Madras High Court
V.Geetha Lakshmi vs The State Of Tamil Nadu on 26 August, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Writ Petition No.24528 of 2001
V.Geetha Lakshmi ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by its Secretary,
Revenue Department,
Fort St. George,
Chennai 600 009.
2.The Principal Commissioner and
Commissioner of Land Reforms,
Chepauk, Chennai-5.
3.The Assistant Commissioner/
Competent Authority, Urban Land Ceiling,
Kunrathur. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, to call for the records of the third respondent in his Reference No.1134/78 dated 24.3.1982 and 21.6.1983 under Sections 9 to 11 of Act 24 of 1978 in respect of land in S.No.226/3 of Manapakkam Village and quash the same.
For Petitioner : Mr.V.Ramesh
For Respondents : Mr.Navaneedhan, AGP
O R D E R
The writ petition is filed for quashing the proceedings of the third respondent dated 24.3.1982 and 21.6.1983 initiated under Sections 9 to 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 (hereinafter shortly referred to as Act 24 of 1978) in respect of the land in question.
2.Few facts, which are relevant for consideration herein are as follows: The land in question i.e., S.No.226/3 of Manapakkam Village and the land in S.No.165/1 of Pozhichalur Village and various other lands belong to the petitioner herein. The petitioner filed a return under the Act 24 of 1978, including the agricultural land and land with building. On the basis of the same, the third respondent passed orders, thereby allowing the petitioner to be entitled to 2000 sq.mts, comprised in S.No.165/1 in Pozhichalur Village measuring an extent of 1550 sq.mt and in S.No.226/3 in Manapakkam Village measuring an extent of 450 sq.mt and acquiring the remaining extent of land in S.No.226/3 in Manapakkam Village. Thereafter, the petitioner filed a petition in WP.No.4946/1984, thereby questioning the virus of the Act and the same was disposed of on 3.3.1993. Pending filing of the writ appeal, the petitioner filed a revision under section 34, before the first respondent, questioning the acquisition. Pending the revision, the Act stood repealed and the revision was not taken up for disposal.
3.While so, the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999 (hereinafter shortly referred to as Act 20 of 1999) came to be passed. As per the relevant provisions of the same, the repeal of the Principal Act shall not affect where 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 authorised by the State Government in this behalf or by the competent authority; and 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.
4.In this writ petition, the petitioner has challenged the acquisition proceedings initiated under Act 24/1978 mainly on the ground that she continues to be in possession of the land in question. It is contended before this court that no notice under section 11(5) purported to be issued on 21.6.1983 was served on the petitioner and no possession has been taken over in the manner as mandate by the Act and Rules and the delivery, if any, is only a paper delivery and the allotment if any, is also a paper allotment and the Tamil Nadu Civil Supplies Corporation has no right, pursuant to such allotment. It is also the contention of the petitioner that the land is agricultural in nature and possession continuous to be with the petitioner by paying kist under due receipt issued by the Revenue authorities.
5.The relief sought for in this writ petition is seriously opposed on the side of the respondents by reiterating the averments made in the counter affidavit. It is stated therein that as per the notification dated 3.5.1983 issued under section 11(3), the land was vested with the State Government and the possession of the excess vacant land was also handed over to the Tahsidlar, Sriperumbudur on 23.7.1983. After taking over the possession, compensation amount was sanctioned under section 12(6) and the land acquired was also allotted to the Tamil Nadu Civil Supplies Corporation, as per G.O.(Rt) No.627, Revenue Department dated 11.7.1996. It is further stated that as the possession was already taken, exemption under section 4 of the Repeal Act is inapplicable to the petitioner's case and the claim made by the petitioner, after lapse of 17 years is time barred one and the existence of other buildings in the acquired land, besides some encroachment, belies the petitioner's claim that she is in possession of the land in question.
6.Heard the rival submissions made on both sides and perused the records.
