S.Santhanam v. The Special Commissioner and Revenue Secretary to Government 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.19673 of 2001and W.P.M.P.No.28970 of 2001S.Santhanam... PetitionerVS.1.The Special Commissioner and Revenue Secretary to Government Government of Tamil Nadu Fort St. George, Chennai - 600 009.2.The Special Commissioner and Commissioner of Land Reforms Chepauk, Chennai - 600 005.3.The Assistant Commissioner / Competent Authority Urban Land Ceiling Alandur.... 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 the thirdrespondent dated 31.08.1985 in his Ref.RC.41/81 as confirmed by theorder of the second respondent dated 08.02.1987 in hisRef.D.Dis.No.44971 of 1985 and as confirmed by the Tribunal inT.R.P.No.311 of 1999 and quash the same and further direct therespondents to treat the lands in S.No.8/1, 8/2 and 8/3 ofPallikkaranai Village as falling outside the purview of Act 24 of1978 or under Section 4 of Act 20 of 1999. For Petitioner:Mr.V.RameshFor Respondents :Mr.G.DesinguSpecial Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RD.HARIPARANTHAMAN, J.The writ petitioner purchased an extent of 2.8 acres ofagricultural land in Survey Nos.8/1, 8/2, 8/3 in PallikaranaiVillage, Saidapet Taluk during 1965. After the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978 (hereinafter referred to as theAct) was enacted, the petitioner filed statement under Section 7(1)of the Act furnishing details as to the lands held by him. 2.A draft statement was prepared by the competentauthority, the third respondent herein, regarding the vacant landheld by the petitioner in excess of ceiling limit and the same wasserved under Section 9(4) of the Act. He was asked to make hisobjections within 30 days. 3.The petitioner sent an objection dated 18.03.1984. Hepleaded that the lands are agricultural lands and therefore, thoselands could not be acquired under the Act. 4.An order dated 31.08.1985 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.5.Thereafter, the competent authority issued a finalstatement under Section 10(1) of the Act and determined the surplusland as 8800 sq.mts. and the same was served on the petitioner. 6.The petitioner filed appeal under Section 33 of the Actagainst the order under Section 9(5) of the Act before the secondrespondent. The appeal was dismissed by the second respondent on08.02.1987. The petitioner filed a writ petition in W.P.No.18370 of1992 before this Court to quash the aforesaid order dated 08.02.1987of the second respondent confirming the order dated 31.08.1985 of thethird respondent. The writ petition was transferred to the TamilNadu Land Reforms Special Appellate Tribunal and was renumbered asT.R.P.No.311 of 1989. The Tribunal dismissed the T.R.P.No.311 of1989 on 21.09.2000. This writ petition is against the said order ofthe Tribunal. 7.In the meantime, notification dated 21.03.1988 underSection 11(1) calling for claims from interested persons over thesurplus land was issued in Tamil Nadu Government Gazette dated06.04.1988 and also a notification under Section 11(3) vesting thesurplus land with the Government was published in Tamil NaduGovernment Gazette dated 11.05.1988. Thereafter, a notice dated09.12.1988 under Section 11(5) was served on him directing him to https://hcservices.ecourts.gov.in/hcservices/ surrender possession. 8.The petitioner filed appeal before the second respondentagainst the said notice. The appeal was dismissed by an order dated13.08.1989. However, the petitioner is in possession of the surplusland, according to petitioner. 9.We have heard the submissions made on either side. Thelearned Special Government Pleader produced the entire records forour perusal and we have perused the same. 10.The learned counsel for the petitioner argued that hedid not hand over possession pursuant to the notice dated 09.12.1988under Section 11(5) of the Act, which was served on him. On theother hand, he preferred an appeal against the said notice underSection 11(5) of the Act. He never handed over possession pursuantto the notice under Section 11(5) of the Act. Though his appealagainst the notice under Section 11(5) of the Act was dismissed on13.08.1989, no action was taken by the third respondent under Section11(6) of the Act to take possession of the excess land. Since thepetitioner is in possession of the land, he is entitled to thebenefit of Section 4 of the Repealing Act 20 of 1999. 11.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). A symbolicpossession in paper is not the possession that is contemplated underSections 11(5) or 11(6) of the Act. 12.The learned counsel for the petitioner also brought toour notice the Land Delivery Receipt at page No.295 of the records.As per the Land Delivery Receipt, the land has to be delivered by theland owner and on such delivery, the land has to be taken over by theFIRKA Revenue Inspector, but, neither the petitioner nor the FIRKARevenue Inspector signed at page No.295. On the other hand, thelearned counsel for the petitioner pointed out that the Land DeliveryReceipt dated 22.07.1989 at page No.341 of the records reveals thatthe competent authority signed at the place meant for land owner forhanding over the land and the Revenue Inspector signed for takingover the land. The learned counsel for the petitioner also pointedout that this paper possession is not actual possession and the https://hcservices.ecourts.gov.in/hcservices/ Tribunal committed error in accepting this possession is sufficientand holding that the petitioner is not entitled to the relief underSection 4 of the Repealing Act 20 of 1999. 