S.Subramaniam v. Special Commissioner and Commissioner of Land Reforms

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.06.2006 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.8090 OF 2003S.Subramaniam.. Petitioner vs. 1. State of Tamil Nadu rep. by the Secretary to Government, Revenue Department, Secretariat, Fort St. George, Chennai – 600 009.2. The Special Commissioner and Commissioner of Land Reforms, Ezhilagam, Chepauk, Chennai – 600 005.3. The Competent Authority, ULC, and Asst. Commissioner of Urban Land Tax, Alandur, Chennai. .. RespondentsThis Writ Petition is filed under Article 226 of theConstitution of India praying for the issuance of a writ ofdeclaration that all proceedings initiated under the Tamil Nadu UrbanLand (Ceiling and Regulation) Act, 1978 in respect of the lands ownedby the petitioner situated at Survey No.167/11 (Old Survey No.167/1)in Karapakkam Village, Saidapet Taluk, admeasuring about 24050 sq.meters are illegal and non-est and that in any event have abatedconsequent upon the repeal of the Principal Act by the Tamil NaduUrban Land (Ceiling and Regulation) Repealing Act, 1999 andconsequently direct that the petitioner is entitled to deal with theabove mentioned lands owned and possessed by him as a full andabsolute owner. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.Krishnamoorthy, Senior Advocate for Mr.Rahul Balaji For respondents : Mr.M.Mahalingam Government advocate O R D E RThis writ petition has been filed for the issuance of a writ ofdeclaration that all the proceedings initiated under the Tamil NaduUrban Land (Ceiling and Regulation) Act, 1978 in respect of the landowned by the petitioner situated at Survey No.167/1I (Old SurveyNo.167/1) in Karapakkam Village, Saidapet Taluk, admeasuring about24050 sq. metres are illegal and non-est and that in any event haveabated consequent upon the repeal of the Principal Act by the TamilNadu Urban Land (Ceiling and Regulation) Repealing Act, 1999 andconsequently direct that the petitioner is entitled to deal with theabove mentioned lands owned and possessed by him as a full andabsolute owner.2. The brief facts for filing of the present writ petition areas follows:The lands which form the subject matter of the presentproceedings are Punja lands comprised in Survey No.167/1I, KarapakkamVillage, Saidapet Taluk. The said lands had been purchased by thepetitioner from one Perumal by sale deeds, dated29.7.1993,13.12.1993, 29.12.1993 and 3.1.1994. The said lands wereagricultural lands and as such the predecessor in title of thepetitioner herein Perumal had acquired the same through a partitiondeed, dated 21.7.1986. It is further stated that it would be evident even from the saledeed that the said lands were agricultural lands and anotherimportant aspect relevant for the purposes of this writ petition isthe fact that the said Perumal expired, on 1.10.1993, as evidencedfrom the death certificate filed together with this writ petition.The lands subject matter of the present proceedings, has been incontinuous and uninterrupted possession of the predecessor in titleof the petitioner and all statutory and other dues and charges werebeing regularly paid, including the payment of Kist, local cess,etc., till execution of the sale deeds. Immediately on signing ofthe sale deeds and the petitioner purchasing the lands, thepetitioner took physical possession of the same and has been incontinuous and uninterrupted possession of all the lands, subjectmatter of the present proceedings. The petitioner is aggrieved bythe action of the respondents in seeking to claim that the lands, https://hcservices.ecourts.gov.in/hcservices/ purchased by the petitioner, are subject to proceedings initiatedunder the Tamil Nadu Urban Land (Ceiling and Regulation) Act. Thevery basis of such a claim and exercise of the powers conferred underthe Act is unfounded. In this regard, the Tamil Nadu Urban Land(Ceiling and Regulation) Act was initially not applicable to thelands in question, which are situated at Karapakkam Village. Aswould be evident from G.O.Ms.No.679, dated 17.7.1995, the Act wasextended to the said Karapakkam Village only on the said date. Onthe date when the notification was extended to the Village, thepetitioner was the owner of the lands having purchased it throughregistered sale deeds and was also in physical possession andenjoyment of the same. The predecessor in title of the petitioner,as has been stated earlier, had died in the year 1993 itself. Whileso, some time in the year 1999, when the petitioner was intending toalienate the properties, to his shock and surprise, he was informedthat the lands were subject matter of the proceedings under theTamil