7.The fact that the proceedings of the third respondent which are impugned herein, are initiated under Sections 9 to 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 (Act 24 of 1978) is not in dispute. It may be true that the proceedings are initiated, on the basis of the statement filed under Section 7(1) of Act 24 of 1978 by the petitioner. The total extent of the land in dispute is 9793.40 sq.m comprised in S.No.226/3 in Manapakkam village, out of which, the petitioner's family is allowed to retain 462 sq.m and an extent of 9331 sq.m is declared as excess vacant land and is declared to be acquired under section 11 of the Act 24 of 1978 under the impugned proceedings dated 24.3.1982. The notice dated 21.6.1983 issued under section 11 (5) is for delivery of possession of excess vacant land acquired under sub-section (3) of Section 11. The main ground on which the proceedings sought to be quashed herein is that the possession continues to be with the petitioner and in view of the same, the proceedings initiated under the Principal Act shall stand abated under section 4 of the Repeal Act 20 of 1999, as such, the only point to be considered herein is as to whether the actual possession of the property is taken over from the petitioner in the manner known to law.
8.Before considering this aspect, it is but useful to refer the relevant provisions of law under the Act 24 of 1978 and the Repeal Act 20 of 1999. Sub-section (1) to (6) of Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 reads as follows:
"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, competent authority shall cause a notification giving the particulars of the vacant land held by such person 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 vacant land.
(5)where any vacant land is vested in the State Government under sub section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised 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 authorised by the State Government in this behalf and may for that purpose use such forces as may be necessary."
Sections 3 and 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 are extracted hereunder:
"3.Savings- (1)the repeal of the Principal Act shall not affect-
(a)the vesting of any vacant land under sub section (3) of Section 11, possession of which has been taken over by the State Government or any person duly authorised by the 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 authorised by the State Government in this behalf or by the competent authority; and
(b)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.Abatement of legal proceedings- 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 of any person duly authorised by the State Government in this behalf or by the competent authority."
9.The interpretation of the relevant provisions of the Act 24/1978 and the Repeal Act 20/1999 came up for consideration before the First Bench of this Court in a batch of writ appeals reported in 2012-4-LW.289 (The Government of Tamil Nadu rep. by the Commissioner and Secretary to Government, Revenue Department, Chennai-9 and another v. M/s.Mecca Prime Tannery rep. by its Managing Director V.Jayakodi and others). All these appeals arose out of separate judgments passed by the learned Single Judges in various writ petitions, which were allowed mainly on the ground that physical possession of the lands continued with the lands owners or the persons claiming through them. The contention raised on the side of the Government in the writ petitions and the writ appeals was that after vesting of the land takes place under section 11(3) of the Act, the Government became the owner of the property and the title vested with the Government by notification under Section 11(3) of the Act and 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. The first Bench after detailed discussion, was of the opinion that 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, 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 and after the right, title and interest 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. The First Bench in para 35 further observed that 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. The First Bench has thereafter gone into each case in detail as to whether the actual possession of the land in question had been taken over by the Government in terms of Section 11 and compensation has been paid to the petitioners therein and when the actual possession was not taken or when the compensation was not paid, held the impugned acquisition proceedings as abated under the Repeal Act.
10.The Hon'ble Supreme Court in the case reported in (2004) 1 SCC 681 (Babu Parasu Kaikadi (dead) by LRs v. Babu (dead) through LRs), arising out of Bombay Tenancy and Agricultural Lands Act 1948 (67 of 1948), was of the view that once it is held that the procedure prescribed for termination and surrender of tenancy is mandatory, it goes without saying that possession obtained by the landlord in violation of such mandatory provisions, even on a voluntary surrender of the land by the tenant would be illegal. It is held so, by construing the expression "possession" would also include the right of possession.
