Sosamma Thampy v. The Assistant Commissioner (ULT)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17 .04.2006 CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWRIT PETITION No.4062 of 2006Sosamma Thampy... PetitionerVs.1. The Assistant Commissioner (ULT), -cum-Competent Authority (ULC) 153, Karnigar Street, Adambakkam, Chennai – 600 088.2. The Special Commissioner and Commissioner of Land Reforms, Government of Tamilnadu, Ezhilagam, Chepauk, Chennai-600 005... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Declaration as stated therein.For petitioner : Ms.R.VaigaiFor respondents : Mr.M.Mahalingam, GA O R D E R This Writ Petition has been filed praying for the issuanceof a Writ of declaration, declaring that the the proceedingsinitiated under the Tamil Nadu Urban Land (Ceiling & Regulation)Act, 1978, in R.C.No.254/87A, dated 31.08.1989, read withRc.No.5633/93A, dated 25.02.1994, by the 1st respondent has abatedon the promulgation of Act 20 of 1999 and consequently, thepetitioner is the owner of the property situated in No.144,Seevaram Village, Saidapet Taluk, comprised in Survey No.51/1B1.2.Heard the learned counsel for the petitioner as well asfor the respondents. https://hcservices.ecourts.gov.in/hcservices/

3. It is the case of the petitioner that she hadpurchased the land measuring one acre, under a document registeredat the office of the Sub-Registrar, Saidapet, as documentNo.780/70. The property is situated at No.144, Seevaram Village,Saidapet Taluk, comprised in part of Survey No.51/1B1. Thepetitioner further submits that proceedings were initiated by thefirst respondent herein for acquisition of land to the extent of3570 sq.metres as the land was said to be surplus since it was inexcess of the ceiling limit prescribed by the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978, (hereinafter referred to as theAct), as per proceedings of the first respondent, dated 10.11.1987.A statement was issued to the petitioner under Section 9 of saidAct in which an area of 3570 sq.metres was determined to be theextent of vacant land held by the petitioner in excess of theceiling limit. The petitioner had sent her objections on05.12.1987 stating that she had retired from the partnership firmviz., M/s.A.R.C Engineering works on 01.04.1981 and no share of theproperty was allotted to her. Therefore, she was not concernedwith the area of 2023 sq.metres said to be in excess of the ceilinglimit since only an area of 1547 sq.meters belonged to her. 4. The proceedings before the competent Urban Land Ceilingauthority resulted in a notice, dated 30.08.1994, asking thepetitioner to appear on 16.09.1994 to file her objections for theproposed determination of the amount payable under Section 12(6) ofthe Act. Inspite of the objections sent by her, on 05.12.1987,that she is not concerned with 2023 Sq.meters belonging toM/s.A.R.C.Engineering Works and that only 1547 Sq.meters belongedto her, the above mentioned notice, dated 30.08.1994, was issuedshowing that an area of 3550 Sq. metres as being in excess of theceiling limit prescribed under the Act. Therefore, the petitionerhad submitted her objections by her communication, dated16.09.1994, after which no further action was initiated by therespondents. 5. It is also the case of the petitioner that the TamilNadu Urban Land (Ceiling & Regulation) Repeal Act, 20 of 1999, waspromulgated by which all proceedings seeking to acquire the excesslands were deemed to have abated and therefore, the petitionercontinues to be the owner of the land and the land ceilingauthorities do not have a lien over the property. The petitionerhas also stated that after the notice, dated 30.08.1994, neitherthe physical possession of the property had been taken by therespondents nor the petitioner had been paid due compensation. Thepetitioner would emphasise that any statutory vesting under Section11 (3) of the Act is of no relevance when no compensation has beenpaid to her. Moreover, physical possession has also not been takenby the competent authorities to dis-entitle the petitioner fromclaiming her rights over the property. Moreover, the proceedingsinitiated under the Act is deemed to be pending without having been https://hcservices.ecourts.gov.in/hcservices/ completed and after the promulgation of Act 20 of 1999, all pendingproceedings under the Act would have to be considered as abated.6. In such circumstances, the petitioner had