Madras High Court
A.Kaliammal vs The Tahsildar on 21 October, 2009
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 21.10.2009
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.2696 of 2001
1. A.Kaliammal
2. R.Selvam
3. R.Balaji .. Petitioners
Versus
1. The Tahsildar,
Salem.
2. The Assistant Commissioner,
Urban Land Tax, Salem. .. Respondents
Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, calling for the records relating to the Order bearing No.Nil dt.19.05.1999 on the file of the 2nd respondent and the order bearing No.Mu.Mu.17315/2000 dt. 27.09.2000 on the file of the first respondent and quash the same and consequently, to direct the 1st respondent to transfer the patta for the land along with the building, bearing Door No.4/723, measuring 579 sq.ft., comprised in S.F.No.203/9B2A, 203/9D in Annadhanapatti, Salem and purchased by the first petitioner under Sale Deed dt.29.11.1999 and registered as Doc.No.4459/99 (Sub Registrar, Thathagapatti, Salem) in her name.
(Prayer amended as per order dated 30.07.2009 by NPVJ in WPMP No.497/09 in Wp.No.2696/01).
For Petitioners : Mr.T.P.Manoharan
For Respondents : Mr.P.Subramanian,
Additional Government Pleader.
O R D E R
The request of the 1st petitioner for change of patta in her name in respect of land along with the building, bearing Door No.4/723, measuring 579 sq.ft., comprised in S.F.No.203/9B2A, 203/9D in Annadhanapatti, Salem and purchased by the 1st petitioner under Sale Deed dt.29.11.1999 was rejected by the 1st respondent by order dated 27.09.2000 and the said order was initially put to challenge in this writ petition. The petitioner has also prayed for a direction to the 1st respondent to transfer the patta in respect of the above said lands to the 1st petitioner.
2. During the pendency of this writ petition, records were produced by the learned Additional Government Pleader and a contention was raised that possession in respect of the said property had already been taken over by the Special Deputy Tahsildar, Land Reforms and handed over to the Zonal Deputy Tahsildhar, Salem by proceedings in Mu.Mu.17315/2000 dt. 27.09.2000. In these circumstances, the petitioner has filed WPMP.No.497 of 2009 for an amendment as follows:
".....writ of Certiorarified Mandamus or any other appropriate writ, direction or order, calling for the records relating to the Order bearing No.Nil dt.19.05.1999 on the file of the 2nd respondent and the order bearing No.Mu.Mu.17315/2000 dt.27.09.2000 on the file of the first respondent and quash the same and consequently, to direct the 1st respondent to transfer the patta for the land along with the building, bearing Door No.4/723, measuring 579 sq.ft., comprised in S.F.No.203/9B2A, 203/9D in Annadhanapatti, Salem and purchased by the first petitioner under Sale Deed dt.29.11.1999 and registered as Doc.No.4459/99 (Sub Registrar, Thathagapatti, Salem) in her name....."
Record of proceedings shows that this Court by order dated 30.07.2009 has permitted the amendment.
3. Facts leading to the writ petition are as follows:
Originally one L.Kotteswaran and others were the owners and in possession of lands bearing S.Nos.203/9A, B & C in Annathanpatti Village, Salem Taluk, under Sale Deed dated 18.04.1979 and they have sold the said lands to one K.Sekar and handed over possession of the same to him. Subsequently, under Sale Deed dated 25.02.1983, the said Sekar sold the lands to one R.Ponna Gounder and handed over the possession of the same to him. After the purchase of the said lands, R.Ponna Goundar divided the lands into number of residential plots and constructed terraced buildings, obtained Electricity power connection in his name for the said houses and sold the same to various persons. The 1st petitioner has further submitted that R.Ponna Gounder through his power of attorney sold his plot measuring 579 sq.ft. comprised partly in S.No.203/9B2 and partly in S.No.203/9D with the building constructed thereon to the petitioners 2 and 3 and handed over possession of the same to them. By order dated 30.05.1986, of the Additional Head Quarter Deputy Tahsildar, Salem, patta was jointly issued in their names under Patta No.723 and their names were also duly entered in all the revenue records as owners of the property.
4. The 1st petitioner has further contended that petitioners 2 and 3 were in possession and enjoyment of the property and paying electricity charges, property tax, etc. Thereafter, under sale deed dated 29.11.1999, they sold the said property to the 1st petitioner for a valuable consideration and also handed over possession. It is the contention of the writ petitioner that she is in possession and enjoyment of the property by paying property tax, electricity charges, etc. She has also submitted that on an application made by her, by order dated 30.10.2000, the Junior Engineer (O & M), TNEB, Salem has transferred the Electricity Service Connection No.263 in her name. Since patta of the property was in the name of her vendors namely, petitioners 2 and 3, in the month of September 2000, she made an application before the Tahsildar, Salem, requesting him to transfer the patta in her name, by enclosing necessary documents.
