IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.07.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8613 of 2004 1.G.P.Saraswathi 2.P.S.Ananthanarayanan 3.K.Lakshmi 4.K.Natarajan 5.C.Rangasamy 6.Elangovan 7.M.V.Amirthavalli 8.V.Amaravathi 9.M.N.Krishnamoorthy 10.S.Chakravarthy 11.N.Jayanthi 12.A.Ranganathan 13.P.R.Krishnamurthy 14.M.Mumtaj Begaum 15.N.S.Kamala 16.Vimala Rajagopal 17.B.Kousalya 18.S.Rangasamy 19.K.Nagarajan 20.N.S.Parthasarathy 21.S.Muthaiya 22.K.N.Nagarajan 23.N.S.Senniappan 24.E.Jagatheesan 25.M.Rani 26.M.K.Srinivasan 27.P.Varadharajan 28.V.Dhanalakshmi 29.S.Saroja 30.Indhirani 31.F.Kamila Banu 32.S.Kailasapathi 33.M.Palaniappan 34.P.Kalaiselvi 35.P.Myilsamy 36.N.Krishnan 37.K.Mariappan 38.P.Sivaperumal 39.A.M.Olivannan 40.R.Sampathkumar 41.R.Sampath 42.R.S.Venugopal 43.N.S.Parthasarathy 44.K.Chandrasekaran https://hcservices.ecourts.gov.in/hcservices/ 45.A.Muthiyalu 46.P.K.Jaipalan 47.V.Indiramohan 48.E.Poomalai 49.P.Varadarajan 50.P.Sithan ... Petitioners Vs. 1. The Assistant Commissioner cum Competent Authority, (Urban Land Ceiling), Salem. 2.Kuppusamy (R2 given up as per order dated 12.02.2001 in Memo filed by the petitioners dated 12.02.2001) ...Respondents W.P.No.8613 of 2004 is filed under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari to set aside the order in S.R.A.68/91/A1 dated 15.11.1991 on the file of the respondent. For Petitioners : Mr.D.Shivakumaran For Respondent-1 : Mr.M.Dhandapani, Spl.G.P. O R D E R Heard both sides. 2.This writ petition arises out of a Special Revision (SRP.49 of 2000) filed by the petitioners before the Special Appellate Tribunal under Section 15 of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (for short Act). The petitioners challenged the Order passed by the first respondent dated 15.11.1991 in S.R.A.68/91 in that Special Revision Petition. 3.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as CRP No.1921 of 2003. However, a learned Judge of this court opined that no Civil Revision Petition will lie as the officers whose orders under challenge were not a Court but only statutory authorities. Therefore, the CRP was converted into a writ petition and notice was ordered. 4. Even before the Tribunal, a counter affidavit dated 'Nil" was filed by the respondent. The original records were also circulated for perusal by this court. An additional affidavit dated Nil (June 2010) was also filed by the petitioners. 5.The contentions raised by the counsel for the petitioners were as follows: https://hcservices.ecourts.gov.in/hcservices/ a)No notice was given to the original owners under Sections 7(2), 9(4) and 11(b) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978. b)The notice claimed to have been sent is not in accordance with law and more particularly prescribed under Rule 8(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978. c)In any event, the possession alleged to have been taken was not valid and no notice was ordered as per Section 11(5) of the Act. d)Without prejudice to these contentions, it was also submitted that inasmuch as the possession of the land continues to be with the petitioner, the benefit of Sections 2 and 4 of the TN Act 20/1999 (w.e.f.16.06.1999) will enure to the benefit of the petitioner(s). 6. The case of the petitioners was that they are bonafide purchasers of plots in S.No.424/3, Ammapet Village measuring an extent of 3.12 acres coming within the Salem Urban Aglomeration belonging to Veerappa Padaiyachi and his wife Ammuni Ammal. M/s.Kuppusamy Goundar and Alamelu Ammal purchased the lands by virtue of a sale deed dated 05.09.1995 and they were in possession of the same. In 1984, there was a family arrangement between Kuppusamy Goundar and his wife Alameluammal along with their two sons M/s.Perumal and Ramasamy. The said four persons executed a General Power of Attorney in favour of one P.Ramadoss who made layouts out of the said lands into 57 house sites. The petitioners have purchased the house sites between 05.12.1984 and 19.08.1986. They have also obtained patta in respect of the plots on 14.12.1985. 7. In the meanwhile, a notice under Section 7(1) of the Act was served on one Kuppan on 14.08.1987 and further notice under Sections 9(1) and 9(4) of the Act was also served on the said person on 03.10.1991. Subsequently, an order under Section 9(5) of the Act was passed on 15.11.1991. After coming to know about the same, the petitioners challenged the said proceedings. 