Nadu Urban Land (Ceiling and Regulation) Act. Further, Thepetitioner immediately applied for certified copies of the order,said to have been passed by the second respondent by proceedings,dated 10.10.1997, in Na.Ka.No.1896/97, under Section 9(5) of the Act.The said application was made, on 12.11.1999 and thereafter, by aletter, dated 17.11.1999, the petitioner was advised to move beforethe third respondent, who, despite having received an application,dated 2.12.1999, has till date not furnished certified copies of theproceedings said to have been initiated in respect of the subjectmatter of the lands. However, the petitioner was furnished with aphoto-copy of the order, dated 10.10.1997, on 22.11.2001. The petitioner further states that it is evident even from abare reading of the order that the proceedings, purported to havebeen initiated under Section 9(5) of the Act, in respect of only oneof the parcels of the land, viz., SF 167/1I and the noticescontemplated under the Act have been issued in the name of Perumal,who was not the owner of the property on the date of issuance of thesaid notices and who was in fact already dead, much before that date.The respondents' very initiation of proceedings under the Act istherefore not proper in law having failed to comply with themandatory provisions of the Act requiring service of notice on theowner of the property. When admittedly the petitioner is the ownerof the property and also in physical possession of the same, anyaction without notice to him would be non-est and void in law. It is further stated that the respondents are well aware thatthe action initiated, if any, as against the petitioner's lands arevoid and unenforceable. However, despite the same and despite thepetitioner having made representations to the highest authorities,the proceedings do not appear to have yet been dropped. Furthermore,even though even according to the respondents, the proceedingspertain only to S.F.No.167/1I, they are seeking to interfere with the https://hcservices.ecourts.gov.in/hcservices/ rights of the petitioner in respect of other lands as would beevident from several communications. According to the petitioner, inthe communication, dated 26.10.1999, from the first respondent, afterrecognizing the fact that the petitioner had been seriously affectedby the lack of notice to him, has expressed his inability toconsider the appeal in view of the coming into force of the TamilNadu Urban Land (Ceiling and Regulation) Repeal Act and has alsowrongly stated as if all the lands are subject matter of theproceedings. However, the respondent sought to reassure thepetitioner that the authorities had been instructed not to take anyfurther proceedings as against the land. The petitioner, beingaggrieved by the refusal to drop the proceedings, had also filed awrit petition in W.P.No.271 of 2000 before this Court wherein interimorders had been granted in favour of the petitioner. However,considering the availability of the remedy before the Tribunal, thesaid proceedings were withdrawn. The fact remains that theproceedings against the petitioner's lands have still not beendropped despite the fact that admittedly no notice of any proceedingswas ever intimated to the petitioner. Moreover, the petitioner beingin uninterrupted physical possession of the lands and the Repeal Actcoming into force consequent upon the same, all proceedings againstthe lands would abate and as such the petitioner's rights cannot beinterfered with. The respondents are continuing to cite the pendencyof proceedings to prevent the petitioner from transacting with thesaid lands. It is further submitted by the petitioner that the respondentshave failed to take note of the fact that the petitioner hadpurchased the land from his predecessor in title Perumal, by way offour sale deeds in 1993 and 1994, long prior to the extension of theTamil Nadu Urban Land (Ceiling and Regulation) Act, to KarapakkamVillage, where the land is situated, which was done throughG.O.Ms.No.679, dated 17.7.1995. Since coming into force of the TamilNadu Urban Land (Ceiling and Regulation) Repeal Act in the month ofSeptember 1999, all the proceedings under the Act would abate and assuch the petitioner's rights over the lands cannot be interferedwith. Therefore, the action of the respondent, which is impugned inthe present writ petition, cannot be sustained. 