Chandralekha v. The State 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.14106 of 2002andW.P.M.P.No.19028 of 20021.Chandralekha2.Thangam Vethakkan3.V.Jerry Joel Singh4.Sujitha Raveen5.V.Berry Jaya Singh... PetitionersVS.1) The State of Tamil Nadu Rep. by its Secretary to Government Revenue Department Fort St.George, Chennai – 9.2) The Competent Authority (Urban Land Ceiling) and the Assistant Commissioner (Urban Land Tax) Alandur, Chennai – 600 016.... 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 that of secondrespondent dated 30.01.1990 and 04.04.1990 published in theGovernment Gazette vide No.VI(i)/421/90 and VI(i)/772/90 and theconsequential order of allotment of the first respondent dated08.01.1993 in G.O.Ms.No.26 and quash the same and further direct therespondents to treat the land as falling outside the purview of Act24 of 1978 in view of Act 20 of 1999. For Petitioners:Mr.V.RameshFor Respondents :Mr.G.DesinguSpecial Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R D.HARIPARANTHAMAN, J.The first petitioner and Late Mr.Pon Vedakkan purchased twoplots of lands measuring 2400 Sq.ft and 4389 Sq.ft in Survey No.92/2A1 of Neelangarai Village, Saidapet Taluk, by two sale deedsdated 07.11.1983 and 12.11.1983 from one P.K.Koshy. The petitioners2 to 5 are the legal heirs of Late Mr.Pon Vedakkan.2.The learned counsel for the petitioners states thatpursuant to the statement made under Section 27 of the Tamil NaduUrban Land (Ceiling and Regulation Act) 1978 (hereinafter referred toas the Act) in Form XIII prescribed under Rule 19 of the Tamil NaduUrban Land (Ceiling and Regulation) Rules, 1978 (hereinafter referredto as the Rules) before the Registering Authority, the secondrespondent held an enquiry on 25.06.1984 as per his notice dated13.06.1984. This was brought to our notice to show that the secondrespondent is aware of the purchase made by the petitioners in 1983.3.The learned counsel for the petitioners further statesthat they are in possession and enjoyment of the plots that werepurchased. The first petitioner obtained telephone and electricityconnection for the watchman quarters put up by her. She also raiseda compound wall. The first petitioner further states that the plotof land was mortgaged with Indian Bank and educational loan wasobtained for the purpose of her son's education. As per the letterissued by the Indian Bank, which is enclosed at page No.71 of thetyped set, the educational loan was sanctioned on 08.08.1990. Thefirst petitioner states that the Bank officials wanted her to submitthe land tax receipt to the Bank and that therefore, she approachedthe Village Administrative Officer for payment of land tax and thesaid officer refused to receive the tax on the ground that the landswere acquired as surplus lands from the said P.K.Koshy under the Act.At this juncture, the first respondent issued a Government Order inG.O.Ms.No.26, Revenue Department, dated 08.01.1993 allotting theexcess land to All India Service Officers Co-operative HousingSociety, Madras. Hence, the petitioners filed a Writ Petition at theearliest on 09.02.1993 before this Court in W.P.No.3575 of 1993questioning the notification issued under Section 11(1) and 11(3) ofthe Act as well as the said G.O.Ms.No.26. The writ petition wastransferred to the Tamil Nadu Land Reforms Special Appellate Tribunaland was renumbered as T.R.P.No.15 of 2000. After hearing both theparties, the Tribunal dismissed the said T.R.P.No.15 of 2000 on27.11.2001. This writ petition is against the said order of theTribunal. https://hcservices.ecourts.gov.in/hcservices/

4.We heard the submissions made on either side. Thelearned Special Government Pleader produced the entire records forour perusal and we have perused the same. 5.The learned counsel for the petitioners strenuouslycontended that the petitioners were not served notice under Section11(5) of the Act, which is mandatory. He further argued that theTribunal erred in holding that the petitioners need not be givennotice under Section 11(5) of the Act and the notice under Section 11(5) to the erstwhile owner was sufficient. The learned counsel forthe petitioner brought to our notice ground (d) in their affidavitand strongly contended that while notices under Section 9(4) or underSection 7(2) of the Act ought to be addressed to the owner of theland for the purpose of determining the excess vacant land, thenotice contemplated under Section 11(5) of the Act is to be issued tothe person in possession also, since the purpose was seeking deliveryof possession. He further pointed out that notice contemplated underSection 11(5) of the Act is quite different from notice contemplatedunder other provisions of the Act. He also pointed out that thewords used in Section 11(5) of the Act “any persons who may be inpossession” and no such wording is found in Sections that deals withthe acquisition of the land. 6.The learned counsel for the petitioners heavily relied onthe judgment of the Division Bench of this Court (presided over byHonourable Mr.Justice Sathasivam as he then was) in V.Somasundaramand others Vs. Secretary to Government, Revenue Department, Chennaiand others reported in 2007(1) MLJ 750. Paragraph No. 9 of the saidjudgment is heavily relied on by the learned counsel for thepetitioners, which is 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 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 on https://hcservices.ecourts.gov.in/hcservices/

