THE HONOURABLE MR v. Boominathan2.B.Karpagasundari3.State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 08.01.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANA.S.No.494 of 2001V.R.Parthasarathy .. Appellant/Plaintiffvs.1.Boominathan2.B.Karpagasundari3.State of Tamilnadu rep by Secretary to Govt. Revenue Department, Fort St.George, Chennai-9. .. Respondents/DefendantsPrayer: This Appeal Suit has been filed under Section 96 of C.P.C againstthe Judgment and Decree dated 29.03.2001 in O.S.No.7811 of 1996 passed bythe II Additional City Civil Court, Chennai.For Appellant : Mrs.Chitra SampathFor Respondents : Mr.R.Gandhi, Senior Counsel, for Mr.A.R.Nixon (For R1 and R2)For R3 : No AppearanceJUDGMENTThis Appeal Suit has been preferred against the Judgment and Decreein O.S.No.7811 of 1996 passed by the II Additional City Civil Court,Chennai. The plaintiff who has lost his case before the trial Court haspreferred this appeal. The suit is for declaration that the plaintiff isthe absolute owner of the suit property, for consequential injunction andfor mandatory injunction to remove the fence put up by the defendant inthe suit property.2.The short facts of the case of the plaintiff in the plaint relevantfor the purpose of deciding this appeal sans irrelevant particulars are asfollows:-The Assistant Commissioner of Urban and Land Tax Kundrathur,Chennai had initiated proceedings in respect of the suit property inRC.No.3831/85A dated 27/28.4.1989 under the Tamilnadu Urban Land (Ceilingand Regulation) Act, 1976. Against this, the plaintiff had filed Writ https://hcservices.ecourts.gov.in/hcservices/ Petition No.6686/1989 to quash the proceedings and also sought stay of allfurther proceedings and the Hon'ble High Court had granted stay inW.M.P.No.9602/1989 on 31.05.1989. The plaintiff came to understand thatthe defendants have encroached on the northern side of the proeprty byabout 3384 sq.ft of land and put up a fencing by the end of July, 1991.Immediately, the plaintiff issued a notice dated 25.07.1991 to thedefendants 1 and 2 and the same was returned with an endorsement 'left'.The encroachment made by the defendants 1 and 2 is illegal and is notauthorised by law. Therefore, the plaintiff has comeforward with thissuit for declaration of his title in respect of the suit property and alsofor permanent injunction restraining the defendants and their men, agent,servants from interfering with the peaceful possession and enjoyment ofthe suit property and mandatory injunction for removal of the fencing putup in the suit property.3. The defendants 1 and 2 in their written statement have stated thatthe Government of Tamilnadu has allotted the suit property to thesedefendants as per its order in G.O.Ms.No.2202 Revenue Department, dated22.10.1990 and the land was handed over to the 2nd defendant on 22.05.1991and the 2nd defendant has paid the cost of the land. The 2nd defendant hadbeen granted patta for the allotted land as early as 12.06.1991. It isfurther stated that as per the said G.O., the Government of Tamilnadu hasallotted 223 sq.mt in S.No.100/3 in Virugambakkam Village, Madras-92, outof 750 sq.mt to the 2nd defendant. The allotted land was handedover to thesecond defendant on 20.5.1991 and since the 2nd defendanthas paid the cost of the land, the plaintiff knows fully well about thisallotment order. The 2nd defendant also paid necessary amount to thegovernment being the value of the allotted land and 2nd defendant is inphysical possession and enjoyment of the allotted land along with her ownland in survey No.100/5. The plaintiff ought to have impleaded Governmentas a party and therefore the suit is bad for non-joinder of necessaryparty. (Subsequently 3rd Defendant has been impleaded). The firstdefendant has sent a detailed reply to the plaintiff's notice on14.08.1991. The plaintiff is not the absolute owner of the suit property.These defendants do not know the stay granted in W.M.P.No.99021 of 1989.These defendants have not encroached on the northern side of the propertyfor about 3384 sq.ft of land and fencing by the end of July, 1991. Thesedefendants do not encroach any portion in Survey No.100/3. The fence hasbeen put up at the land allotted to the second defendant. Since thesedefendants are in possession of the suit property, the suit for injuctionis not maintainable. It is barred under the provisions of Tamilnadu Act24/78. The Civil Court cannot go into the question about any matters orproceedings under the said Act. The possession of the defendants is inpursuance of an order passed by the competent authority under the saidAct. The lawful possession of the defendants cannot be challenged in viewof Section 35 of the said Act. Hence, the suit is liable to be dismissedwith costs. https://hcservices.ecourts.gov.in/hcservices/

