Madras High Court
R. Siddiah vs State Of Tamil Nadu on 3 September, 2014
Bench: N. Paul Vasanthakumar, K. Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.09.2014
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR. JUSTICE K. RAVICHANDRABAABU
WRIT APPEAL No.949 OF 2013
AND M.P.NO.1 OF 2013
1. R. Siddiah
2. R. Shanmugam
3. R. Ramakrishnan
4. R. Sivaraj
5. C.R. Balachandran
6. Rukmani
7. Malliga
8. Sasikala Vasudevan
9. Tr.C.V. Madhusudanan
10. C.V. Krithika ... Appellants
Vs
1. State of Tamil Nadu
rep. by its
Secretary to Government
Revenue Department (ULC.2-1)
Fort St. George
Chennai-600 009.
2. The Special Commissioner and
Commissioner of Land Reforms
Chepauk, Madras-5.
3. Assistant Commissioner
Urban Land Tax
Competent Authority (ULC)
Coimbatore.
4. Padmavathi ..Respondents
Writ Appeal filed under Clause 15 of Letters Patent against the order made in W.P.No.1854 of 2012 dated 10.4.2013.
For Appellants : Mr.R. Thiagarajan
Senior Counsel
for Mr. R.N. Amarnath
For Respondents : Mr.P.H. Aravind Pandian
AAG
Assisted by Mrs. A. Sri Jayanthi
Spl. Govt. Pleader
******
J U D G E M E N T
(Judgment of the Court was delivered by K. RAVICHANDRABAABU, J) This writ appeal is directed against the final order made in W.P.No.1854 of 2012 dated 10.4.2013, dismissing the writ petition filed by the appellants, challenging the order passed by the third respondent in proceedings SR.No.53/89-A1 dated 17.11.1994 and consequently forbearing the respondents 1 to 3 from interfering with the peaceful possession and enjoyment of the appellants in any manner in respect of the properties in Survey Nos.246/2B2 and 246/3C measuring an extent of 3.47 acres at Anupparpalayam Village, Kootupangudi, Coimbatore District.
2. Through the said impugned order, the third respondent informed the appellants that pursuant to the proceedings issued under Section 9(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 any sale effected thereafter are not valid.
3.The contention of the appellants as writ petitioners before the learned Single Judge is to the effect that even though proceedings were initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, no physical possession was taken from the then land owners, from whom the appellants purchased the properties. It is their contention that since possession has not been taken and they are continuously in possession and enjoyment even after the Amendment Act came into force, the entire proceedings get lapsed. The learned Single Judge dismissed the writ petition by holding that possession has been taken from the appellants and the writ petition was filed with a huge delay of 18 years and there was no sufficient cause for condoning the unexplained delay.
4. The present appeal is filed before this Court by contending that physical possession of the subject land having not been taken from the appellants and their possession is supported by kist receipts issued by the competent revenue authorities for the years 1989 -2000, to show that possession is still with them, the finding of the learned Single Judge with regard to the possession is not factually correct.
5. Insofar as the proceedings initiated under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 is concerned, in view of the repeal of the Urban Land Ceiling Act, if the physical possession of the property is not taken away from the land owners or the persons in occupation of the same, before the Repeal Act came into force, the entire proceedings gets lapsed.
6. Since taking over of possession from the appellants is disputed by the other side, we have directed the learned Special Government Pleader to produce the file to find out as to whether physical possession of the property has been taken from the appellants/land owners prior to the repealing Act. A perusal of the file would indicate as follows:
(i) Page No.325 of the file contains the proceedings dated 29.12.1998 in Form VII issued by the Assistant Commissioner of Urban Land Tax, Coimbatore to one C.B. Manickam calling upon him to surrender delivery of possession of the lands to the Collector of Coimbatore. In the very same proceedings it is also noted that the said Manickam had already died and the said fact was known only during the time of enquiry. It is also stated therein that as his adopted son is residing at Mysore and the subject property has been rented out, as has been stated by one A. Srimathi. Therefore, from the said proceedings dated 29.12.1998 it is evident that possession was not taken as on 29.12.1998.
(ii) Another proceedings dated 10.5.1999 found at page No.327 of the file shows that under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, the competent authority has once again called upon said C.B. Manickam to hand over vacant possession of the land within thirty days, who was no more, even according to the file. That being the factual position as is evident from the above said proceedings, without there being any other documents to show that the possession has been handed over by the land owners or surrendered by them or forcible possession has been taken from them, a possession certificate is made available at page 341 of the file stating that possession has been handed over by the Special Deputy Tahsildar, Urban Land Tax, Coimbatore- South to the Firka Revenue Inspector of Annupperpalayam dated 4.6.1999 i.e. 12 days prior to the coming into force of the Repealing Act. Based on the said possession certificate another proceedings was issued on 29.6.1999 stating as if the possession has been taken from the land owners on 4.6.1999. Except these proceedings, there are no other proceedings to indicate that actual physical possession has been taken from the land owners/persons in occupation of the above said property at any point of time.
