S. Balasubramaniam v. The Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-5

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.09.2009C O R A MThe Honourable Mrs. Justice Prabha SridevanandThe Honourable Mr. Justice M. SathyanarayananWrit Appeal No.861 of 20061.S. Balasubramaniam2.Mrs. Lalitha Balasubramaniam.. Appellantsversus1.The Special Commissioner and Commissioner of Land Reforms,Chepauk, Chennai-5.2.Competent Authority,Urban Land Ceiling (Tambaram),169, Sannadhi Street, Chennai.3.The Tahsildar ,Tambaram, Chennai... RespondentsPrayer : Appeal filed under Clause 15 of the Letters Patent againstthe order passed by a learned single Judge of this Court in W.P.No.22144 of 2005 dated 14.7.2005. Writ Petition 22144/05 filed underArticle 226 of the Constitution of India to issue a writ ofcontioraified Mandamus to call fot the records of the 2nd respondentrelating to the order dated.31.10.94 under sec.9(5) and finalsettlement dated 16.12.1994 u/s 10 (1) under ref.Na.Ka.3018/91B andquash the same and further direct the respondents to treat allproceedings in respect of land in S.No.309/1A, Sub divided as309/1A1B and 309/1A1A Kilkatalai Village, Tambaram Taluk, as abatedto enable the 3rd respondent to incorporate the names of thepetitioner as owners in all the revenue records.For Appellants : Mr. V. RameshFor Respondents : Mr. M. Dhandapani Spl. Govt. Pleader and Mr. P. Gurunathan, Govt. AdvocateJ U D G M E N TPrabha Sridevan, J.In the writ petition, the learned single Judge observed that thefacts revealed that even prior to the coming into force of the Urban https://hcservices.ecourts.gov.in/hcservices/ Land (Ceiling and Regulation) Repeal Act, 1999 ('Repeal Act' inshort) with effect from 16.6.1999, possession had been taken by theGovernment on 21.2.1997 and therefore, the case of the writpetitioners that that they were still in possession cannot be takenas a legal possession and therefore, the writ petition was dismissed.Against that, this appeal has been filed.2. Learned counsel for the appellants submitted that theappellants had bona fide purchased the property in Plot Nos.19 and20, subject matter of the writ petition, on 17.4.1989 and on22.3.1993. There is a small scale industry in the said land and theappellants are in possession of the land; by the proceedings underthe Urban Land (Ceiling and Regulation) Act 1978 ('Act' in short),350 sq. mts. had been declared as excess; the order under Section 9(5) had been passed on 31.10.1995 and the final statement was dated16.12.1997; it is only the vendor of the appellants who recieved thenotice in these proceedings; but what had grievously prejudiced theappellants is that, while Section 11(5) of the Act mandatorilyrequires that notice should be issued not only to the owner, but anyperson in possession, then regardless of the circumstances underwhich the person in possession may have come into possession thereof,still he is entitled to the notice. According to the learned counsel,the notice under Sections 11(5) and 11(6) of the Act were not given.Learned counsel also submitted that possession of the land could nothave been taken from them in a manner known to law since no'Panchnama' was prepared; the recording of the taking of possessionwas not effected before witnesses; and the respondents cannot createrecords as if possession had been taken sitting in their office.Learned counsel submitted that even assuming that the purchase by theappellants was not a valid purchase in the eye of law, in view of theprovisions of the Act, yet the appellants were entitled to notice andwhen there is illegality in the procedure, the Government could nothave taken possession of the land and the appellants are entitled tothe benefits of the Repeal Act. Learned counsel referred to thefollowing judgments, reported as well as unreported :(2007) 1 M.L.J. 750 [V. Somasundaram vs. Secretary to Government,Revenue Department](1999) 1 S.C.C. 215 [Anurag Virmani vs. State of M.P.]A.I.R. 1975 S.C. 1767 [B.N. Bhagde vs. M.D. Bhagwat]W.P. No.1584 of 2009 dated 7.8.2009 [Sree Jayalakshmi BrickIndustries vs. Special Commissioner and Secretary to Government,Revenue Department]3. Per contra, Learned Special Government Pleader submitted thatthe appellants are not bona fide purchasers; they were fully aware ofthe proceedings initiated under the Act; the vendor of the appellantsM/s. Kasaka Engineering had claimed exemption from the Act and thesame was granted subject to certain conditions, but since the vendor https://hcservices.ecourts.gov.in/hcservices/ had not complied with the conditions, proceedings were initiated forwithdrawal of the exemption and even the, it was brought to thenotice of the appellants that the withdrawal of exemption was pendingenquiry and it was open to the appellants to make their submissions;therefore, the operation of the Act and the consequent declaration ofexcess land had been postponed only beause there was a protection ofexemption, and once that exemption was withdrawn, it was open to