5. By proceedings dated 27.09.2000, the Tahsildar, Salem rejected her request on the ground that the subject matter of land had already been taken possession under the Urban Land (Ceiling & Regulation) Act, 1976 and that the lands have been declared as Government Porambokke lands. The said proceedings was originally impugned in this writ petition and subsequently, the prayer has been amended as stated supra.
6. Reiterating the transactions from 1979 to 1984 stated supra Mr.T.P.Manoharan, learned counsel for the writ petitioners submitted that when the proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 was initiated, the competent authorities ought to have verified the revenue records and notices under Sections 7(1) and (2) ought to have been issued to the real owners of the property, who were in actual possession, namely, petitioners 2 and 3, so as to enable them to submit their objections before declaring the lands as surplus.
7. Inviting the attention of this Court to the date of death of R.Ponna Goundar i.e., 06.12.1986, he submitted that the notices, said to have been issued under Sections 7(1) and (2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 to a dead person is a nullity. He therefore submitted that the whole proceedings, initiated and said to have been finalised under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 are null and void, as no final statement can be made without hearing the objections of the real owners.
8. Referring to the provisions under Sections 11 (5) and 11(6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, learned counsel for the petitioners submitted that after making a declaration, under Section 11(3) of the said Act, the 2nd respondent has to issue notice to the person in possession, ordering him/her to surrender possession of the lands, declared as surplus, to the Government. Even after the receipt of such notice, if the person in possession fails or refuses to surrender or deliver possession, the 2nd respondent can use minimum force, as may be necessary for the purpose of taking possession.
9. According to the learned counsel, the petitioners 2 and 3 were in actual physical possession and enjoyment of the lands in question, by paying property tax, electricity charges, etc., from 30.04.1984 onwards, till they sold the same to the 1st petitioner on 29.11.1999. Inviting the attention of this Court to the "Possession Certificate" dated 19.05.1999, said to have been issued by the Special Deputy Tahsildar, Urban Land Tax, Salem to the Zonal Deputy Tahsildhar, No.I, Salem, learned counsel for the writ petitioners, submitted that perusal of the same would show that 17 persons were in possession of the lands in Survey Nos.203/9B2A, 203/9B2B and 203/11 and petitioners 2 and 3 were also included in the Annexure.
10. Placing reliance on the decision of a Division Bench of this Court in V.Somasundaram and Others Vs. Secretary to Government, Revenue Department, Chennai and Others, reported in (2007) 1 MLJ 750 and by referring to Section 11(5) of Act, he submitted that when a vacant land is vested in the State Government under Section 11(3) of the Act, 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. Placing reliance on the "Possession Certificate" stated supra, he submitted that when the actual possession of the lands with buildings thereon, was with owners of the lands, namely, the petitioners 2 and 3, among others, as admitted in the said certificate, the contention of the respondents that they have taken possession of the land is farce and therefore the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, stands abated, on coming into force of the repealing Act.
11. Learned counsel for the writ petitioners submitted that when the possession was with 17 person, the competent authority resisting dispossession ought to have used minimum force to dispossess them, but that was not done under Section 11(6) of the Act and therefore to say that possession has been taken by the competent authority is nothing but paper possession, and not actual physical possession. According to the learned counsel, the contention that R.Ponna Gounder had sold the properties and that the petitioners 2 and 3 were in possession, even prior to the initiation of Urban Land proceedings is fortified, by the "Possession Certificate" dated 19.05.1999 and therefore, unless the procedure contemplated under Sections 11(5) and (6) of the Land Ceiling Act is duly followed in letter and spirit, the proceedings are abated and therefore the 1st respondent ought to have effected transfer of patta in favour of the 1st petitioner.
12. Referring to the various proceedings, such as transfer of Electricity Service Connection E.C.No.263 in favour of the 1st petitioner effected by the Junior Engineer (O&M), TNEB, Salem, the change in the electricity consumption cards along with the receipts and payment, the Ration Card issued by the Civil Supplies and Consumer Protection Department for the period between 1993 and 2003 and the Certificate issued by the Salem Municipal Corporation, Salem dated 04.12.2000 to the effect that property tax has been levied on the 1st petitioner, learned counsel for the petitioners submitted that all these documents would go to show that the subject lands are in actual possession of the 1st petitioner and without verifying the actual possession, the authorities would not have effected change of supply of power. Likewise the authorities of the Civil supplies and Consumer Protection Department and Salem Municipal Corporation, Salem, have discharged their functions diligently and only after verification of actual physical possession, effected the change and issued the certificate, stated supra. He therefore submitted that the "Possession Certificate" of the Special Tahsildar, Urban Land Tax, Salem dated 19.05.1999 is nothing but a document created for the purpose of showing as if possession had been taken under Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976.
