Madras High Court
The Government Of Tamil Nadu vs M/S. Mecca Prime Tannery on 23 July, 2012
Bench: M.Y. Eqbal, T.S. Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23..07..2012
CORAM
THE HONBLE Mr. M.Y. EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr. JUSTICE T.S. SIVAGNANAM
W.A. Nos.137 & 587 of 2009, 1975 of 2010,
W.A. Nos.759, 760, 777, 988, 1369, 1467, 1600 & 1916 of 2011,
W.A. Nos.339, 4, 14, 1149 to 1151, 1153, 1147, 1144, 1155, 1157,
1146, 1152, 1148, 1145, 1156, 912, 1202 and 1231 of 2012
W.A. No.137 of 2009 :
1. The Government of Tamil Nadu,
Rep. by the Commissioner and Secretary to Government,
Revenue Department,
Secretariat, Chennai 9.
2. The Special Commissioner & Commissioner of Land Reforms,
Chepauk, Chennai 5.
3. The Assistant Commissioner of Urban Land Tax and Ceiling,
Tambaram Area, Sannadhi Street,
Adambakkam, Chennai 88. .. Appellants
Versus
1. M/s. Mecca Prime Tannery,
Rep. by its Managing Director
Tmt.V.Jayakodi, N.407/7,
G.S.T. Road, Chrompet,
Chennai 44.
2. P. Rajasekaran
3. V. Jayakodi
4. K.A. Erriah .. Respondents
--------------
For Appellants :: Mr. S. Gomathi Nayagam,
Addl. Advocate General
Assisted by Mr. S. Venkatesh, Govt. Pleader
and Mr. N. Ramaiah, Govt. Advocate
(in W.A. Nos.137 & 587/2009, 1975/2010,
759, 760, 777, 988, 1369, 1467, 1600, 1916/2011,
339, 1149 to 1151, 1153, 1147, 1144, 1155, 1157,
1146, 1152, 1148, 1145, 1156, 912 & 1231/2012)
Mr. AR.L. Sundaresan, Senior Counsel for
Mr. S. Ramesh (in W.A. No.4 of 2012)
Mr. P. Jagadeesan (in W.A. No.14 of 2012)
Mr. R. Balakrisnnan (in W.A. No.1202 of 2012)
For Respondents :: Mr. S. Gomathi Nayagam,
Addl. Advocate General
Assisted by Mr. S. Venkatesh, Govt. Pleader
and by Mr. N. Ramaiah, Govt. Advocate
(for R-1 in W.A. Nos.4 & 1202 of 2012)
(for RR-1 & 2 in W.A. No.14 of 2012)
Mr. P.S. Raman, Senior Counsel for
Mr. S. Ramesh (in W.A. No.137 of 2009)
Mr. Sriram Panchu, Senior Counsel for
Mr. A.J. Jawad (for R-4 in W.A. No.912 of 2012)
Mr. Vijay Narayan, Senior Counsel for
Mr. S.R. Rajagopal (in W.A. No.1369 of 2011)
Mr. V. Ramesh & Mr. T. Thiagarajan
(in W.A. Nos.587/2009, 759, 988/2011,
1153, 1155, 1157, 1146 and 1152/2012)
Mr. P. Shanmugasundaram (in W.A.
No.1975/2010)
Mr. M. Muthappan (in W.A. Nos.777 &
1600/2011)
Mr. G. Elangovan (in W.A. No.1467 of 2011)
Mr. R. Balakrisnnan (in W.A. No.1916 of 2011)
Mr. S. Krishnasamy (in W.A. No.339 of 2012)
Mr. K. Mohana Murali (for R-2 in W.A.
No.4/2012)
Mr. D. Rajendran (in W.A. Nos.1149 to
1151/2012)
Mr. V. Prabhakar (in W.A. No.1147 of 2012)
Mr. S. Palani Velayutham (in W.A.1144/2012)
Mr. A. Ramu (in W.A. No.1148 of 2012)
Mr. S. Navaneethakrishnan (in W.A.1145/2012)
Mr. V. Gangadharan (in W.A. No.1156 of 2012)
Mr. M.K. Hidayathullah (in W.A. No.1231/2012)
--------------
J U D G M E N T
The Honble the Chief Justice Since, in all these writ appeals, which are 27 in number, a common question of interpretation of the relevant provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 and the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 20 of 1999 has to be answered, they have been heard together and answered by this common judgment. All these appeals arose out of separate judgements delivered by learned single Judges in various writ petitions filed by aggrieved land owners. Almost all the writ petitions have been allowed mainly on the ground that physical possession of the lands continued with the land owners or the persons claiming through them. The factual details of each case have been discussed in the latter part of this judgment.
2. The State, which is the appellant in all but three appeals, has assailed the impugned judgments rendered by the writ courts as being illegal and wholly without jurisdiction. Mr. S. Gomathinayagam, learned Additional Advocate General appearing on behalf of the appellant-State advanced elaborate arguments, the crux of which is summarised hereunder :-
(i)The Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 20 of 1999 (hereinafter referred to as the Repeal Act) discussed not only vesting under Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act (hereinafter referred to as the Ceiling Act), but also the validity of any order granting exemption under Section 21(1) of the Repeal Act. Therefore, the Repeal Act will not affect the vesting under Section 11(3) and also the exemption order or refusal order under Section 21(1) of the Ceiling Act. Section 3(1)(a) of the Repeal Act has also defined the term possession, which has been termed as lawful, unlawful, legal, illegal, symbolic, actual, physical and permissive and therefore, in the absence of the said term under the Ceiling Act, it can be interpreted according to circumstances. It should be legal and lawful in the eye of law, unlawful possession cannot be recognised by the court of law, and persons holding unlawful possession are not entitled to get any relief from courts of law.
(ii)The Ceiling Act contains penal provision for illegal possession. No person shall transfer by way of sale, mortgage, and any excess vacant land after the commencement of the date of publication of the notification under Section 11(1) and any such transfer in contravention of the provision shall be deemed to be null and void. The writ petitions are covered under the aforesaid provisions and the petitioners have no locus standi to maintain the writ petitions before this Court.
(iii)The Repeal Act clearly states that the vesting of any vacant land under Section 11(3) shall not be affected by the Repeal Act. The vesting takes place under Section 11(3) of the Ceiling Act and thereafter, possession starts under Sections 11(5) and (6) of the Act and therefore, the Government became the owner of the property and the title vests with the Government by way of the notification under Section 11(3) of the Ceiling Act. If still possession is retained by any person, it will be considered as unlawful, illegal and they would be treated as encroachers in the eye of law.
(iv)There is a difference in vesting between the Ceiling Act and the Land Acquisition Act. Under the Ceiling Act, vesting takes place immediately after publication of Section 11(3), but under the Land Acquisition Act, vesting takes place only after taking possession. The Ceiling Act clearly deals about vesting, and if the notification was published in the Gazette under Section 11(3), it is sufficient compliance and the Government becomes the owner of the property free from all encumbrances and all other persons having possession subsequent to Section 11(3) of the Act are encroachers and trespassers in the eye of law. They have no legal right to question the absolute right and title of the Government.
(v)The Repeal Act clearly deals about exemption cases under Section 3(1)(b), the validity of any order granting exemption under sub-section (1) of Section 21 or any action taken thereunder will not be affected by the Repeal Act. If the Government consider the cases under Section 21(1) of the Ceiling Act or any refusal or any action will not be affected by the Repeal Act and therefore, the action by the Government, whether granting or refusal will not be affected under the Repeal Act.
(vi)Section 3(2) of the Repeal Act deals about restoration of the land only and it did not discuss about the Repeal Act and savings clause and therefore, the Repeal will be applicable and covered only under Section 3(1) of the Repeal Act.
(vii)The term possession was interpreted by the Supreme Court and symbolic possession will also be recognized and it amounts to physical possession and therefore, the land delivery receipt furnished by the appellant in the typed set clearly proves that possession was also taken over by the Government and the claim of the land owners and subsequent purchasers or tenants may not be entertained by this Court. They will be considered only as an encroacher in the eye of law.
(viii) The Government of Tamil Nadu issued allotment orders in favour of allottees subsequent to the acquisition under the Ceiling Act. Some of the lands were utilized by the Government and some of the lands were vacant and some of the lands were encroached by the encroachers with building by way of mortgage or tenants and they will be deemed to be encroachers in the eye of law and they have no legal right.
(ix)The writ petitioners approached the High Court and made attempts to agitate the urban land ceiling proceedings which attained finality long ago. In view of the Repeal Act, no proceedings could be continued after 16.6.1999 and therefore, the writ petitions are not maintainable in view of the judgment of this Court. The Government is the owner of the property after issuance of the notification under Section 11(3). The power to control the property vests with the Government and therefore, the writ petitioners cannot claim by pleading that they are in possession. Their possession will be subject to the control of the Government and it is not an independent possession and therefore, any possession or any retention by any person after vesting by the Government cannot stand in the eye of law.
(x)The word compensation was not used under the Ceiling Act and only the word amount was used under Section 12 of the Act. Such amount has been determined under Sections 12(1) and 6 of the Ceiling Act by the competent authority after vesting under Section 11(3) of the Act and therefore, it is clear that possession will not affect the vesting by the Government. Once the Government issued the notification and paid the amount or deposited the same, the finality was reached under the Ceiling Act and thereafter, the writ petitioners have no legal right to question the proceedings. In many cases, the amount was deposited and in some of the cases, the land owner received the instalment and the said cases are covered by the order of this Court dated 30.3.2011 passed in W.A. No.503 of 2011.
(xi)The innocent buyer schemes were introduced contrary to Sections 6 and 11(3) and (4) of the Ceiling Act and therefore, the writ petitioners cannot take advantage of the order passed by the Government and claim the very benefits before this Court. If the writ petitioners really had any right or was aggrieved by the refusal of the exemption order by the Government, they would have challenged the order immediately after the order passed by the Government. The delay of ten years without any explanation will be an inordinate one and therefore, the writ petitions are liable to be dismissed on the ground of delay.
(xii)The words vesting, encumbrance and possession were interpreted by the Supreme Court. Under Section 11(3) of the Ceiling Act, the land shall be deemed to have been vested in the State Government free from all encumbrances with effect from the date so specified. The declaration under Section 11(3) specified the date and therefore, from the said date onwards, the land belongs to Government and the Government has absolute title free from all encumbrances and therefore, the writ petitioners cannot get any relief from this Court. The land once vested in the State cannot be divested. There is no provision in the Principal Act or Repeal Act by which the lands statutorily vested in the Government can revert to the owner.
(xiii)After determination if the excess land, a notification under Section 11(1) was issued and the excess land vested in the State Government under Section 11(3) for more than ten years and after so many years, the writ petitioners approached the High Court challenging the said order and the writ petitions are not maintainable. The sale deeds executed after the issuance of the notification under Section 11(3) is a void transaction and all subsequent transactions are not valid in the eye of law. Any transaction or sale effected after commencement of the Principal Act and after issuance of the notification under Section 11(1) will be deemed to be void by the operation of law under Sections 6 and 11(4) of the Ceiling Act, which position has been settled by the Apex Court.
(xiv)The urban land owners have approached this Court after making sales to different persons in different periods and suppressed the facts and therefore, they are not entitled to get any relief from this Court. In many cases, the subsequent purchasers have filed writ petitions questioning the urban land ceiling proceedings and they are not entitled to get any relief from this Court and the writ petitions liable to be dismissed in view of the earlier order.
(xv)The land owners and subsequent purchasers approached this Court and questioned the proceedings after a delay of 10 years and 20 years and therefore, their writ petitions are not maintainable and liable to be dismissed on the ground of laches. The entire proceedings under the Ceiling Act were completed, and a finality was reached, the amount was also fixed and in those circumstances, the owners or the subsequent purchasers or tenants are approaching this Court by way of writ petition one by one, particularly when the Government is the absolute owner of the property and therefore, the claim of the writ petitioners may be rejected by this Court in the interest of justice.
3. In reply, Mr. V. Ramesh, learned counsel appearing for the respondents/land owners in W.A. Nos.587 of 2009, 759, 760 & 988 of 2011, 1146, 1152, 1153, 1155 and 1157 of 2012 submitted that the question of possession is one of fact and it shall be borne out by records and documents. The parent Act prescribes the procedure for taking possession, and unlike the Land Acquisition Act, where the land vests with the Government only on taking physical possession thereof under Section 16 of the said Act, the Ceiling Act contemplates voluntary surrender of excess vacant land by person in possession of land. Voluntary surrender should be supported by independent documents. If not voluntarily surrendered under Section 11(5), there should be some material on record to suggest that the competent authority had resorted to sub-section (6) of Section 11.
