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S.SIVAPARAMAM versus STATE OF TN

High Court of Madras

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S.Sivaparamam v. State of TN - WP.10637 of 2006 [2007] RD-TN 2382 (18 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED:18.07.2007

CORAM:

THE HONBLE MR. JUSTICE P. JYOTHIMANI

Writ Petition No.10637 of 2006

1.S. Sivaparamam

2.P. Saraswathi

3.P. Kumaran .. Petitioners Vs.

1. The State of Tamil Nadu

rep. By its Secretary

Revenue Department

St. George Fort

Chennai 600 009.

2. The Principal Commissioner and

Commissioner of Land Reforms

Chepauk, Chennai 600 005.

3. The Competent Authority

Constituted under the

Urban Land Ceiling

T.Nagar, Chennai 17.

4. The Tahsildar

Mambalam-Guindy Taluk

Near Kasi Theatre

Ashok Nagar,

Chennai 600 073. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Declaration as stated therein. For petitioners : Mr. E. Vijay Anand

for Mr. R. Mohan

For respondents : Mr. K. Balu

Addl. Govt. Pleader (Writs)

ORDER



The writ petition is filed for declaration that the land comprised in Survey Nos.649/18, 649/19, 649/25 bearing Plot Nos.13, 14, 15, 16, 27, 28, 31 and 32 measuring 17,790 sq.ft. situated at V.O.C. Nagar of Velachery Village, Chennai belonging to the petitioners does not attract the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 or Section 3(1)(a) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999.

2. The case of the petitioners is that under various documents they have acquired title in respect of the abovesaid properties and the purchases were made in the year 1985 and independent pattas were given and they have been in absolute possession. The petitioners have approached the 4th respondent-Tahsildar on 29.3.2006 for inclusion of their lands in Town Survey Register by issuing new patta. In spite of the fact that the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 which came into effect in 1978 has lost its legal validity in the year 1999 on account of passing of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 by virtue of which the lands which were under the proceedings of the earlier Act became free-hold lands except in cases where the possession has been taken by the Government which is saved by Section 3(1)(a) of the said Act, the 4th respondent has wrongly held that the properties are attracted by the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. According to the petitioners, they are the title holders of the properties and are in actual and physical possession and their possession has never been taken by the Government at any point of time under the old Act.

3. The petitioners relied upon the judgements of the Supreme Court in Pt.Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P.(AIR 2000 SC 3415) and Smt.Angoori Devi v. State of U.P. & Ors. (JT 2000(Suppl.1) SC 295), stating that by virtue of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, the authorities functioning under the erstwhile principal Act could not have jurisdiction to initiate proceedings under the new Act and it is categorical that only exception to that is in respect of properties wherein physical possession has been resumed by the Government prior to coming into the new Act and this proposition has also been followed by this Court in various decisions and in view of the same, the present writ petition has been filed.

4. Even though the respondents have not filed counter affidavit, on direction from this Court, the learned Government Advocate has produced the entire files relating to the land ceiling proceedings regarding the properties in dispute for the purpose of ascertaining as to whether physical possession has been taken by the respondents.

5. I have referred to the files. It is seen that notice under section 7(2) of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 24/1978 was issued to the vendor of the petitioners on 3.11.1995. Subsequently, a notice under section 9(4) of the said Act was issued on 5.8.1997 calling for objection for the proposed action under the said Act. A statement was prepared as per section 9(1) of the Act in Form No.III as per Rule 8 of the concerned Rules on the same date. By order dated 8.9.1997, the third respondent has passed orders under section 9(5) in respect of taking proceedings to take possession. The Competent Authority under section 10(1) of the Act has prepared a final statement on 7.10.1997. Subsequently, notification under section 11(1) was issued by the Competent Authority on 4.3.1998 and the consequential notification under section 11(3) was issued on 18.6.1998, for acquisition of the excess vacant land held by the vendor of the petitioners and likewise, the notice under section 11(5) of the Act was also issued on 15.9.1998.

6. It is seen in page 137 of the file produced by the learned Government Advocate that one of the officials have stated that she has handed over possession to another official. That was dated 21.12.1998. The learned Government Advocate would heavily place reliance on the said paper to show that the official has handed over possession and therefore it should be presumed that the physical possession has been taken. Apart from the abovesaid papers, there are no other record to show that the owner of the property has handed over the physical possession to the respondents. The legal position in this regard is clear. After the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 20/1999, the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 and the action taken under the said Act lapsed. Section 4 of the Act 20/1999 states that all proceedings relating to any order made or purported to be made under the Principal Act, viz., Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 pending immediately before the commencement of the Act 20/1999 before any Court, Tribunal or any authority shall abate. However, the said Section saves the action taken in respect of the lands possession of which has been taken over by the State Government or any other person authorised by the State Government or by the competent authorities. Section 3 of the Act 20/1999 also states that vesting of possession of any property taken earlier or granting of any exemption under section 21(1) shall not be affected by the repealing Act. It also further states that in respect of cases wherein under section 11(3) of the Principal Act (Old Act, 1978) in respect of which possession has not been taken, but an amount has been paid by the State Government to such lands, such lands shall not be restored unless the amount already paid is not refunded to the Government. In this regard, it is relevant to reproduce sections 3 and 4 of the repealing Act which state as follows: "Section 3.(1) The repeal of the principal Act shall not affect- (a) the vesting of any vacant land u 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 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 of 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) 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. Section 4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, tribunal or any authority shall abate: Provided that this section shall not apply to the proceedings relating to sections 12, 13, 14, 15, 15-B and 16 of the principal Act 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." Therefore, a combined reading of these sections will make it clear that action under the old Act would abate except in respect of cases where possession has already been taken over by the Government or in respect of cases where possession has not been taken over but deemed to have vested under Section 11(3) with the State Government and the Government paid the amount for the value of the land and the same has not been refunded. That is relating to deemed possession under section 11(3) of the Principal Act.

