G.Krishnamoorthy v. The Government of Tamil Nadu

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.3749 of 20011) G.Krishnamoorthy2) Vijayakumar3) Ranjani4) Balaji5) Sundar ... PetitionersVS.1) The Government of Tamil Nadu Rep. by its Secretary 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 Alandur, Chennai – 600 088.4) The Spastic Society of India No.1, Ranjith Road, Kotturpuram, Chennai - 600 085. (R4 impleaded as per suo motu order dated 07.08.2007 in W.P.No.3749 of 2001)... 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 has that of the thirdrespondent dated 25.10.1989 in Na.Ka.No.10/82 as confirmed by theorder of the second respondent order dated 07.09.1990 inPa.Mu.No.5341 of 1990 and as confirmed by the Tribunal inT.R.P.No.187 of 1999 dt.1.11.2000 and quash the same and furtherdirect the respondents to treat the lands in S.No.278/3 and 278/9 ofKottivakkam Village as falling outside the purview of Act 24 of 1978or under Section 4 of Act 20 of 1999. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners:Mr.V.RameshFor Respondents 1 to 3:Mr.G.DesinguSpecial Government Pleader For Respondent 4:Mr.Sriram PanchuSenior counsel for Mr.T.MohanO R D E RD.HARIPARANTHAMAN, J.The writ petition is preferred by the land owners againstthe order dated 01.11.2000 passed in T.R.P.No.187 of 1999 by theTamil Nadu Land Reforms Special Appellate Tribunal, confirming theorder dated 25.10.1989 of the Competent Authority, the thirdrespondent herein, under the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978 (hereinafter referred to as the Act) and theorder dated 07.09.1990 of the Appellate Authority, the secondrespondent herein. 2.Tmt.Kalpana Krishnamoorthy owned urban land inKottivakkam. She is the wife of the first petitioner and mother ofthe petitioners 2 to 5. She did not file the return under Section 7(1) of the Act. Hence, a notice dated 17.05.1982 under Section 7(2)was issued to her by the third respondent, the Competent Authority,seeking her to file return. 3.Thereafter, a draft statement under Section 9(1) wasprepared by the Competent Authority regarding the vacant land held bythe land owner in excess of ceiling limit and the same was servedunder Section 9(4) of the Act indicating that she was in possessionof 6700 Sq.mts land in excess of the ceiling limit, after permittingher to retain 500 Sq.mts. She was asked to make her objectionswithin 30 days. 4.The first petitioner sent an objection dated 19.09.1988stating that Tmt.Kalpana Krishnamoorthy is his wife and she died on26.01.1987 leaving him and the petitioners 2 to 5 as legal heirs andcontended that the concerned land is agricultural land and therefore,those lands could not be acquired under the Act. 5.An order dated 25.10.1989 was issued under Section 9(5)of the Act by the Competent Authority, the third respondent herein,considering the objections made to 9(1) draft statement. As per theorder, 2000 Sq.mts. was allowed to the land owners for retention andthe extent of land in excess of ceiling limit was determined as 5250Sq.mts. https://hcservices.ecourts.gov.in/hcservices/

6.Thereafter, as mentioned in the aforesaid order dated25.10.1989 under Section 9(5) of the Act, the Competent Authority,the third respondent herein determined the surplus land as 5250Sq.mts under Section 10(1) of the Act and a final statement in FormIII prescribed under Rule 8 of the Tamil Nadu Urban Land (Ceiling andRegulation) Rules, 1978 (hereinafter referred to as the Rules) wasissued. The same was served on the first petitioner, showing thesurplus land as 5250 Sq.mts. 7.After the service of the final statement in Form IIIunder Section 10(1) of the Act, the Competent Authority issued anotification under Section 11(1) in Form V calling for claims fromall persons interested in the vacant land. The said notificationunder Section 11(1) was issued in the Tamil Nadu Government Gazettedated 30.05.1990. 8.After issuing notification under Section 11(1) of the Actcalling for any claims from the interested persons over the surplusland, the Competent Authority issued a notification under Section 11(3) of the Act. The said notification was published in the TamilNadu Government Gazette dated 25.07.1990 and as per the notification,a declaration was made that the land shall be deem to have vestedwith the Government with effect from 25.08.1990. 