3. It is also clear from the facts of the case that there was nooccasion for reaching Section 11 stage and issuing notification foracquisition of the land under Section 11(3) of the Act or Section 11(5), since no notice was issued to the petitioner, who is the realowner of the lands in question. The relevant provisions of the saidRepealing Act are as follows: 3 (1) The repeal of the principal Act shallnot affect:- (a) the vesting of any vacant land under https://hcservices.ecourts.gov.in/hcservices/ sub-Section (3) of Section 11, possession of whichhas been taken over by the State Government or anyperson duly authorised by the State Government inthis behalf or by the competent authority; (b) the validity of any order grantingexemption under sub-section (1) of Section 21 orany action taken thereunder.(2) Where...... (a) any land is deemed to have vested inthe State Government under sub-section (3) ofSection 11 of the Principal Act but possession ofwhich has not been taken over by the StateGovernment or any person duly authorized by theState Government in this behalf or by theCompetent Authority; and (b) any amount has been paid by the StateGovernment with respect to such land, then suchland shall not be restored unless the amount paid,if any, has been refunded to the State Government.4. All proceedings relating to any order made orpurported to be made under the Principal Actpending immediately before the commencement ofthis Act, before any Court, Tribunal or anyAuthority shall abate:"4. It is clearly noted that in Section 2 of the Repeal Act thatthe 1978 Act has been repealed. Therefore, nothing is saved exceptfor what is expressly stated above in Section 3. Furthermore,Section 4 of the Repeal Act states that all proceedings relating toany order made or purported to be made under the Principal Act,pending immediately before the commencement of this Act before anyCourt, Tribunal or any other Authority, shall abate and the saidprovision also contains a proviso which states as follows:"Provided that this Section shall not applyto the proceedings relating to Sections12,13,14,15,15-B and 16 of the principal Act in sofar as such proceedings are related to the land,possession of which has been taken over by theState Government or any person duly authorised bythe State Government in this behalf or by thecompetent authority."5. On the contrary, the learned counsel appearing for therespondents submits that the notice, under Section 7(2) of the TamilUrban Land (Ceiling and Regulation) Act, 1978, was issued to Perumal,Karapakkam Village, in SR.No.563/97, dated 25.2.1997, requesting himto file the return under Section 7(1) of the said Act in respect ofthe land held by him in S.NO.167/111 measuring an extent of 24050 https://hcservices.ecourts.gov.in/hcservices/ sq.mts. as his holding in the said survey number was in excess of theCeiling limit allowable under Section 5 of the Act. The said noticewas served by affixture on 20.4.1997, by the Village AdministrativeOfficer, Oggianthuraipakkam, stating that the person mentioned in thenotice was not residing in that village. Since no objections werereceived, the Deputy Tahsildar, attached to the third respondent,inspected the land on 12.6.1997, and submitted proposals to acquirethe excess vacant land. Accordingly, a notice under Section 9(4)with draft statement under Section 9(1) of the said Act was issued,on 18.6.1997 and it was also served by affixture by the VillageAdministrative Officer on 30.7.1997. The above land was inspected bythe then Competent Authority (Urban land Ceiling) Alandur, on27.8.1997. After allowing family entitlement of 500 sq. mts. andexcluding the area covered by High Tension Line of 750 sq.mts. theexcess vacant land was computed as 22800 sq.mts and orders underSection 9(5) of the said Act was issued, on 10.10.1997, to acquirethe excess vacant land and also served by affixture. The finalstatement under Section 10 (1) of the said Act was issued on30.7.1998 and it was also served by affixture. The Notificationunder Section 11(1) and 11(3) of the Act were issued, on 22.12.1998and 9.3.99 respectively. The notice, under Section 11(5) of the saidAct was issued on 3.6.1999 and it was served by affixture. Thepossession of the excess vacant land was taken over on 15.6.1999 andhanded over to the Revenue Inspector, Pallikkaranai, on 15.9.1999.Necessary changes had been made in the village accounts after thepetitioner had given a petition, dated 26.10.1999 to the PrincipalCommissioner and Commissioner of Land Reforms to drop furtherproceedings under the Ceiling Act. A reply was given to him inprincipal Commissioner and Commissioner of Land Reformslr.No.23955/99 (J1), dated 27.10.1999, stating that suitableguidelines are awaited from the Government with regard to disposal ofappeals filed under Section 33 of the said Act in view of the RepealAct and that pending receipt of guidelines, the PrincipalCommissioner and Commissioner of Land Reforms was unable to entertainand exempted the appeals. At