Mrs.Subbalakshmi v. Assistant Commissioner of Urban Land Tax 248, Poonamallee High Road Madras-292 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23.1.2009Coram:The Honourable Mr.Justice M.JAICHANDRENW.P.No.235 of 20031. Mrs.Subbalakshmi 2. H.Rajeswari3. H.Rekha4. H.VijayalakshmiAll represented by their power agentA.K.ManiMannady, Chennai-600 001.. PetitionersVersus1. Assistant Commissioner of Urban Land Tax 248, Poonamallee High Road Madras-292. Secretary to the Government Revenue Department Secretariat Fort St. George Chennai-13. The Tahsildar Saidapet, Chennai .. Respondents Prayer: Petition filed seeking for a writ of declarationdeclaring that the continuance of the acquisition proceedingsinitiated by the first respondent in Rc.No.1231/81/D, dated21.1.1982, under the Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978, with regard to the petitioner's property situated atSurvey No.128/5-A admeasuring 42 cents and 128/3-A admeasuring 39cents in Shotriyum Village, Ernavoor, Saidapet Taluk, (presentlyAmbattur Taluk) Chengalpattu District (presently TiruvallurDistrict) even subsequent to the repeal of the said enactment, asun-constitutional and illegal. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.Satish Parasaran For Respondents : Mr.P.Muthukumar Government Advocate O R D E RHeard the learned counsel appearing for the petitioners andthe learned Government Advocate appearing for the respondents. 2. It has been stated that the petitioners are the jointowners of the property situated at Survey Nos.128/5-A and 128/3-A,in Shotriyum village, Ernavoor, Saidapet Taluk, ChengalpattuDistrict. It has been further stated that the petitioners are thelegal heirs of one Harinath Babu, who had purchased the property.The property in question had been purchased from Sivacharandoss, on2.8.1982, by a sale deed, registered in the Sub-Registrar's officeat Thiruvottriyur, as document No.2017. After the possession of theproperty was taken, it was known that the proceedings were pending,under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978,(hereinafter referred to as "the Act"). It was learnt that theproceedings had been initiated in the year, 1981, and theGovernment had notified in the Government Gazette, with regard tothe acquisition, under Section 11 (1) of the Act, in the year,1983. Subsequently, another gazette notification, under Section 11(3) of the Act had been published in the month of July, 1985, withregard to the petitioners' land. On coming to know about thependency of the proceedings, the petitioners had written a letter,dated 20.11.1986, requesting for the grant of exemption, withregard to the lands in question. Further, a petition had been filedbefore the Special Land Reforms Commissioner for exempting thelands from the proceedings initiated under the Act. In reply to thepetition filed by the petitioner for grant of exemption, he hadreceived a communication, dated 24.7.1990, informing that the landsshould not have been purchased during the pendency of the landacquisition proceedings and that the provisions of Section 6 of theAct would be attracted. 3. It was also stated that the third respondent had taken overthe possession of the lands, on 17.2.1987. Thereafter, a requesthad been made, on 8.3.1991, asking the Special Commissioner of LandReforms to allot the lands to the petitioners, since no exemptioncould be granted. It was stated that the petitioners were incontinuous possession of the lands from the date of its purchasei.e., from 2.8.1982 and that the lands were required forresidential purpose and for starting a cottage industry. https://hcservices.ecourts.gov.in/hcservices/

4. It has also been stated that after the receipt of thenotice, under Section 11(5) of the Act, a petition had been sent tothe respondents setting out the fact that the possession of theland was with the petitioners and that the exemption should begranted, with regard to the land in the possession of thepetitioners. While so, a notice, dated 9.5.1991, had been issued toSivacharandoss, knowing full well that the lands had already beensold by him and that the petitioners were already in possession ofthe land. The respondents had stated that Sivacharandoss had notreceived the compensation, under Section 12 of the Act andtherefore, the compensation amount was remitted to the RevenueDeposit-8443 and that it was still lying with the Government. Inspite of the fact that the petitioners were the owners of theproperty in question and were in possession of the