THE HONOURABLE MR v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04-09-2006CORAM :THE HONOURABLE MR.JUSTICE A. KULASEKARANW.P. No. 19002 of 2003andW.P.M.P. No.23803/03, 17525 of 2006Simpson and General Finance Company Limitedrep. by its Director J. SankaranNo.861, Anna SalaiChennai – 600 002.. PetitionerVersus1. The State of Tamil Nadu rep. by Secretary to Government Revenue Department Fort St. George Chennai – 600 0092. The Assistant Commissioner (ULT) Madhavaram No.2, Vivek Nagar Kolathur, Chennai - 99.. RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for a Writ of Certiorarified Mandamus as stated therein.For Petitioner:Mr. R. Krishnamurthy, Sr. Counsel for Mr. V. AyyaduraiFor Respondents:Mr. M. Dhandapani Additional Govt. Pleader ORDERBy consent of counsel on both sides, the main writ petitionitself is taken up for final disposal.2.The prayer in this Writ Petition is for a Writ ofCertiorarified Mandamus calling for the records comprised inproceedings bearing R.C. 5468/92/A on the file of the AssistantCommissioner, ULT, Madhavaram/2nd respondent dated 13.03.2003 and https://hcservices.ecourts.gov.in/hcservices/ to quash the same and consequently forbear the respondents or anyother Officers or Subordinates under the respondents frominterfering with the lawful possession of the petitioner in respectof the lands declared as excess vacant land and measuring an extentof 1,38,970 sq.mts. and comprised in T.S. Nos. 2, 9, 10, 20, 21, 23and 27 of Sembium, lands in T.S. Nos. 1/3 and 1/7 of PeravallurVillage and lands in T.S. Nos. 843, 844 and 847 at MadhavaramVillage in the guise of power under Tamil Nadu Urban Land (Ceilingand Regulation) Act 1978 as repealed by Tamil Nadu Urban Land(Ceiling and Regulation) Repeal Act, 1999.3.The case of the petitioner is as follows:-The petitioner is a company, which owns urban lands in T.S.Nos. 2, 9, 10, 20, 21, 23 and 27 of Sembium Village; T.S. Nos. 1/3and 1/7 at Peravallur Village and T.S. Nos. 843, 844 and 847 atMadhavaram Village. The petitioner company applied for exemptionof their excess lands held by it to an extent of 1,38,970 sq.mts.in the said Villages under Section 20 (1) (a) of Tamil Nadu UrbanLand Ceiling Act, 1978, which was by then in force. TheGovernment, considering the petitioner's bonafide request grantedexemption. The said exemption was extended upto 17.03.2003 byG.O.Ms. No.215 dated 18.03.1998. It is stated that the petitionercompany has fully utilised the excess vacant land at SembiumVillage and Peravallur Village for laying the main approach roads,branch roads connecting the factories and its sister concerns inthe industrial complex at Sembium and also installed electricallines, telephone lines, storm water drainage and sewerage disposalchannel on both sides of the road. There are two natural pondslying within the exempted area which could not be used forconstruction of any building and the same was required for storingof water for the existing lands, for fire fighting and also forrain water harvesting. It is stated by the petitioner that theyare fully utilising the excess land as set out in the GovernmentOrder issued by the Government of Tamil Nadu. In MadhavaramVillage, in T.S. No. 843, 844 and 847 the excess vacant land hasfull of debris and sand and the petitioner company had spentsubstantial amount and constructed a compound wall running 2000feet with 11 feet height. The Tamil Nadu Urban Land (Ceiling andRegulation) Repeal Act was passed, which came into force from16.06.1999. While things are such as stated above, the AssistantCommissioner/second respondent herein has issued a notice dated14.06.2000 calling upon the petitioner to appear for an enquiry on28.06.2000 at 11.00 a.m. in his office with details of utilisationof the excess vacant land, which is exempted under Section 21 (1)of the Act. The second respondent also issued anothercommunication dated 21.07.2000 stating that any violation of theconditions of exemption order would result in withdrawing suchexemption and directed the petitioner to furnish the details as perSection 3 (3) of Act 20 of 1999. The petitioner also sent theirreply dated 02.08.2000 stating that in view of Section 3 (1) (b) ofthe Repeal Act, 1999, no action be initiated under Section 21 (2)of the Act. Even after the said reply, the respondents, withoutpassing any orders issued similar show cause notice and thepetitioner also sent suitable reply denying the averments, however,the petitioner has chosen to challenge the notice dated 13.03.2003 https://hcservices.ecourts.gov.in/hcservices/ issued by the second respondent in this writ petition, wherein itwas mentioned thus:-"In the G.O. cited, Government have grantedexemption of the excess vacant land held by yourcompany with a condition to utilise the exemptedland within 5 years.A report on the utilisation of the exemptedland has to be sent to the Government. Hence, Irequest you to depute an authorisedrepresentative to appear before me for anenquiry on 01.04.2003 at 11.00 a.m.1.3 Copies of Sketches showing theutilisation of the land exempted.2.3 Copies of approved building plan forthe building if any constructed after the issueof Government Order." 