13. In support of his contention, that actual physical possession had not been taken by the competent authority, as provided under the Act and the Rules framed therein; that the proceedings initiated under Urban Land Ceiling Act has come to an end, on coming into force of the repealing Act, 1999, and in support of the proposition that notice should be issued to any person in possession, as per Section 11(5) of the Act, learned counsel for the petitioners placed reliance on the decision of the Division Bench in V.Somasundaram and Others Vs. Secretary to Government, Revenue Department, Chennai and Others, reported in (2007) 1 MLJ 750, Allind Metal Fabricators Pvt. Ltd., rep. by its Managing Director Vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St. George, Madras, reported in 2002 (2) CTC 716 and in V.Elumalai Naicker Vs. The Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St. George, Chennai and two others, reported in 2009 Writ L.R.451. For the above said reasons, he prayed that the impugned orders are liable to be set aide and consequently prayed for a direction to the 1st respondent to issue patta in favour of the 1st petitioner in respect of the subject mentioned property.
14. Based on the averments in the counter affidavit filed by the Joint Commissioner (Land Reforms), Erode and the Tahsildar, Salem, Mr.P.Subramanian, learned Additional Government Pleader submitted that Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, was applied to Salem Urban agglomeration on 03.08.1976. Notice under Sub-Section (2) of the Section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 was issued on 02.11.1987 in S.R.A.Roc.7719/87-A2 to R.Ponna Goundar, who was ascertained to have held excess urban land in S.F.203/9B2, 203/9C2, 203/9D of Annadhanapatty Village, comprised in Salem Urban agglomeration. The land owner was directed to file a statement of excess Urban Land held by him, within seven days as required under Section 7(1) of the Act.
15. Learned Additional Government Pleader further submitted that though one Ravi had acknowledged the notice on behalf of the owner of the land, there was no response to the notice. Therefore, a draft statement was prepared as required under Section 9(1) of the Act, stating that the land owner was holding excess land to an extent of 4045 sq.mts. Subsequently, the draft statement was also sent to the said individual along with a notice under Section 9(4) of the Act on 14.08.1991 and that the land owner was directed to furnish his objections to the draft statement, within 30 days from the date of receipt of the draft statement. As there was no response from the land owner, orders were passed under Section 9(5) of the Act proposing that no alteration to the extent of land, to be declared as excess vacant land would be permitted and accordingly, a final statement under Section 10(1) of the Act was sent to the Urban Land owner, R.Ponna Goundar on 13.05.1992, determining the excess vacant land.
16. Learned Additional Government Pleader further submitted that after issuing a notification under Section 11(1) of the Act, the land was acquired by the State Government and the same was published in Tamil Nadu Government Gazette on 26.11.1997. Lateron, a publication under Section 11(3) of the Act was also effected on 01.04.1998. Thereafter, a notice in S.R.66/91A1 dated 09.03.1999 under Section 11(5) of the Act was issued to the Urban Land owner R.Ponna Goundar to surrender possession of the excess Urban Land of 3800 sq.mts. But there was no response. Therefore, the excess land was taken possession on 19.05.1999 and mutation was also effected in the village records by the Sub-Inspector of Survey, Office of the Assistant Commissioner, Urban Land Tax, Salem, on 23.06.1999. Therefore, learned counsel for the respondents submitted that the procedure under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 was duly followed and that possession was taken as per Sections 11(5) and 11(6) of the Act.
17. Referring to Section 6 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, the State Counsel further submitted that the subsequent purchaser has no legal right to challenge the proceedings initiated under the Land Ceiling Act. He submitted that the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, against R.Ponna Gounder, the owner of the lands had come to an end. He further submitted that notices were issued to the owner of the land, as per the entries in the revenue records and therefore, there is a substantial compliance of statutory provisions. According to him, the subsequent purchasers namely, the petitioners have no locus standi to test the correctness of the proceedings initiated under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976. According to him, any transaction after the declaration of lands as surplus under the Act, is not a valid transaction. For the above said reasons, he submitted that there is no manifest illegality in the order made by the respondents and therefore prayed for dismissal of the writ petition.
18. Heard the learned counsel for the parties and perused the materials available on record.
19. The contention of the writ petitioner that the lands in S.Nos.203/9A, B & C in Annathanpatti Village, Salem Taluk originally owned by L.Kotteswaran were subsequently sold to Sekar under a registered sale deed dated 18.04.1979 and thereafter to R.Ponna Goundar on 25.02.1983, is supported by Document No.1, a registered sale deed enclosed in the typed set of papers, and the same is not disputed.