4. The third defendant in his written statement would contend thatsince the plaintiff was the owner of the land in question, Urban Land Taxwas levied in case No.32/845 of Virugambakkam dated 15.11.1977 in his namein respect of the lands owned by him in S.Nos.60/3, 92/1A etc., includingthe land in S.No.100/3 of Virugambakkam Village. Since the plaintiff hadexcess of vacant land as per the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1978 (Tamilnadu Act 24 of 1978), after observing all thelegal formalities the land in question was acquired by the Government andwas taken over possession on 06.01.1988. The plaintiff had not filed hisobjection for the acquisition and failed to avail the opportunity ofpreferring an appeal under Section 33 of the Act. After acquisition ofthe land under the Act, the Government in G.O.Ms.No.2202 Revenue Depart,dated 22.10.1990, have allotted the land to the second defendant oncollection of the cost of the land, as per the recommendation of theAllotment Committee held on 25.04.1990. The amount payable for the excessvacant land was determined and 25% of the initial payment was worked outunder Section 12 of the Act. Instead of getting the amount, the plaintifffiled writ petition in W.P.No.6686/1989 in the High Court. The Hon'bleHigh Court in its Judgment dated 30.7.1998 directed the AssistantCommissioner of Urban Land Tax, Kundrathur to issue notice to theplaintiff and proceed to determine the compensation for the excess of theland acquired. Section 35 of the Act provides that no order passed orproceedings taken by any officer or authority under this Act shall becalled in question in any Court, in any suit or application and noinjunction shall be granted by any Court in respect of any action takenor to be taken by any such officer or authority in pursuance of any powerconferred by or under this Act. After acquisition of the land under theAct, the second defendant residing at Virugambakkam Village applied forallotment of land in s.No.100/3 of Virugambakkam Village. Except the saidapplicant, nobody applied for allotment. After observing all theformalities laid down in the Act, the Government in G.O.Ms.No.2202,Revenue Department, dated 22.10.1990 have allotted the land to her oncollection of the cost of the land, a per the recommendation of theAllotment Committee held on 25.04.1990. The plaintiff had not filed anyobjection when actions under Section 9 to 11 of the Act were taken in theprocess of acquisition of the land as per the provisions of the Act. Asper the Act, the excess vacant land has been acquired allowing familyentitlement to the plaintiff. After publishing notification underSection 11(1) and 11(3) of the Act in the Tamilnadu Government Gazette andissuing notice under Section 11(5) of the Act on 08.09.1987 directing theplaintiff to handover the excess vacant land, the land was acquired.After the excess vacant land, was handedover to the Tahsildar, Mambalam-Guindy on 6.1.1988, the amount payable for the excess vacant land wasdetermined and 25% of the initial payment was worked out under Section 12of the Act. This amount was drawn and the plaintiff was asked to sendadvanced stamped receipt in Assistant Commissioner's (Urban Land Tax,Kundrathur) reference No. 3831/85 dated 27.04.1989. Instead of gettingthe amount, the plaintiff filed writ petition in W.P.No.6686/89 in theHigh Court, Chennai. In its judgment dated 30.07.1998 the Hon'ble High https://hcservices.ecourts.gov.in/hcservices/ Court, Chennai, directed the Assistant Commissioner of Urban Land Tax,Kundrathur, Chennai-24, to issue notice to the plaintiff and proceed todetermine the compensation for the excess of the land acquired by theGovernment from the plaintiff. Hence, the High Court has confirmed theacquisition of the excess vacant land by the