4.Mr. R. Krishnamurthy, learned Senior counsel appearingfor the petitioner submitted as follows:-The order granting exemption under the Act, 1978 becomespermanent in terms of Section 3 (1)(b) of Repeal Act, 1999.Section 21 (2) of Act 1978 has not been found place in the savingclause in Section 3 of Repeal Act, 1999. The power of the StateGovernment to withdraw the exemption order, which has already beengranted in exercise of power under Section 21 (1) of the Act, 1978cannot be done in the absence of Section 21 (2) being saved. Noproceeding can be initiated in exercise of the power conferredunder Section 21 (2) of the Act, 1978 for withdrawal of exemptionafter the repeal Act, 1999 came into force. The notice dated14.06.2000 issued by the second respondent, calling upon thepetitioner to appear for an enquiry with details of utilisation ofexcess vacant land is not valid in law after the repeal Act cameinto force. As per the provisions of Repeal Act, any person whohas been in possession on the date of the Repeal Act came intoforce i.e., 16.06.1999 falls outside the purview of Act, 1978.While so, persons who have been granted exemption on satisfactionof the bonafide requirement of such excess land cannot be placed inworst condition than the former. The notice dated 20.12.2000similar to notice dated 14.06.2000 was issued by the secondrespondent to which the petitioner has also submitted hisobjection, without considering the same, it issued successivenotice dated 04.01.2002 and also the impugned notice dated13.03.2003 which are untenable and prayed for quashing the impugnednotice. In support of this contention, the learned Senior counselfor the petitioner relied on the decision of a learned single Judgeof this Court reported in (2004 Volume 3 Law Weekly 208 wherein inPara Nos. 4 and 5, it was held thus:-“4.The learned counsel for the Staterelied upon Section 3 (1) (a) of the TamilnaduUrban Land (Ceiling and Regulation) Repeal Act.The same has been already extracted above. Inthe present case, thepossession of the land had https://hcservices.ecourts.gov.in/hcservices/ not been taken over by the State at any time.On the other hand, exemption had been granted.The impugned order indicates that the authoritywanted to take action on the ground that theorder of exemption has been violated by thepetitioners and requested the SpecialCommissioner of Land Reforms to take appropriateaction to acquire the land by giving properinstructions to the Assistant Commissioner.This clearly indicates that possession had notbeen taken and the authority wanted to proceedfurther for acquisition of the land under theAct. Since such Act had been repealed, there isno jurisdiction vested with the authorities toproceed further.5. In this context the provisioncontains Section 3(2) of the Repealing Act makesit clear that if possession has not been takenover by the State Government or any person dulyauthorised by the State Government in thisbehalf or by competent authority; and any amounthas been paid by the State Government withrespect to such land, then, such land shall notbe restored unless the amount paid, if any, hasbeen refunded to the State Government. Acombined reading of Section 3 (1) and 3 (2) ofthe Repealing Act makes it clear that unlesspossession had already been taken after paymentof entire compensation, the State Governmentwould not have jurisdiction to retain the land.On the other hand, if the compensation had beenpaid by the Government the person is allowed totake possession of the land provided to refundthe amount received. Since in the present caseneither possession had been taken norcompensation had been paid, there is nojurisdiction for the State Government or for anyauthority to pass impugned order. Hence, theimpugned order is hereby set aside and the writpetition is allowed. There shall be no order asto costs.” 