4. Learned counsel submitted that possession means actual physical possession. The vesting under Section 11(3) is one thing and taking over actual physical possession under Section 11(5) and Section 11(6) is another thing. They are two distinct and different acts provided under the scheme of the Act. The argument of the Additional Advocate General to the effect that mere vesting under Section 11(3) is sufficient to deny the benefit of Repeal Act, under Section 3(1)(a) is not a correct and proper argument as the Act contemplates actual possession being taken over by the State Government.
5. Learned counsel further submitted that in all these writ appeals, it is not the case of the Government that the land owners voluntarily surrendered possession or when they failed to surrender possession voluntarily, the Government resorted to sub-section (6) of Section 11. The counter is silent and records are silent and even in the writ appeals, it is not the case of the learned Additional Advocate General that the possession is taken in these 26 cases either under Section 11(5) or under Section 11(6). It was clearly admitted by the learned Additional Advocate General that only symbolic possession was taken. Therefore, the actual physical possession being the crux of the matter, mere vesting becomes unimportant especially after the repeal. If the physical possession of the excess vacant land is not taken or it remains with the land owner, then the proceedings relating to the acquisition of excess vacant land abates.
6. It is further submitted that equally, when the notice under Section 11(5) was not served, it passes ones comprehension as to how the Government could have taken possession. Even in respect of land for which compensation has been paid under Section 12(6), if the Government had not taken possession under Sections 11(5) and 11(6), such land can be returned to the land owner or person in possession, if the amount paid under Section 12(6) is returned to the State Government. Therefore, it is clear from these provisions that determination of compensation under Section 12(6) is relatable to vesting under Section 11(3) alone and has no barring whatsoever to the necessity of taking actual physical possession contemplated under Sections 11(5) or 11(6) of the Ceiling Act. Hence, possession and allotment on paper is not enough and was not contemplated under the Act.
7. Learned counsel then submitted that possession of the land under acquisition, which the Government is supposed to take, should be actual physical possession after following all the mandatory provisions of the Act. As stated already, various mandatory provisions relating to exclusion, exemption and service of notice have to be followed strictly by the competent authority before declaring a land as excess vacant land. The exclusion and exemption are the only silver lining in an otherwise dark portal of a statute. If there is violation in giving these benefits, the acquisition offends not only the Ceiling Act, but also Article 300(A) of the Constitution of India.
8. In W.A. No.912 of 2012, lands held by several members of a family in Perumal Agaram Village were acquired without reference to Sections 5(6) and 5(7) of the Act. Each member constitute different units and their family entitlement would depend on their family size. Similarly, in many cases, the notices contemplated under Sections 7(2), 9(4), 10(1) and 11(5) appear to have been served by affixture. Even the address in some of the cases is not complete. The mode of service of notice contemplated under Rule 8 is by registered post with acknowledgment due on the last known address. If the notice sent by registered post with acknowledgment due is refused, then notice is deemed to have been served. If the notices sent by registered post with acknowledgment due are not successful for various reasons like party dead, not traceable, address insufficient etc., the draft statement should be affixed in many conspicuous places.
9. In most of the appeals, service of notice under Section 9(4) and the draft statement under Section 9(1) are by way of affixture. Hence, if the proceedings on the date of commencement of acquisition is bad and violates the mandatory provisions of the Act and such violations percolates upto vesting and possession, such a vesting and possession and void ab initio. The authorities are expected to follow the Act and the Rules meticulously without deviation and any deviation in procedure leading to wrong acquisition nof land would not confer any right on the authorities to state that they have taken possession.
10. As far as the cases relating to allotments are concerned, it is submitted that in W.A. Nos.759, 760 and 587 of 2012, the agricultural lands have been acquired. The acquisitions are in the names of the erstwhile owners or on wrong persons who have been shown as land owners (Mrs. Tessi John in W.A. No.587 of 2012). Even as on date, the land owners are in physical possession and the so called allottees have not done anything to establish that the allotment has been acted upon.
11. Learned counsel submitted that as per Rules 23(1) and 2(a) if an allotment is made and the allottee is not able to take possession or utilize the land so allotted, there arises a crisis or dispute. Therefore, in the context of the Repeal Act, physical possession being a dominant factor, the so called allotment without possession is of no use and the allotment would exist merely on paper. As far as these cases are concerned, the land owners are in actual physical possession. In one appeal, it is stated that the land is allotted to Metro Water, but the original land owner is still in possession of the property.
12. In W.A. No.3747 of 2001, which was a case of allotment of excess vacant land to the Spastic Society, the Division Bench held that in that absence of service of notices under Section 11(5) on the land owners, the allotment is of no consequence. The Supreme Court refused to interfere with the said order, when taken on appeal.
13. It is submitted that even when possession is surrendered voluntarily by a tenant in violation of the mandatory provisions, the tenant is entitled to possession because the right to possess remains with the tenant. He can recover possession of the said land and therefore, if the allottee is in possession of the acquired excess vacant land which acquisition is contrary to the mandatory provisions, the landlord is entitled to possess such land from the allottee. It is also submitted that when there are violations of the mandatory provisions of the Act in acquiring a land, the vesting goes and possession also goes, and the consequent allotment is of no consequence.
14. Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the appellant-land owner in W.A.No.4 of 2012 submitted that as of now the issue involved is not as to whether non-passing of orders under Section 9(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 vitiates the acquisition proceedings, but it is as to whether without proper determination under Section 9(5) the respondents could not have taken possession of excess vacant lands in question as order under Section 9(5) forms the basis for all further proceedings under the Act. As regards possession of the land, he submitted that the possession of the land in question was very much with the landowner only. In this connection, he submitted that assessment of Urban Land Tax was made in the name of the appellant-landonwer as late as 1994. If the possession of the land has been taken over by the respondents, and if the land is absolutely vested with them, then the same would not be assessable for Urban Land Tax as the same comes under the exemption under Section 29 of the Tamil Nadu Urban Land Tax Act. Learned counsel submitted that if the lands in question were vested with the possession of the respondents, the lands could not have been assessed for Urban Land Tax. That apart, the patta in respect of the said lands stood in the name of the appellant-land owner as late as 22.09.2001. Though patta may not be a proof of title, yet certainly it is a proof of possession. The patta has been unilaterally changed in the name of the 2nd respondent only in the month of February, 2004. According to the learned Senior Counsel that no notice under Section 11(5) of the Act was served on the appellant-land owner, which is clear from the information issued under the Right to Information Act dated 10.10.2008 by the 1st respondent, which discloses that notice under Section 11(5) of the Act was prepared and kept in the file and there is no evidence for its service. If no notice under Section 11(5) of the Act was served the respondents could not have taken possession of the lands, and consequently, the 2nd respondent cannot claim possession. Learned counsel further submitted that in the Contempt Application No.788 of 2006 dated 01.12.2006, filed by the appellant-landowner, the 2nd respondent gave an undertaking that they will not interfere with the possession, without an order of the court of competent jurisdiction. This clearly shows that even as late as December, 2006, the appellant-land owner is in possession of the lands in question. According to the learned Senior Counsel till date the land lies vacant and the respondents have not taken possession and utilised the same. He finally submitted that the appellant-land owner is ready and willing to repay the compensation received and receipt of such compensation cannot disentitle him from seeking relief under the Repeal Act, since Section3(2)(b) of the Repealing Act provides for the refund of compensation to the State Government for restoration of possession of such land to the land owner.
15. Mr. Sriram Panchu, learned Senior Counsel appearing for the respondents-land owners in W.A.No.912 of 2012 submitted that at the time of acquisition of the land, there was no land available to the larger extent of 4 acres and 30 cents, as the same was divided into several parts to different owners. He submitted that no notice was served on the actual land owners, and the family entitlement allowed by the authorities is also not correct and the same has been made based on the wrong presumption. Taking rescue of the counter filed by the department, wherein it is admitted that all the notices were served to one Mr.Mohan, who is one of the land owners, the learned counsel sought to impress the Court that the other land owners were never served any notice under the Act. As regards possession of the land, the learned Senior Counsel submitted that after the acquisition of land by the Urban Land Ceiling Department, they made a proposal to allot the acquired land to the Tamil Nadu Slum Clearance Board. The authorities from the Slum Clearance Board also inspected the acquired property and found that there are people inside the acquired property, and hence, the Board sent a letter dated 02.06.2005 to the Assistant Engineer, Tamil Nadu Electricity Board requesting not to give electricity connection to the persons residing inside the acquired property. Whereas the Urban Land Ceiling Department claims that they have taken possession on 28.04.1992 itself. This clearly proves that the possession is with the land owners only and the claim made by the Urban Land Ceiling authorities that they took possession of the lands in question as far back as 1992 itself is an utter false. As regards payment of compensation, the learned Senior Counsel submitted that as per Rule 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 the compensation to the land owners is to be paid within a period of one year from the date on which such vacant land is deemed to have been acquired by the State Government. But, in the present case Compensation Order was passed on 09.06.1992, whereas it was deposited only on 16.11.1995 after a lapse of 3 years.
16. Mr. P.S. Raman, learned Senior Counsel appearing for the respondents-land owners in W.A.No.137 of 2009 submitted that the notice dated 06.08.1990 calling for possession under Section 11(5) of the Act has been issued on the erstwhile owner and no notice under Section 11(5) of the Act was issued on the respondents-land owners. Learned Senior Counsel submitted that the non-issuance of notice to the respondents, who are in actual possession, under Section 11(5) of the Act is a material irregularity going to the root of the issue, and therefore, the respondents-land owners are entitled to the benefit of the Repealing Act (Act 20 of 1999) as per the judgments of the Division Bench of this Court reported in 2007 (1) MLJ 750, 2009 (8) MLJ 522 and 2011 (4) MLJ 577 holding that though the sale of purchaser post 1976 would be hit by Section 6 of the Principal Act, yet he is entitled to notice under Section 11(5) of the Act, when the issue of taking possession by the Competent Authority comes into play. Therefore, possession of lands in question could not have been taken from erstwhile owner by issuing notice to him, more particularly, when he has put the appellant-State on notice in respect of sale as early as in 1982. That apart, the appellants have also filed an Inspection Report dated 28.06.2012, wherein it has been categorically admitted that a factory is still running in the said premises. Added to the above aspects, after the writ petition was allowed, the 2nd appellant passed an order on 17.10.2008 in R.C.No.1307/2005(G2) stating that necessary changes in the revenue records may be made in favour of the urban land owner as proceedings have abated. This was followed by another order on the same day directing the Assistant Commissioner/Tahsildar to effect mutation of revenue records in favour of the urban land owner. But, this order is subsequently kept in abeyance by another order dated 25.11.2008 in view of the pendency of Writ Appeal SR.No.84685 of 2008. This admission on the part of the 2nd appellant would clearly prove the case of the respondent-land owners.
17. Mr.R.Balakrishnan, learned counsel appearing for the respondents-land owners in W.A.No.1916 of 2011 contradicting the submission of the learned Advocate General that mere vesting of the property is sufficient for the State Government to allot the excess vacant land to any other department or agency, submitted that taking over of actual possession of the land and the payment of compensation thereafter, are the crucial factors. If such taking over of possession and payment of compensation is not shown to have been done, all proceedings pending with regard to the lands in question, ought to be taken as abated on coming into force of the Repealing Act of 1999. Since, in the present case the alleged taking over of possession and entrustment to the revenue department on 08.06.1999 are done without complying with the mandatory requirements, the appeal is liable to be dismissed. According to the learned counsel a portion of the land in question is still agricultural land. Another portion was converted into house sites, sold to different persons, and they also put up constructions, and they have not been issued with any notice under Section 11(5) of the Act. Since, the competent authorities have not taken possession of the land in question, and possession is still with the respondents-land owners and their transferees, the acquisition proceedings get abated in view of Section 4 of the Repealing Act of 1999.
18. Mr. S. Palani Velayutham, learned counsel appearing for the respondents land owners in W.A.No.1144 of 2012 submitted that the land in question is agricultural land and therefore, it cannot be brought within the purview of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. He submitted that the authorities have not taken the possession of the land in question in the manner provided under the law, the delivery of possession never took place, and since, the possession is still with the respondents-land owners, they are entitled to the benefits of the saving clause under the Repealing Act of 1999.
19. In order to appreciate the legislative history and the true legal position it is necessary to examine some of the provisions of Urban Land (Ceiling and Regulation) Act, 1976 which stood repealed in 1999. The Urban Land (Ceiling and Regulation) Act, 1976 was enacted to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bring about an equitable distribution of land in urban agglomerations to subserve the common good, presumably in furtherance of the directive principles of State Policy contained in Article 39(c) and (b) respectively.