Government. So it is impliedthat the title of the land in question is absolutely vested with theGovernment. Further, Section 35 of the Act provides that no order passedor proceedings taken by any officer or authority under this Act shall becalled in question in any Court, in any suit or application and noinjunction shall be granted by any Court in respect of any action taken orto be taken by any such officer or authority in pursuance of any powerconferred by or under this Act. Hence, the suit is liable to thedismissed.5. On the above pleading the learned II Additional City Civil CourtJudge, Chennai, has framed six issues and on the basis of the documentaryevidence Ex.A1 to Ex.A12 and Ex.B.1 to Ex.B11 and also on the basis of theoral evidence of P.W.1 to 4 on the side of the plaintiff and D.W.1 on theside of the defendants, has dismissed the suit with costs. Aggrieved bythe findings of the learned II Additional City Civil Court Judge,Chennai, the plaintiff has preferred this appeal.6.The point for determination in this appeal is whether the plaintiffis entitled for a declaration in respect of 3384 Sq.mt of land in thenorthern portion of the suit property in S.No.100/3 in VirugamppakkamVillage, Guindy, Mambalam Taluk?7.The Point:- I have heard the submissions made by Mrs.ChitraSampath, advocate for the appellant and Senior counsel Mr.R.Gandhi,appearing for the respondents 1 & 2/Defendants 1 & 2 and considered theirsubmissions. There is none to represent 3rd respondent/Government7(i) The learned counsel appearing for the appellant wouldvehemently contended that even after the proceedings initiated by theAssistant Commissioner of Urban Land Tax, Kundrathur, for acquisition ofthe entire 1250 Sq.mt in S.No.100/3, the Government has so far not takenpossession from the plaintiff/appellant by sending a notice ascontemplated under Section 11(5) of the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1976 and that as per Tamilnadu Urban Land (Ceiling andRegulation) Repeal Act, 1999, Act No.20 of 1999, the entire acquisitionhas been vitiated as per Section 2 of the above said repeal Act. Thelearned counsel for the appellant focused the attention of this Court toSection 3 of the said Act 20 of 1999 (Repeal Act), to the Tamilnadu UrbanLand (Ceiling and Regulation) Act and contended that repeal of theprincipal Act shall not affect if the vacant land has been vested underSub-Section 3 of the Section 11 and possession of which has been takenover by the State Government or any person duly authorised by the StateGovernment in this behalf or by the competent authority. The learnedcounsel further contended that as per Sub-section 2 to Section 3 of the https://hcservices.ecourts.gov.in/hcservices/ above said Repeal Act, 1999 (Act No.20 of 1999), (a) where any land isdeemed to have vested in the State Government under Sub-Section (3) ofSection 11 of the Principal Act but possession of which has not been takenover by the State Government or any person duly authorised by the stateGovernment in this behalf or by competent authority; (b) any amount hasbeen paid by the State Government with respect to such land, then, suchland shall not be restored unless the amount paid, if any, has beenrefunded to the state Government. 7(ii) Relying on the above provision of law, the learned counselfor the appellant would contend that since the State Government has notproduced any document to show that in pursuance of the acquisition ofvacant land from the plaintiff under Section 11(3) of the Tamilnadu UrbanLand (Ceiling and Regulation) Act, 1978, the 3rd defendant/Government hasnot taken over the possession of the land from the plaintiff and hence,the assignment of 223 sq.mt out of 750 sq.mt in S.No.100/3 ofVirugampakkam Village in favour of the 2nd defendant-B.Karpagasundari underEx.B.3 is not valid. It is pertinent to note here that Ex.B.3 assignmenthas been made by the government under G.O.Ms.No.2202 Revenue Department,dated 22.10.1990. The plaintiff has not challenged the said GO. It isthe definite case of the 2nd defendant that only on the basis of Ex.B.3-assignment order, under G.O.Ms.No.2202, dated 22.10.1990, she is inpossession of 223 sq.mt out of 750 sq.mt in S.No.100/3. The learnedcounsel for the appellant would attack Ex.B.7-Transfer charge certificateon the