Madras High Court
The Secretary To Government vs W.A.D.Thomson on 23 October, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
Rev. Aplc(MD)No.30 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
Rev. Aplc(MD)No.30 of 2023
in
W.A.(MD)No.1211 of 2019
and C.M.P.(MD)No.5899 of 2023
1. The Secretary to Government,
Revenue (Urban Land Ceiling)
Department,
Chennai.
2. The Principal Secretary/Commissioner
of Urban Land Ceiling and
Urban Land Tax,
Chepauk, Chennai.
3. The Assistant Commissioner,
(Urban Land Ceiling)
Tirunelveli, presently
shifted to O/o the Assistant Commissioner,
Urban Land Tax,
Madurai.
4. The Tahsildar,
Palayamkottai Taluk,
Tirunelveli – 1. ... Review Applicants
1/26
https://www.mhc.tn.gov.in/judis
Rev. Aplc(MD)No.30 of 2023
versus
W.A.D.Thomson,
Rep. by its Power of Attorney Agent,
S.A.F.Ahamed Gnaniyar ... Respondent
PRAYER: Review Application under Order 47 Rule 1 Section 114 r/w. 151 of
Civil Procedure Code, to review the order passed in W.A.(MD)No.1211 of 2019
dated 13.11.2019.
For Review Applicants: Mr.R.Baskaran,
Additional Advocate General
assisted by
Mr.M.Sarangan,
Additional Government Pleader
For Respondent : Mr.K.K.Udayakumar
for Mr.H.Arumugam
ORDER
(Order of the Court was made by P.VELMURUGAN, J.) This review application is filed to review the order dated 13.11.2019 passed in W.A.(MD)No.1211 of 2019.
2/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023
2. The respondent herein filed a writ petition before this Court in W.P. (MD)No.364 of 2019. The Writ Court, by order dated 17.06.2019, dismissed the writ petition on the ground that the earlier writ petition filed by the respondent herein in W.P.(MD)No.3998 of 2012 was ordered by a common order dated 18.02.2014. In similar matters, the Government have filed writ appeals and the same were dismissed by a Division Bench of this Court, vide a Common Judgment dated 12.06.2019 and therefore, the order passed by the writ Court in W.P.(MD)No.3998 of 2012 dated 18.02.2014 has become final and hence, the filing of the writ petition in W.P.(MD)No.364 of 2019 for the very same relief is a second round of litigation. Challenging the said order, the respondent herein filed a intra Court Appeal before this Court in W.A.(MD)No.1211 of 2019. A Division Bench of this Court, by Judgment dated 13.11.2019, allowed the writ appeal.
3. Challenging the same, the appellants herein filed a Special Leave Petition (Civil) Diary No.18886/2021 before the Hon'ble Supreme Court and subsequently, they withdrew the special leave petition with liberty to file a review petition before this Court. Based on that endorsement, now, the appellants have filed the present review application.
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4. The learned Additional Government Pleader appearing for the appellants submits that the land in S.No.26 to an extent of 10.18 acres and the land in S.No. 25 to an extent of 0.95 acres, totally, an extent of 11.13 acres (45050 sq. meters) of Melapalayam Village belonged to one Sankaralingam. A Notification under Section 11(3) of the Act was issued on 08.06.1989 and published in Part-VI, Section-1 in Government Gazette No.26, dated 05.07.1989 that the excess vacant land to an extent of 39050 square meters out of 45050 square meters stood vested with the Government free from all encumbrances. Thereafter, a notice under Section 11(5) of the Act was issued on 29.07.1989 requesting the land owner to hand over the possession of the excess vacant land to the District Collector of Tirunelveli and the same was acknowledged by him on 04.08.1989, however, there was no response. Therefore, the physical possession of the excess vacant land was taken and handed over to the Revenue Department on 21.09.1989.
5. The learned Additional Advocate General further submits that the respondent herein is the subsequent purchaser of the subject lands and he has purchased the said lands during the year 1984. After 21 years of the acquisition 4/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 and by taking advantage of the Repeal Act, they cannot question the acquisition proceedings which has already reached finality in the year 1989 itself. Further, as per Section 6 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, the subsequent sale or purchase of excess vacant land, after the said Act came into force, is null and void. The respondent herein has also purchased only a portion of land in question from the erstwhile land owner after the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 came into force. Therefore, as per Section 6 of the Act, the sale and purchase of a portion of land covered under acquisition proceedings itself is void ab initio. The possession of the excess vacant land was already vested with the Government and handed over to the revenue authorities before the Repeal Act came into force. Therefore, the Repeal Act would not be applicable to the present case on hand.
