High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.08.2009CORAM THE HONOURABLE MR. JUSTICE P.K.MISRAandTHE HONOURABLE MR. JUSTICE D.HARIPARANTHAMANW.P.No.1584 of 2009andM.P.No.2 of 2009M/s.Sree Jayalakshmi Brick IndustriesRepresented by its ProprietorRama Bhagavad Dasa Alias G.RamamoorthyShenoy Nagar, Chennai – 600 030. ... PetitionerVS.1) The Special Commissioner and Secretary to Government Government of Tamil Nadu Revenue Department Fort St.George, Chennai – 9.2) The Special Commissioner and Commissioner of Land Reforms Chepauk, Chennai – 600 005.3) The Assistant Commissioner Competent Authority (Urban Land Ceiling) Poonamallee, Chennai – 600 029. 4) The Tahsildar Poonamallee, Chennai.... Respondents PRAYER: Petition filed under Article 226 of the Constitution ofIndia, praying to issue a Writ of Certiorarified Mandamus, callingfor the records of the respondents especially the order of the thirdrespondent dated 18.09.1981 vide Ref RCD 1962 of 1981 and theconsequent notifications under Sections 11(1) and 11(3) dated11.07.1990 and 12.09.1990 in ref 491 of 1989, as confirmed by theHon'ble Tribunal in TRP No.313 / 1999 dated 11.10.2000 and quash thesame and further treat the land as falling outside the purview of theAct 24 of 1978 so as to enable the 4th respondent to incorporate thename of the petitioner as owner of the lands comprised in Survey Nos. https://hcservices.ecourts.gov.in/hcservices/ 141/1, 141/2A, 142/1 and 142/2 measuring an extent of 1.88 acres,0.92 acres, 2.77 acres, 0.98 acres and 2.92 acres respectively, inall an extent of 9.97 acres of Ayanambakkam Village, PoonamalleeTaluk in all revenue records. For Petitioner:Mr.V.Rameshfor Mr.R.C.Paul KanagarajFor Respondents :Mr.G.DesinguSpecial Government Pleader O R D E RD.HARIPARANTHAMAN, J.The writ petitioner purchased the land comprised in SurveyNos.141/1, 141/2A, 142/1 and 142/2 measuring an extent of 1.88 acres,0.92 acres, 2.77 acres, 0.98 acres and 2.92 acres respectively, inall an extent of 9.97 acres in Ayanambakkam Village, PoonamalleeTaluk, during 1980 by way of two sale deeds dated 04.09.1980 from oneThiru.A.L.Sreeramulu and three others. 2.The vendors manufactured bricks at the said lands in thename and style of M/s.Sree Jayalakshmi Brick Works. According to thepetitioner, he continued the manufacturing of bricks in the changedname viz., M/s.Sree Jayalakshmi Brick Industries. 3.The learned counsel for the petitioner states that hesought exemption from the first respondent under the Tamil Nadu UrbanLand (Ceiling and Regulation) Act, 1978 (hereinafter referred to asthe Act), by making an application under Section 21 of the Act.According to him, he did not receive any orders on his application.4.While so, according to the petitioner, he received a memounder Section 39 of the Act to show cause why prosecution could notbe made for contravening the Act. Only thereafter, he came to knowthat the third respondent acquired lands under the Act and anotification dated 06.06.1990 under Section 11(1) of the Act waspublished in the Tamil Nadu Government Gazette dated 11.07.1990 andlater a notification dated 08.08.1990 under Section 11(3) of the Actwas published in the Tamil Nadu Government Gazette dated 12.09.1990vesting the excess land with the Government. As per thosenotifications, the excess land was 73 Ares in Survey No.141/1, 31Ares and 5 Sq.mts. in Survey No. 141/2A2, 1 Hectare 17 Ares in SurveyNo.141/2C, 39 Ares and 5 Sq.mts in Survey No. 142/1 and 2 Hectaresand 1 Ares in Survey No.142/2.5.The petitioner filed a Writ Petition in W.P.No.19602 of1992 before this Court to quash the aforesaid notifications dated https://hcservices.ecourts.gov.in/hcservices/