9.The petitioners filed appeal to the second respondentunder Section 33 of the Act.10.The second respondent passed an order dated 07.09.1990dismissing the appeal and held that the order under Section 9(5) ofthe Act was served on the petitioners on 09.12.1989 and thepetitioners filed appeal on 11.01.1990 and hence there was a delay of4 days. The appeal was thus dismissed on the ground of delay inpreferring the appeal belatedly by four days. 11.Therefore, the petitioners filed writ petition inW.P.No.12892 of 1991 to quash the order dated 25.10.1989 of the thirdrespondent and 07.09.1990 of the second respondent and forconsequent direction to the respondents to drop all furtherproceedings. On constitution of the Tamil Nadu Land Reforms SpecialAppellate Tribunal, the writ petition was transferred to the Tribunaland the same was renumbered as T.R.P.No.187 of 1999. Four issueswere framed by the Tribunal and those issues are as follows:"1) Whether the lands are agricultural lands ascontended by the petitioners or urban lands?2) Whether notice under Section 11(5) was served inthis case? https://hcservices.ecourts.gov.in/hcservices/ 3) Whether possession of the excess urban land wastaken over by the Revenue authorities on 17.11.90 asstated in their additional counter affidavit?4) Whether the petitioners are entitled to the reliefprayed for?The Tribunal held against the petitioners in all the four issues.Ultimately, the Tribunal dismissed the T.R.P.No.187 of 1999 on01.11.2000.12.The present writ petition is against the said order ofthe Tribunal. The fourth respondent was impleaded by this Court asper suo motu order dated 07.08.2007. 13.We heard the submissions made on either side. Theofficial respondents as well as the fourth respondent filed counteraffidavits. The official respondents also produced Notes File for ourperusal. 14.While the matter was pending before the Tribunal, asignificant event takes place i.e. the Act was repealed by the Act 20of 1999. As per Section 4 of the Act 20 of 1999, all proceedingsrelating to any order made under the Act before any Court, Tribunal,any authority shall abate, if the possession of the land was nottaken over by the State Government. Therefore, core question thatarose for consideration before the Tribunal was whether thepossession was taken over by the State Government. As noted above,the Tribunal found it against the petitioners. 15.The first contention of the petitioners is that theywere not served with the notice under Section 11(5) of the Act andthat notice under Section 11(5) is mandatory. Secondly, according tothe learned counsel for the petitioners, the Act contemplates actualtake over of possession i.e. taking over of physical possession ofthe surplus land and in this case, there was no actual take over ofpossession of surplus lands. Hence, the petitioners would succeed inview of Section 4 of Act 20 of 1999. 16.In support of his first plea, the learned counsel forthe petitioners contended that the notice under Section 11(5) in FormVII was said to have been sent under RPAD as per the notice found atpage No.173 of the Notes File produced by the Department. Butneither the acknowledgment nor the receipt for having sent throughRPAD is found in the Notes File. Moreover, the letter dated22.10.1990 found in the Notes File states that the notice was soughtto be served personally and the same was not served since the landowner was not available. https://hcservices.ecourts.gov.in/hcservices/

17.Thereafter, the third respondent in the letter dated13.11.1990 directed the Deputy Tahsildar - II to serve notice underSection 11(5) of the Act in Form VII on the land owner. The saidletter was signed on 27.11.1990. But the notice under Section 11(5)was not served by the Deputy Tahsildar - II as per the records. 18.The learned counsel for the petitioners argued that theNotes File reveals that notice under Section 11(5), which ismandatory, was not served on the petitioners. Therefore, there couldnot have been handing over and taking over of possession of surpluslands. 19.However, the Tribunal held in paragraph No.19 of itsorder found at page No.36 of the typed set that it has to be presumedthat the notice under Section 11(5) of the Act should have beenserved on the petitioners. Reliance on Section 114 of the IndianEvidence Act was made for such presumption. According to theTribunal, under the normal course, the service should have beeneffected as the notice was sent through Registered Post. Thisreasoning of the Tribunal is not agreeable to us. The Tribunal isjustified in coming to such a conclusion if the receipt for sendingthe registered post was found in the Notes File. Further, the thirdrespondent himself noted that the notice was not served and issued aletter dated 13.11.1990 to the Deputy Tahsildar - II to serve noticeunder Section 11(5) in Form VII. Admittedly, the Deputy Tahsildar -II did not serve the notice as per the records produced. That beingso, the presumption of service under Section 114 of the IndianEvidence Act by the Tribunal is not warranted.20.Placed with the aforesaid difficulty, both the learnedSpecial Government Pleader as well as the learned Senior counsel forthe fourth respondent argued that the notice contemplated underSection 11(5) is not mandatory. The learned Special GovernmentPleader fairly admitted that as per the records, notice under Section11(5) was not served on the