8. In the counter affidavit filed before the Tribunal, it was alleged that there are vacant land in excess of the ceiling limit in S.No.424/3 of Ammapet Village in Salem Taluk. The lands stood in the name of one Kuppan s/o Mannangatti. Therefore, notices were served under Section 7(2) of the Act on the said person. Since no reply was received, notice under Section 9(4) of the Act was issued on 20.08.1991. Since the owner refused to receive the notice, it was served by Affixture on 03.10.1991. Despite notice, no objections were raised before the Authority. Therefore, once again notice under Section 9(5) of the Act was issued and served by Affixture. As there was no objection filed by https://hcservices.ecourts.gov.in/hcservices/ the land owner, after following the usual procedure, the land to the extent of 1.15.0 hectares were declared as surplus was taken possession and handed over to the Revenue Department. It is further alleged that the petitioners are not the original owners. It is also claimed that Kuppan s/o Mannangatti is the same person as the original owner Kuppusamy s/o Mannangatti. No other documents regarding family partition and further sale through Power of Attorney were filed to the notices of the authority. The petitioners are subsequent purchasers and they cannot challenge the earlier proceedings. 9. In the additional affidavit filed by the petitioners, it is stated that notice under Section 9 of the Act cannot be served by Affixture and Rule 8 of the Act was also not followed. The plots are made as early as 1983 and house site pattas have been issued from 1984 to 1986. The claim that possession was taken over was not valid and no notice under Section 11(5) of the Act was given. The land belonging to the petitioners is classified as 'Thaniyar Land' meaning 'private person'. Therefore, the respondent cannot feign ignorance. Though it may stated that the original owner was served with notice under Section 7(2) of the Act, the subsequent notices were not issued either to the original owner or to the person who have purchased the lands. 10. A perusal of the original file showed that notice under Section 7(2) of the Act was sent to the original owner though in the name of Kuppan, it was received by Kuppusamy Gounder on 14.09.1987. But the subsequent notice under Section 9(5) of the Act was not served on him in person. The endorsement shows since he has refused to receive the notice, it was affixed on his door in the presence of two witnesses. Similarly, notice under Section 11(5) of the Act was sent to the same address by post which had come back with an endorsement 'addressee left'. Thereafter, the Gazette Notification dated 23.06.1994 was issued under Form VI Rule 10(2) in terms of Section 11 vesting the land absolutely on the State Government . A possession Certificate dated 10.06.1999 was also enclosed in the file. But a report sent by the Assistant Commissioner, Urban Land Tax, Salem dated 08.06.1999 showed that there were encroachment in Subdivisions Nos.424/2H, 424/3I and 424/4 wherein houses have been built. The original file also contains the representation sent on behalf of Thirukkural Nagar Welfare Association claiming to represent the 57 plot owners. 11. In the light of the controversies between the parties, three questions arise for consideration: i)Whether notice under Section 9(5) of the Act was served on the original land owner? ii)Whether the possession was taken after declaration under Section 6 of the Act? and https://hcservices.ecourts.gov.in/hcservices/ iii) Whether the Repeal Act will have any bearing on the proceedings initiated by the respondent in the light of the petitioners being in possession of the land. 12. With reference to the first question, though notice under Section 7(2) of the Act was served on the original owner, but the time the notice was served, he ceased to be the owner and the present petitioners have purchased the plots from the sharers of the original owner. It was contended by the learned Special Government Pleader that it is enough if the proceedings are initiated against the person whose name is found in the land records. As against the question that arises, Section 9(5) of the Act contemplates a reasonable opportunity to the land owner to all being heard for passing order. Rule 8(2) prescribes the method of serving notice on the holders of the land. 13. Rule 8(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules reads as follows:- 8(2)(a) The draft statement together with the notice referred to in sub-section (4) of section 9 shall be served on- (i) the holder of the vacant lands, and (ii) all other persons, so far as may be known, who have, or are likely to have any claim to, or interest in, the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned- (i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance to sub-section (1) of section 7, and (ii) in the case of other persons, at their last known addresses. (b)where the draft statement and the notice are returned as refused, by the addressee, the same shall be deemed to have been duly served on such person. 