20. Perusal of the sale deed dated 30.04.1984, executed by the Power Agent of R.Ponna Goundar shows that the property measuring an extent of 579 sq.ft. comprised partly in S.No.203/9B2 and partly in S.No.203/9D and the building constructed thereon, were purchased by the petitioners 2 and 3 for consideration and that they were in possession since then. The Additional Head Quarters Deputy Tahsildhar, Salem in his proceedings dated 30.05.1986 has also issued a joint patta in favour of the writ petitioners 2 and 3, under patta No.723 and that their names were subsequently entered in the revenue records. The issuance of patta in proceedings No.682.6/11/86-87 dated 30.05.1986 in respect of Survey No.203/9B2A, 9D in favour of writ petitioners Selvam and Balaji, Sons of late V.Radhakrishna Chettiyar, is also not disputed.
21. The proceedings dated 30.10.2000 of the Junior Engineer (O&M) TNEB, Salem, shows that the Electricity Supply connection which stood in the name of R.Ponna Gounder under S.C.No.263 has been changed to the 1st petitioner, on the basis of her application dated 04.10.2000. The electricity supply consumption card, enclosed at page No.47 of the typed set of papers also shows that there was power supply in the subject land and consumption charges were levied till 1999.
22. The family card, issued by the Civil Supplies Consumer Protection Department to the mother of writ petitioners 2 and 3 enclosed at Page No.55 of the typed set of papers also proves that they were in possession of the property at D.No.4/723, JJ Nagar, Salem.
23. The Certificate dated 04.12.2000, issued by the Commissioner, Salem Municipality, to the husband of the 1st petitioner shows that property tax has been levied for a house in Door No.1/723 of Annathanapatti Village, which according to the learned counsel for the writ petitioners corresponds to the property partly in S.No.203/9B2 and partly in S.No.203/9D.
24. Perusal of the above documents shows that subject matter of lands with the constructed building measuring an extent of 579 sq.ft. comprised partly in S.No.203/9B2 and partly in S.No.203/9D were in continuous possession and enjoyment of the owners of the property, initially in the name of R.Ponna Gounder and thereafter the writ petitioners 2 and 3 respectively, till the 1st petitioner purchased the same on 29.11.1999.
25. Section 7 of the Urban Land (Ceiling and Regulation) Act, 1976 reads as follows:
7. Filing of statement in cases where vacant land held by a person is situated within the jurisdiction of two or more competent authorities (1) Where a person holds vacant land situated within the jurisdiction of two or more competent authorities, whether in the same state or in two or more states to which this Act applies, then he shall file his statement under sub-section (1) of Section 6 before the competent authority within the jurisdiction of which the major part thereof is situated and thereafter all subsequent proceedings shall be taken before that competent authority to the exclusion of the other competent authority or authorities concerned and the competent authority, before which the statement is filed, shall send intimation thereof to the other competent authority or authorities concerned.
(2) Where the extent of vacant land held by any person and situated within jurisdiction of two or more competent authorities within the same state to which this Act applies is equal, he shall file his statement under sub- Section (1) of Section 6 before any one of the competent authorities and send intimation thereof in such form as may be prescribed to the State Government and thereupon, the State Government shall, by order, determine the competent authority before which all subsequent proceedings under this Act shall be taken to the exclusion of the other competent authority or authorities and communicate that order to such person and the competent authorities concerned.
(3) Where the extent of vacant land held by any person and situated within the jurisdiction of two or more competent authorities in two or more States to which this Act applies is equal, he shall file his statement under sub-Section (1) of Section 6 before any one of the competent authorities and send intimation thereof in such form as may be prescribed to the Central Government and thereupon, the Central Government shall, by order, determine the competent authority before which all subsequent proceedings shall be taken to the exclusion of the other competent authority or authorities and communicate that order to such person, the State Governments and the competent authorities concerned.
26. The contention of the writ petitioners that the original owner of the lands namely, R.Ponna Goundar died on 06.12.1986, has not been refuted by the respondents. On the contrary, they have submitted that all the statutory notices were issued in the name of the said individual, but there was no response. The Additional Head Quarters Deputy Tahsildar, Salem has effected the change of patta in the name of 2nd and 3rd petitioners under Patta No.723 in respect of the above said property on 30.05.1986 prior to the death of R.Ponna Gounder i.e. on 06.12.1986 and there are documents to prove that property tax, electricity charges were paid by petitioners 2 and 3, in respect of the subject property.
