Alexander Zacharia v. The Commissioner and Secretary to Government Revenue Department

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.18206 of 20011.Alexander Zacharia2.Akkama Varghese ..PetitionersVS.1. The Commissioner and Secretary to Government Revenue Department Fort St.George, Chennai – 600 009.2.The Principal Commissioner and Commissioner of Land Reforms Chepauk, Chennai – 600 005.3.The Competent Authority Urband Land Ceiling Salem – 7. ..RespondentsPRAYER: 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 the thirdrespondent dated 11.01.1991 vide Roc.No.22/89A1, as confirmed by theorder of the Tribunal in TRP No.262 of 1999 dated 07.11.2000 andquash the same and further direct the respondents to treat the landsin T.S.No.51/2 (Part) corresponding to T.S.No.51/2A 1AKomarasamipatti Village, Salem Town as falling outside the purview ofthe Act 24 of 1978 or under Section 4 of the Act 20 of 1999. For Petitioners:Mr.V.RameshFor Respondents :Mr.G.DesinguSpecial Government Pleader O R D E R D.HARIPARANTHAMAN, J.The petitioners purchased the land measuring about 4360Sq.ft in Survey No.51/2 in a village within Salem urban agglomeration https://hcservices.ecourts.gov.in/hcservices/ by means of a sale deed dated 19.08.1983. The land was originallyheld by one Mr.Kandasamy, who obtained the same from his father bymeans of a settlement deed dated 20.03.1972. The total extent ofland settled was about one acre and 11 cents. The entire extent ofland held by Mr.Kandasamy was within his family eligibility. 2.The petitioners state that they are in possession of thesaid property after purchase in 1983 and they were not aware of theproceedings initiated under the Tamil Nadu Urban Land (Ceiling andRegulations) Act, 1978 (hereinafter referred to as the “Act”) againstMr.Kandasamy and later his widow Tmt. Jaya Ammal. 3.The petitioners further state that their intention was toput up a residential unit and to reside therein. After the purchaseof the house site, patta was issued. They put up a wall and afoundation and basement to the height of six feet. The land and theabove constructed properties are under their possession. 4.According to the petitioners, Mr.Kandasamy sentobjections to the proposal contained in the notice under Section 7(2)of the Act stating that the land was within his family eligibility.Not satisfied with the above objections, notices under Section 9(4)and draft statement under Section 9(1) were served on Tmt.Jaya Ammalas Mr.Kandasamy died in the meantime. The first respondent passedan order of acquisition under Section 9(5) of the Act dated30.03.1990. Thereafter, a final statement under Section 10(1) of theAct was issued indicating that the land left to the family was 2000Sq.Mts and the excess vacant land was 1552 Sq.Mts. The competentauthority issued a notification under Section 11(1) of the Act givingthe particulars of the vacant land held by Tmt.Jaya Ammal in excessof the ceiling limit and stating that such vacant land was to beacquired by the State Government. As per the notification, theexcess vacant land was 1552 Sq.mts. The notification further calledfor claims of all persons interested in the vacant land eitherpersonally or through their agents by giving particulars of theirinterest. The said notification was published in the Tamil NaduGovernment Gazette. 5.Thereafter, the competent authority issued anothernotification under Section 11(3) of the Act vesting the vacant landheld in excess of ceiling limit with effect from 11.01.1991.6.The petitioners state that the petitioners were inpossession of the land in issue and no notice was issued underSection 11(5) of the Act and they are in actual possession and inenjoyment of the property. 7.In the said circumstances, they filed a writ petition inW.P.No.3802 of 1992 before this Court to quash the notification underSection 11(3) of the Act and for a direction not to take possession https://hcservices.ecourts.gov.in/hcservices/ of the property in T.S.No.51/2 (Part) corresponding to T.S.No.51/2A1A at Komarasamipatti Village, Salem Town of an extent of 4360 Sq.fts.8.The said writ petition was transferred to the Tamil NaduLand Reforms Special Appellate Tribunal and was re-numbered asT.R.P.No.262 of 1999. The Tribunal dismissed the T.R.P.No.262 of1999 on 07.11.2000.9.The present writ petition is against the aforesaid orderof the Tribunal. 10.We have heard both sides. The learned SpecialGovernment Pleader also produced the records. We perused therecords. 11.The learned counsel for the petitioners strenuouslyargued that the Tribunal committed error in holding that thepetitioners are not entitled to notice under Section 11(5) of theAct, on the ground that the sale of property in 1983 in favour ofthe petitioners was null and void as per Section 6 of the Act. 12.The learned counsel for the petitioners submitted thatthe decisions relied by the Tribunal have no application to decide asto the right to notice under Section 11(5) of the Act, since thosedecisions, were to the effect that the Act does not contemplateissuance of notice to persons other than the land owners foracquiring lands and the subsequent purchasers are not entitled tonotice of acquisition as the sale is nullity under Section 6 of theAct. According to the learned counsel for the petitioners, they arenot seriously questioning the acquisition and vesting and they arequestioning the subsequent proceedings under Sections 11(5) and 11(6)of the Act. 13.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 contended that while notices under Section 9(4) orunder Section 7(2) of the Act ought to be addressed to the owner ofthe land 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. https://hcservices.ecourts.gov.in/hcservices/