7. From the perusal of those documents, it would show that only paper possession or symbolic possession was taken by the authorities, whereas, the physical possession was not at all taken from the land owners/persons in occupation of the property at any point of time. The file also does not show or reveal any proceedings indicating forcible dispossession of the appellants from the subject matter property.
8. The issue as to whether taking over of the land by symbolic possession can be construed as possession taken and based on such act, whether the authorities can claim right over the land after the Repeal Act, has already been considered and decided by the Hon'ble Supreme Court in the case of State of U.P. vs., Hari Ram reported in 2013-3-MLJ-408(SC) at para 38 and 39, which reads as follows:-
"38. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.
39. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act."
9. Likewise in a decision rendered by the Hon'ble Division Bench of this Court in the case of Government of Tamil Nadu vs., Mecca Prime Tannery reported in 2012-6-MLJ-273, it has been held at para 33 to 35 as follows:-
"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. "
10. From the perusal of the above said decisions, it is very clear that the mere vesting of land under sub-section (3) of Section 10 of the said Act would not confer any right on the State Government, in the absence of any proof that there was voluntary surrender of vacant land or there was a forceful dispossession under sub-section (6) of Section 10 of the said Act. Symbolic possession is totally different and distinct from physical possession. It is only a paper possession, which cannot be treated or construed as that of possession as required under the Act.
11. Therefore, we are of the view that appellants/petitioners are justified in their contention that no possession was taken from them at any point of time in respect of the land, which was declared 'surplus'. If actual possession is not taken and it continues with the appellants, then they are entitled to have the benefit of the Repealing Act, wherein it is contemplated that if possession is not taken over by the State Government, then the same to be retained by the land owner and the entire proceedings should be treated as lapsed. Therefore, the finding of the learned Single Judge that the possession has been taken over by the authorities, is factually incorrect.
12. Further the Honourable Supreme Court in a case reported in Gajanan Kamlya Patil v. Addl. Collector & Competent Authority (2014) 2 CTC 665) held at paragraphs 12 and 13 as follows:
"12. We may indicate, apart from the affidavits filed by the officials in this case, no other document has been made available either before the High Court or before this Court, either showing that the Appellant had voluntarily surrendered or the Respondents had taken peaceful or forcible possession of the lands............
13. We have, therefore, clearly indicated that it was always open to the authorities to take forcible possession and, in fact, in the notice issued under Section 10(5) of the ULC Act, it was stated that if the possession had not been surrendered, possession would be taken by application of necessary force. For taking forcible possession, certain procedures had to be followed. Respondents have no case that such procedures were followed and forcible possession was taken. Further, there is nothing to show that the Respondents had taken peaceful possession, nor there is anything to show that the Appellants had given voluntary possession. Facts would clearly indicate that only de jure possession had been taken by the Respondents and not de facto possession before coming into force of the repeal of the Act. Since there is nothing to show that de facto possession had been taken from the Appellants prior to the execution of the possession receipt in favour of MRDA, it cannot hold on to the lands in question, which are legally owned and possessed by the Appellants. Consequently, we are inclined to allow this appeal and quash the notice dated 17.2.2005 and subsequent action taken therein in view of the repeal of the ULC Act. The above reasoning would apply in respect of other appeals as well and all proceedings initiated against the Appellants, therefore, would stand quashed."
13. Considering all these facts and circumstances and by following the above decisions on the same issue, we hold that possession has not been taken from the appellants and consequently, they are entitled to succeed in this writ appeal as the entire proceedings initiated under the Urban Land Ceiling Act stands lapsed in view of the Repealing Act, namely, Tamil Nadu Act 20 of 1999.
14. Accordingly, the writ appeal is allowed and the impugned order challenged in the writ petition is set aside. The consequential prayer sought for in the writ petition is also granted. Consequently, the connected MP is closed. No costs.
Index : Yes/No (N.P.V., J.) (K.R.C.B.J)
Internet : Yes/No 03.09.2014
Tr/
To
1. State of Tamil Nadu
rep. by its
Secretary to Government
Revenue Department (ULC.2-1)
Fort St. George
Chennai-600 009.
2. The Special Commissioner and
Commissioner of Land Reforms
Chepauk, Madras-5.
3. Assistant Commissioner
Urban Land Tax
Competent Authority (ULC)
Coimbatore.
N.PAUL VASANTHAKUMAR, J.
AND
K. RAVICHANDRABAABU, J
Tr
W.A.No.949 of 2013
03.09.2014