ground that 2nd defendant- B.Karpagasundari has been given the abovesaid 223 sq.mt in Southern side of S.No.100/3 as new Sub-divisionNo.100/8, but the second defendant has trespassed into the northernportion of S.No.100/3 and not on the southern portion of the property andhence second defendant is in possession of some other survey numberproperty which is on the south of the suit property S.No.100/3. Tosubstantiate this contention the plaintiff has not taken out any crossobjection to locate that the second defendant has been allotted 223 sq.mtnot in S.No.100/3 but in some other survey number, south of S.No.100/3.The plaintiff has not filed any iota of evidence to show that on the dateof filing of the suit he was in possession of S.No.100/3 in Virugampakkamvillage. If the plaintiff is in possession of S.No.100/3 in VirugampakkamVillage even after the acquisition of the land by the Government, he wouldnot have filed W.P.No.6686/89 after notification under Tamilnadu UrbanLand (Ceiling and Regulation) Act 1978, challenging the notice issued bythe Assitant Commissioner of Urban Land Tax, Kundrathur, Chennai-29, underSection 12(6) of the Tamilnadu Urban Land (Ceiling and Regulation) Act. Areading of the order passed in W.P.No.6686/89 under Ex.B.1 will go to showthat this Court ha given direction to the Assistant Commissioner of UrbanLand Tax, Kundrathur, Chennai-29, to issue a notice to the plaintiff andproceed to determine the compensation for the excess of the land acquiredfrom the plaintiff. Only for claiming compensation through a propernotice, the plaintiff has filed the above said W.P.No.6686/89. If theplaintiff is in possession of the land even after the acquisition noticeunder Section 11(3) of Tamilnadu Urban Land (Ceiling and Regulation) Act https://hcservices.ecourts.gov.in/hcservices/

1978. The plaintiff would have challenged the very acquisition of theexcess land by the Government by way of a writ petition contending thatthere was no proper notice under Section 11(5) of the said Act, issued fortaking possession of the property from him. Under Section 35 of theTamilnadu Urban Land (Ceiling and Regulation) Act 1978, there is a bar ofjurisdiction to file any suit challenging the acquisition of land underthe Tamilnadu Urban Land (Ceiling and Regulation) Act 1978 as amendedunder Act 40 of 1996. Section 35 of the said Act runs as follows:-"Bar of jurisdiction of all Courts except the SupremeCourt:-Not-withstanding anything contained in any other law, butsave as otherwise provided in this Act, the jurisdiction of allCourts, except the jurisdiction of the Supreme Court, isexcluded with respect to any matter which is, by or under thisAct, required to be decided or dealt with by the competentauthority, the Tribunal, the Court, the appellate authority, theState Government or the special Appellate Tribunal."Section 35(A) of the Act 40/1996 is also a bar to file writ petition inHigh Court in respect of the dispute arising under the provision of theTamilnadu Urban Land (Ceiling and Regulation) Act 1978. 7(iii) The learned counsel appearing for the appellant relyingon the decision reported in 2006(3) LW 445 (S.Subramaniam Vs. 1.State ofTamilnadu rep by the Secretary to Government, Revenue Department,Secretariat, Fort St.George, Chennai-600 009, 2.TheSpecial Commissionerand Commissioner of Land Reforms, Ezhilagam, Chepauk, Chennai-600 005,3.The Competent Authority, ULC, and Asst. Commissioner of Urban Land Tax,Alandur, Chennai) and contended that as per the Tamilnadu Urban Land(Ceiling and Regulation) Repeal Act 20 of 1999, since possession has notbeen taken over by the Government, the entire acquisition is vitiated.But the facts of the above said case is entirely different from the factsof the case on hand because in the said case entire acquisitionproceedings has been taken by the Government against a person who expiredon 01.10.1993. Under such circumstances, it has been held by the learnedJudge of this Court that the entire land ceiling proceedings initiatedagainst the petitioner who died on 01.10.1993 stands abated, since therewas no notice issued for taking possession of the property.7(iv) The other case relied on by the learned counsel appearing forthe appellant is reported in 2006(3) LW 50 (W.P.No.4062/2006) (SosammaThampy Vs. 1.The