11.The words and phrases 'deemed to have been acquired'; 'deemed to have been vested absolutely'; 'acquired'; 'vested' came up for consideration before the Hon'ble Supreme Court in the decision reported in 2013-2-L.W.469 (State of UP v. Hari Ram), dealing with Section 10(3) of the Uttar Pradesh Urban Land (Ceiling and Regulation) Act 1976 and Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which is pari materia of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999 (Act 20/1999). Similar Repealing Act 1999 came into force and similar claim was made by the land owner. The Hon'ble Apex Court, after examining the legal fiction, found that the vacant land was not actually acquired, but deemed to have been acquired and held that acquisition does not take possession unless there was an indication to the contrary and under section 10(3) what is vested is de jure possession, not de facto and that from the date of publication of the notification under sub section (1) and ending with the date specified in the declaration made in sub section (3), there is no question of disturbing the possession of a person, the possession, therefore continues to be with the holder of the land.
12.The Hon'ble Apex court in the same decision, further explained in detail as to what is voluntary surrender, peaceful dispossession and forceful dispossession as contemplated under section 10(3), 10(5) and 10(6) respectively, as per which, it is always open to the person to voluntarily surrender and deliver possession under Section 10(3) of the Act 'Peaceful dispossession' means, when there is no voluntary surrender or delivery of possession under Section 10(3) the State Government has to issue notice under section 10(5) to surrender or deliver possession 'Forceful dispossession' arises when a person refuses or fails to comply with an order under sub section (5) of Section 10. Section 10(6) says if any person refuses or fails to comply with the order made under sub section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force as may be necessary can be used. Section 10(6) therefore contemplates a situation of a person refusing or fails to comply with the order under section 10(5), in the event of which, the competent authority may take possession by use of force. It is categorically observed by the Hon'ble Apex court in the case cited above that the requirement of giving notice under sections 10(5) and 10(6) is mandatory and effect of non-issue of notice under sub section (5) or sub section (6) of Section 10 is that it might result the land holdering being dispossessed without any notice. In order to deny the benefit of section 3 of the Repeal Act, the State has to establish that there has been either (i)voluntary surrender of vacant land or (ii)peaceful surrender and delivery of possession under sub section (5) of Section 10 or (iii)forceful dispossession under sub section (6) of Section 10 and on the failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. In the case in hand, the Apex Court, having found that no documents have been produced by the State to show that the respondents/land owners had been dispossessed in either of the modes before coming into force of the Repeal Act, the land owners were entitled to get the benefit of Section 3 of the Repeal Act, which is pari materia of the Repeal Act 20/1999 herein.
13.The Hon'ble Apex Court has in the authority reported in 2014 (2) Scale 286 (Gajanan Kamlya Patil v. Additional Director and Competent Authority), dealt with similar issue, arising out of similar Urban Land (Ceiling and Regulation) Act and Urban Land (Ceiling and Regulation) Repeal Act. The Bench was headed by one of His Lordship Mr.Justice K.S.Radhakrishnan who headed the earlier Bench in the judgment reported in 2013-2-LW 469 (State of UP v. Hari Ram). Here again, the Hon'ble Supreme Court, on the failure of the respondent authorities to show that defacto possession had been taken before coming into force of the repeal of the Act in either of the three modes, allowed the appeals filed by the individual claiming the benefit of repeal Act.
14.The Division Bench of our High court in the order dated 7.8.2009 made in WP.No.3749 of 2001 in the case of G.Krishnamoorthy and others v. the Govt. of Tamil Nadu and others, by applying the earlier views of the Apex Court and this Court, held that notice under sections 11(5) and 11(6) is mandatory and in the absence of one such notice, the entire proceedings are vitiated.
15.Similar view was expressed by the Division Bench of this Court in the judgment reported in 2013-1-LW.970 (The Competent Authority (ULC) and Assistant Commissioner (ULT), Alandur, Chennai and another v. Dr.S.Anandalakshmy), wherein, the Division Bench, having found that a paper/symbolic possession was taken in respect of the excess land not from the writ petitioner, who was the owner and also not from the mother of the writ petitioner, who was residing in the very same land and delivery of possession was recorded from writ petitioner's sister, who was not given any authority to deliver possession, held that possession allegedly taken/recorded in the file was in contravention of Section 11(5) of the Act and the land was in continuous possession and enjoyment of the writ petitioner.