maderepresentations to the respondents requesting them to passnecessary orders to the effect that the proceedings initiatedearlier have abated and also to declare that the petitioner is theowner of the property after the Repealing Act came into force. Therepresentations of the petitioner, dated 01.09.2005 and 26.10.2005were received by the respondents but no orders were passed on thepetitions. Hence the petitioner had approached this Court in WritPetition 38638 of 2005 seeking for a Writ of Mandamus to direct thefirst respondent to pass orders on the representations afteraffording the petitioner an opportunity of personal hearing. Theorder was passed in the said writ petition, on 30.11.2005,directing the respondents to consider her representations and passappropriate orders within the specified time limit. Following theorder of the High Court, dated 30.11.2005, the second respondenthad passed an order on 18.01.2006, stating that since thePrincipal Act had been repealed no appeal can be heard by theAppellate Authority, as contemplated under the said act.Therefore, the petitioner has been constrained to file the presentwrit petition. 7. The Tamil Nadu Urban Land (Ceiling and Regulation)Repeal Act 1999, Act 20 of 1999, an Act to repeal the Tamil NaduUrban Land (Ceiling and Regulation) Act, 1978, reads as follows :-" BE it enacted by the Legislative Assembly of theState of Tamil Nadu in the Fiftieth Year of theRepublic of India as follows:- 1. Short title and commencement:- (1) ThisAct may be called the Tamil Nadu Urban Land (Ceilingand Regulation) Repeal Act, 1999(2) It shall come into force at once 2. Repeal of Tamil Nadu Act 24 of 1978 :- The TamilNadu Urban Land (Ceiling and Regulation) Act, 1978,(Tamil Nadu Act 24 of 1978) (hereinafter referred toas the principal Act), is hereby repealed.3.Savings :- (1) The repeal of the principalAct shall not effect-(a) the vesting of any vacant land under sub-section (3) of Section 11, possession of which hasbeen taken over by the State Government or any personduly authorised by the State Government in thisbehalf or by the competent authority;(b) The validity of any order granting exemption undersub-section 1 of Section 21 or any action takenthereunder. https://hcservices.ecourts.gov.in/hcservices/ (2) Where -(a) any land is deemed to have vested inthe State Government under Section (3) ofSection 11 of the Principal Act but possessionof which has not been taken over by the StateGovernment or any person duly authorised by theState Government in this behalf or by competentauthority ; and(b) any amount has been paid by theState Government with respect to such land,then, such land shall not be restored unless theamount paid, if any, has been refunded to theState Government.4.Abatement of legal proceedings ;- All proceedingsrelating to any order made or purported to be made under thePrincipal Act pending immediately before the commencement ofthis Act, before any court, tribunal or any authority shallabate:Provided that this section shall not apply tothe proceedings relating to sections 12, 13, 14, 15, 15-B and 16 of the Principal Act in so far as suchproceedings are relatable to the land, possession ofwhich has been taken over by the State Government or anyperson duly authorised by the State Government in thisbehalf or by the competent authority.8. The learned counsel for the petitioner had laidemphasis on various judgments of the the Supreme Court and of thisCourt to show that the proceedings initiated against the petitionerunder the Act had abated and the lands in question would,therefore, continue to be vested in her. 8.1. The learned counsel had relied on the decision of theSupreme Court in Smt.Angoori Devi Vs. State of U.P. and others(Judgment Today 2000 (Suppl.1) SC 295) wherein it was held asfollows ;-" .......... 