20. The Statement of Objects and Reasons accompanying the Bill reads as follows :-
There has been a demand for imposing a ceiling on urban property also, especially after the imposition of a ceiling on agricultural lands by the State Governments. With the growth of population and increasing urbanisation, a need for orderly development of urban areas has also been felt. It is, therefore, considered necessary to take measures for exercising social control over the scarce resource of urban land with a view to ensuring its equitable distribution amongst the various sections of society and also avoiding speculative transactions relating to land in urban agglomerations.
With a view to ensuring uniformity in approach Government of India addressed the State Governments in this regard; eleven States have so far passed resolutions under Article 252(1) of the Constitution empowering Parliament to undertake legislation in this behalf.
21. It is, therefore, clear that the object of the impugned Act was to secure the socialisation of vacant land in urban agglomerations with a view to preventing the concentration of urban lands in the hands of a few persons, speculation and profiteering therein, and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good, in furtherance of the directive principles of State Policy under Article 39(b) and (c). As observed by the Supreme Court in Bhim Singhji Vs. Union of India, (1981) 1 SCC 166 the Act mainly provides for the following :-
(i) imposition of a ceiling on both ownership and possession of vacant land in urban agglomerations under Section 3, the ceiling being on a graded basis according to the classification of the urban agglomerations under Section 4;
(ii) acquisition of the excess vacant land by the State Government under Section 10(3), with powers to dispose of the vacant land with the object to subserve the common good under Section 23;
(iii) payment of an amount for the acquisition of the excess land in cash and in bonds under Section 14(2), according to the principles laid down in Section 11(1) subject to the maximum specified in Section 11(6);
(iv) granting exemptions in respect of vacant land in certain cases under Sections 20 and 21;
(v) regulating the transfer of vacant land within the ceiling limits under Section 26;
(vi) regulating the transfer of urban or urbanisable land with any building (whether constructed before or after the commencement of the Act), for a period of ten years from the commencement of the Act or the construction of the building whichever is later under Section 27;
(vii) restricting the plinth area for the construction of future residential buildings under Section 29; and
(viii) other procedural and miscellaneous matters.
22. After the enactment of Urban Land (Ceiling and Regulation) Act, 1976 the State of Tamil Nadu enacted Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 which came into force from 17.05.1978 with the same object and purpose of the Central Act. The word urban agglomeration has been defined under Section 3(n) of the Act. According to which the area comprised in the urban agglomeration specified in Schedule I of the Act and any other area which the State Government having regard to its location, population and such other relevant factors declare it to be urban agglomeration. The word urban land has been defined under Section 3(o) of the Act, which means any land situated within the limits of an urban agglomeration and referred to as such in the master plan or where there is no master plan, any land within the limits of an urban agglomeration. Although the agricultural land was excluded from the definition of urban land, but it was clearly defined that the land which is used for raising grass, dairy farming, poultry farming, breeding of livestock shall not be treated as an agricultural land. Section 4 of the Act declares that no person shall hold any vacant land in excess of ceiling limit from the date of commencement of the Act. Ceiling Limit has been prescribed in Section 5 of the Act. The transfer of any vacant land in excess of ceiling limit after the commencement of the Act has been declared as null and void. For better appreciation Section 6 of the Act is reproduced herein below:-
6. Transfer of vacant land. No person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land, or part thereof, by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 7 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of section 11; and any such transfer made in contravention of this provision shall be deemed to be null and void.
23. By Section 7 of the Act it was made mandatory for any person holding vacant land to file a statement giving the details of the vacant land held by him. Section 9 confers power to the Competent Authority to prepare a draft statement as regard vacant lands in excess of ceiling limit, and after complying with the requirements of the Section 9, and after entertaining necessary objection to file a final statement under Section 10 of the Act. Section 11 of the Act provides that after declaration of excess land by the Competent Authority under Section 10 of the Act a notification was to be issued by the Competent Authority giving particulars of land held by such person in excess of ceiling limit.
24. Since Section 11 of the Tamil Nadu Act is relevant for the purpose of deciding the issue involved in these appeals, the same is quoted herein below :-
11. Acquisition of vacant land in excess of ceiling limit.-
(1) As soon as may be after the service of the final statement under section 10 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that -
(i) such vacant land is to be acquired by the State Government; and
(ii) the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Tamil Nadu Government Gazette, and in such other manner as may be prescribed.
(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.
(3) At any time after the publication of the notification under sub-section(1) the competent authority may, by notification in the Tamil Nadu Government Gazette declare that the excess vacant land referred to in the notification published under sub-section(1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section(1) and ending with the date specified in the declaration made under sub-section(3)
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess land.
(5) Where any vacant land is vested in the State Government under sub-section(3), the competent authority may, by notice in writing, or any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of the notice.
(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorized by the State Government in this behalf any may for that purpose use such force as may be necessary.
25. Section 11(3) of the Act in very clear terms provides that after publication of the notification under sub-section (1), the competent authority may declare by notification that the excess vacant land referred to in the notification published under sub-section (1) shall be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have been vested absolutely in the State Government free from all encumbrances with effect from the specified date.
26. The word vesting or vesting free from encumbrances has been used in different statutes, having different connotations. The Chambers 20th Century Dictionary defines the word vest as under :-
To settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right. 8(i) The Concise Oxford Dictionary gives the word the following meaning:
Confer formally on him an immediate fixed right of present or future possession of it (vested rights, interests, estate, etc., possession of which is determinately fixed in a person and is subject to no contingency); (of property right, etc.) vest in (person) came to him. 8(ii) Strouds Judicial Dictionary defines the word vest to the following effect :
(1) To vest, generally means to give the property in, (2) vest in the absence of a context, is usually taken to mean vest in interest rather than vest in possession. 8(iii) Whartons Law Lexicon gives the following meaning to the word vest :
(1) Either to place in possession; to make possessor of or; to give an absolute interest in property when a named period or event occurs.
(2) (of a right or interest). Its coming into the possession of any one; enuring to the benefit of anyone. 8(iv) Similarly, in his Law Lexicon, Ramanatha Aiyar defines the word vest as hereinbelow :
To place in possession, to take possession of, to take an interest in property when a named period or event occurs. 8(v) The Encyclopaedia of Laws of England gives the definition of the word vesting as follows :
The word vested is used in two distinct senses. It may mean that the right with reference to which it is used, is vested in possession; or it may mean that it is vested in interest, though not necessarily in possession or indefeasibly vested.
27. The Supreme Court in the case of Fruit & Vegetable Merchants Union vs. Delhi Improvement Trust reported in A.I.R. 1957 S.C. 344, thoroughly discussed the meaning of the word vest while interpreting different provisions of the U.P. Town Improvement Act, 1819. Their lordships first quoted the following passage of the observations made by Lord Cranworth in Richardson vs. Robertson, (1862) 6 L.T. 75 :-
14. ... the word 'vest' is a word, at least of ambiguous import. Prima facie 'vesting ' in possession is the more natural meaning. The expressions 'investiture' - 'clothing' and whatever else be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But I am willing to accede to the argument that was pressed at the bar, that by long usage ' vesting' ordinarily means the having obtained an absolute and indefeasible right, as contra-distinguished from the not having so obtained it. But it cannot be disputed that the word 'vesting' may mean, and often does mean, that which is its primary etymological signification, namely, vesting in possession. Their lordships of the Supreme Court then observed as follows :-
19. That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, s.56 of the Provincial Insolvency Act (V of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that " such property shall thereupon vest in the receiver." The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realizing his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, ss. 16 and 17 of the Land Acquisition Act. (Act I of 1894), provide that the property so acquired, upon the happening of certain events, shall" vest absolutely in the Government free from all encumbrances'. In the cases contemplated by ss.16 and 17 the property acquired becomes. the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly ss.45 to 49 and 54 and 54A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.
28. In the year 1999 the Urban Land (Ceiling and Regulation) Act, 1976 was repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999). The Statement of Objects and Reasons for the Repealing Act, as revealed from the Bill, is as under:-
STATEMENT OF OBJECTS AND REASONS The Urban Land (Ceiling and Regulation) Act, 1976 was passed when Proclamation of emergency was in operation with a laudable social objective in mind. The said Act was passed pursuant to resolutions passed by the State Legislatures under clause (1) of article 252. Unfortunately public opinion is nearly unanimous that the Act has failed to achieve what was expected of it. It has on the contrary pushed up land prices to unconscionable levels, practically brought the housing industry to a stop and provided copious opportunities for corruption. There is wide spread clamour for removing this most potent clog on housing.
2. Parliament has no power to repeal or amend the Act unless resolutions are passed by two or more State Legislatures as required under clause (2) of article 252.
3. The Legislatures of Haryana and Punjab have passed resolutions empowering Parliament to repeal the Act in those States. The Act in the first instance will be repealed in those States and in the Urban territories and subsequently if any State Legislature adopts this Act by resolution, then from the date of its adoption the Act will stand repealed in that State.
4. The proposed repeal, along with some other incentives and simplication of administrative procedures is expected to revive the stagnant housing industry and provide affordable living accommodation for those who are in a state of under served want and are entitled to public assistance. The repeal will not, however, affect land on which building activity has already commenced. For that limited purpose, exemptions granted under section 20 of the Act will continue to be operative. Amounts paid out by the State Government will become refundable.
5. The Bill seeks to achieve the above purpose.
29. Consequent upon the repealing of the Central Act the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was also repealed by Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 20 of 1999). The State of Objects and Reasons of the Repealing Act is quoted hereinbelow:-
STATEMENT OF OBJECTS AND REASONS The Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 (Presidents Act 34 of 1976) was enacted with the view to impose ceiling on vacant land in the urban agglomeration of Chennai, Madurai, Coimbatore, Tiruchirapalli, Salem and Tirunelveli and to prevent concentration of urban lands in the hands of a few persons and speculation and profiteering therein and to bring about an equitable distribution of lands to sub-serve the common good. Subsequently, it was repealed by the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) with some changes. The Act does not bring the desired result. It has on the contrary pushed up urban land prices and affected industrial development and housing industry. During the implementation of the Act there has been a spate of litigations giving rise to serious hurdle in taking over possession of excess vacant land by the State Government. Public opinion is nearly unanimous that the Act has not been effective at all as expected and it has to be repealed in the overall interest and development of the State.
2. The Central Government have repealed the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976). Following the repeal of the Central Act, it has been decided to repeal the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1979 (Tamil Nadu Act 24 of 1978) now in force in this State.
3. By repealing the said Tamil Nadu Act, it is expected to give a boost to the housing industry and to provide employment generation for the poor. The guidelines given by Central Government for achieving the social objective after the repeal of the Act shall be examined further action taken.
4. The Bill seeks to give effect to the above decision.
30. For better appreciation the relevant provisions of both the Central Repealing Act and the State Repealing Act are extracted herein below:-
Section State Repealing Act Central Repealing Act
2.
The Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 (hereinafter referred to as the Principal Act), is hereby repealed.
The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Principal Act) is hereby repealed.
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.
(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 but possession of which has not been taken over by the State Government or any person duly authorized 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.
(1) The repeal of the Principal Act shall not affect -
(a) the vesting of any vacant land under sub-section (3) of Section 10, 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;
(b) the validity of any order granting exemption under sub-section(1) of Section 20 or any action taken thereunder, notwithstanding any judgment or any Court to the contrary;
(c) any payment made to the State Government as a condition for granting exemption under sub-section (1) of Section 20.
(2) Where (a) any land is deemed to have vested in the State Government under sub-section(3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorized 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.
4. All proceedings relating 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, 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.
All proceedings relating 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 other Authority shall abate:
Provided that this Section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act insofar as such proceedings are relatable to the land, 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.
31. The crux of the submissions made by the learned Additional Advocate General is that after vesting of the land takes place under Section 11(3) of the Act, the Government becomes the owner of the property and the title vests with the Government, by notification under Section 11(3) of the Act. Hence, even after the notification under Section 11(3), if possession of the land is retained by the land holder or any person, it will be considered as unlawful and illegal possession and they would be treated as encroachers in the eye of law. According to the learned Additional Advocate General, the Ceiling Act prescribes penal provisions under Section 11(6) and for the purpose of taking possession, force may be used, if necessary, which means the right of the Government to initiate action against a person or trespasser or any person who is holding illegal possession. If we read the provisions of Section 11 of the Ceiling Act and Section 3 of the Repealed Act, we are unable to accept the submission made by the learned Additional Advocate General.