16.The learned brother Judge Mr.Justice V.Ramasubramanian, J, in his order dated 19.10.2012 made in WP.No.40239 of 2006 in the case between M.Venkataraman and another v. the Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai and two others), having found that notices were addressed only to the predecessor-in-title of the petitioners and the persons, who were in actual physical possession, were not issued with any notice, arrived at the conclusion that no section 11(5) notice was issued to the petitioners. The learned brother judge, on perusal of the file, found that there was nothing to indicate that the competent authority or any one from his office, took possession of the land from the petitioners and therefore, the delivery receipt by which the competent authority claimed to have handed over possession to the Revenue authority, could not be accepted and if the file did not indicate that the competent authority had taken possession before 21.5.1999, then it would not have been possible for the competent authority to hand over possession to the Revenue Department. As such, the learned brother judge observed that the claim that possession was taken over on 21.5.1999 was a theory just cooked up in the records and could not be believed and once it was found that possession has not been taken over on the date claimed by them viz., 21.5.1999, the second limb of Section 3(1)(a) was not satisfied and hence Section 4 would go to the rescue of the petitioners. The learned brother Judge has in para 14 referred to the Division Bench decision of this court in the case of Government of Tamil v. Macca Prime Tannery (2012 (6) MLJ 273) and in para 15, by referring to other Division Bench decision in Government of Tamil Nadu v. Nandagopal (2011 (4) MLJ 577) held that possession taken without complying with the provisions of Section 11(5) was unlawful. Ultimately, the learned brother Judge came to the conclusion that the petitioners were entitled to the benefit of the Repealing Act.
17.Only, in the legal background laid down by the Hon'ble Supreme Court and our High court as stated above, the issue involved in this writ petition as to whether actual possession is taken over by the Government or not is to be considered herein. In this regard, para 3 of the counter filed by the respondents Deputy Secretary to Government, Revenue Department, Chennai reads that notice under section 11(5) of the Act 1978 dated 21.6.1983 was issued by the third respondent and sent the same by post to the urban land owner on 23.6.1983 and on receipt of notice, the urban land owner sent a letter to the third respondent, requesting to retain the land adjoining the land in S.No.226/3 of Manapakkam village and the possession of the excess vacant land was also handed over to the Tahsildar, Sriperumbudur on 23.7.1983. The respondents in order to substantiate the claim made in the counter, produced the file relating to the acquisition proceedings.
18.As per the files produced on the side of the respondents, Section 11(5) notice in Form VII was dated 21.6.1983 and the same was sent by post only on 23.6.1983. In this notice, the urban land owner, who is the petitioner herein, was given time to surrender or delivery of possession of excess vacant land acquired, to the Tahsildar, Sriperumbudur within 30 days of the service of notice. However, the date on which the notice was served, is neither mentioned in the counter nor any material is made available in the file by way of document, indicating the same. Like that of the case decided by the learned brother Judge Mr.Justice V.Ramasubramanian, J in the order above cited, notice sent on 23.6.1983 would not have been reached the land owner before 24.6.1983. If that is so, 30 days period mentioned in the notice would not have been expired on 23.7.1983 and it was only after 23.7.1983, the possession of the land would have been taken by the official concerned.