theState to declare how much was excess. Learned Special GovernmentPleader would point out that it is not as if the entire landbelonging to the appellants was declared as excess, but it was only asmall portion of 350 sq. mts. He submitted that even assuming thatthe appellants had a small scale industry, which was admittedly onlyin Plot Nos.15 and 16 as seen from the writ affidavit, while theproperty in question is situated in Plot Nos.19 and 20, there isenough appurtenant land to the factory in Plot Nos.19 and 20 itself,excluding the land declared as excess and therefore, none of thegrounds raised is valid. Furthermore, he submitted that the recordswill show that possession of the land was actually taken even in1997, whereas the writ petition has been filed only in 2005.4. Though the learned single Judge had specifically observed thatthe learned Government Advocate was directed to give particularsregarding the proceedings initiated under the provisions of the Actand that the facts revealed that possession was taken, the learnedcounsel for the appellants requested this Court to again go throughthe records and therefore, we had called for the records. 5. The facts are stated hereunder :-On 9.9.1986, G.O. Ms. No.1231 was issued by the RevenueDepartment exempting an extent of 350 sq. mts. of excess urban vacantland for industrial expansion purposes. This was granted to thevendor of the appellants. The conditions subject to which theexemption was granted was that the exempted land must be put to usefor the stipulated purpose within two years of the order ofexemption; it cannot be sold, gifted, leased, mortgaged or alienatedin any other manner and other similar conditions. Paragraph 5 of theGovernment Order provides that if the company violated any of theaforesaid conditions, the exemption granted under Section 21(2) ofthe Act will be withdrawn and if such exemption is withdrawn, theland shall be acquired by the Government. The sale deed in favour ofthe appellants was executed on 17.4.1989 and in 1993. This relatesto Plot Nos.19 and 20 bounded on the west by Plot Nos.15 and 16belonging to the appellants. There is no mention of anysuperstructure in the said land. On 20.4.1990, the AssistantCommissioner (ULT), Tambaram issued a notice to the first appellant(since deceased) that M/s. Kasaka Engineering had sold the landcovered by the exemption to the appellants and that there was anenquiry for which the appellants were asked to appear. Anothernotice was also issued in this behalf on 18.5.1990. On 22.6.1990,the vendor of the appellants wrote a letter not mentioning the sale https://hcservices.ecourts.gov.in/hcservices/ in favour of the appellants and reporting that they would be able toshow utilisation of the exempted land. On 21.3.1991, by G.O. Ms.No.482, Revenue Department, the Deputy Secretary to Governmentexamined the objection with the necessary documents and since M/s.Kasaka Engineering had not complied with the conditions stipulated,the exemption granted was withdrawn and the request for furtherextension of time was rejected. The Commissioner of Land Reforms wasrequested to take action to acquire the excess land. The noticeunder Section 9(5) of the Act was served on the vendor of theappellants and they had also received it. On 31.10.1994, a FieldSketch Map is enclosed in the file which demarcates the land retainedin Survey Nos.301/1A and 1B and the excess land and also the existingroad. His area has been checked and the map is signed by theInspector of Survey (ULT) and the competent authority. On16.12.1994, a notice was issued along with the final statement underSection 10(1) of the Act. This was also received by the vendor ofthe appellants. A notification under Section 11(1) was also made.The officers have visited the land and they found no one there andsince the notice had also been issued to the owner, which has beenserved on him, possession had been taken on 21.2.1997. 6. It is the case of the learned counsel for the appellants thatwhen possession was with them, the respondents could not have takenpossession in accordance with law and they have referred to variousjudgments. But the judgments referred to by them will help theappellants only if factually they are identical. 7. In this case, we have already seen that the appellants wereinformed about the proceedings for withdrawal of exemption. Theenquiry was posted on 7.5.1990 and they were asked to appear with allthe connected records that since the local enquiry revealed theirpurchase. But yet, the appellants have waited till 2005 and filed thewrit petition. They knew about the proceedings under the Act even in1990. The submissions made by the learned counsel for the appellantsthat there are superstructures in the land in question does notappear to be correct. In the affidavit filed in support of the writpetition, it is seen that they had purchased in 1985, Plot Nos.15 and16 in Survey No.309/1 from one Ramadurai and the affidavit statesthat the lands in Plot Nos.15 and 16 were