Mohamed Ashref Noor v. Secretary to Government Revenue Department State of Tamil Nadu Secretariat & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.12.2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANWrit Petition No.6856 of 2003Mohamed Ashref Noor ... PetitionerVs.1.Secretary to Government Revenue Department State of Tamil Nadu Secretariat Fort St. George, Chennai-9.2.The Chief Commissioner & Commissioner for Land Reforms Chepauk, Chennai-5.3.The Special Commissioner & Commissioner for Urban Land Tax and Urban Land Ceiling Chepauk, Chennai-5. ... RespondentsThis petition has been filed under Article 226 of theConstitution of India praying for issuance of Writ of Certiorari tocall for the records of the first respondent in proceedingsG.O.Ms.No.8 (Revenue) dated 8.1.2003 and the government letterMs.No.615 (Revenue) dated 22.11.1999 in so far as relating toexemption aspects and quash the same. For petitioner : Mr.R.NatarajanFor respondents : Mr.P.GurunathanGovernment Advocatefor RR 1 to 3 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe writ petitioner has come before this courtchallenging the proceedings in G.O.Ms.No.8(Revenue) dated 8.1.2003relating to exemption granted by the authorities under the Urban LandCeiling Act. 2.The case of the petitioner is that he purchased12.5 grounds of land and factory building comprised in SurveyNo.404/1, Sameen Pallavaram, Chengleput District by sale deed dated31.5.1975. The petitioner applied exemption under Section 21 of theUrban land (Ceiling and Regulation) Act in respect of excess vacantland measuring to an extent of 2400 square meters for starting aleather processing unit and exemption was granted in G.O.Ms.No.642dated 6.4.1984 under Section 21 of the Act. The said exemption wasperiodically extended and meanwhile the factory was constructed aftergetting necessary approvals from the authorities concerned.3.Finally by a letter dated 6.6.1998 the petitionerrequested for extension of time and for which a reply was sent by therespondent stating that the petitioner violated the exemptionconditions. Meanwhile, the Tamil Nadu Urban Land (Ceiling andRegulation) Act 1976 was repealed by Act 1999, which came into forceon 16.6.1999.4.By a letter of the Revenue Department dated22.11.1999, it was clarified that Section 21(1) of the Tamil NaduUrban Land (Ceiling and Regulation) Act 1976 is not affected by therepealed Act and if the exempted person violates the conditions ofthe exemption order he has to face the consequence of withdrawal ofexemption under Section 21(2) of the Act. Based on the said G.O., ashow cause notice dated 5.3.2002 was sent to the petitioner when hewas out of country. Therefore in the absence of any reply from thepetitioner, the first respondent passed an order under G.O.Ms.No.8dated 8.1.2003 cancelling the exemption granted to the petitionerunder Section 21(1) of the Urban Land (Ceiling and Regulation) Act1976 and the same is impugned before this court.5.Mr.Natarajan, learned counsel for the petitionersubmitted that the impugned order was passed after the repeal of theUrban Land (Ceiling and Regulation Act)1976 and therefore anyproceeding which is based on the repealed Act has no sanctity in viewof absence of principal Act. He further submitted that by virtue ofexemption, the respondents have not taken possession and the veryexemption order proves that the petitioner continues to be inpossession of the properties. 6.By the repealed Act, the original proceeding wouldabate if the possession of the properties is found to be with landowner and if the proceedings in respect of the Urban Land (Ceiling https://hcservices.ecourts.gov.in/hcservices/ and Regulation) Act are pending as per Section (3) (2)(a) of the Act20 of 1999 (Repealed Act).7.Mr.Natarajan,learned counsel submitted theHonourable Supreme Court as well as this court recognise the right ofthe land owner to retain the possession of the land if the possessionwas not taken. He produced G.O.Ms.No.111 Revenue (ULCI(1) Departmentdated 3.3.2007. Only after examining various judgements given by theHonourable Supreme Court and this court, the government passed anorder that all actions taken under Sub-section (2) of 21 of theTamilnadu Land (Ceiling and Regulation Act)1978 shall abate andfurther action to be dropped. By producing the said G.O.,learnedcounsel submitted that Section 21(2) spoke about the exemption. Inview of that the proceedings against the petitioner's land should getabated and further action should be dropped. 8.Mr.Gurunathan, learned Government Advocatesubmitted that vide communication through Assistant Commissioner(Urban Land Tax), Tambaram, it has been stated that as per therecords the petitioner's land comprised in Survey No.404/1, SameenPallavaram, Chengleput District measuring an extent of 2400 squaremetres was not taken by the authorities. 