this stage, the urban land owner hasfiled writ petition in W.P.No.271 of 2000 stating that he haspurchased an extent of 18 cents in S.No.167/1E, 167/1F asagricultural lands, from the previous owner Perumal Naicker, on29.7.1993, and he was informed in the year 1999 that the land wasacquired under the Urban Land Ceiling Act. This Court in itsjudgment, dated 3.12.2001 in W.P.No.271 of 2000 had ordereddismissing the writ petition as the petitioner wanted to withdraw thewrit petition reserving his liberty to move the Land Reforms Tribunaland now the petitioner herein has filed the present writ petition inthis Court.6. It is also stated by the respondents that the petitioner whohad purchased the lands from Perumal, during the year 1993, had nottransferred the Patta in his name. Further, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ failed to inform the authority for the sale effected. No objectionwas raised even after notices were served. The action was initiatedagainst Perumal based on the entry found in the revenue records onthe date of the commencement of proceedings under the said Act. Thelands in question were treated as urban land and assessed to UrbanLand Tax, with effect from 1.7.1991, in the name of Perumal. 7. It is also submitted by the respondents that the Tamil NaduUrban Land (Ceiling and Regulation) Act, 1999, will not affectvesting of any vacant land under Section 11(3), possession of whichhas already been taken over and that all steps and action had beenrightly followed as per the provisions of the Act. Notice underSection 7(2) was issued on 25.2.1997. Notice under Section 9(4) withdraft statement under Section 9(1) was issued on 18.6.1997. Orderunder Section 9(5) was issued on 10.10.1997. Final statement underSection 10(1) was issued on 30.7.1998. Notifications under Section11 (1) and Section 11(3) were issued on 12.12.1998 and 9.3.1999,respectively, and final notice under Section 11(5) was issued on4.6.1999. The possession of the excess vacant land was taken and washanded over to the revenue authorities on 15.9.1999. 8. It is further submitted by the respondents that Section 3(1)(a) of the Repeal Act states that the Repeal of the Principal Actshall not affect the vesting of any vacant land under Section 11(3),possession of which has already been taken over by the StateGovernment or any person duly authorised by the State Government orby the Competent Authority and that the Act would continue to applyto the cases where the land stands vested with Government underSection 1(3) of the Tamil Nadu Act of 24 of 1978 and the possessionof the same has been taken over and therefore, the action taken inthe above category will not get abated under Section 4 of the Act.9. From the facts, it is found that all the proceedings underthe Tamil Nadu Urban Land Ceiling Act, 1978, had been proceededagainst a dead person, namely, Perumal and only for the purpose ofclaiming payment for Urban Land Tax from fasli 1410, the authoritieshave addressed proceedings to the petitioner, which is a clearadmission on the part of the respondents that physical possession andownership continued with the petitioner. 10. It is also noted that notice under Section 11(5) was issuedcalling upon the petitioner for delivery and surrendering ofpossession within 30 days from the date of notice i.e., 3.6.1999.However, It is seen from the records and as stated by the respondentsthat even before expiry of 30 days, notice was given under Section 11(5) and proceedings under Section 11(6) were initiated for compulsorytaking over of the physical possession of the land. In such an eventand in such circumstances, this Court is of the view that suchproceedings cannot be sustained in the eye of law. Therefore, it is https://hcservices.ecourts.gov.in/hcservices/ clear that the possession of the land in question was still with thepetitioner at the time of coming into force of the Tamil Nadu urbanLand (Ceiling & Regulation) Repeal Act, 1999, on 16.6.1999. In sucha case, according to the provisions of the Repeal Act, pendingproceedings will stand abated and in view of the earlier decisions ofthis Court the land Ceiling proceedings initiated against thepetitioner stand abated and therefore, the writ petition isaccordingly allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary State of Tamil Nadu Revenue Department Secretariat Fort St. George Chennai – 600 0092. The Special Commissioner and Commissioner of Land Reforms Ezhilagam, Chepauk Chennai – 600 0053. The Competent Authority, ULC and Asst. Commissioner of Urban Land Tax Alandur, Chennai+1cc to Mr.Satish Parasaran, Advocate Sr 27356+1cc to the Govt. Pleader Sr 27223JRG (CO)km/30.6.W.P.No.8090 OF 2003