14. In the present case, the Rule do not contemplate any service by affixture as found in the original records. Therefore, it cannot be said that there was effective notice in terms of Rule (8) of the Rules. Similarly, no notification under Section 11(1) of the Act was issued to persons who are interested in the vacant land viz., the present petitioners who are owners of the vacant land. Therefore, it cannot be said that due proceedings under the Act has been followed in declaring the land possessed by the petitioners as surplus land to be vested on the State Government. Regarding the question of dispossession , substantial arguments were advanced by the parties. It is the stand of the learned Special Government Pleader that for taking possession under Section 11(6), the https://hcservices.ecourts.gov.in/hcservices/ delivery receipt of the Special Deputy Tahsildar, Urban Land Tax handing over the property to Zonal Deputy Tahsildar, No.II, Salem found in page 85 of the original filed is itself a sufficient transfer. 15. The nature of taking possession of the acquired land came to be considered by the Supreme Court in Tamil Nadu Housing Board Vs. Viswam (D) by Lrs reported in JT 1996 (2) SC 549. In that case, after considering the judgment in Narayan Bhagde's case, this Court observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde's case had been rendered and held as under: "It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperative in taking possession of the land." 16.The said judgment came to be quoted with approval and followed by the Supreme Court recently in Sita Ram Bhandar Society, New Delhi Vs. Lt.Governor, Govt. of N.C.T. Delhi and others reported in JT 2009 (12) SC 324, where after referring to Viswam's case (cited supra), in paragraph 9, it was observed as follows: "9.It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswas and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government." 17. But, the Supreme Court in NTPC Ltd. v. Mahesh Dutta reported in (2009) 8 SCC 339 in paragraphs,16, 25 to 30, 37,39 and 44 has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "16. It is a well-settled proposition of law that in the event possession of the land, in respect whereof a notification had been issued, had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms of Section 48 of the Act. Whether actual or symbolic possession had been taken over from the landowners is essentially a question of fact. Taking over of possession in terms of the provisions of the Act would, however, mean actual possession and not symbolic possession. The question, however, is as to whether the finding of fact arrived at by the High Court that physical possession, indeed, had been taken over by the Collector is correct or not. 25. Strong reliance has been placed upon a decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat1 wherein it has been held: (SCC pp.711-12, para 28) “28. … We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard- and-fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and https://hcservices.ecourts.gov.in/hcservices/ determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.” This decision, therefore, itself is an authority for the proposition that no absolute rule in this behalf can be laid down. In Larsen & Toubro Ltd. v. State of Gujarat2 (SCC p.398, para 14) and P.K. Kalburqi v. State of Karnataka3 (SCC p.491, para 6) the same view has been reiterated. 26. These decisions, as noticed hereinbefore, do not lay down an absolute rule. The question as to whether actual physical possession had been taken in compliance with the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case. 27. When possession is to be taken over in respect of the fallow or patit land, a mere intention to do so may not be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr Raju Ramachandran, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, it had not been stated that there were standing crops on the land on the date on which possession was taken. We may notice that delivery of possession in respect of immovable property should be taken in the manner laid down in Order 21 Rule 35 of the Code of Civil Procedure. https://hcservices.ecourts.gov.in/hcservices/ 28. It is beyond any comprehension that when possession is purported to have been taken of the entire acquired lands, actual possession would be taken only of a portion thereof. The certificate of possession was either correct or incorrect. It cannot be partially correct or partially incorrect. Either the possession had actually been delivered or had not been delivered. It cannot be accepted that possession had been delivered in respect of about 10 acres of land and the possession could not be taken in respect of the rest 55 acres of land. When the provisions of Section 17 are taken recourse to, vesting of the land takes effect immediately. 