5.Mr. Dhandapani, learned Additional Government Pleaderappearing for the respondents submitted that the exemption isgranted with certain conditions, which are not complied with by thepetitioner, with the result, the excess land vest with theGovernment automatically, hence, the repeal Act cannot be madeapplicable. Section 21 (1) of the Act cannot be read separatelyand it should be read along with Section 21 (2) of the Act. OnceSection 21 (1) is saved, the Section 21 (2) provided forconsequential action in case of default can be exercised by theGovernment, accordingly, the impugned communication was sent by thesecond respondent and prayed for dismissal of the writ petition. https://hcservices.ecourts.gov.in/hcservices/

6.The first respondent issued G.O. Ms. No. 315 dated18.03.1998 in favour of the petitioners extending the period ofexemption of excess vacant land for five years with certainconditions. The second respondent sent several communicationsrequesting the petitioner to appear before him with necessaryrecords to prove compliance of the said conditions in G.O. Ms. No.215 dated 18.03.1998. The petitioner sent replies referring toRepeal Act and stated that in view of the same, the conditions alsolapsed. The impugned notice dated 13.03.2003 was sent by thesecond respondent again directing the petitioner to appear on01.04.2003. On 01.04.2003, the petitioner has sent a replyreiterating the earlier stand of non-maintainability of the notice,thereafter, the present writ petition has been filed challengingonly the notice dated 13.03.2003 of the second respondent.7.Now, let us look into the provisions of Tamil Nadu UrbanLand (Ceiling and Regulation) Repeal Act, 1999, which runs asfollows:-“3. (1) The repeal of the principal Actshall not affect -(a) the vesting of any vacant land undersub-section (3) of Section 11, possession ofwhich has been taken over by the StateGovernment or any person, duly authorised by theState Government in this behalf or by thecompetent authority;(b)the validity of any order grantingexemption under sub-section (1) of Section 21 orany action taken thereunder.(2)Where -(a)any land is deemed to be vested in theState Government under sub-section (3) ofSection 11 of the Principal Act but possessionof which has not been taken over by the StateGovernment or any person duly authorised by theState Government in this behalf or by thecompetent authority; and(b)any amount has been paid by the StateGovernment with respect to such landthen, such land shall not be restored unless theamount paid, if any, has been refunded to theState Government.4.All proceedings relating to any ordermade or purported to be made under the principalAct pending immediately before the commencementof this Act, before any Court, Tribunal or anyauthority shall abate;provided that this section shall not applyto the proceedings relating to sections 12, 13,14, 15, 15-B and 16 of the principal Act in sofar as such proceedings are relatable to theland, possession of which has been taken over bythe State Government or any person duly https://hcservices.ecourts.gov.in/hcservices/ authorised by the State Government in thisbehalf or by the competent authority.” 8.In the case on hand, during the period the Act 1978 wasin force, the petitioner's possession of vacant land was foundexcess, possession of which was not taken over by the StateGovernment, but granted exemption. The case of the petitioner isthat after the Repeal Act no action can be initiated to withdrawthe exemption on the ground of non-compliance of conditions, since,Section 21 (2) is not saved by Repeal Act. The case of therespondents is that the Section 3 (1) (b) of Repeal Act states thatthe repeal of the Principal Act shall not affect the validity ofany order granting exemption under Section 21 (1) or any actiontaken thereunder. In other words, the principal Act shall apply asif the Act has not been repealed, moreover, 'the action takenthereunder' will automatically include all actions taken after thegrant of exemption, which include withdrawal of exemption andthereafter acquisition of vacant land. It is implied that repealAct has empowered the Government to withdraw the exemption in caseof violation and order for acquisition.9.Section 3 (1) (a) of the Repeal Act says that the RepealAct not affect vesting of any vacant land under sub-section (3) ofSection 11, possession of which has been taken over by the StateGovernment or any person, duly authorised by the State Governmentin this behalf or by the competent authority. Section 3 (1) (b)says