11.07.1990 and 12.09.1990. The writ petition was transferred toTamil Nadu Land Reforms Special Appellate Tribunal and was renumberedas T.R.P.No.313 of 1999. After hearing both sides, the Tribunaldismissed the T.R.P.No.313 of 1999 on 11.10.2000. 6.This writ petition is against the said order of theTribunal confirming the acquisition made by the respondents bynotifications dated 11.07.1990 and 12.09.1990. 7.We heard the submissions made on either side. Thelearned Special Government Pleader has produced the entire recordsfor our perusal. 8.The learned counsel for the petitioner vehemently arguedthat though the third respondent was aware of the purchase of theconcerned lands by him in the year 1980 itself, no notice was issuedto him under Section 11(5) of the Act. He further argued that theTribunal erred in holding that the petitioner need not be givennotice under Section 11(5) of the Act as the sale in 1980 is hit bySection 6 of the Act. The learned counsel for the petitioner drawsattention of the word “any person” used in Section 11(5) of the Act.He further contended that any person who is in possession of the landis entitled to notice to surrender or deliver possession to theGovernment. He heavily relied on the judgment of the Division Benchof this Court (presided over by Honourable Mr.Justice Sathasivam ashe then was) in V.Somasundaram and others Vs. Secretary toGovernment, Revenue Department, Chennai and others reported in 2007(1) MLJ 750. Paragraph No. 9 of the said judgment is heavily reliedon by the learned counsel for the petitioners, which is extractedhere-under:"9.From the perusal of the file it is clear thatproceedings were initiated against the thirdrespondent, who is the erstwhile owner of the landsin question, in respect of transfer of his land tothe appellants herein. Section 11(5) notice was alsoissued to the third respondent, who was not the realowner. As per Section 11(5) of the Act, thecompetent authority is bound to issue notice inwriting to any person, who may be in possession ofthe land, to surrender and deliver possessionthereof, to the State Government or to any personduly authorised by the State Government, withinthirty days' time. No notice having been issuedagainst the appellants, who are in possession of thelands as stated supra, taking possession of lands on30.04.1999 by the second respondent is non-est. Itis to be noted that due to the repealing of the TamilNadu Urban Land (Ceiling and Regulation) Act, 1978, https://hcservices.ecourts.gov.in/hcservices/ with effect from 16.09.1999, it is not open to theauthorities to proceed against the appellants at thisstage to rectify the non-compliance of Section 11(5)of the Act".9.The learned counsel for the petitioner relied on anotherdecision dated 18.06.2007 of the Division Bench presided over by theHonourable Mr.Justice S.J.Mukhopadhaya, in W.A.Nos.693 to 695 of 2003in Annie Jacob and others Vs. The State of Tamil Nadu and another,wherein also a similar view was expressed. Paragraph No.8 of thedecision is extracted here-under:"8.There is nothing on the record to suggest thatthe competent authority issued any notice in writingdirecting the original land holder or the appellantsto surrender or deliver possession of the lands inquestion. Nothing has been produced to suggest thatthe original land holder or the appellants refused orfailed to comply with such order and on failure thepossession of the lands were taken by force. Inabsence of such notice under section 11(5) or actiontaken under Section 11(6), a bald statement as made bythe respondents that possession was taken on 10thFebruary, 1995, cannot be accepted.....". 10.The learned counsel for the petitioner contended thatwhile notices under Section 9(4) or under Section 7(2) of the Actought to be addressed to the owner of the land for the purpose ofdetermining the excess vacant land, the notice contemplated underSection 11(5) of the Act is to be issued to the person in possessionalso, since the purpose was seeking delivery of possession. Hefurther pointed out that notice contemplated under Section 11(5) ofthe Act is quite different from notice contemplated under otherprovisions of the Act. He also pointed out that the words used inSection 11(5) of the Act "any persons who may be in possession" andno such wording is found in Sections that deals with the acquisitionof the land.11.On the other hand, the learned Special GovernmentPleader contended that the petitioner is not entitled to notice underSection 11(5) of the Act in view of the Division Bench decision ofthis Court in Prabhavathi Jain and 4 others Vs. The Government ofTamil Nadu and 8 others reported in 1995 (2) L.W. 200. We haveperused the judgment. We are of the view that the judgment did notdecide whether Section 11(5) contemplates service of notice on theperson who is in possession of the concerned excess land. On theother hand, the judgments cited by the petitioner are on the point.Further it is not the case of the petitioner that he is entitled tonotice under Section 7 or 9 while acquiring the land. https://hcservices.ecourts.gov.in/hcservices/