32. Section 11(3) of the Act very clearly provides that after the notification is issued under Section 11 declaring the excess vacant land, the same shall be deemed to have been acquired and vested in the State Government, free from all encumbrances. Section 11(3), therefore, does not provide that after the notification, the State Government shall be deemed to have come into possession of the land so declared as excess land. After such vesting of the land in the State under Section 11(3), the State has to initiate action for taking possession of the land, which is evident from the provisions contained in Section 11(5) and Section 11(6) of the Act. Section 11(5) contemplates issuance of notice by the State Government to any person, who may be in possession, to surrender and deliver possession of the land to the State Government or any person duly authorised by the State Government in this behalf. If the owner of the land or the person in possession refuses or fails to deliver possession of the land to the competent authority, the latter may take possession of the land even by using force, if necessary, as contemplated under Section 11(6) of the Act.
33. The phrases shall be deemed to have been acquired and shall be deemed to have been vested absolutely in the State Government occurring in Section 11(3) of the Act, in our considered opinion, mean that the right, title and interest in respect of the land shall be deemed to have been vested in the State Government and not possession of the land. After the right, title and invested is vested in the State Government by notification under Section 11(3), the State Government has to take further action for taking possession of the land, if the land owner or any person in possession refuses or fails to surrender or deliver possession of the land so vested in the Government.
34. There are cases where after notice under Section 11(5) of the Act, the land owner delivers possession of the land and acknowledges the same in writing, and the State, after taking possession of the land so delivered voluntarily by the land owner, either comes into possession of the same or allots those lands to other persons, then in such cases, even thereafter, if the land owner or any person claims to be in possession of those lands, then we have no hesitation in holding that continuance of such possession even after surrendering or delivering the land to the State is illegal possession and they shall be treated as encroachers.
35. However, there are cases where although the competent authority issued the notice under Section 11(5) of the Act to the land owners or persons in possession to surrender or deliver possession of the land, but the land owner or the person in possession fails to deliver the land and continues to be in possession of such land and the authority of the State did not take action under Section 11(6) of the Act for taking delivery of possession, then in such cases, the State Government shall not be deemed to be in possession of those lands.
36. Learned Additional Advocate General relied upon a few decisions of the Supreme Court and the Madras High Court, which are discussed hereinbelow :-
(i) In the case of Ganpatbhai Mahijibhai Solanki v. State of Gujarat reported in (2008) 12 SCC 353 the facts of the case were that the lands owned by the land owners were declared as surplus lands under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 by the Competent Authority, and the appeal preferred was also dismissed by the Appellate Authority by its order dated 04.01.1988. The notifications under Section 10(3) and Section 10(5) of the Act were also issued on 04.05.1989 and 23.08.1989 respectively. Possession of the properties were also said to have been taken over on 20.04.1992 and the surplus lands were allotted to the members of the weaker sections of the society as envisaged under Section 23 of the Act. Thereafter, the appellants-land owners initiated another round of litigation by filing appeal before the Appellate Authority in terms of Section 33 of the Act in the year 1995. The said appeal was entertained and by order dated 30.03.1995 an extent of 6224 sq. metres of land were declared as surplus land. The State moved the High court alleging that the Tribunal was not informed about the result of the earlier appeal and the order dated 30.03.1995 was passed ex parte. On these facts, the Supreme Court in its judgment observed as under:-
5. Allegedly, the directions contained therein were not complied with by the appellant. Possession of the properties were said to have been taken over on 20-4-1992. Surplus lands are said to have been allotted to members of the weaker sections as envisaged under Section 23 of the Act. Another round of litigation was initiated by the appellant. Another appeal was said to have been filed before the appellate authority in terms of Section 33 of the Act in the year 1995. The said appeal was entertained. By a judgment and order dated 30-3-1995, 6224 sq m in Survey No. 267 only was declared as surplus land.
13. At no stage, the learned counsel would submit, the appellant had brought to the notice of the authorities of the State as also the High Court that the order dated 12-7-1984 had attained finality. It was, furthermore, contended that the stand taken by the Assistant Government Pleader was not binding upon the State as those cases where possession had also been taken over from the owner of the land have explicitly been saved under the provisions of the 1999 Act.
14. Steps indisputably had been taken under the provisions of the Act, pursuant to the final order passed in the said proceeding as not only some lands were declared to be surplus, an appeal preferred thereagainst was dismissed, possession had been taken over and even allotments had been made in favour of the members of the weaker sections of the society.
15. We may notice that even possession of portions of lands were handed over to 15 persons.
16. If the State is correct in its submission that in that view of the matter, the 1999 Act will have no application, indisputably, any wrong concession made by a counsel would not be binding upon the State.
(ii) In the case of Sulochana Chandrakant Galande v. Pune Municipal Transport, reported in (2010) 8 SCC 467 the facts of the case were that the disputed land was acquired under the Urban Land (Ceiling and Regulation) Act, 1976 in the years 1978-1979 and possession was taken and handed over to the Pune Municipal Transport (for short PMT) for establishing a bus depot and staff quarters. However, the appellant-land owner preferred a revision under Section 34 of the Act contending that the land ought not to have been acquired under the Act on the ground that on the date of commencement of the 1976 Act, the land in question was not within the limits of urban area. The said revision was allowed by the Honble Minister exercising his revisional power. Aggrieved by the said order PMT filed a writ petition before the High Court of Bombay and the said writ petition was allowed. The matter, ultimately, came up for the consideration of the Supreme Court by way of appeal. Dismissing the appeal their Lordships observed:-
37. From the above, the following factual situation emerges:
(I) The land was declared surplus under the 1976 Act, and acquired in 1979.
(II) The possession of the land was taken in 1979 by the State of Maharashtra and it was handed over to PMT for construction of the residential quarters for the staff.
(III) The appellant has not stated anywhere in the pleadings as to whether any amount/compensation as provided under the 1976 Act, had been received/accepted by her.
(IV) The appellant, for the reason best known to her, did not file appeal before the Land Tribunal, though the 1976 Act provides for two appeals.
(V) The appellant woke up from deep slumber only after five years of the judgment of this Court in Atia Mohammadi Begum, (1993) 2 SCC 546 and filed revision under Section 34 of the 1976 Act, in 1998.
(VI) The State Government allowed the revision without taking into consideration the point of delay; rather it relied upon its own circulars.
(VII) The State Government did not consider the consequences and particularly the issue of dispossession of the appellant from the land in dispute in 1978 itself.
(VIII) The judgment in Atia Mohammadi Begum, (1993) 2 SCC 546 has been overruled by this Court in N. Audikesava Reddy, (2002) 1 SCC 227.
38. Therefore, the law, as it exists today, is that the land in dispute could be subjected to the provisions of the 1976 Act, with effect from 17-5-1976 i.e. the date on which the suit land came within the limits of the Municipal Corporation. The Act stood repealed in 1999, but the proceedings pending in any court would stand abated provided the tenure-holder was in possession of the land on the date of the commencement of the 1999 Act. The High Court has taken note of the fact that the appellant's revision had been entertained only on the basis of the judgment of this Court in Atia Mohammadi Begum, (1993) 2 SCC 546, which stood overruled by the subsequent judgment in N. Audikesava Reddy, (2002) 1 SCC 227.
39. The aforesaid factual position makes it clear that the appellant is not entitled to any relief whatsoever as per the law, as it exists today. The land once vested in the State cannot be divested. Once the land is vested in the State it has a right to change the user. The appellant cannot be heard raising grievance on either of these issues.
40. Thus, in view of the above, the appeal lacks merit and is accordingly dismissed.
(iii) In Banda Development Authority, Banda v. Moti Lal Agarwal reported in (2011) 5 SCC 394 the Supreme Court was considering a case under the Land Acquisition Act, 1894. In that case the land in question was acquired for a residential scheme under the Banda Development Authority (for short BDA). The Secretary, BDA deposited 80% of the compensation amount in lieu of the acquired land, and the concerned authorities of the State delivered possession of the acquired land to BDA on 30.06.2001. The officers of the Revenue Department visited the site on 04.09.2001 and prepared a Field Book, and the Special Land Acquisition Officer passed an Award on 14.06.2002 in respect of the acquired land. The land was thereafter developed by the authority and flats were also constructed thereon. After more than three years of publication of the declaration issued under Section 6(1) of the Act, the respondent-1 filed a suit in the Court of Civil Judge, Banda and prayed that the defendants therein be directed to start the acquisition proceedings afresh. The suit was dismissed in view of the bar contained in the Act. Thereafter, a writ petition was filed challenging the notification mainly on the ground that the acquisition proceedings will be deemed to have lapsed because the Award was not passed within two years from the date of publication of the declaration issued under Section 6(1) of the Act. The matter ultimately came up before the Supreme Court for its consideration. The Supreme Court on the issue of delay in filing the writ petition observed:-
15. The above extracted portions of the plaint unmistakably show that Respondent 1 had no complaint against the acquisition of land or taking of possession by the State Government and delivery thereof to BDA and the only prayer made by him was that the defendants be directed to undertake fresh acquisition proceedings after sub-dividing Plot No. 795 so that he may get his share of compensation. He filed writ petition questioning the acquisition proceedings after almost 9 years of publication of the declaration issued under Section 6(1) and about six years of the pronouncement of award by the Special Land Acquisition Officer. During this interregnum, BDA took possession of the acquired land after depositing 80% of the compensation in terms of Section 17(3-A), prepared the layout, developed the acquired land, carved out plots, constructed flats for economically weaker sections of the society, invited applications and allotted plots and flats to the eligible persons belonging to economically weaker sections as also LIG, MIG and HIG categories. Unfortunately, the High Court ignored all this and allowed the writ petition on the specious ground that the acquired land did not vest in the State Government because physical possession of the land belonging to Respondent 1 was not taken till 31-7-2002 and the award was not passed within two years as per the mandate of Section 11-A.
16. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of BDA and the State Government, the High Court was duty-bound to take cognizance of the long time gap of nine years between the issue of declaration under Section 6(1) and filing of the writ petition, and declined relief to Respondent 1 on the ground that he was guilty of laches because the acquired land had been utilised for implementing the residential scheme and third-party rights had been created. The unexplained delay of about six years between the passing of award and filing of the writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.
Finally, in the concluding portion of its judgment the Supreme Court held:-
37. The principles which can be culled out from the above noted 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/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.
(v) 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 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.
(iv) In Ritesh Tewari vs. State of U.P. reported in A.I.R. 2010 S.C. 3823, the facts of the case were that a portion of the lands of the land owners were declared as excess land under the Urban Land (Ceiling and Regulation) Act, 1976. The original tenure holders did not challenge the said declaration and the same attained finality. Instead the land owners transferred the major part of the land so declared as surplus on 20.04.1982 in favour of Mayur Sahkari Awas Samiti. The authorities under the Act proceeded against those tenure holders under Section 10(3) of the Act and vide notification dated 06.07.1993 the excess land was vested in the State. Thereafter, notices under Section 10(5) were issued directing the tenure holders to hand over possession. However, nothing was shown on the record that actual possession was taken by the statutory authorities in exercise of power conferred under Section 10(6) of the Act. When the 1976 Act was repealed by the Repealing Act of 1999 the appellant apprehended that they could be dispossessed by the authorities in view of certain interdepartmental communication, and therefore, preferred a writ petition before the High Court of Allahabad for quashing those communications and for a direction restraining the respondents from interfering with their actual physical possession. The writ petition was dismissed. In the appeal filed before the Supreme Court, their Lordships observed:-
13. We find full force in the submissions so made by Shri Jayant Bhushan to a certain extent, and hold that all proceedings pending before any court/authority under the Act 1976, stood abated automatically on commencement of the Act 1999 in force, provided the possession of the land involved in a particular case had not been taken by the State. Such a view is in consonance with the law laid down by this Court in Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Ors., (2000) 6 SCC 325; Ghasitey Lal Sahu and Anr. v. Competent Authority (2004) 13 SCC 452; Mukarram Ali Khan v. State of Uttar Pradesh and Ors., (2007) 11 SCC 90; and Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport and Ors. JT (2010) SC 298.
14. The aforesaid conclusion leads us further to the question as to whether the appellants have any justifiable cause to approach the court. Firstly, no proceedings had ever been initiated against the appellants by the authorities under the Act 1976. Secondly, the State authorities, the respondent herein, failed miserably to perform their statutory duties and it appears that they could not muster the courage to take the actual physical possession of the land in dispute in spite of issuance of notice under Section 10(5) of the Act 1976 in the year 1993. More so, the so-called authorities could issue notices under Section 10 of the Act 1976 after a lapse of twelve years as the assessment of surplus land became final in 1981 itself. Such an indifferent attitude on the part of the authorities is not commendable rather it is condemnable, but that does not mean that court should decide only the effect of repealing Act 1999 in these proceedings at the behest of the appellants in absence of the original tenure holders and subsequent transferees inasmuch as in the fact-situation of this case where the appellants, for the reasons best known to them, did not consider it proper to place either of the sale deeds on record.