14.The learned counsel for the petitioners heavily reliedon the judgment of the Division Bench of this Court (presided overby Honourable Mr.Justice Sathasivam as he then was) inV.Somasundaram and others Vs. Secretary to Government, RevenueDepartment, Chennai and others reported in 2007(1) MLJ 750.Paragraph No. 9 of the said judgment is heavily relied on by thelearned counsel for the petitioners, 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 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".15.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.....". https://hcservices.ecourts.gov.in/hcservices/

16.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. 17.We are of the view that notice under Section 11(5)should have been served on the petitioners in view of the categoricalpronouncement of this Court referred to above. 18.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. 19.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 Deputy Tahsildar (ULT), Taluk Office, Salem andhanding over by the Special Deputy Tahsildar No.I, office of thethird respondent on paper on 25.06.1991 found at page No.111 of therecords is sufficient as the proof for taking over of possession. 20.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 petitioners 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 to the petitioners, thesymbolic possession is not a possession as contemplated underSections 11(5) and 11(6) of the Act. It is not the case of the https://hcservices.ecourts.gov.in/hcservices/ respondents that the land owner handed over possession. In thisconnection, the learned counsel for the petitioners even disputed thealleged service of notice on the land owner by pointing to pageNo.109 of the records, which does not bear the signature of the landowner. Further, no notice under Section 11(5) under RPAD was evensent to the land owner as per the records, according to the learnedcounsel. 21.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 third respondent has toresort to Section 11(6) of the Act. Admittedly, in this case, neitherthe erstwhile land owner nor the petitioners signed any recordsregarding handing / taking over possession and also the thirdrespondent did not resort to Section 11(6) of the Act. Hence,according to the learned counsel for the petitioners, there was noactual take over of possession by the respondents. 22.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 onpaper. In this context, the learned Judge recorded in paragraphNo.8 that the records does not show in whose presence, the possessionwas taken. The learned Judge also relied on a paragraph inW.P.No.35490 of 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 person https://hcservices.ecourts.gov.in/hcservices/ from 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 underSection 11(3) of the Act is of no relevance at all".23.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." https://hcservices.ecourts.gov.in/hcservices/

24.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(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."25.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. 26.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. Further, even now, the learned counsel for thepetitioners asserts that the petitioners are still in possession andbrought to our notice that they filed additional affidavit alsobefore the Tribunal asserting their possession. 27.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.28.Since we have held that the actual possession was nottaken over by the Government and the petitioners are still inenjoyment of the land in issue, the petitioners are entitled to thebenefit of Section 4 of the Repealing Act 20 of 1999. 29.In these circumstances, we are inclined to set aside theorder passed by the Tamil Nadu Land Reforms Special AppellateTribunal. Accordingly, the order dated 07.11.2000 passed inT.R.P.No.262 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) https://hcservices.ecourts.gov.in/hcservices/ Act, 1978, had abated in view of the Repealing Act. Accordingly, thewrit petition is allowed. No costs. TKP.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 Commissioner and Secretary to Government Revenue Department Fort St.George, Chennai – 600 009.2. The Principal Commissioner and Commissioner of Land Reforms Chepauk, Chennai – 600 005.3. The Competent Authority Urband Land Ceiling, Salem – 7. 4. The Tamil Nadu Land Reforms Special Appellate Tribunal, Santhome, Chennai.+ 1 c.c. to Mr. V. Ramesh, Advocate. S.R.No.36470.+ 1 c.c. to The Government Pleader. S.R.No.37056.W.P.No.18206 of 2001NSM (CO)GSK 19.08.2009.