19.Whereas, the third respondent has, in his letter dated 18.7.1983 addressed to the Tahsildar, Sriperumbudur, requested to take over possession of the excess vacant land and report the fact early and for that purpose, deputed one K.Rajiah, Deputy Tahsildar and Sub Inspector of Survey to assist the Tahsildar, while taking over the possession of excess vacant land held by K.Geethalakshmi, who is the petitioner herein. The Tahsildar, Sriperumbudur, inturn as seen from the office note dated 21.7.1983, instructed the Revenue Inspector, Mangadu Firka, in his proceedings dated 20.7.1983, to meet the Deputy Tahsildar (ULT) Kunnathur by 9.30am on 23.7.1983 at Sub Collector's office, Saidapet and to take over the possession of the excess vacant land at Manapakkam village. The proceedings of the third respondent and the Tahsildar, Sriperumbudur would abundantly make it clear that the possession was neither surrendered by the petitioner nor taken over from the urban land owner/petitioner till 23.7.1983. The land delivery receipt enclosed at page 335 of the file reads as if the land was taken over by the Revenue Inspector, Mangadu and handed over to the Deputy Tahsildar, ULT, Kunnathur on 23.07.1983 and the land delivery receipt contains the signature of the Revenue Inspector and Deputy Tahsildar, ULT, Kunnathur. Whereas, the letter of the Assistant Commissioner dated 28.7.1983 addressed to the Director (ULC & ULT), Chepauk, Chennai-5 enclosed at page 339 of the file speaks as if the possession has been taken over by the Tahsildar, Sriperumbudur under section 11(6), as such, there are serious inconsistencies in the land delivery receipt and other proceedings of the Assistant Commissioner addressed to the Director dated 28.7.1983. While the land delivery receipt says that the possession was taken over by the Revenue Inspector, Mangadu and handed over to the Deputy Tahsildar, ULT, Kunnathur, the proceedings dated 28.7.1983 of the Assistant Commissioner would say that the possession has been taken over by the Tahsildar, Sriperumbudur on 23.7.1983 under section 11(6) of the Act.
20.Thus, the materials made available in the file would go to show that the possession was not handed over by the land owner in pursuance of section 11(5) notice. Further, there is no indication in the communication, as to what was the mode of delivery of possession and whether the possession was taken by the Revenue Inspector or Tahsildar. Apart from that, the instruction given by the Assistant Commissioner in his letter dated 18.7.1983 to the Tahsildar as referred to above, regarding taking over possession on 23.7.1983 with the assistance of the Deputy Tahsildar, UDRI and Sub Inspector of Survey would show the malafide intention on the part of the Revenue officials to take over the possession forcibly much before the expiry of the notice period granted to the petitioner herein and such possession taken is, in my considered view, illegal not only contrary to the procedure laid down under law, but also in violation of the principles of natural justice.
21.Though the competent authority is himself eligible to take over the possession as per section 11(6) he is not empowered to use force on or before 23.7.1983 for taking over possession. It is not the case of the respondents that the urban land owner/petitioner herein has voluntarily handed over the excess vacant land to the authority concerned. Therefore, the competent authority could not have taken possession on or before 24.7.1983. Further, the facts as above discussed would disclose that no actual possession could have been taken from the petitioner. In that event, the petitioner's claim that she continues to be in possession of the property is but probable and acceptable and the same is also evident from the kist receipt issued in favour of the petitioner for the fasli 1394 on 17.4.1985.
22.Thus by, applying the views of the Hon'ble Apex court and the Division Bench and the learned brother judge of this court as referred to above to the facts of the present case this Court has no hesitation to hold that what is vested is de jure possession and not de facto possession and the delivery of defacto possession if any recorded is paper delivery and consequential allotment to the Tamil Nadu Civil supplies Corporation is also paper allotment. The petitioner continues to be in possession of the land in question before and after coming into effect of the Repealing Act, as such, the proceedings initiated under the Principal Act gets abated and consequently, the petitioner is entitled to get the relief as sought for herein.
K.B.K.VASUKI, J.
rk
23.In the result, the writ petition is allowed and the proceedings of the third respondent stand quashed. No costs.
Index:Yes/No Internet:Yes/No rk 26.08.2014 To 1.The Secretary to Government, Revenue Department, Fort St. George, Chennai 600 009. 2.The Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-5. 3.The Assistant Commissioner/ Competent Authority, Urban Land Ceiling, Kunrathur.W.P.No.24528 of 2001