(v) In the case of Raghbir Singh Sehrawat vs. State of Haryana reported in (2012) 1 S.C.C. 792, which arose under the Land Acquisition Act, the land of the appellant was acquired by notification dated 22.06.2006. Objection filed by him under Section 5A of the Act was heard and finally declaration under Section 6(1) was made, which was notified on 20.06.2007 for the acquisition of about 216 acres of land. The Award was consequently passed on 28.11.2008. The appellant-land owner challenged the acquisition proceedings by filing a writ petition on various grounds inter alia contending that the notification issued under Section 4(1) of the Act had not been published as per the requirement of the statute and that the declaration under Section 6(1) was not published as per the requirement of Section 6(3) of the Act. Refuting the averments of the appellant-land owner it was stated by the State that the possession of the acquired land had been taken and delivered to Haryana State Industrial Infrastructure Development Corporation (HSIIDC) on 28.11.2008. On the contrary the land owner pleaded that possession of the land was still with him and the paper possession taken by the respondent-State was inconsequential. The writ petition was dismissed by a Division Bench of the High Court holding that once the award was passed and possession taken, the acquired land will be deemed to have been vested in the government and the High Court cannot entertain the writ petition. The appellant then moved the Supreme Court by filing S.L.P., which was however later withdrawn and a review petition was filed, wherein it was pleaded that possession of the acquired land cannot be treated to have been taken because of the procedure laid down in Order 21 Rule 35 of the Code of Civil Procedure. The matter ultimately came up before the Supreme Court for its consideration. The Supreme Court allowing the appeal observed:-
21. Since the Appellant has been non suited by the High Court only on the ground that possession of the acquired land had been taken by the concerned officers and the same will be deemed to have vested in the State Government free from all encumbrances, we think that it will be appropriate to first consider this facet of his challenge to the impugned orders. In the writ petition filed by him, the Appellant categorically averred that physical possession of the acquired land was with him and he has been cultivating the same. This assertion finds support from the entries contained in Girdawari/Record of cultivation, Book No. 1, village Jatheri, Tehsil and District Sonepat (years 2001 to 2010). A reading of these entries shows that during those years crops of wheat, paddy and chari were grown by the Appellant and at the relevant time, i.e. the date on which possession of the acquired land is said to have been taken and delivered to HSIIDC, paddy crop was standing on 5 Kanals 2 Marlas of land.
23. The Respondents have not produced any other evidence to show that actual possession of the land, on which crop was standing, had been taken after giving notice to the Appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. Indeed, it is not even the case of the Respondents that any independent witness was present at the time of taking possession of the acquired land.
28. If the Appellant's case is examined in the light of the propositions culled out in Banda Development Authority, Banda v. Moti Lal Agarwal and Ors. we have no hesitation to hold that possession of the acquired land had not been taken from the Appellant on 28.11.2008, i.e. the day on which the award was declared by the Land Acquisition Collector because crops were standing on several parcels of land including the Appellant's land and possession thereof could not have been taken without giving notice to the landowners. That apart, it was humanly impossible to give notice to large number of persons on the same day and take actual possession of land comprised in various survey numbers (total measuring 214 Acres 5 Kanals and 2 Marlas).
(vi) In the case of V. Somasundaram vs. Secretary to Government reported in 2007 (2) L.W. 109, the appellant moved a writ petition alleging inter alia that when they have taken steps to put up live fencing around the plots, the Village Administrative Officer (Thalayari) of the village informed that the officials from the Srirangam Taluk Office came to the land and took measurement of the lands owned by the third respondent, two to three months ago. Thereafter the first appellant contacted the third respondent, who in turn informed that the second respondent had initiated proceedings on the land under the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 (hereinafter referred to as 'the Act') and handed over the copy of the order dated 14.7.1992 under Section 9(5) of the Act and the final statement dated 30.6.1996 issued under Section 10(1) of the Act. The learned single Judge dismissed the writ petition on two grounds. Firstly, the appellants purchased the property only after the Act came into force and therefore they cannot have any grievance with reference to the steps taken by the authorities under the Act as the extent of the ceiling should be fixed on commencement of the Act. The second reason stated for dismissing the writ petition was that the learned Government Advocate on instructions submitted that the possession has already been taken pursuant to the proceedings taken against the land owners and therefore at this stage the writ petition cannot be entertained. The main contention urged by the learned Counsel for the appellants is that the appellants are interested persons as they have purchased the lands from the third respondent and are in possession of their respective extent of land and hence the second respondent ought to have issued notice to the appellants, who are the real owners and therefore the action of the respondents are in violation of Sections 9(4), 10(1) and 11(2) of the Act. The learned Counsel ultimately argued that the vesting of the lands in question with the Government cannot be accepted in view of the non-compliance of the specific provisions contained in Section 11(5) of the Act. On these facts a Division Bench of this observed:-
9. From the perusal of the file it is clear that proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in question, in respect of transfer of his land to the appellants herein. Section 11(5) notice was also issued to the third respondent, who was not the real owner. As per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and delivery possession thereof, to the State Government or to any person duly authorised by the State Government, within thirty days time. No notice having been issued against the appellants, who are in possession of the lands as stated supra, taking possession of lands on 30.4.1999 by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, with effect from 16.9.1999, it is not open to the authorities to proceed against the appellants at this stage to rectify the non-compliance of Section 11(5) of the Act.
(vii) In the case of M/s. Sree Jayalakshmi Brick Industries vs. Special Commissioner and Secretary to Government reported in 2009 (4) L.W. 819, a similar question, with regard to the evidence which constitute taking over of possession of the excess land, came up for consideration before a Division Bench of this Court and it was held:-
12. In view of such categorical pronouncements of this Court, we are of the view that the notice under Section 11(5) should be served on the petitioner. Though, his purchase by a sale deed is made invalid by Section 6 of the Act, in view of the word "any person who may be in possession" used in Section 11(5) of the Act, notice ought to have been served on the petitioner to surrender or deliver possession to the Government.
14. We therefore, hold that there was no notice served under Section 11(5) of the Act either on the petitioner or on the erstwhile owner, viz., the vendor of the land.
17. The learned Counsel for the petitioner argued that there should be actual take over of possession and the take over of possession in record is not the physical possession of the surplus lands. If the land owner is not a party to the Land Delivery Receipt, the take over should be established by getting signature from independent witnesses, preparing Panchanama, etc. But the records reveal that it is only possession in papers.
21. The learned Counsel for the petitioner strenuously contended that the Act contemplates that if the persons in possession failed to deliver possession within 30 days of receipt of notice under Section 11(5), the Competent Authority has to take possession under Section 11(6) of the Act. The learned Counsel has brought to our notice that the words "may for that purpose use such force as may be necessary" used in 11(6) indicates that to take actual possession, the Competent Authority is clothed with power under Section 11(6). In the absence of delivery of possession by land owner pursuant to notice under Section 11(5), the possession should have been taken through the manner suggested under Section 11(6). Since the notice under Section 11(5) was not even served, the symbolic possession is not a possession as contemplated under Sections 11(5) and 11(6) of the Act. The learned Counsel for the petitioner also produced various receipts for payment of tax and the latest receipt is dated 07.03.2007 and various electricity bills including the last one dated 14.11.2008 besides Small Scale Industries Registration Certificate about the carrying on the manufacturing of bricks, in support of his submission that the concerned lands are in his actual possession.
23. Once the possession is not taken over by the Government as held by us, all the proceedings under the Act must be held to have abated under Section 4 of the Repealing act, in view of the categorical pronouncement of the constitutional Bench of the Honourable Apex Court in Smt. Angoori Devi v. State of Uttar Pradesh and Ors. reported in JT 2000 (Supp.1) SC 295.
(viii) In State of Tamil Nadu Vs. M.Nalini, Division Bench Judgment of the Madras High Court dated 21.06.2010 passed in W.A.No.998 of 2010 the mother of the respondent was the land-owner, against whom proceeding under the Urban Land Ceiling Act was initiated and a portion of the land was declared as vacant land. Possession of the excess land was taken on 24.05.1999 and was handed over to the Revenue Department. Thereafter, the land was allotted to the Tamil Nadu Slum Clearance Board by G.O.Ms.No.391 dated 17.09.2003. After the death of the land-owner her heir filed the writ petition challenging the order dated 07.10.1997 passed under Section 9(5) of the Urban Land (Ceiling and Regulation) Act, 1978 on the ground that notice of the proceeding was not properly served. The learned single Judge allowed the writ petition. Challenging the same the State filed appeal before the Division Bench. The Division Bench vide its order dated 21.06.2010 allowed the appeal and set aside the order of the learned single Judge. While allowing the appeal the Division Bench observed:-
10. In the present case, notice under Section 7(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was issued on 17.10.1996 and served on 03.11.1996. Thereafter, draft statement u/s.9(1) and notice u/s.9(4) were issued on 01.09.1997. It is not in dispute that the proceedings were initiated on 01.09.1997. It is not in dispute that the proceedings were initiated under the Tamil Nadu Act 24 of 1978. The said Act was repealed by the Repeal Act 20 of 1999 with effect from 16.06.1999.
11. The land owner was very much available during the pendency of the proceedings before the statutory authority. She died only on 11.03.1994. Affidavit filed in support of the writ petition sworn by the respondent contains a statement that the land owner has made an application for a copy of the impugned order dated 07.10.1997. Therefore, it is evident that the land owner was aware of the final order passed by the competent authority dated 07.10.1997 even during her life time. However, for the reasons best known to her, the order remained unchallenged during her lifetime. The first respondent was not in the picture at all during the pendency of the proceeding. When the proceeding has come to an end and the property was taken possession even before the Repeal Act, there was nothing to be agitated thereafter. The land which was taken possession on 24.05.1999 was handed over to the Slum Clearance Board on 17.08.2003. In any case, it was not the case of the land owner that she was not aware of the statutory proceeding. The original land owner was very much aware of all the proceedings. The respondent has stated in her affidavit that notice was fixed on a stick in the vacant land and the formalities completed were not as per the statute. However, there was no basis for such averments as the respondent was not in the picture. Her averments in the affidavit that her mother made application during her lifetime for obtaining a copy of the order dated 07.10.1997 would clearly show that everything was within the knowledge of the land owner.
12. The authorities have followed the procedure contemplated under law. The possession of the property was taken and it was allotted to 198 families and therefore, the learned Judge was not justified in interfering with the Urban Land Ceiling proceedings. In such circumstances, the first respondent has not made out a case for quashing the statutory proceeding.
37. On the other hand, learned counsel appearing for the respondents mainly relied upon the decisions of the Supreme Court in Raghbir Singh Sehrawat vs. State of Haryana, (2012) 1 S.C.C. 792; and Vinayak Kashinath Shilkar vs. Deputy Collector & Competent Authority, (2012) 4 S.C.C. 718 as well as the decisions of this High Court in V. Somasundaram vs. Secretary to Government, Revenue Department, (2007) 1 M.L.J. 750; Sree Jayalakshmi Brick Industries vs. Special Commissioner and Secretary to Government, Revenue Department, (2009) 8 M.L.J. 522; and Government of Tamil Nadu vs. Nandagopal, (2011) 4 M.L.J. 577.
38. In (2012) 4 S.C.C. 718 (supra), the land owner challenged the proceedings initiated under the Urban Land Ceiling Act contending that possession of the land was all along with him and at no point of time, his possession was ever disturbed or attempted to be taken by the authorities. The State contended that upon issuance of the notice under Section 10(5) of the Ceiling Act, subject land had vested with the State and since the competent authority had taken action under Sections 10(3) and 10(5) of the Act, the subject land is deemed to have vested in the State. The Supreme Court, following the decision in Ritesh Tewari vs. State of U.P., (2010) 10 S.C.C. 677, and in view of the factual situation that possession of the subject land was not taken over by the Government, held that the High Court ought to have declared that the proceedings under the Ceiling Act in relation to the subject land stood abated and accordingly granted the relief to the appellant/land owner.