progressively converted.There is no mention of buildings on Plot Nos.19 and 20. Thereafter,in paragraph 4 of the affidavit, it is stated that for expansion ofbusiness, Plot Nos.19 and 20 were purchased in 1993 and 1989respectively. Since even as on 20.4.1990 the appellants were put onnotice regarding the proceedings, we are unable to understand howthey proceeded to purchase the property in 1993, and it is only inPlot No.19 that this excess land was determined. In paragraph 5 ofthe affidavit, they have referred to the notices issued to the vendorof the appellants and the objection given by the vendor under Section9(4) of the Act. The objection given by the vendor was obviously inresponse to notices issued on 20.4.1990 and 18.5.1990, though very https://hcservices.ecourts.gov.in/hcservices/ cleverly there is no mention of the show cause notice. There is alsono mention of the sale in favour of the appellants, but the tenor ofthe objection is to the effect that if time is given, they willcomplete the building and comply with the conditions, subject towhich exemption was granted. The appellants have also, in theiraffidavit, suppressed the receipt of the notice issued by theauthorities in April, 1990 and May, 1990. According to them, sinceno notice was served on them under Section 11(5), the proceedings isbad. Very cleverly, they have stated in Ground 5(e) that they came toknow about the acquisition only recently. No date is given regardingwhen they came to know and nothing is stated as to the steps taken bythem after they were put on notice of the enquiry for withdrawal ofexemption. Even after 1993, Kasaka Engineering continued to receivethe notices issued under Sections 9 and 10 and therefore, the case ofappellants that they were in possession of the vacant land itself isin doubt. That is why when the authorities went to the site aftergiving due notice to the owners, they took possession since the landwas vacant. Section 11(5) does not require the authorities to useforce if no force is necessary and Section 11(1) also requires theauthorities to give notice only to persons in possession. Accordingto the appellants, they are running an industry in Plot Nos.15 and16. Therefore, when the Field Survey Officer came to Plot Nos.19 and20 to measure the land and to earmark the portion to be declared asexcess, they would have definitely come to know about the proceedingsand yet, for eleven years, they kept quiet and waited till theyrealised that they could take advantage of the Repeal Act. Now, thiswrit petition has been filed, claiming that they were still inpossession.8. The sale in favour of the appellants is null and void as perSection 6 of the Act which provides that no person who is holdingvacant land in excess of the ceiling limit immediately before thecommencement of the Act shall transfer such land by whatever mode oftransfer until he has furnished the statement under Section 7 and anotification under Section 11(1) has been published. In this case,the sales in 1989 and 1993 are clearly in violation of Section 6 andare, therefore, null and void. No right flows from such voidtransactions. Under Section 21, the Government, having regard to thepurpose for which the excess land is to be used, may in publicinterest, exempt such vacant land from the provisions of the Act andunder Section 21(c), conditions may be imposed for granting suchexemption. Section 21(2) provides for withdrawal of exemption aftergiving a reasonable opportunity. This enquiry under Section 21(2) washeld and as stated in the paragraphs supra, an order was passedwithdrawing the exemption. The appellants had notice of this, butneither the appellants nor their vendor has chosen to challenge theorder withdrawing the exemption. This order has become final. Section9 deals with preparation of draft statement as regards vacant land,and the draft statement will be served in the manner prescribed onthe person concerned. This has been done in this case. Then, a https://hcservices.ecourts.gov.in/hcservices/ final statement under Section 10 has also been made after determiningthe vacant land as provided under Section 10(1). This notice underSection 10(1) was also served on the vendor of the appellants and thenotification under Section 11(1) was effected. Section 11(5) dealswith taking of possession. The land has already vested with theState Government under Section 11(3) and we have already seen thatpossession has been taken under Section 11(5). 9(a). In (2007) 1 M.L.J. 750 (supra), the case of the appellantstherein was that they were not informed of the proceedings at anypoint of time by either the authorities or their vendor and no noticewas issued and no opportunity was given to them. This cannot helpthe appellants herein since the appellants knew about the proceedingsunder the Act even as early as 1990 and with a little effort, theycould have taken steps to ascertain the direction in which theproceedings were taking shape. The writ petition is filed belatedly.The delay is not bona fide. The bald statement that they onlyrecently came to know of the acquisition proceedings is notbelievable in view of the notice issued by the authorities in 1990. 