CORAMTHE HONOURABLE MR v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11-12-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.Nos.38756 to 38758 of 2004andWPMP Nos.2697 to 2699 of 2007Om Prakash.. Petitioner in WP 38756/2004Mohan Kumar Patil.. Petitioner in WP 38757/2004G.M.Patil.. Petitioner in WP 38758/2004vs1.The Government of Tamil Nadu Rep. By its Secretary Revenue Department Fort St. George, Chennai 600 009.2.The Special Commissioner &Commissioner Land Reforms Chepauk, Chennai 600 005.3.The Assistant Commissioner/Competent Authority Urban Land Ceiling Poonamallee, Chennai 600 029... Respondents Writ petitions filed under Article 226 of the Constitution ofIndia praying for a writ of certiorarified mandamus to call for theentire records connected with the order passed by the third respondentunder Section 9(5) of the Tamil Nadu Urban Land (Ceiling & Regulation)Act 24 of 1978 in Na.Ka.5896/85/C dated 31.10.1994 and theconsequential notice dated 11.9.1996 issued under Section 11(5) of thesaid Act in respect of the land measuring 33 cents comprised inS.Nos.224/2 and 224/3 vide Patta Nos.685 and 686 respectively situatein No.64 Ayyambakkam Village, Saidapet Taluk, Chingleput District,(WPNo.38756 & 38757/2004) and 33 cents comprised in S.No.224/4 vide PattaNo.684 situate in No.68 Ayyambakkam Village, Saidapet Taluk, ChingelputDistrict, (WP 38758/2004) and quash the same and further direct therespondents to treat the proceedings as abated under Section 4 of theTamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 20/99. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners: Mr.D.Rajendran for Mr.A.GandhiFor Respondents: Mr.S.Gopinathan Additional GovernmentPleaderCOMMON ORDERThis order shall govern the above three writ petitions.2.The affidavits in support of the petitions and the counteraffidavit are perused. The Court heard the learned Counsel on eitherside. 3.The petitioners in all these three writ petitions have soughtfor a writ of certiorarified mandamus to quash the order passed by thethird respondent under Section 9(5) of the Tamil Nadu Urban Land(Ceiling & Regulation) Act 24 of 1978 in Na.Ka.5896/85/C dated31.10.1994, and the consequential notice dated 11.9.1996, issued underSection 11(5) of the said Act and to direct the respondents to treatthe proceedings as abated under Section 4 of the Tamil Nadu Urban Land(Ceiling and Regulation) Repeal Act 20/99.4.The case of the petitioners in short is that the land in SurveyNo.224 in Ayyambakkam Village, originally belonged to one ChandraPillai; that these petitioners by way of three sale deeds dated30.1.1992, have purchased 34 cents, 33 cents and 33 cents respectivelyand took possession of the property; that they were making payment ofkist, and thus, the property came to their possession; that they paidkist upto the Fasli year 1405; that when they attempted to make paymentof kist for the Fasli year 1406, the Village Administrative Officerrefused to receive; that when the petitioners made enquiry, they cameto know that the proceedings were initiated, and the Government is toacquire the land in Survey No.224 under Act 24/78; that thereafter,they preferred appeals before the second respondent; but, the secondrespondent returned the appeals with the endorsement on 3.12.2004,stating that Act 24/78 was repealed by the Act 20/99, and the appealsunder Sec.33 have become abated, and the appellate authority has becomefunctus officio; that the petitioners were kept in darkness as to theproceedings initiated by the third respondent under Act 24/78; and thatunder such circumstances, finding no other alternative remedy, thepetitioners were compelled to file these writ petitions to quash theimpugned order.5.In support of these writ petitions, the learned CounselMr.D.Rajendran, would submit that in the instant case, the propertieswere purchased by the petitioners in the year 1992, by three sale deedsfrom the original owner Chandra Pillai; that they have taken possessionalso; that Chandra Pillai was divested the ownership; that thepetitioners have become owners; that they have been in continuouspossession all along; that while the matter stood thus, the notices https://hcservices.ecourts.gov.in/hcservices/ contemplated under Sections 8, 9(4), 5 and 11(4) of the Act wereissued, and they were all taken against the vendor Chandra Pillai; thatno one notice was taken against the petitioners, and thus, it would beviolative of the principles of natural justice; that the petitionerswere kept in darkness; and that after the petitioners have becomeowners of the property, no question of initiation of the proceedingsunder the Tamil Nadu Urban Land (Ceiling & Regulation) Act and alsoissuing notice to the erstwhile owner to acquire the property wouldarise. 6.Added further, the learned Counsel that in the instant case, thepetitioners have taken possession in 1992; that they have been incontinuous possession of the property; that neither the notice wasserved upon them as contemplated under Sec.11(5) of the Act, nor theyhave surrendered possession of the property, nor was it forcibly takenby the Government; that under the circumstances, once no notice hasbeen served upon them, there is no question of vesting of the property;that in view of the non-compliance of Sec.11(5), the authority cannotproceed against the property or state that they have taken possessionof the property; that under the circumstances, all these proceedingshave become abated, and hence, those orders have got to be quashed. 7.The learned Counsel for the petitioners in support of hiscontentions, relied on a decision of a Division Bench of this Courtreported in 2007-2-L.W. 109 (V.SOMASUNDARAM AND OTHERS V. THE SECRETARYTO GOVERNMENT, REVENUE DEPARTMENT AND OTHERS). 