2. These cases relate to theinterpretation of different provisions of the UrbanLand (Ceiling and Regulation) Act. During the pendencyof these appeals in this Court, the Urban Land (Ceilingand Regulation) Act has been repealed by Act 15 of 1999and the State of U.P. also has adopted the same by aResolution. In view of the provisions contained inSection 3 of the Repealing Act and the fact that thepossession of the vacant land has not been taken overby the State Government, which is asserted by theCounsel appearing for the appellants and is also https://hcservices.ecourts.gov.in/hcservices/ apparent from the interim orders passed by this Court,the question for consideration no longer survives.3. Further, under Section 4 of the RepealingAct all proceedings under the Act must be held to haveabated. In that view of the matter, we do not think itnecessary to proceed with this matter. These appealsstand disposed of accordingly."8.2. This Court by an order, dated 12.09.2000, made inW.A.No.982 of 1999 in Dr.S.Pramila Vs. The Principal Commissionerand Commissioner of Land Reforms and another held as follows :-"The learned counsel for the appellant has submittedthat he is in possession and the matter is in respectof Tamil Nadu Urban Land Ceiling and Regulation Act,which is already repealed . In view of Section 4 ofRepealing Act, all the proceedings shall be abated." 8.3. This Court by an order, dated 15.11.2000, made inW.P.Nos.9030&9031 of 1997 in P.S.Sundaram and another Vs. TheCompetent Authority (Urban Land Ceiling) and Assistant Commissioner(Urban Land Tax) and another held as follows :-".......2. It is also stated that thepetitioners are in possession of the land inquestion.3. In the light of what is stated above andin view of Section 4 of the Tamilnadu Act 20 of 1999repealing the Act of Tamilnadu Urban Land (Ceilingand Regulation) Act,1978, the entire proceedingsincluding the impugned proceedings shall standabated. Writ petitions are disposed of accordingly"8.4. This Court by an order, dated 29.06.2001, made inW.P.No.12819 of 1991 in Rao Insulating (P) Ltd., Vs.Spl.Commissioner & Secretary to Government Revenue Department andothers held as follows :-" ...... In the light of the coming into force ofTamil Nadu Act 20 of 1999 and in particular toSection A of the Act all proceedings relating to anyorder made or purported to be made in particular,pending before the commencement of the Amendment actshall abate. It is represented that no final ordershave been passed nor possession has been taken. Ifthat be so, Section 4 of the Act squarely applies tothe case of the Petitioner.3. In the light of the said legalpossession, nothing further survives in the WritPetition. hence, the Writ Petition is dismissed." https://hcservices.ecourts.gov.in/hcservices/

8.5. It is also seen that the First Bench of this Court inW.A.No.1239 of 1997 has held, citing the decision rendered by theSupreme Court in PT. Madan Swaroop Shrotiya Public CharitableTrust Vs. State of U.P. & Others (JT 2000 (3) S.C.391) held asfollows:- " ......This writ appeal has been filed challengingthe order of the learned single Judge arising out ofthe Tamil Nadu Urban Land (Ceiling and Regulation)Act,1978. But in view of the State Act, 20 of 1999,the above Act, 1978 has been repealed. It is notdisputed that the writ appellants are in possessionas on today. If that be so, basing upon the judgmentof the Apex Court in PT. Madan Swaroop ShrotiyaPublic Charitable Trust Vs. State of U.P. & Others(JT 2000 (3) S.C.391) in which it is held that theproceedings under Urban Land (Ceiling and Regulation)Act gets abated, and more so if the possession of theland has not been taken over under the Urban LandCeiling Act, this writ appeal has to be allowed.This writ appeal is allowed holding that theappellants are not liable to surrender any land underthe Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978.8.6. This Court by an order, dated 8.11.2001, made inWP.No.28398 of 1993 held as follows ;-" ....... In view of the Tamil Nadu UrbanLand (Ceiling and Regulations) Repeal Act, 1999 (Act20 of 99) repealing Tamil Nadu Urban Land (Ceilingand Regulation) Act, 1978, no factual adjudicationis required.In view of the fact that the possession ofland in question is with the Petitioners and also ofthe fact that this Court has granted interiminjunction as early as 18.11.1993 and the same is inforce all along and in the light of the repealingAct 20 of 1999, I am of the view that thePetitioners are entitled to the benefits under theAct and the authorities are restrained fromproceeding further."8.7. This court by an order, dated 15.02.2002, made inWP.No.8684 of 1995 ( 2002 (2) CTC 716 ) in Allind Metal FabricatorsPvt.Ltd Vs. The Secretary to Government held as follows ;-" The Tamil Nadu Urban Land (Ceiling andRegulation) Act has been repealed by the repealingAct (Act 20 of 1999) and all pending proceedings alsohaving been declared to have abated. As held by theSupreme Court in the case of Angoori Devi Vs. State https://hcservices.ecourts.gov.in/hcservices/ of U.P., JT 2000 Suppl.1 (Supreme Court) 295, adecision by a Constitution Bench, if the possessionof the land had not been taken prior to the repeal,such possession cannot be taken thereafter and noproceedings can be thereafter initiated under therepealed enactment. During the pendency of this writpetition the petitioner had the benefit of an interimorder protecting his possession. It is also not thecase of the respondents that they have takenpossession.2. The writ petition is therefore allowed"8.8. In the case of C.V.Narasimhan – Vs- The Government ofTamil Nadu and others (2002 (2) Law weekly . 