39. In the decision reported in (2007) 1 M.L.J. 750 (supra), the facts were that after the coming into force of the Urban Land Ceiling Act, the land owners sold the property to the appellant, whose case was that when he was taking steps to put up live fencing around the plot, the Village Administrative Officer of the village informed them that the land has already been measured by the Revenue Officials. Then the purchaser came to know about the land ceiling proceedings. The appellant claimed that he is continuing in possession after the purchase of the plots and he has not been served with any notice of the proceedings or a notice under Section 11 of the Act. The Division Bench, allowing the appeal, held as under :-
9. From the perusal of the file it is clear that proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in question, in respect of transfer of his land to the appellants herein. Section 11(5) notice was also issued to the third respondent, who was not the real owner. As per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and delivery possession thereof, to the State Government or to any person duly authorised by the State Government, within thirty days time. No notice having been issued against the appellants, who are in possession of the lands as stated supra, taking possession of lands on 30.4.1999 by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, with effect from 16.9.1999, it is not open to the authorities to proceed against the appellants at this stage to rectify the non-compliance of Section 11(5) of the Act.
40. In 2009 (8) M.L.J. 522 (supra), though the petitioner had purchased the land in the year 1980, the authorities had initiated proceedings under the Urban Land Ceiling Act in the year 1990 without issuing any notice to him. The Tamil Nadu Land Reforms Special Appellate Tribunal dismissed the petition filed by the petitioner challenging the said proceedings, against which the petitioner filed the writ petition contending that as per Section 11(5) of the Act, any person who is in possession of the land is entitled to notice to surrender or deliver possession to the Government, and that actual physical possession of the acquired land was not taken over by the Government and it was only a paper possession and therefore, the petitioner is entitled to the benefit of Section 4 of the Repealing Act of 1999. The Division Bench, holding that there was no notice under Section 11(5) of the Act either on the petitioner or on the erstwhile owner/vendor of the land and that actual physical possession was not taken over by the Government, quashed the order of the Tribunal and the acquisition proceedings were held to have been abated, in view of Section 4 of the Repealing Act of 1999.
41. In 2011 (4) M.L.J. 577 (supra), the respondents challenged the proceedings initiated in respect of their lands under the Ceiling Act contending that possession of the land was not taken over in a manner known to law on the date when the said Act was repealed and therefore, the proceedings shall lapse after the coming into force of the Repealing Act. The writ petitions were allowed and in the writ appeals filed by the State, it was contended that since symbolic possession was taken a day prior to the Repealing Act came into force, the question of giving the benefit of the Repealing Act would not arise. The respondents/land owners contended there was no proper notice on the land owners, which violated the provisions of Section 11(5) of the Ceiling Act. The Division Bench held that even assuming that possession had allegedly been taken over, such taking over of possession cannot be considered to be valid in the eye of law so long as Section 11(5) of the Ceiling Act was not complied with, in that there was no notice on the owners of the land or the persons in possession of such land and the respondents were given the benefit of the Repealing Act. The relevant paragraphs of the judgment of the Division Bench are extracted hereunder :-
7. In order to find out as to whether the notice as required under Section 11(5) of the Act read with Rule 8 of the Rules was served on the respondents or not, we called for the records and perused. Admittedly, there is no such notice sent through registered post, except the competent authority affixing the said notice on the vacant site, which should be only a last resort after making an attempt to send the notice by registered post and in spite of the same, they could not be served with the notice. In that view of the matter, even assuming that the possession is said to have been taken as contended by the learned Special Government Pleader, such taking over of possession cannot be considered to be valid in the eye of law so long as the provisions of Section 11(5) of the Act read with Rule 8 of the Rules was not complied with. On this ground alone, the contention of the respondents that in the event of physical possession not being taken in the prescribed manner, the provisions of the Repealing Act would come to the benefit of the respondents must be accepted.
8. For the said reason, we are also of the considered view that the respondents are entitled to the benefit of the Repealing Act and accordingly, we find no reason to interfere with the impugned order. Accordingly, the writ appeals are dismissed. However, the issue as to whether the State could claim the taking over of symbolic possession and hence the question of physical possession is necessary or not is left open.
42. In the light of the relevant provisions of the Urban Land Ceiling Act vis-`-vis the Repealing Act as well as the principles laid down by the Supreme Court and various High Courts, we have considered each appeal on its own merit and come to the following conclusion :-
(i) W.A.No.137 of 2009 :
This appeal arises out of the order dated 06.07.2007 passed by the learned single Judge in W.P. No.25425 of 2005. The writ petition was filed by the petitioners therein, to quash the impugned proceedings of the 3rd respondent therein dated 29.06.1989 declaring an extent of 10,000 sq.metres in Old Survey No.407/7, then 407/27A, and sub divided as 407/27A and 407/27A1 of Zamin Pallavaram II village as excess vacant land, as illegal and without jurisdiction. In the course of hearing before the Competent Authority the original land owner viz., M/s.India Filters (P) Ltd., had informed that it no longer owns the land in question and the said agricultural lands had been sold to various individuals, including the petitioners in the writ petition, who purchased their piece of land in the year 1980, much before the Tamil Nadu Urban Land (Ceiling and Regulation) Act came into force in that village. But, the draft statement along with the notice under Section 9 of the Act was issued in the year 1982 to the original owner. It was argued by the learned Additional Advocate General that the learned single Judge, without going into the question as to whether physical possession of the land had been taken by the State Government or not, allowed the writ petition finding that the Competent Authority had failed to issue notice to the writ petitioners either as owners of land sought to be declared as excess or as persons having interest in the land, and hence, it violates the principles of natural justice.
From a perusal of the records, it is evidently clear that although the land was transferred by the original land owner much before the Repealing Act came into force in that area, the competent authority proceeded with the ceiling proceedings and declared the land belonging to the writ petitioners as surplus without giving notice to the respondents who were in physical possession of the land and patta was issued in their favour. Hence, the learned single Judge rightly allowed the writ petition. This appeal has, therefore, no merit and it is accordingly dismissed.
(ii) W.A.No.587 of 2009 :
This appeal has been preferred by the State against the order of the learned single Judge dated 10.12.2007 passed in W.P.No.9332 of 2006. The respondent-land owner filed the writ petition praying to quash the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 to declare the petitioners land in Survey No.56/16C of Perungudi Village measuring 1800 sq.mts., as excess vacant land, and further direct the respondents to treat the proceedings so initiated as abated under Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 so as to enable the petitioner to correct the revenue records to incorporate her name as owner of the said land. Learned single Judge allowed the writ petition on the ground that the ceiling proceedings were not initiated against the real owner of the land and it would amount to depriving the petitioner of her property. Since, physical possession of the property was continued to be with the petitioner, the learned single Judge granted the benefit of Section 4 of the Repeal Act, 1999 viz., absolute possession and enjoyment of her property measuring 44 cents.
In this case, the learned single Judge, on perusal of the Government records, has come to a clear finding that the ceiling proceedings was initiated against a person who was not the real owner and physical possession and enjoyment of the land always remained in the hands of the writ petitioner. Hence, he is entitled to get the benefit of Section 4 of the Repealing Act of 1999. We find no reason to differ from the finding recorded by the learned single Judge. This appeal, therefore, has no merit and is accordingly dismissed.
(iii) W.A. No.1975 of 2010 :
This appeal has been filed by the State aggrieved by the order of the learned single Judge dated 08.11.2001 passed in W.P.No.20398 of 1993. The writ petition was filed by the petitioners-land owners to quash the acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 which culminated in the notification dated 15.01.1992 issued by the 3rd respondent, and quash the same, and direct the respondents to hear the petitioners before passing any further orders under Section 11(3) of the Act. Learned single Judge ordered the writ petition holding that in view of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 20 of 1999) repealing Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, no factual adjudication is required. Learned single Judge also observed that since the possession of the lands continued to be with the petitioners, in view of the interim injunction being in force all along the, petitioners are entitled to the benefits of 1999 Repealing Act.
Learned Additional Advocate General is not in a position to satisfy us that physical possession of the land either delivered by the land owner to the Government or the Government took possession of the land. Hence, the finding of the learned single Judge needs no interference. This appeal is also dismissed.
(iv) W.A. Nos.759 & 760 of 2011 :
The State has preferred these writ appeals aggrieved by the orders of the learned single Judge both dated 29.01.2007 passed in W.P.Nos.46091 and 46186 of 2002. The writ petitions were filed by the petitioners therein to quash the acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 in respect of their lands in S.No.9/2C2 of Tambaram Village measuring an extent of 1750 sq.metres and S.No.43/2A of Pulikoradu Village, Tambaram Taluk measuring an extent of 27,908.72 sq. metres respectively. It was contended before the learned single Judge that the order of the competent authority does not refer to any inspection of lands or any enquiry conducted by him. It was silent about the character of the land in question. The notices were not served on the real owners of the land. The learned single judge allowed the writ petitions holding that in view of the subsequent coming into force of the Repeal Act (Act 20 of 1999) the land acquisition proceedings initiated cannot be sustained, and it gets abated in view of Section 4 of Act 20 of 1999.
In these appeals also, the learned Additional Advocate General failed to satisfy us that in the ceiling proceedings, possession of the land was taken over by the competent authority or any person authorized by him. Moreover, even the notices were not validly served upon the land owners. The impugned finding, therefore, cannot be interfered with. These appeals are also dismissed.
(v) W.A. No.777 of 2011 :
In this writ appeal State is the appellant. This appeal is preferred against the order of the learned single Judge dated 29.01.2007 passed in W.P.No.31801 of 2003. The writ petition was filed against the order of the 1st respondent dated 12.07.1990 passed under Section 9(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 declaring an extent of 1400 sq. metres of land situated in S.No.192 of Pozhichalur Village as excess land, and against the notice issued by the 1st respondent dated 11.03.1993 in Form VII requiring the petitioner - land owner to deliver vacant possession to the Tahsildar, Saidapet, and also against the notice issued under Section 12(7) of the Act dated 20.09.2003 directing the land owner to attend the enquiry for claiming compensation. The learned single Judge allowed the writ petition observing that taking of actual possession of the land and the payment of compensation thereafter, are the crucial factors, and if such taking over of possession and payment of compensation are not shown to have been done, all proceedings pending with regard to the lands in question, ought to be taken as abated on coming into force of the Repeal Act, 1999 (Act 20 of 1999). We, therefore, find no merit in this appeal, which is accordingly dismissed.
(vi) W.A. No.988 of 2011 :
The State is the appellant. This writ appeal has been filed against the order of the learned single Judge dated 23.12.2008 passed in W.P.No.25351 of 2003. Writ Petition No.25351 of 2003 was filed for a writ of certiorarified mandamus to call for the records of the 3rd respondent relating to the orders dated 19.08.1996, 10.02.1997 and 25.09.1998 under Section 9(5), 10(1) and 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 respectively in respect of the petitioners land in S.Nos.18/1A 2B1 and 18/1A 2B2 of Amudurmedu Village, Poonamallee Taluk and quash the same, and further direct the respondents to treat the proceedings as abated under Section 4 of the Repealing Act of 1999 (Act 20/99). Before the learned single Judge the petitioner took a stand that the land in question is an agricultural land and therefore, it cannot be acquired under the Act. Moreover, even though a notice under Section 9(4) of the Act together with the draft statement under Section 9(1) of the Act were served on the petitioner, the order under Section 9(5) of the Act had not been furnished to the petitioner and no personal hearing was given to him. The learned single Judge allowed the writ petition on the ground that the notice under Section 11(5) of the Act calling upon the petitioner to hand over the possession of the land, had been served on him, and further, there is no material produced to show that actual physical possession of the land in question had been taken by the respondents or compensation had been paid to him. Therefore, on the coming into force of the Repealing Act the impugned acquisition proceeding gets abated. We find no reason to interfere with the order passed by the learned single Judge. This appeal is, therefore, dismissed.
(vii) W.A. No.1369 of 2011 :
This appeal has been preferred by the State Government against the order of the learned single Judge dated 19.12.2008 passed in W.P.No.2086 of 2007. Writ petition was filed against the acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 in respect of the petitioners land measuring to an extent of 236 sq.metres situated at S.No.3957/7 part and assigned New No.3957/8 in Mylapore Village, Mylapore-Triplicane Taluk, Chennai. The petitioner admitted that a meagre compensation of Rs.11,800/- was awarded to the petitioner for the excess land, but he repaid it to the respondents by sending a demand draft. In the writ proceedings, though a number of opportunities were given to the respondent- State to file its counter, no counter was filed to dispute the above fact. Since there was no denial on the part of the respondents, the learned single Judge allowed the writ petition on the ground that the petitioner continued to be in actual possession of the land sought to be acquired and the compensation awarded has not been fully paid over to the petitioner, and even the meagre amount paid to him had been repaid to the respondents. On the basis of the finding recorded by the learned single Judge, we find no merit in this appeal, which is accordingly dismissed.