6. The learned Additional Advocate General further submits that Section 4 of the Repeal Act shall not apply to the proceedings relating to Sections 12, 13, 14, 15 and 15B and 16 of the Principal Act. Further, there is a saving clause under Section 3(1)(a) of the Repeal Act. Since the possession of the excess lands has already been taken over by the revenue authorities much prior to the Repeal 5/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 Act came into force, the Repeal Act would not be applicable to the present case on hand. The learned Additional Advocate General has also relied on a decision of this Court in the case of R.R.Nadhan vs. State of Tamil Nadu reported in (2009) 8 MLJ 1335, wherein, it has been held that Section 4 of the Repeal Act cannot be made applicable, the reason being no proceedings were pending immediately before the commencement of the Act and therefore, the possession which was taken on 19.01.1984 had become final and as such, there shall not be any abatement of proceedings, as contemplated under the proviso.
7. The learned Additional Advocate General has also relied on a decision of the Hon'ble Supreme Court reported in (2015) 5 SCC 321, wherein, it has been held that the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in a proceedings under Article 226 of the Constitution of India. Therefore, this Court cannot exercise its discretion in certain situations upon such determination. Hence, the entries in the revenue records are enough to confirm the possession of the Government. In this case, revenue records have already been mutated in the name of the revenue authorities. 6/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 Therefore, the Judgment dated 13.11.2019 made in W.A.(MD)No.1211 of 2019 is liable to be set aside.
8. The learned counsel appearing for the respondent submits that the learned Single Judge, while disposing of the writ petition in W.P.(MD)No.3998 of 2021 on 18.02.20214, has clearly given a direction to the Tahsildar, Palayamkottai Taluk, Kokkirakulam, Tirunelveli, to pass appropriate orders on the request of the writ petitioner, regarding the issuance of patta and while passing such order, the said authority shall not reject the request of the writ petitioner on the ground that the lands have been vested with the Government under the Act. However, in the similar matters, the officials have preferred appeals in W.A.(MD)Nos.511 to 521 of 2019 and a Division Bench of this Court, by a Common Judgment dated 12.06.2019, dismissed the writ appeals. Since the review applicants have not complied with the direction issued by the learned Single Judge by order dated 18.02.2014 in W.P.(MD)No.3998 of 2021, the respondent herein filed the writ petition in W.P.(MD)No.364 of 2019 before this Court and the learned Single Judge, by order dated 17.06.2019, dismissed the same as it is a second round of litigation. The said order was challenged by way 7/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 of filing a writ appeal in W.A.(MD)No.1211 of 2019. A Division Bench of this Court, by a Judgment dated 13.11.2019, allowed the writ appeal. The relevant portion of the order is extracted as under:
“8. In the light of the above, this writ appeal is allowed and the order passed in the writ petition is set aside and a direction is issued to the fourth respondent to submit necessary proposal through proper channel for rectification of entries in the revenue records and place the same before the second respondent within a period of six weeks from the date of receipt of a copy of this order. Upon receipt of the same, the second respondent shall consider and pass appropriate proposal to the first respondent for issuing appropriate orders. This direction shall be complied by the second respondent within a period of eight weeks from the date on which, the proposal is received from the Tahsildar through proper channel. The first respondent is directed to consider the proposal and pass appropriate orders within a period of twelve weeks therefrom. Once again, we make it clear that all the proceedings initiated by the respondents will be subject to the outcome of the Special Leave Petition stated to have been filed before the Hon'ble Supreme Court.” Therefore, there is no error apparent on the face of the record warranting review of the Judgment in W.A.(MD)No.1211 of 2019 dated 13.11.2019. Though the 8/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 applicants aggrieved with the said order and filed a Special Leave Petition before the Hon'ble Supreme Court, even before admitting the Special Leave Petition, they themselves withdrew the same with liberty to file a review application.
Further, they cannot re-agitate the matter which was already settled by this Court.
Therefore, the Review Application is liable to be dismissed.
9. Heard the learned Additional Advocate General appearing for the review applicants and the learned counsel appearing for the respondent.