27. The competent authority ought to have issued the statutory notice under sub Section 2 of Section 7 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, to the actual owners, but the statutory notice had been issued in the name of R.Ponna Gounder, a dead person on 02.11.1987 in S.R.A.Roc.7719/87-A2. As there was no response, the competent authority had proceeded to issue the draft statement under Section 9(1) of the Act holding that the land owner was in possession of excess land to an extent of 4045 sq.mts. On that basis, a further notice had been issued under Section 9(4) of the Act on 14.08.1991, calling upon a dead man to submit his objections to the draft statement and on his failure, a final statement under Section 10(1) of the Act had been issued to the Urban Land owner R.Ponna Goundar on 13.05.1992. The notification under Section 11(3) of the Act has been published on 01.04.1998 in the Tamil Nadu Government Gazette. In S.Subramaniam Vs. State of Tamilnadu, represented by the Secretary to Government, Revenue Department, Chennai and others reported in 2006 3 MLJ 509 and Saraswathi and another Vs. Principal Commissioner and Commissioner of Land Reforms, Chennai and others reported in 2007(5) MLJ 1240, this Court has held that notice issued to a dead person is a nullity.
28. The Urban Land (Ceiling and Regulation) Repealing Act,1999 has come into force on 16.06.1999. As per Section 3 of the Act, "3. Savings:- (1) The repeal of the principal Act shall not effect-
(a) the vesting of any vacant land under the sub Section (3) of Section 11, possession of which has been taken over by the State Government or any person duly authorised 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 authorised by the State Government in this behalf or by by 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. Abatement of legal proceedings:- All the 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 other authority shall abate:
Provided that this Section shall not appply to the proceedings relating to Sections 12, 13, 14, 15, 14-B and 16 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."
29. The manner for taking delivery of possession of the lands declared as surplus from the owner / any person in possession, is provided for in Sub-Sections 5 and 6 of Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. The question to be considered is whether the competent authority, has issued any notice to the person / persons in possession of the property before taking actual possession of vacant land and, in case of refusal, whether the procedure contemplated under Section 11(6) of the Act has been followed. To address the said contention, this Court deems it fit to extract the "Possession Certificate" as recorded by the Special Deputy Tahsildhar, Urban Land Tax, Salem, which is found at page No.69 of the files.
"Possession Certificate I, Thiru. C. Prakasam, Special Deputy Tahsildar (ULT), Salem, Office of the Assistant Commissioner (ULT), Salem, on this 19th day of May 99 handed over the Land described below a per Salem (ULT) Assistant Commissioner's Roc.S.R.66/91 and I Thiru A.Muthuchidambaram, Zonal Deputy Tahsildar, Salem has this 19th day of May 99 taken over the the said land with encroachments as per sketch enclosed.
Name of the Village : Annathanapatty S.No. : 203/9B2A, 9B2B, 203/11 Extent : 0.38.0 Ownership Classification :Excess vacant land porambokke. Wells : Nil Signature : List enclosed Trees : Nil"
The possession certificate reads that the subject matter of property in S.No.203/9B2A, 9B2B, 203/11 to an extent of 0.38 acres, was in possession and occupation of 17 persons including the writ petitioners 2 and 3. The details of the persons stated to have encroached the above lands, as per the Special Deputy Thasildhar, Urban Land Tax, Salem is extracted hereunder.
District : Salem Village : Annathanapatty Sl.No. S.No. Door No. Description Name of the encroacher 1 203/9B1 4/717 Thatched House Manivasagam, S/o. Chinnu Gounder 2 4/718 " Murugesan, Parvathy Raman Chettiyar 3 4/719 " Easwaran S/o.Angamuthu 4 4/720 " Subramani 5 4/720 A " Muthusamy 6 4/720 A " Krishnamoorthy S/o. Rathinavel 7 4/720 A " R.Jeyaraman, S/o. Rajupillai 8 4/721 " Ellappan S/o. Parasurama Chettiyar 9 4/720 Thatched Godown Natesan 10 4/728 Thatched House Arumugam S/o. Subramaniya Achari 11 4/724 " Mahalakshmi, S/o.Venugopal 12 4/723 " R.Selvam (1) R. Balaji, C/o. Sarojini Devi 13 4/723 " Subramaniam, S/o. Gopal 14 4/722 " Chellammal, W/o. Late Chempan 15 203/11 4/730 B Asbestos Roof House Murugesan, S/o. Kandasamy 16 - Roofed House Nallammal 17 4/729 A Thatched House Savithiri, W/o. Kandasamy
30. The Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 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 bringing about an equitable distribution of land in urban agglomerations to subserve the common good.
31. As per Section 4 of the Act, except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit.
32. As per Section 7 of the Act, (1) every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction, specifying the location, extent and such other particulars as may be prescribed of all vacant lands and of any urban or other land on which there is a building, whether or not with a dwelling unit therein in any urban agglomeration held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain.
(2) If the competent authority is of opinion that any person hold at the commencement of this Act, vacant land in of the ceiling limit, then, notwithstanding anything contained in sub-Section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-Section (1) and the person on whom such notice is served shall be bound to comply with such notice.