12.In view of such categorical pronouncements of thisCourt, we are of the view that the notice under Section 11(5) shouldbe served on the petitioner. Though, his purchase by a sale deed ismade invalid by Section 6 of the Act, in view of the word “any personwho may be in possession” used in Section 11(5) of the Act, noticeought to have been served on the petitioner to surrender or deliverpossession to the Government. 13.Further, the learned counsel for the petitioner arguedfrom the records produced that even the vendor of the land was alsonot served with the notice under Section 11(5) of the Act read withRule 10(3). According to him, the notice under Section 11(5) shouldbe sent by RPAD. In this case, admittedly, the records do notindicate that notice was sent through RPAD to the erstwhile owner.The learned counsel also pointed out that there was no endorsementfrom the erstwhile owner for the receipt of the notice. On the otherhand, the records reveal that an endorsement was made by the officialat page No.937 of the record file that notice was served on theerstwhile owners. According to the learned counsel for thepetitioner, this does not amount to service of notice under Section11(5) of the Act. The learned counsel for the petitioner strenuouslycontended that if such a method is approved, then the officials wouldcook up the records by simply making an endorsement in the noticewithout getting endorsement from the concerned persons for proof ofservice or by sending through RPAD. We find force in the submissionof the petitioner. 14.We therefore, hold that there was no notice served underSection 11(5) of the Act either on the petitioner or on the erstwhileowner, viz., the vendor of the land.15.The learned counsel for the petitioner further arguedthat the take over of possession is complete only when it is signedby the land owner or the person in possession while delivering theexcess land under Section 11(5) of the Act read with Rule 10(3) ofthe Rules. If no such delivery of possession took place, the thirdrespondent has to resort to Section 11(6) of the Act. It was arguedthat neither the erstwhile land owner (vendor) nor the petitionersigned the Land Delivery Receipt and the alleged take over ofpossession was not actual and real and it was only a paper possessionand therefore, the petitioner is entitled to the benefit of theSection 4 of the Repealing Act 20 of 1999. 16.The learned counsel for the petitioner strenuouslycontended that the Tribunal erred in holding that the take over ofpossession on paper by the Revenue authorities on 31.12.1990 wassufficient. In view of such a finding, the Tribunal came to anerroneous conclusion that Section 4 of the Repealing Act 1999 wouldnot help the petitioner, according to the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner. 17.The learned counsel for the petitioner argued that thereshould be actual take over of possession and the take over ofpossession in record is not the physical possession of the surpluslands. If the land owner is not a party to the Land DeliveryReceipt, the take over should be established by getting signaturefrom independent witnesses, preparing Panchanama, etc. But therecords reveal that it is only possession in papers.18.The learned counsel for the petitioner relied on thejudgment of the Honourable Mrs.Justice Prabha Sridevan inW.P.No.19845 of 2006 dated 31.07.2006, wherein in paragraph No.13,the learned Judge held that mere recording of possession by theauthorities will not amount to actually taking of possession. Thelearned Judge rejected the plea of taking of possession based on thesimilar Land Delivery Receipt produced in that case. In thiscontext, the learned Judge recorded in paragraph No.8 that the LandDelivery Receipt does not show in whose presence, the possession wastaken. The learned Judge also relied on a paragraph in W.P.No.35490of 2004, which is as follows:"When the respondent does not say that thepetitioner had surrendered possession on it's own,then the respondent ought to have taken