land, thenotice, under Section 11(5) of the Act, had been wrongly issued toSivacharandoss. Even the patta for the land is in the name of thepetitioners. The chitta receipts would clearly establish the factthat the respondents had not taken over the possession of theproperty. The petitioners had constructed a mechanic shed in theproperty and they have been in continuous possession of the samesince its purchase. While so, the respondents are proposing toacquire the lands bearing Survey Nos.128/5-A and 128/3-A owned bythe petitioners, under the proceedings conducted in RC.No.1231/81.Thus, it is seen that on the one hand the respondents had statedthat they had already acquired the lands in the year, 1987, and onthe other hand, they had stated that the proceedings have beeninitiated to acquire the lands belonging to the petitioners. 5. The main contentions raised on behalf of the petitionersare that the notice, dated 21.3.1986, issued under Section 11(5) ofthe Act, for delivery of possession of the land, had been issued tothe erstwhile owner of the land in question and not to thepetitioners, who are in actual possession of the property. As such,it cannot be taken to be a proper notice issued in accordance withthe provisions of the Act. Such a notice would be withoutjurisdiction and ab initio void. The non-issuance of proper noticewould mean that the acquisition proceedings, said to have beeninitiated by the respondents, had not crossed the stage beyondSection 11(5) of the Act. Any subsequent act, based on the improperand invalid notice, would fail the test of legal scrutiny, as heldby this Court in V.SOMASUNDARAM AND ORS Vs. THE SECRETARY TOGOVERNMENT, REVENUE DEPARTMENT AND ORS (2007-2- L.W.109).Similarly, in OM PRAKASH AND OTHERS Vs. THE GOVERNMENT OF TAMILNADU AND OTHERS (MANU/TN/9871/2007), this Court had held that theland acquisition proceedings would stand abated, since the notice,under Section 11(5) of the Act, had been issued to the erstwhileowner of the property and not to those who were the real owners atthe time of taking over of the possession. https://hcservices.ecourts.gov.in/hcservices/

6. It has also been contended that the patta and the chittastood in the name of the petitioners, clearly evidencing the factumof possession. The encumbrance certificate would also show that thepetitioners are still in possession of the property in question.Since actual possession had not been taken by the respondents,before the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, had been repealed by the Tamil Nadu Urban Land (Ceiling andRegulation) Repeal Act, 1999, (Act 20 of 1999) (hereinafterreferred to as the "Repeal Act"), all the proceedings pending,immediately before the commencement of the repeal act would abate,in view of Section 4 of the Repeal Act. The condition precedent forthe applicability of the repeal Act is that the proceedings mustnot have crossed the stages contemplated under Sections 12, 13, 14,15, 15-B, and 16 of the Principal Act and that possession shouldhave not been taken over by the state Government. The fact that noproper notice, under Section 11(5) of the Act, had been issued tothe actual owner, it is clear that the acquisition proceedingsinitiated by the respondents had not crossed the said stages, todeny the benefit of the Repeal Act to the petitioners. 7. The learned counsel appearing for the petitioners had alsorelied on the decision of this Court in ALLIND METAL FABRICATORSPVT. LTD., Vs. THE SECRETARY TO THE GOVERNMENT (2002 CTC 716),wherein, this Court, following the judgment rendered by the SupremeCourt in ANGOORI DEVI Vs. STATE OF U.P. (JT 2000 SUPP 1 (SC) 295),had held that if the possession of the land had not been takenprior to the repeal, such possession cannot be taken thereafter. Noproceedings can be initiated under the repealed enactment. In thepresent case, since the actual physical possession had not beentaken by the respondents, the acquisition proceedings stood abated.Further, according to Section 3(2) of the repeal Act, even if aland was deemed to have been vested in the State Government, ifpossession had not been taken over by the State Government, suchland would not be affected, under Section 3(2) of the Repeal Act. 8. Even when the land is physically vested with the StateGovernment, under Section 11(3) of the Act, the rights in respectof the said land would be restored to the land owner, if he refundsto the State Government the amount paid as compensation, as held inMRS.AYESHA HAQUE Vs. STATE OF TAMIL