13.The learned counsel for the petitioner argued that whenthe appeal against the notice under Section 11(5) was pending, thetaking over of possession would not arise. He further argued thatwhen the appeal was dismissed on 13.08.1989, the take over ofpossession on papers was on 22.07.1989 and that therefore, the sameshould be ignored as illegal. 14.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 with the Government. If the land owner is not a party to theLand Delivery Receipt, the take over of possession should beestablished by getting signature from independent witnesses,preparing Panchanama, etc. But the records reveal that it is onlypossession in papers.15.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 the decisionin W.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 any https://hcservices.ecourts.gov.in/hcservices/ representative 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 underSection 11(3) of the Act is of no relevance at all".16.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 possession 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 physical https://hcservices.ecourts.gov.in/hcservices/ possession of the said property ought to have taken bythe competent authority despite coming into force ofthe Repealing Act."17.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:"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."18.The learned Special Government Pleader vehemently arguedthat the symbolic possession is sufficient when the actual take overof possession is not contemplated under the Act. He further arguedthat subdivision of surplus lands were made by the Revenueauthorities. Therefore, that would also established the taking overof the possession by the department.19.We are not in agreement with the submission made by thelearned Special Government Pleader in view of the catena of decisionscited by the learned counsel for the petitioner referred to above.If the physical possession of the lands with the petitioner is notseriously disputed, the paper possession and further subdivision inpaper of the excess land would not suffice to sustain the order ofthe Tribunal. 20.The learned counsel for the petitioner 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 if the lands were not takenpossession by the Government.21.Since we have held that the paper possession is not theactual possession of lands that is contemplated under Sections 11(5)and 11(6) of the Act, we are inclined to set aside the order passedby the Tamil Nadu Land Reforms Special Appellate Tribunal.Accordingly, the order dated 21.09.2000 passed in T.R.P.No.311 of1999 by the Tamil Nadu Land Reforms Special Appellate Tribunal is https://hcservices.ecourts.gov.in/hcservices/ quashed and all the proceedings under the Act must be held to haveabated in view of Section 4 of the Repealing Act 20 of 1999.Accordingly, the writ petition is allowed. No costs. Consequently,connected miscellaneous petition is closed. TK 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,learned counsel for the State raised a technical objection that theLand Reforms Tribunal, whose order is being impugned in the presentwrit petitions, has not been impleaded as a party and, therefore, thewrit petitions should be dismissed for non-joinder of necessaryparties. 3. It is no doubt true that in Certiorariproceedings, the inferior Tribunal whose order is being impugnedbefore this Court, is required to be made as a party. The basicprinciple in impleading the inferior Tribunal as a party is with aview to ensure production of records before the High Court. Theinferior Tribunal, which is obviously discharging judicial function,is not impleaded as a party with a view to give any opportunity ofhearing as it cannot be said that the Tribunal has got any interestin one way or the other. Since, in the present case, being calledupon, the Counsel for the State has produced all the recordsincluding that of the Tribunal, non-impletion of the Tribunal as aformal party cannot be considered as a ground to dismiss the writpetition, particularly when no such objection was raised when thewrit petition was filed and entertained or subsequently when thematter had remained pending in the High Court for a pretty longperiod. Since the objection of impleading of inferior Tribunal hasbeen achieved and as a matter of fact learned counsel for the Statehas been heard at length, non-impletion is fatal in the present case. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrardpk https://hcservices.ecourts.gov.in/hcservices/ To1.The Special Commissioner and Revenue Secretary to Government Government of Tamil Nadu Fort St. George, Chennai - 600 009.2.The Special Commissioner and Commissioner of Land Reforms Chepauk, Chennai - 600 005.3.The Assistant Commissioner / Competent Authority Urban Land Ceiling Alandur.4. The Tamil Nadu Land Reforms Special Appellate Tribunal, Santhome, Chennai.+1 cc to Mr.V.Ramesh, Advocate, SR.No.364671 cc To The Government Pleader, SR.37060 order made in W.P.No.19673 of 2001NSM {CO}TP/18.8.2009.