possession.Under Section 11(6) of the Principal Act, whenever aurban land owner fails to surrender possession asdemanded under Section 11(5) of the Act, then thecompetent authority may take possession of the landsand may, for that purpose, use such force as may benecessary. Therefore, from the above two aspectsnamely, the urban land owner was directed tosurrender possession and since he is not shown tohave surrendered possession and the power of theGovernment to use such force as may be necessary intaking possession, clearly indicate that physicalpossession of the land must be taken by the competentauthority. There is nothing on record to show that"on what day possession was taken; was anyrepresentative of the writ petitioner present; thename of the person who took possession the personfrom whom possession was taken; are there anycontemporary record to show that possession was infact taken at such a time and on such a date whenpossession was handed over to the Revenue Inspector,Pallikaranai; are there any record to show suchhanding over to the Revenue Inspector, Pallikaranaiand the name of the officer, who received possessionof the lands..... https://hcservices.ecourts.gov.in/hcservices/ In 2002 (2) L.W.764 (C.V.Narasimhan Vs. TheGovernment of Tamil Nadu etc., and 2 others), whileconsidering the impact of the Repealing Act, had heldthat where physical possession of such land continuesto be with the owner, the statutory vesting underSection 11(3) of the Act is of no relevance at all".19.The learned counsel for the petitioner further cited thedecision dated 25.09.2006 of the Honourable Mr.Justice F.M.IbrahimKalifulla in W.P.Nos.33839 and 33911 of 2004, wherein the learnedJudge followed his earlier decision dated 09.09.2004 in W.P.No.6641of 1997 and the same is extracted here-under:"11.In this context, it is worthwhile to referto the decision of S.JAGADEESAN, J in the judgmentreported in C.V.NARASIMHAN rep. by HIS POWER AGENTSMT.JAYALAKSHMI, No.12, BISHOP GARDEN, RAJAANNAMALAIPURAM, CHENNAI 28 vs. 1. THE GOVERNMENT OFTAMIL NADU, rep. BY ITS SECRETARY, REVENUEDEPARTMENT, FORT ST.GEORGE, CHENNAI-9. 2. THESPECIAL COMMISSIONER AND COMMISSIONER OF LANDREFORMS, CHEPAUK, CHENNAI-5. 3. THE COMPETENTAUTHORITY, URBAN LAND CEILING, ALANDUR (2002-2-L.W.-764), wherein the learned Judge has clearly statedthat so long as the physical possession of the landcontinues to be with the owner, even the statutoryvesting of the land will be of no consequence."The learned Judge in paragraph No.7 of the same judgment dated25.09.2006 has held as follows:"7.To the same effect is the order of JusticeR.Balasubramanian, dated 22.8.2006 passed inW.P.No.17416 of 2004, where the learned Judge,reiterating the position that the possession meanstaking physical possession, had held, "Therefore, thesine qua non to keep the property declared as surplusunder the provisions of the Act is that physicalpossession of the said property ought to have taken bythe competent authority despite coming into force ofthe Repealing Act."20.The learned counsel for the petitioner heavily relied onparagraph No.10 of the judgment dated 19.10.2006 of the HonourableMr.Justice K.Chandru in W.P.No.29061 of 2003, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "This Court in its judgment reported in(2006) 2 M.L.J. 664 (SOSAMMA THAMPY Vs. THE ASSISTANTCOMMISSIONER (ULT) - CUM - COMPETENT AUTHORITY (ULC),has analysed all the previous case laws andcategorically held that physical possession isrequired and mandatory under the ULC Act and noting inthe file that symbolic possession is taken cannot beaccepted as taking of physical possession. This Courtis in complete agreement with the ratio laid down inthe aforesaid decision which also squarely applies tothe facts and circumstances of the case."21.The learned counsel for the petitioner strenuouslycontended that the Act contemplates that if the persons in possessionfailed to deliver possession within 30 days of receipt of noticeunder Section 11(5), the Competent Authority has to take possessionunder Section 11(6) of the Act. The learned counsel has brought toour notice that the words "may for that purpose use such force as maybe necessary" used in 11(6) indicates that to take actual possession,the Competent Authority is clothed with