33. Section 9 enables the competent authority to prepare a draft statement in respect of person who has filed a statement under sub Section (1) or sub Section (2) of Section 7 as the case may be, or on the basis of information obtained under Sub Section 5 of that Section and after holding such enquiry as the competent authority may deem fit to make.
34. As per Section 10 of the Act, after the disposal of the objections, if any received under Sub-Section (5) of Section 9, the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the person concerned in excess of the ceiling limit and cause a copy of the statement as so altered to be served in the manner referred to in sub-Section (4) of Section 9 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire purchase agreement, or an irrevocable power-of-attorney, also on the owner of such vacant land and such statement so served shall be deemed to be the final statement.
35. Section 11 deals with acquisition of vacant land in excess of ceiling limit and it states that, (1) As soon as may be after the servie of the final statement under Section 10 on the person concerned, the competent authority shall cause a notification given 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 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 in this behalf and may for that purpose use such force as may be necessary.
36. In Shri Balaganesan Metals Vs. N.Shanmugam Chetty and Others, reported in (1987) 2 Supreme Court Cases 707, the word "any" employed in Section 10(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 came up for consideration before the Supreme Court. In the said judgment the Apex Court, applied the principle that the word 'any' should be given the meaning in the context and objective, in which it is used in the statute.
37. The word "any" in Section 293(4) of the Code of Criminal Procedure, 1973, came up for consideration before the Kerala High Court in State of Kerala Vs. J.Shaju, reported in 1985 K.L.T. 33. While explaining the usage of the word "any" with reference to the Chemical Examiner whose report has to be taken as evidence, the High Court held that the word "any" is expressive. It indicates in the context "one or another" , "one or more" , "all or every" in the given category; it has no reference to any particular or definite individual but to a positive, but undetermined number in that category without restriction or limitation of choice. Therefore, the Court on the facts of the case with reference to the context in which the word 'any' is used in the statute held that there can thus be no doubt that a Joint Chemical Examiner i.e., a Chemical Examiner to whom Section 293 of the Code applies, whose certificate can be used a evidence in any enquiry under the Code as provided therein.
38. The relevant Form VII notice issued under Section 11(5) regarding surrender or delivery of possession of excess vacant land acquired under Sub Section (3) of Section 11 of the Act, is extracted hereunder.
FORM VII [See rule 10(3)] Form of notice under sub-Section (5) of Section 11 regarding surrender or delivery of possession of excess vacant land acquired under sub-Section (3) of Section 11 To Thiru.............................................
Please take notice that the vacant land/lands specified in the Schedule below is/are vested with the state Government under sub-Section (3) of Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with effect on and from the .................... you are requested to surrender or deliver possession of the said land/lands to .................... within thirty days of the service of this notice
2. If this order is not complied with, the said land/lands will be taken possession of by the authority mentioned above after using force a may be necessary.
3. If there are constructions, they may be removed before the date fixed above. If they are not removed by the owner, they will be removed by the Officer authorised in this behalf to take possession of the said land, who shall sell them and keep the proceeds thereof in deposit in the name of the person, after deducting the cost of removal and other incidental charges.
39. Reading of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, in entirety makes it abundantly clear that what is contemplated under Section 11 is taking over possession of vacant land and not transfer of land with possession.
40. The intention of the legislature thus assimilates two aspects. In one aspect, it carries the concept of "meaning", i.e., what the words mean and in another aspect, it conveys the concept of "purpose and object" or the "reason and spirit' pervading through the Statute. The process of construction, therefore, combines both literal and purposive approaches. In other words, the legislative intention, i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.
41. It is well settled in Tinsukhia Electric Supply Co. Ltd., v. State of Assam reported in 1989 (3) SCC 709 that a Statute must be construed as to make it effective and operative "on principle expressed in the maxim, "ut res magis valeat quam pereat"".
42. The words "any person" used in sub-Section 5 of Section 11 of the Act are of wide impact and includes a bonafide transfer of the property. It cannot be restricted only to the holder of an excess land. Reading of Section 11(5) makes it clear that the legislature has conceived resistance or obstruction for taking possession of immovable property by an holder of such vacant land, or a lessee, or a mortgagee or a hire-purchase agreement holder or an irrevocable power-of-attorney holder or any body resisting delivery of possession or claiming independent right of his own, not withstanding the declaration of the competent authority under Sections 9 and 10 of the Act.
43. The language employed in Section 11(5) and (6) with Form-VII, would make it clear that if any person in possession refuses to surrender or deliver possession of the land / lands within 30 days of service of notice, the land / lands shall be taken possession of by the authority after using such force as may be necessary. The purpose of usage of minimum force permissible under Section 11(5) is only to evict any person in possession, in whatever capacity he is. If there are constructions, they should be removed before the date fixed for removal. If they are not removed by the land owner or any other person, such constructions should be removed by the Officer authorised in this behalf to take possession of the said land, who shall sell them and keep the proceeds thereof in deposit in the name of the person after deducting the cost of removal and other incidental charges.