NADU (2003 WRIT L.R.193). It isnot in dispute that the amount meant to be paid as compensation toSivacharandoss, the erstwhile owner of the land, is still lyingwith the Government, as it has not been paid to him. This Court, byan order, dated 31.7.2002, in W.P.Nos.16898 to 16900 of 1999,(MOTHI S.RAJAMANNAR AND OTHERS Vs. THE SECRETARY TO GOVERNMENT),had held that taking over of the possession, along with thevesting, is absolutely necessary to make the repeal Act effective.When it is found that the possession has not been taken over by theState Government and the compensation had also not been paid to the https://hcservices.ecourts.gov.in/hcservices/ land owners, the petitioners are entitled to the benefit of theRepeal Act, Act 20 of 1999. 9. It has also been stated that the petitioners had thebenefit of an interim order protecting their possession, during thependency of the writ petition. The contentions of the respondentsthat the property in question had been allotted to the labourDepartment cannot be accepted, since such an allotment would beinvalid, in view of the fact that the original taking over of thepossession had not been done in accordance with law. Since therespondents had failed to show, by producing the relevant records,that a notice under Section 11(5) of the Act had been issued to thepersons in actual possession of the property in question and thattaking over of the actual possession by the State had beencompleted and the payment of compensation had been made, the landacquisition proceedings, said to have been initiated by therespondents, would stand abated in view of the Repeal Act of 1999. 10. In the counter affidavit filed on behalf of therespondents, the averments made on behalf of the petitioners hadbeen denied. It has been stated that the lands comprised inS.Nos.128/3-A, 128/5-A and 129/1 of Eranavoor Village had been heldby one Sivacharandoss and that they have been classified as wetlands. The said Sivacharandoss had filed a return, under Section 7(1) of the Act, on 26.3.1977, for the lands in Ernavoor Village andhe had requested the State Government to grant exemption to use thelands for industrial purposes. His request for the grant ofexemption had been rejected by the Government, vide letterNo.8622/R2/80-1, dated 15.3.1980, since the lands were earmarkedfor residential purposes. His request for changing theclassification from mixed residential to industrial area wasrejected by the Government in letter No.73057/R2/81-4, Revenue,dated 18.12.1981. 11. It has also been stated that the action had been taken toacquire the excess land measuring 3600 sq.mts., under Sections 9 to11 of the Act. Notices, under Section 9(4) and the draft statement,under Section 9(1) of the Act, had been issued in Rc.No.1231/81,dated 15.7.1981. The notice had been served by registered post,with Acknowledgment Due. Sivacharandoss, by his letter, dated18.8.1981, had informed that he had applied for reclassification ofthe land and therefore, he had requested to drop further action.Since the Government had rejected his request for reclassification,vide letter, No.73057/R2/81-4, Revenue, dated 18.12.1981, ordersunder Section 9(5) of the Act were passed, on 21.1.1982, to acquirethe excess vacant land of 3600 sq.mts. The orders were served byregistered post with acknowledgment due, on 13.2.1982. Finalstatement under Section 10(1) of the Act had been issued, on26.4.1982, and it was served by registered post with https://hcservices.ecourts.gov.in/hcservices/ acknowledgment due. Being aware of the fact that the land wascovered under the Act, the land owner Sivacharandoss had sold thelands in S.Nos.128/5-A and 128/3-A to one Harinath Babu, who is anancestor of the petitioners, on 2.8.1982. As per section 6 of theAct, no person holding the vacant land in excess of the ceilinglimit can transfer any such land or part thereof, by way of sale,mortgage, gift, lease etc., and any such transfer made incontravention of the said provision shall be deemed to be null andvoid. 