764) this court hasheld that when possession of the land is still with the owner andcompensation has not been paid by the Government to the owner,certain rights enure to the owner in terms of the Repealing Act.It has been further held that Statutory vesting is of no relevance.If possession continues to be with the owner and he has notreceived compensation, then the authorities have to consider theowners claim and give a finding on that aspect.8.9. In Ayesha Haque – Vs.- State of Tamil nadu andothers- reported in 2003 Writ Law Reporter 193, this Court held asfollows:-"9. A perusal of the above quoted sections3 and 4 – (Act 20 of 1999) makes it clear that therepeal shall not affect only the cases where thevesting of the land has taken place in favour ofthe Government under Section 11(3) and possessionhaving been taken by the State Government.10. In this case, though orders have beenpassed, declaring the land as excess, there are twofacts which would militate against the continuedapplicability of the Ceiling Act. Firstly, thepossession remains with the petitioner andtherefore no complete vesting has taken place infavour of the State Government. Secondly, asagainst the order passed by the third respondent,an appeal has been filed before the PrincipalCommissioner, the second respondent herein, andtherefore the proceedings declaring the excess landcannot be stated to have become final. Therefore,I am inclined to hold that Section 3 of Act 20 of1999 cannot apply and in terms of Section 4, theproceedings have to be held as abated." https://hcservices.ecourts.gov.in/hcservices/

8.10. Following the earlier order passed in a similarwrit petition in WP.No.8684 of 1995, dated 15.02.2002 reported in2002 (2) CTC 716), this court allowed the writ petition inWP.No.18581 of 2004 in M.C.Ram Mohan Vs. The Government of TamilNadu and others, by an order dated 14.07.2004 on the same terms.8.11. This Court by an order, dated 09.09.2004, made inWP.No.6641 of 1997 in G.Ramasamy Vs. State of Tamil Nadu and othersheld as follows :-"...... 10. On a perusal of the counteraffidavit filed on behalf of the respondents alsothere is no specific averment to the effect as to howthe physical possession of the land was taken on30.10.1991, by following the procedure prescribedunder the provisions of the Act. In suchcircumstances, it will have to be necessarily heldthat though the declaration under Section 11 (3) ofthe Act came to be issued on 27.03.1991, thepossession after issuance of 11/5 notice had not beenvalidly taken as contemplated under the Provisions ofthe Act. 12. In the above said background, when theapplication of Act 20/1999 is considered, it willhave to be held that there is no scope to hold thatthe respondents could be entitled to invoke Section3(1) (a) of Act 20/1999. In as much as the physicalpossession of the land has never been taken over bythe State Government or any person duly authorisedby the State Government in this behalf or bycompetent authority, automatically the applicationunder Section 4 of the said Act, comes into play andall the proceedings including the proceedingsimpugned in this writ petition should abate withoutanything more.13. In the result, the writ petition succeedsand the orders impugned in the writ petition are setaside."8.12. In Aarkay Distilleries Pvt. Ltd – Vs.-The AssistantCommissioner (ULT) cum Competent Authority, in W.P.No.35490 of2004, by an order, dated 23.09.2005, this Court has held that whenphysical possession continues with the owner, the statutory vestingunder Section 11(3) of the Tamil Nadu Urban Land (Ceiling &Regulation) Act,1978, is of no relevance and therefore, underSection 4 of the Repealing Act, Act 20 of 1999, the entireproceedings initiated under the Principal Act would stand abated. https://hcservices.ecourts.gov.in/hcservices/