44. As pointed out in the foregoing paragraphs, the object of the enactment as spelt out in the preamble and various provisions of the statute, in unambiguous terms are intended, to declare the excess vacant land in possession of the land owner and if there are constructions on the lands, they should be removed before taking possession by the competent authority.
45. In the case on hand, the lands along with the encroachers have been simply handed over by a Certificate of Transfer on "Possession Certificate" issued by the Special Tahsildar, and that does not amount to taking actual physical possession of vacant lands, as per the procedure contemplated in the Act, Rules and the Form, prescribed under the Act. It is well settled in State of Kerala Vs Mathai Varghese and others reported in 1986 (4) SCC 746, the Court should make a purposeful interpretation so as to "effectuate" the intention of the legislature and not a purposeless one in order to "defeat" the intention of the legislators wholly or in part. The Act contemplates taking possession of vacant land and not lands with encroachers, along with constructions or dwelling houses. It could be seen from the possession certificate, the alleged encroachers are living in Thatched houses, Asbestos Roof house etc.
46. The issue as to whether the statutory notice under Section 11(5) has to be issued to any person in possession is no longer integra, in view of the Division Bench judgment reported in V.Somasundaram and Others Vs. Secretary to Government, Revenue Department, Chennai and Others, reported in (2007) 1 MLJ 750. Dealing with the contention that no notice was issued to the person in possession, the Division Bench at Paragraph Nos.6,9,10, and 11 has held as follows.
"6. 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, which reads as follows :
Section 11(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. Citing the said provision of the Act, the learned counsel argues that even according to the respondents, possession was taken only on 30.4.1999 i.e, long after purchase of the land by the appellants from 1991 to 1995 and non-issuance of the notice to the appellants vitiates the entire proceedings of vesting of lands with the Government.
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) of the Act, the competent authority is bound to issue notice in weiting to any person who may be in procession of the land, to surrender and deliver possession thereof, to the State Government or to any person duly authorized by the State Government, with thirty day 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 in non-est. It si 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.
10. Similar issue was considered by a leaned single Judge of this Court (A.KULASEKARAN.J) in the decision Vijay Foundation (P) Ltd. V. Principle Commissioner and Commissioner of Land Reforms2006 (5) CTC 52 and in para 7 the learned Judge held as follows, 7. The respondents herein have initiated acquisition proceedings against athe person who is not at all owner of the lands. The above quoted mandatory conditions mentioned in Sections 7 to 12 were not followed by the respondents. The statutory conditions for the purpose fo acquiring the lands has not been followed at all in this case, hence, the alleged possession taken by the respondents is vitiated. The Ceiling Act is not like Land Acquisition proceedings where the authorities are required to serve notice upon the owner or occupier of the land and on such person known or believed to be interested thereon to show cause within 30 days from the date fo service of notice as to why the lands should not be acquired, hence, based on the entries in the mutation proceedings, the opportunity by given to the owner or occupier or person interested in the land be sufficient because the Notification specifies the intention of the Government to acquire the land for public purpose, which is mandatory. So, the defence that mutation proceedings contain only name of Krishnan, hence, the proceedings were not initiated against the petitioner is not a valid ground. Based on the proceedings initiated against the wrong person, the lands of the petitioner cannot be acquired by the respondents. We are in entire agreement with the said decision of the learned Judge.
11. As rightly contended by the learned counsel for the appellants, the appellants, the appellants were not entitled to file appeal due to enactment of the Tamil Nadu Urban Land ( Ceiling & Regulation ) Repeal Act, 1999, from 16.9.1999. Hence the writ petition filed without availing the alternate remedy of filing appeal under Section 33 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, is maintainable"
47. Another learned Judge of this Court, following the Constitution Bench Judgment in Angoori Devi V. State of U.P., JT 2000 Supp 1 (SC) 295, in Allind Metal Fabricators Pvt. Ltd., rep. by its Managing Director Vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St. George, Madras, reported in 2002 (2) CTC 716, has held that if possession of the land had not been taken, prior to repeal, such possession cannot be taken thereafter and no proceedings could be thereafter initiated under the repealed enactment.