power under Section 11(6).In the absence of delivery of possession by land owner pursuant tonotice under Section 11(5), the possession should have been takenthrough the manner suggested under Section 11(6). Since the noticeunder Section 11(5) was not even served, the symbolic possession isnot a possession as contemplated under Sections 11(5) and 11(6) ofthe Act. The learned counsel for the petitioner also produced variousreceipts for payment of tax and the latest receipt is dated07.03.2007 and various electricity bills including the last one dated14.11.2008 besides Small Scale Industries Registration Certificateabout the carrying on the manufacturing of bricks, in support of hissubmission that the concerned lands are in his actual possession. 22.The learned Special Government Pleader vehemently arguedthat symbolic possession is sufficient when the actual take over ofpossession is not contemplated under the Act. We are not inagreement with that submission in view of the categoricalpronouncements of this Court referred to above. 23.Once the possession is not taken over by the Governmentas held by us, all the proceedings under the Act must be held to haveabated under Section 4 of the Repealing act, in view of thecategorical pronouncement of the constitutional Bench of theHonourable Apex Court in Smt.Angoori Devi Vs. State of Uttar Pradeshand Others reported in JT 2000 (Suppl.1) SC 295. 24.In these circumstances, we are inclined to set aside theorder passed by the Tamil Nadu Land Reforms Special AppellateTribunal. Accordingly, the order dated 11.10.2000 passed inT.R.P.No.313 of 1999 by the Tamil Nadu Land Reforms Special Appellate https://hcservices.ecourts.gov.in/hcservices/ Tribunal is quashed and all the proceedings under the Act must beheld to have abated in view of Section 4 of the Repealing Act 20 of1999. Accordingly, the writ petition is allowed. Consequently,connected miscellaneous petition is closed. No costs.P.K.MISRA, J.I have gone through the draft judgment preparedmeticulously by my learned brother Judge and I agree with the viewsexpressed. However, I would like to highlight one point which wasraised at the fag end of the hearing.2. At the time of conclusion of the arguments, learnedcounsel for the State raised a technical objection that the LandReforms Tribunal, whose order is being impugned in the present writpetitions, has not been impleaded as a party and, therefore, the writpetitions should be dismissed for non-joinder of necessary parties. 3. It is no doubt true that in Certiorari proceedings, theinferior Tribunal whose order is being impugned before this Court, isrequired to be made as a party. The basic principle in impleadingthe inferior Tribunal as a party is with a view to ensure productionof records before the High Court. The inferior Tribunal, which isobviously discharging judicial function, is not impleaded as a partywith a view to give any opportunity of hearing as it cannot be saidthat the Tribunal has got any interest in one way or the other.Since, in the present case, being called upon, the Counsel for theState has produced all the records including that of the Tribunal,non-impletion of the Tribunal as a formal party cannot be consideredas a ground to dismiss the writ petition, particularly when no suchobjection was raised when the writ petition was filed and entertainedor subsequently when the matter had remained pending in the HighCourt for a pretty long period. Since the objection of impleading ofinferior Tribunal has been achieved and as a matter of fact learnedcounsel for the State has been heard at length, non-impletion isfatal in the present case. Sd/Asst. Registrar/true copy/Sub Asst.Registrardpk To1) The Special Commissioner and Secretary to Government Government of Tamil Nadu Revenue Department Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/ 2) The Special Commissioner and Commissioner of Land Reforms Chepauk, Chennai – 600 005.3) The Assistant Commissioner Competent Authority (Urban Land Ceiling) Poonamallee, Chennai – 600 029. 4) The Tahsildar Poonamallee, Chennai.5) The Tamil Nadu Land Reforms Special Appellate Tribunal, Santhom, Chennai.+ 1 cc to Mr.R.C.Paul Kanagaraj,Advocate,SR.36474+ 1 cc to Government Pleader,SR.37061W.P.No.1584 of 2009 NSM(CO)EM/18.8.09