7. On the facts which I have narrated earlier, on going through the files, even though a notification under section 11(3) of the Principal Act was given on 18.6.1998 about the deemed possession, it is nowhere in the files seen that the respondents have paid compensation or any amount to the petitioners or the vendor of the petitioners, viz., previous owner. Therefore, it is clear that the order passed by the authority contemplated under the Principal Act in declaring excess land in respect of the property in dispute cannot be stated to have become final and therefore the proceedings under the Principal Act are deemed to have abated. It was held by the Supreme Court in Pt.Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P.(AIR 2000 SC 3415) that in cases where it is proved that the possession under the Principal Act had not been taken over and there is nothing on record to indicate that the State has taken possession over the surplus land, the said proceedings should be deemed to be abated under section 4 of the repealing Act 1999. That was also the view taken by the Supreme Court in Smt.Angoori Devi v. State of U.P. & Ors. (JT 2000 (Suppl.1)SC 295). In similar circumstances, K.P.Sivasubramaniam,J. in the judgement rendered in Mrs.Ayesha Haque v. State of Tamil Nadu & others (200-3 Writ L.R.193) has held, " A perusal of the above quoted sections 3 and 4 makes it clear that the repeal shall not affect only the cases where the vesting of the land has taken place in favour of the Government under section 11(3) and possession having been taken by the State Government"

8. In a similar situation like that of the present case, Prabha Sridevan,J. in the order dated 31.7.2006 rendered in W.P.No.19845 of 2006 in S.Antony & others vs. The Special Commissioner, Commissioner Land Reforms, Chennai-5 and others, has dealt with the notice issued under section 11(5) of the Principal Act, 1978, by relying upon section 11(5) and (6) of the Principal Act which reads as under: "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. SECTION 11(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 force as may be necessary." In the said case, the learned Judge has held that even if the original owner refuses to part with the possession under section 11(5) of the Principal Act, under 11(6) there is power to take possession and if such provision is not resorted to and in the meantime, the repealing Act has come into existence, the proceedings under the Principal Act should be deemed to have abated. In fact, the learned Judge, while deciding so, has also relied upon an earlier order of this Court in W.P.No.35490 of 2004 in which it was held as follows: "When the respondent does not say that the petitioner had surrendered possession on its own, then the respondent ought to have taken possession, under section 11(6) of the Principal Act, whenever a urban land owner fails to surrender possession as demanded under section 11(5) of the Act, then the competent authority may take possession of the land and may, for that purpose use such force as may be necessary. Therefore, from the above two aspects, namely, the urban land owner was directed to surrender possession and since he is not shown to have surrendered possession and the power of the Government to use such force as may be necessary in taking possession, clearly indicate that the physical possession of the land must be taken by the competent authority. There is nothing on record to show that 'on what day possession was taken; was any representative of the writ petitioner present; the name of the person who took possession; the person from whom possession was taken; are there any contemporary record to show that possession was in fact taken at such a time and on such a date, when possession was handed over to the Revenue Inspector, Pallikaranai; are there any record to show such handing over to Revenue Inspector, Pallikaranai and the name of the officer, who received the possession of the land...... In 2002(2) L.W. 764 (C.V.Narasimhan vs. The Government of Tamil Nadu, etc. and 2 others), while considering the impact of the repealing Act, had held that where physical possession of such land continues to be with the owner, the statutory vesting under section 11(3) of the Act is of no relevance at all."

9. On the factual situation, in the present case, as I have enumerated above, even though steps have been taken under section 11(4) and 11(5) of the Principal Act, nevertheless it remains the fact that on record there is nothing to show that physical possession has been taken from either of the petitioners or from their vendor in conformity with section 11(6) of the Principal Act. R.Jayasimha Babu,J. in Allind Metal Fabricators Pvt. Ltd., Madras vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Madras, reported in 2002(2) CTC 716, by placing reliance on the judgement of the Supreme Court in Smt.Angoori Devi v. State of U.P. & Ors. (JT 2000(Suppl.1) SC 295), has also held that if the possession under the Principal Act prior to the repeal was not taken, as per the judgement of the Constitution Bench of the Supreme Court, no proceedings can be subsequently initiated.

10. On the other hand, the petitioners have categorically stated that they are in physical possession of the properties and have also produced various certificates including urban land tax receipts, certificates issued by the village karnam, patta issued by the Tahsildar dated 23.12.1999, etc. to show that the petitioners continue to be in physical possession of the properties in dispute. In view of the same, the writ petition stands allowed. No costs. Kh

To

1. The Secretary

State of Tamil Nadu

Revenue Department

St. George Fort

Chennai 600 009.

2. The Principal Commissioner and

Commissioner of Land Reforms

Chepauk, Chennai 600 005.

3. The Competent Authority

Constituted under the

Urban Land Ceiling

T.Nagar, Chennai 17.

4. The Tahsildar

Mambalam-Guindy Taluk

Near Kasi Theatre

Ashok Nagar,

Chennai 600 073.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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