that the Repeal Act not affect the validity of any ordergranting exemption under sub-section (1) of Section 21 or anyaction taken thereunder. Section 3 (2) (a) contemplates that theRepeal Act shall not affect where any land is deemed to be vestedin the State Government under sub-section (3) of Section 11 of Act1978 but possession of which has not been taken over by the StateGovernment or any person duly authorised by the State Government inthis behalf or by the competent authority. The Section 3 (2) (b) ofthe Act says that any amount has been paid by the State Governmentwith respect to such land, then, such land shall not be restoredunless the amount paid, if any, has been refunded to the StateGovernment. A joint reading of Section 3 (1) and Section 3 (2) ofRepeal Act would reveal that the compensation must have been paidand possession been taken pursuant to that. Section 3 (2) (b) alsoprovides “then such land shall not be restored unless the amountpaid, if any, shall be refunded to the State Government” whichmakes it clear that even in cases where compensation is paid by theGovernment, the owner is allowed to take possession of the land,but that can be done only after the amount is refunded to the StateGovernment.10.Section 21 (a) (b) and (c) of the Act speaks aboutgranting exemption by the State Government, if it is satisfied,either on its own motion or otherwise and such exemption be grantedsubject to such conditions, if any, as may be specified in theorder, when application of the provisions of 1978 Act cause unduehardship. Section 21 (2) contemplates that if at any point of timethe State Government is satisfied that any of the conditions,subject to which any exemption under clauses (a) (b) and (c) ofSub-section (1) is granted is not complied with by any person, it https://hcservices.ecourts.gov.in/hcservices/ shall be competent for the State Government to withdraw by ordersuch exemption after giving reasonable opportunity to such personfor making representation against the proposed withdrawal andthereupon the provisions of this Act shall apply accordingly. 11.Section 3 (1) (b) of the 1999 Act contemplates that theRepeal Act shall not affect the validity of any order grantingexemption under sub-section (1) of Section 21 or any “action takenthereunder”. The words “validity of any order granting exemption”under Section 21 (1) of the Act 1978 denotes that the exemption andconditions imposed therein are unaffected by repeal Act. The words“action taken thereunder” means that all or any action if any takenagainst the person who obtained exemption for violation of suchconditions prior to the repeal Act is not afected. In this case,admittedly, the State Government has not initiated any action priorto repeal Act. The impugned communication dated 13.03.2003 is oneissued by the second respondent, that too, admittedly after theRepeal Act came into force. 12.“Saving clause” is used to preserve from destructioncertain rights, remedies or privileges already existing not that itgives any new right. The assumption is that legislature enact lawswith complete knowledge of existing laws pertaining to the samesubject. The failure to add saving clause indicates that theintent was not to save the existing legislature. In this case,Section 21 (2) was not saved in the repeal Act.13.In view of the fact that no action has been taken by theState Government for the alleged violation of conditions imposedwhile granting exemption prior to the repeal Act and also the factthat Section 21 (2) is not saved, it is not even open to the StateGovernment to take any action for the alleged violation ofconditions, even if any. The impugned notice is issued only by thesecond respondent, which is admittedly after the Repeal Act cameinto force. It is also a fact that neither compensation is paid tothe petitioner nor the lands were taken prior to the Repeal Act.In view of the same, either the first respondent or the secondrespondent has jurisdiction to initiate any action against thepetitioner's lands, hence, I hold that the impugned communicationis illegal and without any authority of law and the same is quashedaccordingly.14.The writ petition is allowed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rsh https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of Tamilnadu, Revenue Department Fort St. George Chennai – 600 0092. The Assistant Commissioner (ULT) Madhavaram No.2, Vivek Nagar Kolathur, Chennai - 991 cc to Mr.V. Ayyadurai, Advocate, Sr. 40537WP No. 19002 of 2003GM (CO)kk 21/9