petitioners. They heavily relied on"may" used in Section 11(5) of the Act in support of their submissionthat notice under Section 11(5) is not mandatory. We are not inagreement with their submissions, as it is concluded by variousjudgments of this Court and more particularly the judgment of theDivision Bench of this Court (presided over by Honourable Mr.JusticeSathasivam as he then was) in V.Somasundaram and others Vs.Secretary to Government, Revenue Department, Chennai and othersreported in 2007(1) MLJ 750. Paragraph No. 9 of the said judgment isheavily relied on by the learned counsel for the petitioners, whichis extracted here-under:"9.From the perusal of the file it is clear thatproceedings were initiated against the thirdrespondent, who is the erstwhile owner of the lands https://hcservices.ecourts.gov.in/hcservices/ in 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,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".21. In another decision dated 18.06.2007 of the DivisionBench presided over by the Honourable Mr.Justice S.J.Mukhopadhaya, inW.A.Nos.693 to 695 of 2003 in Annie Jacob and others Vs. The State ofTamil Nadu and another, a similar view was expressed. Paragraph No.8of the decision 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.....". 22.In view of categorical pronouncements of this Court, we areof the view that the notice under Section 11(5) is mandatory and inthe absence of 11(5) notice, the entire proceeding is vitiated. 23.Regarding the second contention as to the possession beingnot taken over by the State Government, the learned counsel for thepetitioners argued that in the absence on non service of notice underSection 11(5) of the Act, there is no question of taking over ofpossession of the excess land. https://hcservices.ecourts.gov.in/hcservices/

24.The learned counsel for the petitioners strenuously contendedthat the Act contemplates that if the persons in possession failed todeliver possession within 30 days of receipt of notice under Section11(5), the Competent Authority has to take possession under Section11(6) of the Act. The learned counsel has brought to our notice thatthe words "may for that purpose use such force as may be necessary"used in 11(6) indicates that to take actual possession, the CompetentAuthority is clothed with power under Section 11(6). In the absenceof delivery of possession by land owner pursuant to notice underSection 11(5), the possession should have been taken through themanner suggested under Section 11(6). Since the notice under Section11(5) was not even served, the symbolic possession is not apossession as contemplated under Sections 11(5) and 11(6) of the Act.25.Further, it is surprising that while the third respondentissued a letter dated 13.11.1990 signed on 27.11.1990 directing theDeputy Tahsildar - II to serve notice under Section 11(5) of the Act,the Land Delivery Receipt was signed by the third respondent on thesame day i.e.17.11.1990 at the place "handing over" and the FIRKARevenue Inspector signed at the place "taking over". That is, beforethe notice under Section 11(5) was served as per his own letter dated13.11.1990 that was signed on 27.11.1990, the alleged taking over ofpossession in papers took place on 17.11.1990 and the same was reliedon by the Government to sustain the order of the Tribunal. 26.The letter dated 13.11.1990 of the Competent Authority statesthat four Land Delivery Receipts were enclosed with the 11(5) noticein Form VII and those receipts are found at page 191-195 of the NotesFile. The letter directed the Deputy Tahsildar - II has to serve twonotices to the land owner. The Land Delivery Receipts state asfollows:"The above extent has been delivered by me and takenpossession of by FIRKA REVENUE DEPARTMENT.(LAND OWNER)(REVENUE INSPECTOR)HANDED OVER BYTAKEN OVER BY " Therefore, it is very clear that the take over of possession iscomplete only when it is signed by the land owner while deliveringthe excess land pursuant to under Section 11(5) of the Act in FormVII prescribed under the Rule 10(3) of the Rules. As stated above, ifno such delivery of possession took place, the third respondent hasto resort to 11(6) of the Act. Admittedly, in this case, thepetitioners did not sign in the Land Delivery Receipt.27.The learned counsel for the petitioners argued that thereshould be actual take over of possession and the take over ofpossession in paper is not the physical possession of the surpluslands. If the land owner is not a party to the Land Delivery https://hcservices.ecourts.gov.in/hcservices/ Receipt, the take over should be established by getting signaturefrom independent witnesses, preparing Panchanama, etc. But therecords reveal that it is only possession in papers.28.The learned counsel for the petitioners 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.....