12. It has been further stated that the notification, underSection 11(1) of the Act, issued on 9.6.1982, and the notification,under Section 11(3) of the Act, dated 3.6.1985, were published inthe Tamil Nadu Government Gazette No.26, dated 3.7.1985 and anamended notification had been published in the Tamil NaduGovernment Gazette No.32, dated 14.8.1985. Regarding the surrenderor delivery of excess land, a notice, under Section 11(5) of theAct, had been issued, on 24.3.1986, and it has been served on theland owner, on 12.4.1986, by registered post with Acknowledgmentdue. Since the land owner did not hand over possession of theexcess vacant land, the possession was taken over and was handedover to the Revenue Department, on 17.2.1987, and necessary changeshad been carried out in the revenue records. A sum of Rs.900/-,being 25% of the land value of Rs.3,600/- and the second to fifthinstallments had been drawn and kept in the revenue deposit, sincethe land owner refused to receive it. 13. As per Section 6 of the Act, the sale of excess vacantland, after the notification of the Act, is not maintainable, underthe law in force. The petitioners have claimed that they havepurchased an extent of 0.42 Acre in S.No.128/5-A and 0.34 acre inS.No.128/A, vide document No.2212, dated 2.8.1982. Since the saidpurchase is contrary to Section 6 of the Act, such purchase made bythe petitioners is invalid in the eye of law. Since all theformalities relating to the acquisition proceedings had beencompleted and the acquired lands had been allotted to the LabourDepartment, vide G.O.Ms.No.1341, Revenue, dated 18.8.1999, theclaims made by the petitioners cannot be entertained by this Court,at this stage. Hence, the writ petition is liable to be dismissed,as devoid of merits. 14. The learned counsel appearing for the petitioners hadcontended that the action of the respondents in attempting to takepossession of the land in question, under the provisions of theTamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, isillegal, contrary to the well established principles of law and indirect contravention of the law laid down by the Apex Court in itsvarious Rulings and violative of Articles 14, 19(1)(g) and 300-A ofthe Constitution of India. The claim of the respondents that they https://hcservices.ecourts.gov.in/hcservices/ had acquired the lands in the year, 1987, is contrary to the facts.No notice had been given to the petitioners before a final decisionhad been taken, under section 11 (5) of the Act. As the respondentshad knowledge of the purchase of the lands in question by thepetitioners, they should have heard the petitioners beforefinalising the acquisition proceedings. The issuing of notice,dated 21.3.1986, under section 11(5) of the Act, to the erstwhileowner of the land, for the delivery of possession of the land, isimproper and without jurisdiction. The petitioners had been inpossession of the lands in question at the relevant point of time.Therefore, the requirements of the provisions of the Act had notbeen complied with and therefore, any subsequent event that hadfollowed section 11(5) notice is contrary to law, illegal and void.15. Even though the decision to acquire the excess vacant landhad been made by the respondents, they have not been given effectto, till date. As the petitioners are continuing to be in peacefulpossession of the land in question, the claim of the respondents,with regard to the taking over of the possession of the land isneither true nor correct. Since actual possession had not beentaken over by the respondents, the land acquisition proceedingswould be deemed to have abated in view of the Repeal Act. Therelevant documents like patta, encumbrance certificate and thechitta clearly show that the petitioners are still in possession ofthe land in question, contrary to the claims made by therespondents. 16. It has also been contended that the respondents had failedto take into account the fact that, under Section 4 of the RepealAct, all proceedings relating to the acquisition proceedings wouldabate, if actual physical possession had not been taken by therespondents and if compensation had not been paid to thepetitioners, in full. Even the erstwhile owner, namely,Sivacharandoss had not received the compensation, as evident fromthe letter, dated 9.5.1991, written on behalf of the respondents,stating that the compensation amount was still lying with theGovernment. Therefore, The respondents cannot attempt to takepossession of the land, at this stage, as there is no provision oflaw permitting them to do so, in view of the fact that the Act hadbeen repealed by the Repeal Act of 1999. In such circumstances, theland acquisition proceedings initiated by the first respondent, inhis proceedings, dated 21.1.1982, under the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978, with regard to the petitioners'property is arbitrary, invalid, and unsustainable in the eye oflaw. 17. The learned counsel appearing on behalf of the petitionershad relied on the following decisions in support of hiscontentions: https://hcservices.ecourts.gov.in/hcservices/