9(b). In (1999) 1 S.C.C. 215 (supra), the question was, whetherthe appellant could be a person aggrieved, but there, the SupremeCourt held that the High Court had erred in proceeding on theassumption that the appellant had purchased the land subsequent tothe issuance of the final statement and further, there was noconsideration of the fact that the land was outside the ambit of theAct because it was used for agricultural purposes. This does notapply to the present case since the land is admittedly an urban land;that is why the vendor of the appellant prayed for exemption andexemption was granted and subsequently for violation of theconditions, the exemption was withdrawn and in the enquiry regardingthe withdrawal of exemption, the appellants were put on notice.Inspite of that, they proceeded to purchase the land. So, thisdecision does not help the appellants.9(c). In A.I.R. 1975 S.C. 1767 (supra), the Supreme Court heldthat there can be no question of symbolical possession and thereshould be actual possession. That was in relation to the LandAcquisition Act. But in the same decision, the Supreme Court hadheld, "the presence of the owner or the occupier of the land is notnecessary to effectuate the taking of possession. It is also notstrictly necessary as a matter of legal requirement that noticeshould be given to the owner or the occupant of the land thatpossession would be taken at a particular time...". The SupremeCourt also held in that case that it is not an absolute andinviolable rule that a declaration by beat of drum or otherwise wouldbe sufficient to constitute the taking of possession. They held thatit would depend on the facts of the case. Therefore, this decisionalso does not help the appellants. https://hcservices.ecourts.gov.in/hcservices/ 9(d). In W.P. No.1584 of 2009 (supra), which according to thelearned counsel for the appellants was identical to the present case,it was held that in the absence of delivery of possession by the landowner pursuant to the notice under Section 11(5), possession shouldhave been taken as per Section 11(6). But there, the petitioner hadpurchased the land in the year 1980 itself and the notification underSection 11(1) was dated 6.6.1990. Notice had been issued to theearlier owner and the Division Bench accepted that the words "anyperson in possession" used in Section 11(5) of the Act would reallymean that regardless of the nature of possession, a person inpossession ought to be served with notice. This too does not helpthe appellants. In this case, deliberately and in violation of thelaw and knowing fully well of the proceedings for withdrawal of theexemption, the land was purchased by the appellants. The noticeunder Section 11(5) was issued to the owner, as seen from thecommunication of the Assistant Commissioner (ULT) dated 31.7.1996.It was only thereafter that instructions were given to the Tahsildarto take over possession. We are unable to understand why theappellants waited from 18.5.1990 till February, 2005 to assert theirrights. If the appellants really had any right, they would haverushed in to make their objections in the proceedings for withdrawalof objection and they would have challanged the order withdrawing theexemption. They did not do so. The order withdrawing the exemptionhas now become final and therefore, the 350 sq. mts. of land isclearly excess urban land. They cannot feign ignorance of theproceedings, as we have already stated above. The sale in favour ofthe appellants is also void as per Section 6 of the Act. 10. It is true that sometimes, the records do not reveal whetherthe officers went to the site in question before finalising theproceedings. Here, we find that the Field Survey Officer concernedhad gone to the site, earmarked the land and the exact location ofthe excess land. In addition, the adjacent Plot Nos.15 and 16 are inthe possession of the appellants, according to them, where they arerunning an industry. Therefore, their statement that they came toknow about the proceedings all of a sudden only in 2005 is not true.The records show that possession has been taken. In thesecircumstances, we are unable to see how we can interfere with theorder passed by the learned single Judge. The decisions referred toby the learned counsel for the appellants are different on facts, aswe have explained above. 11. For all these reasons, the writ appeal is dismissed.However, there shall be no order as to costs. Consequently, M.P.No.2 of 2006 is closed.ab Sd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Special Commissioner and Commissioner of Land Reforms,Chepauk, Chennai-5.2.The Competent Authority,Urban Land Ceiling (Tambaram),169, Sannadhi Street, Chennai.3.The Tahsildar ,Tambaram, Chennai.+ 1 CC to Mr. V. Ramesh CC SR.45740Pre-delivery Judgment in Writ Appeal No.861 of 2006RB(CO)VC(24.09.2009)