8.13. This Court by an order, dated 25.11.2005, made inWP.No.28061 of 2004 in Mrs.B.Girija Vs. The Government of TamilNadu and others held as follows:-" After the coming into force of theRepealing Act 20 of 1999, which came into force on16.6.1999 repealing the parent Act, namely the TamilNadu Urban Land (Ceiling & Regulation) Act, theproceedings initiated under the parent Act wouldsurvive for continuation only if it is shown thatphysical possession of the property declared assurplus had been taken over by the Government. Ifnot, the Repealing Act says that all the proceedingswould come to an end. Learned Government Advocatewould submit that only symbolical possession had beentaken and not physical possession. Since physicalpossession is not with the respondents, it isneedless to state that all the proceedings initiatedunder the parent Act would come to an end. Underthese circumstances, the writ petition stands allowedas prayed for.8.14. This Court by an order, dated 29.11.2005, made inW.P.No.35275 of 2004 in Swaminathan Narayanan Nair Vs. ThePrincipal Commissioner & Commissioner of Land Reforms and othersheld as follows :-"With the consent of the learned counsel oneither side, the writ petition itself is taken upfor final disposal. Proceedings were initiatedunder Tamil Nadu Urban Land Ceiling Act 1978 againstthe holdings of the petitioner and certain extent ofland was declared as surplus. The above referred toAct was repealing by Act 20 of 1999, which came intoforce on 16.06.1999. There is a saving clause inthe repealing Act, which protects the proceedingsinitiated under the Act as it stood originally, ifpossession of the property declared as surplus hadnot been taken over. Taking possession means takingphysical possession. 2. Learned Additional Government Pleaderfairly admits that physical possession of theproperty had not been taken at all. If it is so,the saving clause namely Section 4 of Act 20 of1999, would not come to the benefit of theGovernment to continue the proceedings alreadyinitiated under the Act as it stood originally.Accordingly, the writ petition is allowed as prayedfor. https://hcservices.ecourts.gov.in/hcservices/

8.15. This Court by an order, dated 03.01.2006, made inWP.No.10611 of 1997 in R.Govindasamy Vs. State of Tamilnadu andothers held as follows :-"........10. In view of the repealing ofthe Tamil Nadu Urban (Ceiling and Regulation) Act1978 by Act 20 of 1999 and in view of the order inWP.No.6641 of 1997 which squarely covers the issueon hand and in view of fact that the physicalpossession of the land has not been taken over bythe State Government or any other person dulyauthorised by the State Government in this behalfor by competent authority , Section 4 of the Actcomes into play and all the proceedings includingthe proceedings impugned in this writ petition willabate.11. In the result, the writ petitionersucceeds and the order impugned in the writpetition is set aside. The writ petition isallowed."9. The learned Government Advocate appearing for therespondents, was not in a position to show from the records thatthe actual possession of the lands in question had been taken bythe Government or that any compensation was paid to the petitionerfor the lands sought to be acquired. 10. In these circumstances, it is clear that theproceedings initiated by the respondents for acquiring the lands ofthe petitioner under the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978, stood abated on the passing of the RepealingAct 20 of 1999 and therefore, the lands in question continues to bevested in the petitioner and neither the State Government nor theland Ceiling Authorities had any lien over the said properties ofthe petitioner. 11. Therefore, the proceedings initiated under the TamilNadu Urban Land (Ceiling and Regulation) Act, 1978, in R.C.No.254 /87A, dated 31.08.1989, read with R.C.No.5633/93A, dated 25.02.1994,by the first respondent will stand abated on the promulgation ofAct 20 of 1999. Hence, the writ petition is allowed. No costs. Sd/-Asst. Registrar./true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To,1. The Assistant Commissioner (ULT), -cum-Competent Authority (ULC) 153, Karnigar Street, Adambakkam, Chennai – 600 088.2. The Special Commissioner and Commissioner of Land Reforms, Government of Tamilnadu, Ezhilagam, Chepauk, Chennai-600 005.1 cc to M/s. R. Vaigai, Advocate, Sr. 18863WRIT PETITION No.4062 of 2006 AMB(CO)kk 21/4