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 under https://hcservices.ecourts.gov.in/hcservices/ Section 11(3) of the Act is of no relevance at all".29.The learned counsel for the petitioners 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."30.The learned counsel for the petitioners 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:"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 Court https://hcservices.ecourts.gov.in/hcservices/ is in complete agreement with the ratio laid down inthe aforesaid decision which also squarely applies tothe facts and circumstances of the case."31.The learned Senior counsel for the fourth respondent as wellas the learned Government Advocate vehemently argued that symbolicpossession is sufficient and the actual take over of possession isnot contemplated under the Act. We are not in agreement with thatsubmission in view of the categorical pronouncements of this Courtthat were brought to our notice by the learned counsel for thepetitioners. Further, the learned counsel for the petitionersbrought to our notice that as per the records produced by theDepartment, there is a serious infirmity in the publication ofnotification under Section 11(3) of the Act. 32.The learned counsel for the petitioners argued that as perSection 11(3) of the Act, the notification under Section 11(3) has tobe published in the Government of Tamil Nadu Gazette after thepublication of notification under Section 11(1) of the Act. Sincethe notification under Section 11(1) was dated 30.05.1990, thisnotification dated 25.07.1990 is in order. 33.The learned counsel pointed out that however, the thirdrespondent having found that there was a mistake in the notificationdated 30.05.1990, requested the Works Manager, Government CentralPress, Madras - 79 in his letter dated 30.06.1990 that was despatchedon 30.07.1990 to publish errata in the Government Gazette about theextent of land. In the earlier notification dated 25.07.1990, thesurplus land was mentioned as 0.52 Hectares, whereas the excess landwas 0.52.50 Hectares, i.e. 5250 Sq.mts. In the file produced by therespondents, this errata was not published. Hence, the notificationunder Section 11(3) dated 25.07.1990 is defective and should not berelied on. The third respondent, after the publication of the erratashould have issued another publication under Section 11(3) by way ofan errata. Therefore, it is a case wherein there is no vesting ofthe land itself took place in view of the said serious defectcommitted by the third respondent. 34.The learned Senior counsel for the fourth respondent arguedthat the Government has allotted the concerned land to them and thefourth respondent is involved in noble cause of helping the disabledpersons. He therefore, argued that the writ petition deserves to bedismissed. 35.We are not in agreement with his submission. Even accordingto the fourth respondent, the land is still remain vacant due to thestay granted by this Court while the earlier W.P.No.12892 of 1991 wasadmitted. Further, in view of our categorical findings that therespondents failed to comply with the mandatory provisions of https://hcservices.ecourts.gov.in/hcservices/ Sections 11(5) and 11(6) and since there was no actual take over ofpossession, the writ petitioners are entitled to for the benefits ofSection 4 of the Repealing Act 20 of 1999. 36.The learned counsel for the petitioners also relied on thejudgment of the constitutional Bench of the Honourable Apex Court inSmt.Angoori Devi Vs. State of Uttar Pradesh and others reported in JT2000 (Suppl.1) SC 295 wherein it is held that all the proceedingsunder the Act must be held to have abated if the lands were not takenpossession by the Government. 37.In these circumstances, we are inclined to set aside theorder passed by the Tamil Nadu Land Reforms Special AppellateTribunal. Accordingly, the order dated 01.11.2000 passed inTRP.No.187 of 1999 by the Tamil Nadu Land Reforms Special AppellateTribunal is quashed. We, further declare that all the proceedingsinitiated under the Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978, had abated in view of the Repealing Act. Accordingly, thewrit petition is allowed. No costs.P.K.MISRA, J.I have gone through the judgment prepared meticulously bymy learned brother Judge and I agree with the views expressed.However, I would like to highlight one point which was raised at thefag 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 of https://hcservices.ecourts.gov.in/hcservices/ inferior 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.RegistrardpkTo1) The Secretary 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 Alandur, Chennai – 600 088.4) The Tamil Nadu Land Reforms, Special Appellate Tribunal, Santhom, Chennai.+ 1 cc to Mr.T.Mohan,Advocate,SR.37312+ 1 cc to Mr.V.Ramesh,Advocate,SR.36472+ 1 cc to Government Pleader,SR.37058W.P.No.3749 of 2001NSM(CO)EM/18.8.09