10. Admittedly, the respondent herein is the subsequent purchaser of the subject lands. He purchased the subject lands only during the year 1984 after the Tamil Nadu Urban Land (Ceiling and Regulation) Act came into force. As per Section 6 of the said Act, any sale of urban land after the introduction of the Act is null and void. After initiating all the proceedings under the said Act as against the original urban land owner, the possession of the excess vacant lands was handed over to the revenue authorities and the classification was also changed in the revenue records as surplus land. Further, all the proceedings were completed in the year 1993 much prior to the Tamil Nadu Urban Land (Ceiling and 9/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 Regulation) Repeal Act came into force. Therefore, the respondent herein is fully aware of the fact that the sale deed dated 19.05.1984 is not a valid one. Moreover, the Government, vide a G.O.Ms.No.565, Revenue Department, dated 26.09.2008, provided relief to the purchasers of the acquired land by regularizing their purchase under innocent buyer scheme. But, the respondent herein failed to avail that scheme. Since the sale deed dated 19.05.1985 is null and void, the respondent herein cannot be treated as a lawful owner. The respondent has not produced any materials that he was in possession of the subject lands before the Repeal Act came into force. Even assuming that the respondent herein was in possession of the subject lands, his possession was illegal and therefore, he has no right to get patta or reclassification of the lands.
11. There is a saving clause under Section 3 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act. Further, Section 4 of the Repeal Act shall not apply to the proceedings relating to Sections 12, 13, 14, 15, 15B and 16 of the Principal Act. If any proceedings initiated under Sections 7 to 11 were pending and those proceedings were not completed when the date of Repeal Act came into force, the proceedings would have been lapsed. However, in this case, all the 10/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 proceedings including Sections 11 and 12 of the Act were completed even in the year 1989 itself. Though the Government provided relief to the purchasers of the acquired land by regularizing their purchase under innocent buyer scheme, the respondent herein has not availed the same. However, the respondent herein has approached this Court belatedly with an intention to grab the Government lands. Therefore, this Court is of the view that the respondent herein has not approached this Court with clean hands.
12. It is pertinent to refer the decision of the Hon'ble Supreme Court in the case of State of M.P. vs. Ghisilal (Civil Appeal No.2153 of 2012), wherein, it has been held as follows:
“14. The Urban Land (Ceiling and Regulation) Act, 1976 is a self-contained Code. Various provisions of the Act make it clear that if any orders are passed by the competent authority, there is provision for appeal, revision before the designated appellate and revisional authorities. In view of such remedies available for aggrieved parties, the jurisdiction of the civil courts to try suit relating to land which is subject-matter of ceiling proceedings, stands excluded by implication. Civil court cannot declare, orders passed by the authorities under the ULC Act, as illegal or non est. 11/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 More so, when such orders have become final, no declaration could have been granted by the civil court. In this regard reference may be made to the judgment of this Court in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 and another v. David Mantosh and others (2020) 12 SCC 542. We are totally in agreement with the aforesaid view taken by this Court.
15. In this case, it is clear from the orders passed by the competent authorities, that the original declarant was holding excess land to the extent of 16000.32 square meters. When the orders passed by the competent authority and consequential notifications issued under Section 10(1) and 10(3) of the ULC Act have become final, it was not open for the respondent to file a suit seeking declaration, as prayed for. As we are of the view that jurisdiction of the civil courts is barred by necessary implication, trial court fell in error in entertaining the suit, as filed by the respondent and even the first appellate court and second appellate court have not considered the various grounds raised by the appellant in proper perspective.
16. Although it is contended by the learned counsel appearing for the respondent to mould the relief, it is trite principle that where the suit is filed with particular pleadings and reliefs, it is to be considered with reference to pleadings on record and the reliefs claimed in the suit only. The judgments relied on by the 12/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 learned counsel for the respondent would not render any assistance to support the case of the respondent. As we are in agreement with the view taken by this Court earlier in the case of Competent Authority, Calcutta, under the Urban Land (Ceiling and Regulation) Act, 1976 this appeal is to be allowed by setting aside the judgment and decree passed by the trial court as confirmed by the appellate court on the ground that such suit itself was not maintainable.”
13. In the case of Balmokand Khatri Educational and Industrial Trust, Amritsar Vs. State of Punjab and others, reported in AIR 1996 SC 1239, the Hon'ble Supreme Court has held as follows:-
“4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4- 1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would 13/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 tantamount only to illegal or unlawful possession.”
14. The Hon'ble Supreme Court in the case of Tamil Nadu Housing Board Vs. A.Viswam(Dead) by LRs., reported in AIR 1996 SC 3377 has held as under :-
“9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.”