48. Dealing with the very pertinent question of taking actual physical possession of the property as provided under the Act and the rules made thereunder, this Court in V.Elumalai Naicker Vs. The Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St. George, Chennai and two others, at paragraph No.17 and 18 has held as follows:
"17. Actual physical possession should have been taken by the competent authority, as provided under the Act and rules framed there under, for the completion of the acquisition proceedings. 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 Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act (Act 20 of 1999). In this regard, it is relevant to cite the decisions of this Court in Allind Metal Fabricators Private Ltd., Chennai rep. by its Managing Director Vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St. Goerge, Madras (2002(2)CTC 716) wherein it was held as follows:
1.The Tamil Nadu Urban Land (Ceiling and Regulation) Act has been repealed by the Repealing Act (Act 20 of 1999) and all pending proceedings also having been declared to have abated. As held by the Supreme Court in the case of Angoori Devi V. State of U.P., JT 2000 Supp 1 (SC) 295, a decision by a Constitution Bench, if the possession of land had not been taken prior to the repeal, such possession cannot be taken thereafter and no proceedings can be thereafter initiated under the repealed enactment. During the pendency of this writ petition the petitioner had the benefit of an interim order protecting his possession; it is also not the case of the respondents that they have taken possession.
2. The writ petition is therefore allowed. The W.M.P. is closed.
18. The learned counsel appearing for the respondents has not shown, from the records available, 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. Further, there is nothing to show that actual physical possession of the land in question had been taken by the respondents or that the compensation had been paid to the petitioner. In such circumstances, this Court is of the considered view that the land acquisition proceedings, which is the subject matter of the present writ petition, would stand abated, in view of the coming into force of the repeal Act, 1999. Hence, the writ petition stands allowed. No costs.
49. When the learned Additional Government Pleader was confronted with a query as to whether notice was issued to the persons in possession of the property as per Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, on perusal of the files, the learned Government Counsel submitted that no notice was issued to any one of the persons in possession of the property, directing them to surrender or deliver possession as per Section 11(5) of the Act, within thirty days of service of notice. He also submitted that record shows that notice was served only to R.Ponna Goundar, the erstwhile owner of the land. This Court is unable to subscribe to his contention as to how a statutory notice dated 02.11.1987 could have been served to a person, who died on 06.12.1986.
50. Reading of Sections 11(5) and 11(6) of the Act and the decisions stated supra makes it abundantly clear that service of notice in writing on the person / persons in possession of the lands declared as surplus under the Land Ceiling Act is a mandatory requirement and it has to be necessarily followed by the competent authority, in the manner provided under the Act. To take possession of vacant land, Section 11(6) of the Act permits use of minimum force as may be necessary, so that the competent authority or the State Government may take possession of land. Materials on record, till 2000, enclosed in the typed set of papers filed along with the writ petition shows that the lands were in occupation and possession of the vendors of the 1st petitioner and electricity service charges were also been paid. Besides, as stated supra, possession and occupation over the said lands have been recognised by a certificate issued by the Municipal Authorities by levying property tax.
51. As stated supra, perusal of the records produced before this Court does not indicate that the mandatory requirement under Section 11(5) was followed to take actual physical possession of the subject land declared as surplus. The lands along with the encroachers in possession have been handed over to the Zonal Deputy Tahsildar, Salem on 19.05.1999, by a paper transaction. When the statute contemplates a specific procedure for taking possession, the same cannot be said to have been achieved in the manner stated supra. Useful reference can be made to few decisions.
52. In T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya High School, etc. & Others reported in 1998 Writ. LR 641, at Paragraph 6, held as follows:
"If the statutory provision enacted by the Legislature prescribed a particular mode for terminating the service or dismissing the teaching or a non-teaching staff of a school, it can and has to be done not only in that manner alone, but it cannot be done in any manner too. This principle that where a power is given to do a certain thing in a certain way, things must be done in that way and not otherwise and that the other method of performance is necessarily precluded, is not only well settled, but squarely applies to this case also in construing the scope of the power as also its exercise by the management under Section 22 of the Act."
53. In Captain Sube Singh v. Lt. Governor of Delhi [(2004) 6 SCC 440], the Supreme Court, at Paragraph 29, held as follows:
29. In Anjum M.H. Ghaswala, a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof.
54. The Supreme Court in State of Jharkhand v. Ambay Cements reported in 2005 (1) CTC 223, at Paragraph 27, held as follows:
"27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
55. In Pandit D Aher v. State of Maharashtra reported in 2007 (1) SCC 437, the Supreme Court, at Paragraph 19, held as follows:
"If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable."
Such certificate of handing over possession in the eye of law is non est, in S.MANIKUMAR.J, ars the light of the statutory provisions and the object of the Repealing Act. Therefore, this Court is of the considered view that the impugned proceedings are liable to be set aside and accordingly set aside. No Costs. Consequently, a direction is issued to the 1st respondent to issue patta in favour of 1st petitioner, as expeditiously as possible.
Note to Office:
Issue Order copy on 03.12.2009 21.10.2009 Index:Yes ars To
1. The Tahsildar, Salem.
2. The Assistant Commissioner, Urban Land Tax, Salem.W.P.No.2696 of 2001