8.In answer to the above, the learned Additional GovernmentPleader would submit that the acquisition proceedings were initiatedunder the provisions of the said Act in the year 1988 itself; thatunder such circumstances, the notices were actually issued to theerstwhile owner as contemplated under the provisions of law; that evenaccording to the petitioners, they have purchased the properties in theyear 1992, and thus, even at the time of the initiation of theproceedings, they were not the owners of the property; that under thecircumstances, the first contention that the notice has not been servedupon the petitioners who are the owners, under Sections 8, 9(4) and 5has got to be discountenanced; that as far as the question of takingpossession was concerned, even assuming that the property was actuallytaken possession by the petitioners, and they continued to be so, theyhave got to be construed only as encroachers; that under thecircumstances, the writ petitions do not carry merit; that they cannotclaim any benefit under the Act, and hence, the writ petitions have gotto be dismissed.9.The Court paid its anxious consideration on the submissionsmade.10.In the instant case, it is not in controversy that theproceedings were initiated in the year 1988. At the time when ChandraPillai was the owner, the proceedings were actually initiated, andnotices under Sections 8, 9(4) and 5 were served upon him. Admittedly,the petitioners have purchased the properties by way of three saledeeds in the year 1992, and hence, the first contention that pending https://hcservices.ecourts.gov.in/hcservices/ the acquisition proceedings, the petitioners, who are the real owners,were not served with the notices cannot be countenanced in law. 11.As far as the second contention of the petitioners' side wasconcerned, this Court is able to see sufficient force. In the instantcase, the petitioners have taken possession of the property from theowner on and pursuant to the sale deeds dated 30.1.1992, and thus, theyhave been in possession continuously. They have made payment of kistalso till the Fasli year 1405, and thereafter, though tendered, it wasrefused. Once the Revenue has received the kist till Fasli year 1405,their ownership has been recognised from the date of the sale i.e.,30.1.1992. As far as the delivery of possession was concerned, thereshould have been either surrender of possession or the possessionshould have been taken by the Government. In the case on hand, it isan admitted position that the notice under Sec.11(5) of the Act wasactually issued to the erstwhile owner, who was not the real owner onthe day when the possession, according to the State, was taken. On thecontrary, there is evidence to show that the possession was continuedto be with the petitioners. Now, the contention put forth by thelearned Additional Government Pleader that even though possession wasnot taken, and they should be construed only as encroachers cannot beaccepted. At this juncture, it would be more apt and appropriate toreproduce the relevant portion of the decision relied on by the learnedCounsel for the petitioners and reported in 2007-2-L.W. 109(V.SOMASUNDARAM AND OTHERS V. THE SECRETARY TO GOVERNMENT, REVENUEDEPARTMENT AND OTHERS) as follows:"9.From the perusal of the file it is clear that proceedingswere initiated against the third respondent, who is theerstwhile owner of the lands in question, in respect oftransfer of his land to the appellants herein. Section 11(5)notice was also issued to the third respondent, who was notthe real owner. As per section 11(5) of the Act, thecompetent authority is bound to issue notice in writing toany person, who may be in possession of the land, tosurrender and deliver possession thereof, to the StateGovernment or to any person duly authorised by the StateGovernment, within thirty days time. No notice having beenissued against the appellants, who are in possession of thelands as stated supra, taking possession of lands on30.4.1999 by the second respondent is non-est. It is to benoted that due to the repealing of the Tamil Nadu Urban Land(Ceiling & Regulation) Act, 1978, with effect from 16.9.1999,it is not open to the authorities to proceed against theappellants at this stage to rectify the non-compliance ofsection 11(5) of the Act."12.Applying the above ratio, in the case on hand, it would bequite clear that the notice under Sec.11(5) of the Act was issued tothe erstwhile owner, but not to the petitioners who are the real ownersat the time of taking of possession. The possession was never handedover, and the petitioners continued to be in possession. The noticewas not given to the petitioners who are the real owners, but to theerstwhile owner, which would not be binding on the petitioners, and as https://hcservices.ecourts.gov.in/hcservices/ such, there is no delivery of possession. Hence, no question ofvesting would arise. Applying the said ratio, this Court is of theconsidered opinion that it is a case where the proceedings got to betaken as abated. Accordingly, the impugned orders are quashed, andthese writ petitions are allowed. No costs. Consequently, connectedWPMPs are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Secretary Government of Tamil Nadu Revenue Department Fort St. George, Chennai 600 009.2.The Special Commissioner &Commissioner Land Reforms Chepauk, Chennai 600 005.3.The Assistant Commissioner/Competent Authority Urban Land Ceiling Poonamallee, Chennai 600 029.+1cc to Mr.A.Gandhi, Advocate Sr 73824+3ccs to Govt. Pleader Sr 73293,73294 and 73296BVR (CO)km/20.12.WP Nos.38756 to 38758of 2004 and WPMP 2697 to 2699/2007