15. The Hon'ble Supreme Court in the case of Sita Ram Bhandar Society, New Delhi Vs. lieutenant Governor, Government of NCT, Delhi and others, reported in (2009) 10 SCC 501 has held as under :-
“28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the 14/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam [(1996) 8 SCC 259 : AIR 1996 SC 3377] after considering the judgment in Narayan Bhagde case [(1976) 1 SCC 700], observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case [(1976) 1 SCC 700] had been rendered and held as under: (Viswam case [(1996) 8 SCC 259 : AIR 1996 SC 3377] , SCC p. 262, para 9) “9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land.
29. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212 : AIR 1996 SC 1239] yet again the question was as to the taking over of the possession of agricultural land and it was observed thus: (SCC p. 215, para 4) “4. It is seen that the entire gamut of the 15/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 acquisition proceedings stood completed by 17-4- 1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.”
30. It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the revenue official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary Department is the recording of a panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government.” 16/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023
16. The Supreme Court in the case of Land & Building Department through Secretary and Another Vs. Attro Devi and others, reported by judgment dated 11.04.2023 decided in Civil Appeal No.2749/2023 has held as under :-
“12. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority’s case (supra). It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is D.No.23608/2021 complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any reentry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below:
"244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after 17/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has D.No.23608/2021 no right to possess the land which vests in the State free from all encumbrances.
245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of 18/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any reentry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is D.No.23608/2021 deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.
xxxx
256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full 19/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such D.No. 23608/2021 possession of trespasser enures for his benefit and on behalf of the owner."
(emphasis supplied)”
17. In the case of State of U.P. vs. Hari Ram, reported in (2013) 4 SCC 280, the Hon'ble Supreme Court has held as follows:
“16. ………………. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile landowner on 7-12-1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse 20/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.
17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] . That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram case [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] considering whether the word “may” appearing in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of the law did not fall for consideration in that case. In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if 21/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 the appellant’s version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act.
That is because Bhabadeb Sarma, erstwhile owner, had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.” (Emphasis supplied)
18. In the case of Banda Development Authority vs. Moti Lal Agarwal reported in (2011) 5 SCC 394, the Hon'ble Supreme Court culled out principles concerning the mode of taking possession of a piece of land from the landholder. The relevant portion of the judgment is extracted below:
“37. The principles which can be culled out from the abovenoted judgments are:
(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/ 22/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama.
Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(iv) If beneficiary of the acquisition is an agency/ instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.
38. In the light of the above discussion, we hold that the action of the State authorities concerned to go to the spot and prepare panchnama showing delivery of possession was sufficient 23/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 for recording a finding that actual possession of the entire acquired land had been taken and handed over to BDA. The utilisation of the major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by BDA. Once it is held that possession of the acquired land was handed over to BDA on 30-6-2001, the view taken by the High Court that the acquisition proceedings had lapsed due to non-compliance with Section 11-A cannot be sustained.” (Emphasis supplied)
19. From the above decisions, it is clear that one of the permissible mode of taking possession is that if the acquired land is vacant, it can be done by preparing panchanama. Therefore, it cannot be said that possession of surplus lands was not taken.
20. In this case, though notice under Section 11(5) of the Act was issued to the original land owner, he did not respond to the same. Therefore, the possession was taken over and the same was handed over to the revenue authorities much prior to the Repeal Act came into force. Further, the respondent herein claims right over the property based on the sale deed dated 24.08.1984. Except the sale deed dated 24.08.1984, the respondent herein has not produced any materials that 24/26 https://www.mhc.tn.gov.in/judis Rev. Aplc(MD)No.30 of 2023 he was in actual possession and patta also never changed from the original owner to the respondents' names. Since the sale deed dated 24.08.1984 is null and void as per Section 6 of the Act, the respondent cannot be treated as a lawful owner and his possession cannot be recognized as lawful possession. The respondents have not challenged ULT proceedings before the Repeal Act came into force. Even otherwise the Repeal Act came into force in the year 1999, whereas the respondents filed the writ petition only in the year 2012, i.e. after 22 ½ years from the mutation effected in the name of revenue authorities. Therefore, the respondent herein is not entitled to get patta or re-classification of lands. Hence, this Court finds that there is an error apparent on the face of records in the Judgment in W.A.(MD)No.1211 of 2019 dated 13.11.2019.
21. In the result, the Review Application is allowed and the Judgment passed in W.A.(MD)No.1211 of 2019 dated 13.11.2019 is hereby set aside. No costs. Consequently, connected miscellaneous petition is closed.
[P.V.,J.] [K.K.R.K.,J.]
23.10.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
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Rev. Aplc(MD)No.30 of 2023
P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN,J.
ogy
Order made in
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