(viii) W.A. No.1467 of 2011 :
The State is the appellant. The appeal is filed against the order of the learned single Judge dated 23.01.2009 passed in W.P.No.235 of 2003. Writ petition was filed against the acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 in respect of the petitioners land measuring to an extent of 42 cents in Survey No.128/5A and 39 cents in Survey No.128/3A in Shotriyum Village, Ernavoor, Saidapet Taluk (presently Ambattur Taluk), Chengalpattu District (presently Thiruvallur District) as illegal even after the repealing of the said Act by Act 20 of 1999. The learned single judge allowed the writ petition on the ground that no proper notice was served upon the petitioners, who are the actual owners, and only the erstwhile owner was served notice dated 21.03.1987 issued under Section 11(5) of the Act requiring delivery of the excess land. Therefore, the subsequent proceedings of the respondents would also be improper and illegal. The learned single Judge observed that there is nothing on record to show that actual physical possession of the land in question had been taken by the respondents nor is there any evidence to show that the compensation for the land in question had been paid to the petitioners, as contemplated under the law. Though, it had been contended before the learned single judge that the acquired land had been allotted to the Labour Department, yet the learned Judge observed that such allotment would not be sufficient to validate the acquisition proceedings and no additional sanctity would be attached to such proceedings by the mere allotment of the land to the other departments of the government, once it is found that the initial acquisition proceedings had been done contrary to the provisions of the Act. Having regard to the fact that actual physical possession of the land was not taken by the appellant-State and the possession continued to be with the land owners, we do not find any reason to differ from the finding recorded by the learned single Judge. This appeal is also dismissed.
(ix) W.A.No.1600 of 2011 :
This appeal is filed by the State against the order of the learned single Judge dated 17.11.2009 passed in W.P.No.19799 of 2003. The writ petition was filed challenging the proceedings of the 2nd respondent dated 27.01.1998 issued under Section 9(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 declaring the petitioners land in S.No.14/1B of Perumbakkam Village measuring to an extent of 3050 sq. metres as excess vacant land and the subsequent notice issued under Section 11(5) of the Act requiring the petitioner to surrender possession of the said land to the Tahsildar. Before the learned single Judge the petitioner took a stand that he was in continues possession of the land, and that he was not served notice either under Section 7(2) or under Section 9(1) or under 11(5) of the Act. The learned single Judge allowed the writ petition on the ground that the land owner was not put on notice as to the acquisitionq2 of his lands at any stage and the service by way of affixture as contended by the respondents was not sufficient. Since, possession of the land continued to vest with the petitioner, he was entitled to the benefit under Section 5(3) of the Repealing Act of 1999.
In this appeal, the respondent/writ petitioner is the purchaser of the land situated in Perumbakkam Village, Tambaram Taluk. Indisputably, the land declared as an excess land was purchased by the respondent by registered sale deed dated 30.12.1985. Subsequent to the said purchase, the land was converted and developed as house site and the lay out sanction was obtained from the erstwhile Madras Metropolitan Development Authority. The Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was extended to Perumbakkam Village by issuance of Government Order by the Government in G.O. Ms. No.679 dated 17.7.1995. In spite of that, by the proceedings initiated against the original land owner, the land was declared as surplus land, although the respondent continued to be in possession of the said property. Learned Additional Advocate General fairly conceded that initiation of proceedings and declaring the land as surplus was unjustified. Hence, this appeal has no merit and is, therefore, dismissed.(x) W.A.No.1916 of 2011
This appeal has been preferred by the State aggrieved against the order of the learned single Judge dated 09.02.2010 passed in W.P.No.1176 of 2003. The writ petition was filed by the power of attorney of the land owners challenging the acquisition proceedings in respect of the petitioners lands in Survey No.118/6A to an extent of 0-30-50 sq. metres and in Survey No.118/8 to an extent of 0-32-50 sq. metres situated at Koladi Village. Before the learned single Judge it was contended on behalf of the petitioners that except the letter of compensation dated 28.11.2002 issued by the 2nd respondent no notice was served either to the petitioners or to the purchasers or to the power of attorney. The learned single judge granted the relief on the ground that respondents failed to adhere to the ingredients of Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules regarding service of draft statement and notice on the petitioners. In view of the decision of the Supreme Court in Angoori Devi Vs. State of U.P., J.T. (2000) Supp.(1) SC 295 to the effect that possession of the vacant land has not been taken over by the State Government and in view of Section 3 and Section 4 of the Repealing Act all proceedings under the 1978 Act must be held to have abated.
Having regard to the finding of the learned single Judge that the appellant-State failed to follow the provision relating to service of notice on the land owners and that possession of the land was not taken by the State, as a result of which the proceedings under the Ceiling Act stood abated, we do not find any reason to interfere with the same. This appeal is, therefore, dismissed.
(xi) W.A.No.339 of 2012 :
The State is the appellant. The Appeal is filed against the order of the learned single Judge dated 30.10.2008 passed in W.P. No.1173 of 2001, which was filed challenging the acquisition proceedings initiated against the petitioners land in Survey No.26/38 in Puthagaram Village, Saidapet Taluk, Chengalpattu District under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 19768. The stand taken by the petitioners was that no notice had been served on them by the Urban Land Ceiling Officer in accordance with the 1978 Act and no proper enquiry was conducted. The notice was sent to the person, who was died even before the initiation of acquisition proceedings. It was also contended that tall throughout the acquisition proceedings actual possession of the land in question was with the petitioners only. The learned single Judge allowed the writ petition holding that mere taking over of the land on record would not be sufficient. To complete the acquisition proceedings actual physical possession should have been taken by the authorities concerned. If the respondents had not taken physical possession of the land in question and if the full compensation had not been paid, the land acquisition proceedings would stand abated, in view of the coming into force of the Repealing Act of 1999. We find no reason to interfere with the said finding recorded by the learned single Judge.
In this case also, the respondents/writ petitioners are the purchasers of the land in Survey No.26/38 of Puthagaram Village, Saidapet Taluk, Chengalpattu District. The land was purchased in the year 1983, whereas the land became urban land in the year 1991. Although the respondent came into possession of the land, the land acquisition proceedings were initiated against the land owner who was not alive at that time and the land was declared as surplus land. Here also, the learned Additional Advocate General is unable to support his contention that the land was legally and validly declared as surplus. Hence, this appeal is also dismissed.
(xii) W.A. No.4 of 2012 :
This appeal has been preferred by the land-owner/petitioner against the dismissal of her writ petition in W.P.No.12793 of 2004 by the learned single Judge vide his order dated 03.08.2011. The appellant herein filed the said writ petition challenging the acquisition proceedings in respect of her land to an extent of 1,550 sq.mts. situated in Plot No.27 in R.S.No.210/2-A 1-A/23 in Thiruvanmiyur Village, Saidapet Taluk, Chengalpattu District on the ground that the mandatory notice under Section 9(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was not followed before the issuance of notice under Section 11(1) dated 24.06.1981. The learned single judge dismissed the writ petition on the ground that firstly the petitioner never protested against the proceedings, secondly she had taken the entire payment towards compensation, and thirdly, the file produced would show that the possession was taken over.
A perusal of the records in this case revealed that the notice was duly served on the appellant/writ petitioner, who had addressed several letters to the authorities regarding the taking over of the land and was fully aware of the acquisition proceedings. She was also not in physical possession of the land, which was handed over to the Tahsildar and hence, the repealing Act of 1999 would not come to her rescue. The learned single Judge dismissed the writ petition holding that it would not matter whether possession of the entire acquired lands is taken or is it done partially, and when Section 17 of the Act are taken recourse to, vesting of land takes effect. Moreover, the appellant did not initially protest against the acquisition and she has taken the entire compensation amount. We do not find anything wrong in the finding rendered by the learned single Judge. This appeal by the land owner, therefore, stands dismissed.
(xiii) W.A. No.14 of 2012 :
The land owners are the appellants herein. They preferred the present appeal against the order of the learned single Judge dated 07.06.2011 passed in W.P.No.36441 of 2004. The said writ petition was filed for a declaration declaring that the proceedings in Rc.No.2407/88 dated 15.09.1989 on the file of the 1st respondent in respect of the petitioners land which culminated passing Notification under Section 11(3) of the Act published in Tamil Nadu government Gazette on 11.11.1992 as abated in view of Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. Before the learned single Judge the petitioners contended that no notice was issued on them and a draft statement under Section 9(1) of the Act was passed against a deceased person. The petitioners, who are the actual owners were not served with any notice in respect of the acquisition proceedings. That apart, the land in question being agricultural land it cannot be subjected to the acquisition proceedings.
The learned single judge dismissed the writ petition as misconceived. He observed that the files reveal that the 3rd petitioner received notice and therefore, their contention that no notice was given to the land owner cannot be accepted. In view of the decision in Special Deputy Collector, Land Acquisition, CMDA Vs. J.Sivaprakasam, (2011) 1 SCC 330, the petitioners should be deemed to have had constructive notice regarding the acquisition proceedings and they cannot feign ignorance thereof. No ground is made out to interfere with the order of the learned single Judge. This appeal by the land owners is accordingly dismissed.
(xiv) W.A. Nos.1149 to 1151 of 2012 :
The State is the appellant in these three appeals which have been preferred against the common order of the learned single judge dated 11.12.2007 passed in W.P.Nos.38756 to 38758 of 2004. The petitioners-land owners filed the above writ petitions challenging the acquisition of their lands measuring 33 cents comprised in S.Nos.224/2 and 224/3 situated in No.64, Ayyambakkam Village, Saidapet Taluk, Chengalpattu District and 33 cents comprised in S.No.224/4 situate in No.68, Ayyambakkam Village, Saidapet Taluk, Chengalpattu District under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. They challenged the acquisition proceedings inter alia on the ground that the notices under Sections 8, 9(4), 9(5) and 11(4) of the Act were issued only on the vendor (erstwhile owner), and that no single notice was taken against the petitioners, and they were kept in darkness. Since they were in continuous possession of the property, in view of the non-compliance of the provisions contained in Section 11(5) of the Act, the authorities cannot proceed against the property in question.
The learned single Judge allowed all the writ petitions on the ground that the notice regarding the acquisition proceedings was served only on the erstwhile owner of the land, who was not the real owner on the day when possession was allegedly taken over by the State and such notice was not binding on the petitioners. Further, physical possession of the land in question continued to be with the petitioners. Hence, the proceedings were treated to have been abated. We concur with the finding recorded by the learned single Judge and accordingly dismiss this appeal.
(xv) W.A. No.1153 of 2012 :
The State is the appellant. The appeal is filed against the order of the learned single Judge dated 29.01.2007 passed in W.P.No.35242 of 2004. The writ petition was filed challenging the acquisition proceedings initiated under the provisions of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 in respect of the petitioners land in Survey No.39/2B measuring 33,500 sq. metres situate at Mukthapudupet Village, Ambattur Taluk. Before the learned single Judge it was contended that the petitioners developed the land in question as housing plots and sold to various third parties, and they have also put up constructions. Only at this stage, the 2nd respondent had initiated proceedings, under Act 24 of 1978, and order under Section 9(5) dated 10.04.1992, final settlement dated 26.02.1999, and order under Section 11(5) dated 03.07.1995 had been passed. But none of these orders or notices was served on the petitioners or on the purchasers of various plots. Therefore, on the ground of non-service of notice on the petitioners, the order of acquisition cannot be sustained. Further, it is alleged that actual physical possession of the lands remained with the petitioners. The learned single Judge allowed the writ petition on the ground that the mandatory procedure of service of notice as contemplated under the Act was not complied with, and the actual taking over of the possession of the lands in question and the payment of compensation have not been proved.
In this case, the respondents/land owners developed the land sought to be acquired under the land ceiling proceedings as housing layouts and sold them to third parties, who have also put up constructions thereon. The records in this case reveal that though the proceedings were initiated in as early in the year 1992, culminating in the year 1999, none of the orders or notices was served on the respondents or the purchasers of the plots. Moreover, the physical possession of the lands also remained with the respondents. The learned single held that on the ground of non-service of notice on the land owners, the order of acquisition cannot be sustained, as also the fact that actual taking over of possession and payment of compensation have not been proved. We do not find any reason to differ from the view taken by the learned single Judge. The writ appeal is accordingly dismissed.