9.A perusal of the repealing Act would show that theprincipal Act was repealed and no action could be taken under therepealed Act. Whereas admittedly the petitioner is in possession ofthe property and the impugned order itself proves the petitioner'spossession. It has been decided by the The Honourable Supreme Courtin Angoori Devi versus The State of Uttrapradesh reported in JT 2000Supplement (1) SC 295 held that when the possession was found to bewith the Urban land owner, the benefit under the repealing Act shouldbe given to the owner and accordingly the proceedings against thepetitioner should get abated.10.Admittedly in this case, by way of exemption underSection 21(2), the government exempted to retain excess land for thepurpose of constructing factory. When the repealing Act came intoforce on 16.6.1999, the authorities cannot initiate proceedings on5.3.2002 that is after the expiry of two years of the principal Act.Section 3(2)(a) protects the possession of the land owners whoretains the possession with them. In view of Section 3(2)(a) also thewrit petitioner has to succeed. Apart from that the government issuedG.O.Ms.No.111 Revenue (ULCI(1) Department dated 3.3.2007, which isextracted as follows:" The Tamil Nadu Urban Land (Ceiling andRegulation)Act, 1978 was enacted with a view to imposingCeiling on vacant land in urban agglomeration and toprevent the concentration of urban land in the hands of https://hcservices.ecourts.gov.in/hcservices/ a few persons. The said Act was implemented in Chennai,Coimbatore, Madurai, Salem, Tiruchirapalli andTirunelveli Urban Agglomeration. The Tamil Nadu UrbanLand (Ceiling and Regulation) Act, 1978, (Tamil Jadu Act24 of 1978) was repealed by the Tamil Nadu Urban Land(Ceiling and Regulation) Repeal Act, 1999 (Tamil NaduAct 20/1999).2.Section 3(1)(b) of the Repeal Act,which reads, "the validity of any order grantingexemption under sub-section (1) of Section 21 of thePrincipal Act or any action taken there under" shall notbe affected. It has been originally interpreted thewording "any action taken thereunder" as though Section21(2) also has been saved and accordingly action hasbeen initiated against all violations of exemptionconditions. The Tamil Nadu Land Reforms SpecialAppellate Tribunal and the Hon'ble High Court, Chennai,have however viewed that Section 3(1)(b) of the RepealAct carries a specific reference only to exemptionorders passed under Section 21(1) and that it does notcover cases where orders have been passed withdrawingexemptions issued under Section 21(2) for violation ofconditions or any order refusing grant of exemption.Holding that Section 21(2) of the Principal Act has notbeen saved and quoting the decision of the Apex Courtwherever applicable, the Tribunal and the High Court,Chennai, have set aside, without exception, all theexemption withdrawal orders and further proceedings bythe competent authority in several cases disposed tillnow. It was proposed to examine an amendment to the saidRepeal Act so as to overcome the legal constrains andenable the Government to proceed against the cases ofviolation and withdrawal of exemption, based on thesuggestions made by the Special Commissioner andCommissioner of Land Reforms and Special Commissionerand Commissioner of Urban Land Ceiling and Urban LandTax in the references fist and second read above.3. The Government have examined the issue inconsultation with the Advocate General in detail.4.The Government after careful considerationhave come to the conclusion that Tamil Nadu Act 20 1999is very clear and categorical, besides beingcomprehensive and hence, the question of bringing outany amendment with retrospective effect is neithernecessary nor feasible and any such amendment withretrospective effect will not stand judicial scrutiny. 5.Accordingly, the Government, pass theorder that all actions taken under sub-section (2) ofSection 21 of the Tamil Nadu Urban Land (Ceiling andRegulation) Act,1978 (Tamil Nadu 24 of 1978) shall abate https://hcservices.ecourts.gov.in/hcservices/ and further actions be dropped. 6. The Principal Commissioner andCommissioner of Land Reforms is requested to takenecessary follow up action in the matter." 11.By the above G.O, the government passed an order thatall actions taken under Section (2) of Section 21 of the Act shallabate. In view of the said G.O. and in view of the letter given bythe Assistant Commissioner, (Urban Land Tax), Tambaram East, Chennaithrough communication dated 10.12.2009, that possession ofpetitioner's land was not taken by the authorities, the impugnedproceedings are quashed and the writ petition is allowed. No costs. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar.vkTo1.Secretary to Government Revenue Department State of Tamil Nadu Secretariat Fort St. George, Chennai-9.2.The Chief Commissioner & Commissioner for Land Reforms Chepauk, Chennai-5.3.The Special Commissioner & Commissioner for Urban Land Tax and Urban Land Ceiling Chepauk, Chennai-5.+ 1 CC TO Govt., Pleader CC SR 69269+ 2 cc to Mr.R.Natarajan, Advocate CC Sr 6900W.P.No.6856 of 2003RSY (CO)RH (3.3.10)