Assistant Commissioner (ULT),-cum-competent Authority(VulC) 153, Karnigar Street, Adambakkam, Chennai-600 088, 2.The Specialcommissioner and Commissioner of Land Reforms, Government of Tamilnadu,Ezhilagam, Chepauk, Chennai-600 005). The said writ petition was filedfor declaration declaring that the proceedings initiated under theprincipal Act, 1978 by the first respondent has abated on the promulgationof Act 20 of 1999. In that case the learned Government Advocate for therespondents was not in possession to show from the records that the actual https://hcservices.ecourts.gov.in/hcservices/ possession of the land in question had been taken by the Government orthat any compensation was paid to the petitioner for the lands sought tobe acquired. Under such circumstances, it has been held that theproceedings initiated by the respondent for acquiring the land of thepetitioner under principal Act 1978, stood abated on the passing of theRepealing Act 20 of 1999. But, here the plaintiff has so far not filedany writ petition challenging the proceedings initiated by the defendantsfor acquiring the lands of the petitioner under principal Act 1978 on theground that possession has not been taken over by the 3rd defendant fromthe plaintiff. Ex.B.1 and Ex.B.11, orders in W.P.No.6686/89 andW.P.No.18710/1997 respectively, will clearly go to show that the acquiredland had already been vested with the Government and that the plaintiff isentitled to only compensation in respect of the land acquired and vestedwith the Government. The order passed by this court under Section Ex.B.1and Ex.B.11 have become final and the plaintiff so far has not challengedthose orders of this Court. Even in the plaint filed by the plaintiff inO.s.No.7811/1996 there is no averment that the land acquisition made bythe 3rd defendant is vitiated for want of notice under Section 11(5) of theTamilnadu Urban Land (Ceiling and Regulation) Act 1976. Under suchcircumstances, the above ratio in 2006(3) LW 50 will not be applicable tothe present facts of the case. 7(v) On the same ground the learned counsel appearing for theappellant also relied on another dictum for the same point in 2006(5) CTC52 (W.P.No.20889/2003) (Vijay Foundation (P) Ltd., rep. by its Director,R.Thiagarajan, No.42/10, Kalaimagal Nagar, II Main Road, Ekkattuthanga,Chennai-600 097. Vs. The Principal Commissioner and Commissioner of LandReforms, Chepauk, Chennai-600 005 and others). The facts of the said caseare as follows:" The writ petition is filed to call for the records of thesecond respondent in his proceedings in Na.Ka.S.R.154.98 dated24.2.1998 under Section 9(5) of the Principal Act declaring thepetitioner's land in S.No.429/1-C of Perumbakkam Villagemeasuring to an extent of 3550 sq.mts. as excess vacant and thenotice issued by him in 2nd respondent's proceedings R.C.No.154/98in Form VII dated 30.11.1998 under Section 11(5) of the said Actrequiring to surrender possession of the said land with theTahsildar, Tambaram and the proceedings of the 1st respondent inhis Endt. R.C.2896/2000-J1 dated 20.2.2003, and quash the same inso far as the petitioner is concerned and to direct the secondrespondent to declare that all proceedings taken by the secondrespondent to acquire the lands as excess vacant land hall abateunder Section 4 of the Tamilnadu Urban Land (Ceiling andRegulation) Repeal Act (Act 20 of 1999). https://hcservices.ecourts.gov.in/hcservices/ The petitioner is a Company incorporated under the CompaniesAct. The property comprised in Survey No.429/1-C PerumbakkamVillage to an extent of 1 acre is the subject matter of the WritPetition. The said land was originally belonged to one Krishnan.The Said Krishnan sold 75 cents by executing three sale deedsdated 21.12.1984 each 25 cents to one J.Venkata Subba Reddy,Sudha and Balakrishna Reddy. The said three persons sold theirrespective 25 cents of land under separate sale deed in favour ofthe petition on 21.07.1995, 8.8.1995 and 18.07.1995 respectively.The said Krishan also sold 25 cents retained by him to thepetitioner on 18.08.1995. Though the Tamilnadu Urban Land(Ceiling and Regulation) Act was introduced in the year 1978, thesame was extended to Perumbakkam village only on 9.8.1995 by anotification in Government gazette under Section 48(2) of theAct. After extending