(xvi) W.A. No.1147 of 2012 :
This appeal is preferred by the State against the order of the learned single Judge passed in W.P.No.3713 of 2008 dated 07.12.2009. The writ petition has been filed challenging the acquisition proceedings under the Act on the ground that no notice, in respect of acquisition, was served on the petitioner therein. It was contended that all notices under the Act were served only on the erstwhile owner of the land in question and all throughout the acquisition proceedings, the land in question was in the actual possession of the land owner/petitioner. Hence, in view of the coming into force of the Repealing Act of 1999, the impugned acquisition proceeding gets abated. Accepting the contention of the petitioner, the learned single Judge allowed the writ petition and quashed the impugned proceeding. We do not intend to disturb the finding rendered by the learned single Judge. This appeal too is, therefore, dismissed.
(xvii) W.A. No.1144 of 2012 :
The State is the appellant in this appeal filed against the order of the learned single Judge dated 07.12.2009 passed in W.P.No.4357 of 2008. The writ petition was filed challenging the acquisition proceedings inter alia on the ground that at the time of coming into force of the Repealing Act of 1999 the possession of the land in question remain vested with the petitioners and therefore, they must be given benefit of Section 5(3) of the Repealing Act. After perusing the relevant records on this point, the learned single Judge observed that even though the respondents claim that possession was handed over by the first petitioner, the fact remains that the first petitioner did not hand over the possession. Physical possession of the lands continued to vest with the petitioners on the date of coming into force of the Repeal Act and a mere entry that possession had been taken is not sufficient to hold that actual possession was taken from the petitioners. Therefore, the learned single Judge held all subsequent actions taken in this regard are liable to be quashed and allowed the writ petition. We do not find any error in the order of the learned single Judge. This appeal is accordingly dismissed.
(xviii) W.A. No.1155 of 2012 :
This appeal has been filed by the State aggrieved against the order of the learned single Judge dated 23.07.2008 passed in W.P.No.1013 of 2008. The said writ petition was filed by the petitioners therein to quash the acquisition proceedings initiated under the provisions of Tamil Nadu Urban Land (Ceiling and Regulation) Act. 1978 in respect of their lands in Survey No.218/3 of Medavakkam Village, Tambaram Taluk, Kancheepuram District as abated in view of Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. Before the learned single Judge, the petitioners inter alia contended that no notice was served on the petitioners, instead the erstwhile owner was issued with the notice. The learned single Judge observed that though notice was contended to have been served on the erstwhile owner of the lands by way of affixture, a perusal of the records showed that there was only an endorsement that the notice could not be served because the inmates of the house were the land owner was residing, refused to receive the notice. It was further held that it would not amount to sufficient service of notice, and the impugned proceedings were declared as abated in view of the Repealing Act of 1999. It was further held that since notice was not served as required under law, the so called act of taking over possession of the lands by the respondents should be termed non-est in the eye of law. The order of the learned single Judge is perfectly valid in the eye of law and needs no interference. The writ appeal is, therefore, dismissed.
(xix) W.A. No.1157 of 2012 :
The State has preferred this appeal challenging the order of the learned single Judge dated 29.11.2005 passed in W.P.No.35275 of 2004. The writ petition was filed by the land owner challenging the acquisition of his land comprised in Survey No.80/182 and 80/183A of Kovilambakkam Village, Saidapet Taluk, Chengalpattu District to an extent of 750 sq.metres under the Tamil Nadu Urban Land (Acquisition and Regulation) Act, 1978. Before the learned single Judge, the learned Additional Government Pleader fairly conceded that no physical possession of the property was taken over by the State. In view of the said submission, the learned single Judge allowed the writ petition and quashed the impugned acquisition proceedings. The order of the learned single Judges requires no interference. The writ appeal is accordingly dismissed.
(xx) W.A. No.1146 of 2012 :
This appeal has been filed by the State aggrieved against the order of the learned single Judge dated 27.09.2010 passed in W.P.No.12024 of 2006. The learned single Judge allowed the writ petition in view of the order passed in the earlier writ petition being W.P.No.9958 of 2006 dated 16.12.2009 relating to the same survey number as that of the petitioner, which was allowed on the ground that the petitioners therein continued to be in possession of the property under acquisition as on the date of coming into force of the Repealing Act of 1999. No interference is called for in the order of the learned single Judge. Therefore, this appeal is also dismissed.
(xxi) W.A. No.1152 of 2012 :
The State is the appellant. The appeal has been preferred against the order of the learned single Judge dated 23.01.2009 passed in W.P.No.28056 of 2003. The writ petition was filed by the petitioner-land owner to quash the acquisition proceedings initiated in respect of his land in Survey No.33 pat situate at Menambedu Village, Ambattur Taluk measuring about 4140 mtrs. under the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978. Before the learned single Judge it was contended by the petitioner that no notice was served on him and all the communications were sent in the name of his deceased father, that too without mentioning proper address. Further, all through out the proceedings the physical possession of the land in question was with him only. The learned single Judge allowed the writ petition holding that the entire land acquisition proceedings pursued by the respondents under the Act had been against a dead person, and no notice was served on the petitioner, who is in actual possession of the land in question, and further, the respondents failed to prove that the actual possession was taken by the State.
In this case, the acquisition proceedings were initiated against the erstwhile owner of the land and no notice was served on the respondent/land owner, as required under the 1978 Act. Further, physical possession of the land was not taken over by the respondents, nor was the compensation amount paid over to the petitioner. The entire proceedings had been pursued against a dead person and hence, it was deemed to be invalid. So, the learned single Judge that the proceedings would abate in view of the coming into force of the Repealing Act. There is no reason to interfere with the order of the learned single Judge. The writ appeal is, therefore, dismissed.
(xxii) W.A. No.1148 of 2012 :
The State is the appellant in this appeal which is filed against the order of the learned single Judge dated 29.01.2010 passed in W.P.No.19218 of 2003. The writ petition was filed by the land owners/petitioners challenging the acquisition proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 inter alia contending that notice was served only on the first petitioner and other petitioners were not served with any notice, and therefore, the impugned proceeding is bad in the eye of law. But, the learned single Judge without going into the merits of the case, following the judgment of the Supreme Court in the case of Smt.Angoori Devi Vs. State of U.P., J.T. (2000) Suppl. 1 SC 295), and in view of the fact that all proceedings pertaining to any order before any authority got abated by virtue of Act 20 of 1999, disposed of the writ petition quashing the impugned acquisition proceedings. We find no illegality in the order passed by the learned single Judge. This appeal is accordingly dismissed.
(xxiii) W.A. No.1145 of 2012 :
This appeal has been preferred by the State against the order of the learned single Judge dated 28.11.2008 passed in W.P.No.8606 of 2004. The writ petition was filed challenging the acquisition proceedings inter alia on the ground that no proper notice was served on the land owners. The learned single Judge allowed the writ petition on the ground that there was improper service of notice on the petitioners/land owners, in that the notice was served by way of affixture on a pole in the land sought to acquired, which is not contemplated under the Actor the Rules. In the absence of service of notice on the land owners, the entire exercise undertaken by the respondents was held to be one in futility and amounted to depriving the petitioners of their valuable right to their property by misusing the power vested under Act 24 of 1978. The petitioners were, therefore, entitled to derive the benefit under Section 4 of the Repealing Act of 1999.
In the instant case, the respondents/writ petitioners are the purchasers of the land situated in Perumbakkam Village in the year 1984 by registered sale deed. The applicability of the Act was extended to Perumbakkam Village in the year 1995. Learned Additional Advocate General conceded that the initiation of the land ceiling proceedings against the original land owner and declaring the land as surplus is wholly unjustified. Hence, this appeal is also dismissed.
(xxiv) W.A. No.1156 of 2012 :
This appeal has been filed by the State challenging the order of the learned single Judge dated 29.03.2010 passed in W.P.No.11213 of 2000. In the writ petition, the petitioner-union took a stand that no notice was served on it and only the erstwhile owner of the land was served with the acquisition notice. The learned single Judge allowed the writ petition on the ground that the notice under Section 7(2) of the 1978 Act was issued on the erstwhile owner of the land, that too by way of affixture, especially when he had shifted his residence 15 years ago. Neither the petitioner, who was the actual owner, nor his immediate vendor had ever been served with a notice. Thus, possession allegedly taken over by the respondents without issuing due notice to the person who was in actual possession of the land was held to be illegal in the eye of law. Therefore, the question of initiating fresh proceedings applying the mandatory provisions under the Act would not arise at this distant point of time as the 1978 Act had come to be repealed by Act 20 of 1999.
A perusal of the records in this case reveals that neither the petitioner, who was the actual owner, nor his immediate vendor had ever been served with a notice. The possession allegedly taken over by the respondents without issuing due notice to the person who was in actual possession of the land was held to be illegal in the eye of law. Therefore, the learned single Judge held that the question of initiating fresh proceedings applying the mandatory provisions under the Act would not arise at this distant point of time as the 1978 Act had come to be repealed by Act 20 of 1999. We do not find any reason to interfere with the order of the learned single Judge. This appeal is, therefore, dismissed.
(xxv) W.A. No.912 of 2012 :
This appeal has been filed by the State against the order of the learned single Judge dated 16.12.2009 passed in W.P.No.9958 of 2006. In this case, the notice of acquisition was served on the petitioners, but the question remained was that whether at the time of coming into force of the Repealing Act of 1999 the actual possession was with the petitioners or not. The learned single Judge observed that a mere entry that possession had been taken is not sufficient to hold that actual possession was taken from the petitioners, and therefore, allowed the writ petition holding that at the time of coming into force of the Repealing Act the actual possession of the land in question was with the petitioners. In such event, in view of the repealing Act, all acts done as per the original Act get abated. We do not find any reason to interfere with the order of the learned single Judge. This appeal also stands dismissed.
(xxvi) W.A. No.1202 of 2012 :
This writ appeal has been filed by the owners of land against the order of the learned single Judge dated 09.02.2010 passed in W.P.No.1176 of 2003. In this writ petition, the petitioners have challenged the acquisition proceedings on the ground inter alia that no notice was served on the petitioners or on their power of attorney or on the subsequent purchasers. But, the learned single Judge without going into the merits of the case, following the judgment of the Supreme Court in the case of Smt.Angoori Devi Vs. State of U.P., J.T. (2000) Suppl. 1 SC 295), and in view of the fact that all proceedings pertaining to any order before any authority got abated by virtue of Act 20 of 1999, disposed of the writ petition quashing the impugned acquisition proceedings. We do not find any error in the order of the learned single Judge. The appeal is accordingly dismissed.
(xxvii) W.A. No.1231 of 2012 :
The State is the appellant in this filed against the order of the learned single Judge dated 31.08.2010 passed in W.P.No.8141 of 2004. The writ petition was filed challenging the acquisition proceedings inter alia on the ground that notice was given to the petitioner under Sections 7(2), 9(4) and 11(b) of the Act of 1978, that the notice claimed to have been sent is not in accordance with law and more particularly prescribed under Rule 8(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, that the lands are classified as agricultural land, and the possession alleged to have been taken was not valid and no notice was ordered as per Section 11(5) of the Act. The learned single Judge allowed the writ petition on the ground that there was no proper service of notice on the petitioner. The initial of the land owner was wrongly mentioned in the notice and there was no attempt to serve either the petitioner, who was the real owner, or his authorized representative, and the service was carried out on a third party. Further, the notice under Sec.11(5) was served by way of affixture, for which there was no explanation. Moreover, there was no record to show that there was actual delivery of possession after taking over the land by the respondents. In the absence of adherence to the statutory procedure in taking over the land from the petitioner and in the absence of proper service of notice, the proceedings stood abated.
In this appeal, the initial of the land owner was wrongly mentioned in the notice and there was no attempt to serve either the petitioner, who was the real owner or his authorized representative, and the service was carried out on a third party. The records in this case reveal that the notice under Sec.11(5) was served by way of affixture, for which there was no explanation. Moreover, there was no record to show that there was actual delivery of possession after taking over the land by the respondents. In the absence of adherence to the statutory procedure in taking over the land from the petitioner and in the absence of proper service of notice, the proceedings stood abated. The order of the learned single Judge needs no interference. The appeal is, therefore, dismissed.
43. In the result, all the writ appeals are dismissed. However, there shall be no order as to costs. Consequently, all the connected miscellaneous petitions are closed.
(M.Y.E., C.J.) (T.S.S., J.) July 23, 2012 sm/ab Index : Yes Website : Yes The Honble Chief Justice and T.S. Sivagnanam, J.
Pre-delivery Judgment in W.As.137 & 587 of 2009,1975/2010, 759,760,777,988,1369,1467,1600 & 1916/2011, 339,4,14,1149-1151,1153,1147,1144,1155,1157, 1146,1152,1148,1145,1156,912,1202&1231/2012 Delivered on
23..07..2012