acquired and possession was handed over to Revenue Authorities on 20.06.1990. The Act was repealed with effect from 16.06.1999. Section 3(1)(a) the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act inter alia provides as follows:
3(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 authorized by the State Government in this behalf or by the competent authority.
16. In view of the above provision, the repeal of the Act will not affect the cases in which possession have already been taken over by the Government well before the Repeal Act came into force.
17. In this case, possession was taken over on 20.06.1990 and was also allotted to India Eye Care centre vide G.O.Ms.No.929, dated 09.11.1993. Thus acquisition proceedings were completed as early as on 20.06.1990. After more than a decade, the petitioner has filed this writ petition knowing fully well about the acquisition to quash the notice issued by the 3rd respondent, which cannot be accepted and is liable to be dismissed for the latches of delay. As the acquisition proceedings had already attained finality, the question of abatement under section 4 of the repeal Act does not arise as stated by the petitioner. As the excess vacant land was already acquired by the Government based on the orders of the Competent Authority, the 3rd respondent has every right to protect the right of Government at every stage. In view of the building constructed in the excess vacant land, already acquired by the Government, the petitioner can be treated as an encroacher of the Government land and liable to be evicted.
18. Hence, the action of the 3rd respondent is in accordance with the provisions of the Act, since the petitioner has encroached the Government land and the builder was constructing flats in the acquired land which required to be evicted.
19. With regard to the contentions in paragraph 7 and 8 of the affidavit it is submitted that the possession of the land was handed over to Revenue Authorities as early as on 20.06.1990 after following the procedures laid down under the said Act. Hence, the right of the urban land owner ceases once the land is vested with the Government and possession has been taken over. As requested by the petitioner only, initially the extent of excess vacant land to be acquired by the Government was changed from 800 Sq.mts to 662 Sq.mts in the year of 1985. Subsequently on receipt of final statement dated 27.11.1985 the petitioner again requested for a change in the portion of the acquired land from northern side to southern side to suit her convenience on her own accord. Even at this time, the request of the petitioner was accepted and the acquired portion was changed as requested.
20. It is submitted that the proceedings of the respondent are in accordance with the provisions of the ceiling Act 1978. The writ petition is devoid of merits.
21. The highly competent counsel Mr.V.Ramesh, appearing for the petitioner submits that the petitioner is the owner of the land measuring to an extent of 3800 Sq.meters having purchased the same by means of a registered sale deed dated 10.09.1960. Since the date of purchase, she has been in possession and enjoying the same. Whileso, the third respondent herein had initiated proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 and declared that an extent of 762 sq.meter of land as excess vacant land. The petitioner had specifically requested the 3rd respondent by letter dated 15.03.1990 to furnish a copy of the sketch demarcating the land to be acquired. The same was not furnished so far. However, the petitioner is still in possession. The petitioner's sister's land is situated adjacent to her lands. Her sister filed a writ petition and challenged the 3rd respondents proceedings regarding her property and that was allowed. The petitioner being the owner of the property, entered into a development agreement with one M/s.Shyam Foundations and Housing Private Limited, to develop the property into residential apartments. The Housing Private Company had also obtained necessary permission. Under the circumstances, the third respondent had issued notice stating that the petitioner trespassed into the property comprised in Survey No.210/71 to an extent of 762 Sq.meters situated at Thiruvanmiyur Village.
22. The highly competent counsel further submits that the Madras Metropolitan Development Authority had granted building plan permission and the petitioner is also remitting mandatory tax to the authorities. Further, the third respondent has not taken the physical possession as per the Act. The petitioner's sister sold the land to the 3rd parties after obtaining the necessary building plan.
23. The highly competent Special Government Pleader, submits that the 3rd respondent had initiated proceedings under the Urban Land Ceiling Act and acquired the excess vacant land but the same was rejected after well scrutinizing her application. The excess land of 762 sq.meter had been acquired by the Government under the circumstances, the building promoters made wrong entry and raised construction which is an illegal one.
24. On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the typed set of papers, this Court is of the view that the third respondent had issued show cause notice to the petitioner and M/s.Shyam Foundation Limited and asked them to give explanation since the property has already been acquired and is under the care and custody of the respondents. The issues raised in the show cause notice are appropriate and the petitioner and another have to give explanation on the said notice. Hence, the above writ petition does not have enough force to allow it, and hence it is dismissed. No costs.
23.04.2014
Index : Yes/No
Internet : Yes/No
ub
C.S.KARNAN, J.
ub
To
1.The Government of Tamilnadu,
represented by its Secretary,
Revenue Department, Fort St. George,
Chennai-9.
2.The Special Commissioner &
Commissioner of Land Reforms,
Chepauk, Chennai-5.
3.The Competent Authority,
Urban Land Ceiling, (Mylapore)
345, Arcot Road, Kodambakkam,
Chennai-600 024.
Pre-Delivery Order
in
W.P.No.38108 of 2002
23.04.2014