the application of the said Act toPerumbakkam village, the respondents issued notice under Section9(5) of the Act to the said Krishnan on 24.2.1998. It is statedthat the said Krishnan was not available and hence it was servedby affixure. Similarly, notices under Sections 10(1) and 11(5)were also served on the said Krishnan on 15.4.1998 and 30.11.1998respectively by way of affixure. It is stated by the petitionerthat despite the issuance of the said notices and the orderspassed by the respondents, the property has been in thepossession of the petitioner ever since from the date of purchasein the year 1995 from their vendors. The petitioner came to knowabout the proceedings initiated by the respondents against thesaid Krishnan only in the year 1999 and immediately they filed awrit petition in W.P.No.930 of 2001 seeking a writ of mandamusdirecting the respondents to declare that all proceedings takento acquire the said land shall abate as per the provisions ofSection 4 of the Tamilnadu Urban Land (Ceiling and Regulation)Repeal Act, 1999. The said writ petition was dismissed on18.1.2001 permitting the petitioner to file an appeal before theappellate authority invoking Section 33 of the said Act. Thepetitioner also filed an appeal under Section 33 of the Actbefore the appellante authority on 20.2.2001. It is to beremembered that the said Act was repealed on 1.6.1999. Hence theappellate authority found that the appeal cannot be entertainedin view of the fact that the act was already repealed, by orderdated 22.2.2003. The present writ petition is filed seeking toquash the order of the appellate authority dated 22.2.2003 andceiling proceedigns.While disposing the writ petition, the learned Judge of thisCourt has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ The respondents herein have initiated acquisitionproceedings against the person who is not at all owner of thelands. The above quoted mandatory conditions mentioned inSections 7 to 12 were not followed by the respondents. Thestatutory conditions for the purpose of acquiring the lands hasnot been followed at all in this case, hence, the allegedpossession taken by the respondents is vitiated. The Ceiling Actis not like Land Acquisition Proceedings where the authoritiesare required to serve notice upon the owner or occupier of theland and on such person known or believed to be interestedthereon to show cause within 30 days from the date of service ofnotice as to why the lands should not be acquired, hence, basedon the entries in the mutation proceedings, the opportunity begiven to the owner or occupier or person interested in the landbe sufficient because the Notification specifies the intention ofthe Government to acquire the land for public purpose, which ismandatory."8. But in this case, admittedly the appellant is the owner of theland and after issuing 11(3) notice only the excess land found inpossession of the plaintiff/appellant has been acquired by the Government.So far as this suit is concerned, the plaintiff clandestinely filed thesuit for declaration and permanent injunction and mandatory injunction inrespect of the suit property which has already been acquired by theGovernment. In spite of challenging the acquisition by way of writpetition, the plaitniff has filed the suit against the second defendantwho has been allotted a portion of the acquired land in S.No.100/3, whichhas been reassigned as S.No.100/8 in Virugampakkam Village. Under suchcircumstances, I do not find any illegality or infirmity in the findingsof the learned trial Judge holding that the plaintiff is not entitled toany relief as prayed for in the suit. The well considered order of thetrial Court, for any reason, cannot be interfered with by this Court.Point is answered accordingly.9. In fine, there is no merit in this appeal and accordingly theappeal is dismissed confirming the decree and judgment in O.S.No.7811 of1996 passed by the II Additional City Civil Court, Chennai. In thecircumstances of the case, there is no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssvTo, 1. The II Additional City Civil Court Judge,Chennai.2. The Section Officer,V.R.Section, High Court, Madras1 cc To Mrs.Chitra Sampath, Advocate, SR.1563.1 cc To Mr.A.R.Nixon, Advocate, SR.1525.A.S.No.494 of 2001 MJ(CO)RVL 29.01.2007