17.1. In SARASWATHI AND ANOTHER Vs. THE PRINCIPAL COMMISSIONER& COMMISSIONER OF LAND REFORMS (2007 (4) CTC 714), this Court hadheld that the land acquisition proceedings would stand abated, ifthe respondents are not in a position to show that actual physicalpossession of the land in question had been taken over by therespondents and due compensation had been paid to the urban landowner concerned. 18. The learned Government Advocate appearing for therespondents had relied on the decision of a Division Bench of thisCourt in THE CHAIRMAN, TAMIL NADU HOUSING BOARD Vs. P.KARUPPA KONAR(2007 (5) CTC 355), to show that the writ petition is notmaintainable on the ground of latches. However, the said decisionis not applicable to the facts and circumstances of the presentcase, as it has not been shown by the respondents that thepetitioners, who were in possession of the land in question, hadslept over their rights, in spite of the relevant notices had beenissued to them. Once the procedures adopted by the respondents,during the land acquisition proceedings, are found to be illegal,subsequent proceedings would not validate the illegality committedby the respondents. 19. Considering the averments made by the petitioners, aswell as the respondents and the contentions raised by the learnedcounsels appearing on their behalf and in view of the decisionscited in support of the contentions and on a perusal of the recordsavailable, this Court is of the considered view that the landacquisition proceedings initiated against the properties belongingto the petitioners to an extent of 42 cents in S.No.128/5-A, and 39cents in Survey No.128/3-A, in Shotriyum Village, Ernavoor,Saidapet Taluk, is liable to be quashed, as having abated, in viewof the coming into force of the Repeal Act of 1999. It is clearthat no proper notice, under Section 11(5) of the Act had beengiven to the actual owners of the lands in question, namely, thepetitioners herein. The said notice, dated 21.3.1986, for thedelivery of the land had been issued only to the erstwhile ownerand not to the petitioners, who are in possession of the land.Therefore, the subsequent proceedings of the respondents would alsobe improper and irregular and unsustainable in the eye of law.There is nothing on record to show that actual physical possessionof the land in question had been taken by the respondents nor isthere any evidence to show that the compensation for the land inquestion had been paid to the petitioners, as contemplated underthe law. 20. In Sosamma Thampy Vs. The Assistant Commissioner (ULT)-CUM-Competent Authority (ULC) and others, (2006 (2) MLJ 664; AneesLeathers Manufacturers, rep.by its proprietor, Mr.Anees Ahamed Vs https://hcservices.ecourts.gov.in/hcservices/ The Government of Tamil Nadu rep.by its Secretary, RevenueDepartment, Fort St.George, Chennai and others, 2006(3) LW 437, andJayaseelan & Ratnaseelan Vs The Government of Tamil Nadu rep.by itsSecretary, Revenue Department, Fort St.George, Chennai and others2006(3) LW 440, this Court, while dealing with the effect of theprovisions of the Tamil Nadu Urban Land Ceiling Repeal Act (Act 20of 1999) on the land acquisition proceedings initiated under theTamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, has heldthat all such proceedings initiated under the said Act would abateon the coming into force of the Repeal Act of 1999, if thepossession of the land had not been taken over by the authoritiesconcerned prior to the repeal and if due compensation had not beenpaid to the petitioners.21. Even though it has been contended on behalf of therespondents that the acquired lands had been allotted to the LabourDepartment, such allotment would not be sufficient to validate theacquisition proceedings. No additional sanctity would be attachedto such proceedings by the mere allotment of the lands, said tohave been acquired by the respondents, to the other departments ofthe Government, once it is found that the initial acquisitionproceedings had been done contrary to the provisions of the Act.Accordingly, the writ petition stands allowed. No costs.lan Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1. THE ASSISTANT COMMISSIONER OF URBAN LAND TAX, 248 POONAMALLEE HIGH ROAD, MADRAS-29.2. THE SECRETARY TO THE GOVTREVENUE DEPARTMENT, FORT ST. GEORGE, CHENNAI3. THE TAHSILDAR,SAIDAPET, CHENNAI.1 cc to the Government Pleader, SR.3578mbs (co)dv/12.2.W.P.No.235 of 2003