30.04.1999 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".7.The learned counsel for the petitioners cited 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 a similar view was expressed. Paragraph No.8 of the decisionis 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 appellants tosurrender or deliver possession of the lands inquestion. Nothing has been produced to suggest that theoriginal land holder or the appellants refused orfailed to comply with such order and on failure thepossession of the lands were taken by force. In absenceof such notice under section 11(5) or action takenunder Section 11(6), a bald statement as made by therespondents that possession was taken on 10th February,1995, cannot be accepted.....". 8.On the other hand, the learned Special Government Pleadercontended that the petitioner is not entitled to notice under Section11(5) of the Act in view of the Division Bench decision of this Courtin Prabhavathi Jain and 4 others Vs. The Government of Tamil Nadu and8 others reported in 1995 (2) L.W. 200. We have perused thejudgment. We are of the view that the judgment did not decide whetherSection 11(5) contemplates service of notice on the person who is inpossession of the concerned excess land. On the other hand, thejudgments cited by the petitioner are on the point. Further it isnot the case of the petitioner that he is entitled to notice underSection 7 or 9 while acquiring the land. 9.We are of the view that notice under Section 11(5) shouldhave been served on the petitioners particularly, when the secondrespondent issued notice in 1984 itself pursuant to the statementmade by the petitioners under Section 27 of the Act at the time ofregistering their sale deed and also in view of the categoricalpronouncement of this Court referred to above. https://hcservices.ecourts.gov.in/hcservices/

10.The learned counsel for the petitioners further arguedthat in view of Section 4 of the Repealing Act 20 of 1999, all theproceedings under the Act must be held to have abated, since theactual possession of the land was not taken over by the Governmentunder Section 11(5) or 11(6) of the Act. 11.The learned counsel for the petitioners vehementlycontended that the Tribunal erred in holding that once the title ofthe land vests with the Government pursuant to the notificationissued under Section 11(3) of the Act, the symbolic possession onrecord is sufficient and no actual taking over of possession isrequired. He further pointed out that the Tribunal was not correctin holding that the Act does not specify any particular mode oftaking possession like drawing Panchanama or taking possession in thepresence of witnesses and the taking over of possession of excessurban land by the Revenue Inspector of Saidapet Taluk by signing theLand Delivery Receipt on 29.11.1990 is sufficient as the proof fortaking over of possession. 12.The learned counsel for the petitioners 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/petitionerpursuant to notice under Section 11(5), the possession should havebeen taken through the manner suggested under Section 11(6). Sincethe notice under Section 11(5) was not even served, the symbolicpossession is not a possession as contemplated under Sections 11(5)and 11(6) of the Act. 13.The learned counsel for the petitioners argued that thetaking over of possession is complete only when it is signed by theland owner / the petitioners, while delivering the excess land underSection 11(5) of the Act read with Rule 10(3) of the Rules. If nosuch delivery of possession took place, the second respondent has toresort to Section 11(6) of the Act. Admittedly, in this case, neitherthe erstwhile land owner nor the petitioners signed the Land DeliveryReceipts and also the second respondent did not resort to Section 11(6) of the Act. Hence, according to the learned counsel for thepetitioners, there was no actual take over of possession by therespondents. 14.The learned counsel for the petitioners argued that https://hcservices.ecourts.gov.in/hcservices/ there should 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.15.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..... 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".16.The learned counsel for the petitioners further citedthe decision dated 25.09.2006 of the Honourable Mr.JusticeF.M.Ibrahim Kalifulla in W.P.Nos.33839 and 33911 of 2004, wherein thelearned Judge followed his earlier decision dated 09.09.2004 inW.P.No.6641 of 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."17.The learned counsel for the petitioners heavily reliedon paragraph 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 https://hcservices.ecourts.gov.in/hcservices/ (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."18.On the other hand, the learned Special GovernmentPleader vehemently contended that the symbolic possession issufficient and the actual take over of possession is not contemplatedunder the Act and the Tribunal was therefore correct in itsconclusion. 19.The learned counsel for the petitioners also brought toour notice that though the Tribunal noted that the records relatingto telephone connection, electricity connection and issuance of pattawere placed on record by the petitioners to establish the possessionof lands with them, the Tribunal committed error in not accepting thesame. 20.But, we are not in agreement with this submissions inview of the categorical pronouncements of this Court referred toabove that were brought to our notice by the learned counsel for thepetitioners. 21.The learned counsel for the petitioners also relied onthe judgment of the constitutional Bench of the Honourable Apex Courtin Smt.Angoori Devi Vs. State of Uttar Pradesh and Others reported inJT 2000 (Suppl.1) SC 295 wherein it is held that all the proceedingsunder the Act must be held to have abated in view of Section 4 of theRepealing Act 20 of 1999, once the possession was not taken over bythe Government.22.Since we have held that the actual possession was nottaken over by the Government and the petitioners are still inenjoyment of the plots in issue, the petitioners are entitled to thebenefit of Section 4 of the Repealing Act 20 of 1999. 23.In these circumstances, we are inclined to set aside theorder passed by the Tamil Nadu Land Reforms Special AppellateTribunal. Accordingly, the order dated 27.11.2001 passed inT.R.P.No.15 of 2000 by the Tamil Nadu Land Reforms Special AppellateTribunal is quashed. We, further declare that all the proceedings https://hcservices.ecourts.gov.in/hcservices/ initiated 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. Consequently, connectedmiscellaneous petition is closed. TK 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 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 https://hcservices.ecourts.gov.in/hcservices/ To1) The Secretary to Government Government of Tamil Nadu Revenue Department Fort St.George, Chennai – 9.2) The Competent Authority (Urban Land Ceiling) and the Assistant Commissioner (Urban Land Tax) Alandur, Chennai – 600 016.3.The Tamil Nadu Land Reforms Spl. Appellate Tribunal, Santhome, Chennai.W.P.No.14106 of 2002nsm(co)pmk.18.8.2009.