29. Another striking feature of the case is that all the actions had been taken in a comprehensive manner. The Collector in his certificate of possession dated 16-11-1984 stated that the possession had been taken over in respect of the entire land; the details of the land and the area thereof had also been mentioned in the certificate of possession; even NTPC in its letter dated 24-2-1986 stated that possession had not been delivered only in respect of land situated in four villages mentioned therein. Indisputably NTPC got possession over 10.215 acres of land. It raised constructions thereover. 30. It is difficult to comprehend that if NTPC had paid 80% of the total compensation as provided for under sub-section (3-A) of Section 17 of the Act, out of 65.713 acres of land it had obtained possession only in respect of about 10.215 acres of land and still for such a long time it kept mum. Ex facie, therefore, it is difficult to accept that merely symbolic possession had been taken. 37. The High Court, therefore, in our opinion, was correct in its view. 39. It is not a case where oral evidence was required to be taken. There is no law that the High Court is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the https://hcservices.ecourts.gov.in/hcservices/ High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses. 44. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, Illustration (e) of Section 114 of the Evidence Act, 1872 must be held to be applicable. Once such a presumption is drawn the burden would be on the State to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken. (Emphasis Added) 18. If it is seen in the light of the above, it is incomprehensible as to how possession was taken over when the petitioners are already in the land and have constructed houses and in which they are living. They have also obtained pattas from the revenue authority. 19. Mr.D.Shivakumaran, learned counsel for the petitioner contended that taking over possession under Section 11 can be done only after a proper notice under Section 11(5) was issued. Section 11(5) of the Act may be usefully extracted below:- 11(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. (Emphasis added) 20. Therefore, Section 11(5) of the Act do not contemplate any notice on the owner but it emphasises on the person who is in possession. Admittedly, notice under Section 11(5) of the Act was sent to the original owner and who was also not served since the Tapal cover has come back unserved. No attempt has been made to serve the persons who are in possession and only Section 11(5) of the Act was complied with, the question of lawful possession under Section 11(6) of the Act will arise. 21. In the present case, it is unnecessary to decide whether the possession certificate was legally valid or not. It is https://hcservices.ecourts.gov.in/hcservices/ suffice that if no notice is given to the person who are in possession, then taking over possession under Section 11(6) will be automatically not valid in the eye of law. The contention raised in this regard is valid. The various representations found in the file clearly showed that the petitioners who are in possession of the land though they might not have got an earlier notice, they are certainly entitled for a notice under Section 11(5) of the Act. But in so far as the ingredients of Section 11(5) of the Act was not complied with, the claim that they have taken possession in terms of the possession Certificate under Section 11(6) may not be valid. 22. Lastly, the only question to be decided is whether the petitioners are entitled for relief in terms of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act,1999 viz., TamilNadu Act 20 of 1999. In normal circumstances, in the absence of any valid notice, this Court is bound to remit the matter to the authorities to start the proceedings denova from the place where the illegality had crept in. But in the light of the Tamil Nadu Repealing Act (w.e.f.16.06.1999) matter cannot be remitted for any fresh determination. 23. In this regard, it is necessary to refer to Sections 3 and 4 of the Repeal Act, which reads as follows:- "3.Savings.- (1) the repeal of the Principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of Section 11, possession of which has been taken over by the State Government or any person duly authorised by the competent authority; (b) the validity of any order granting exemption under sub-section (1) of Section 21 or any action taken thereunder. (2)Where - (a) any land is deemed to have vested in the State Government under sub-section (3) of Section 11 of the Principal Act but possession of which has not been taken over by the State Government or any person duty authorised by the State Government in this behalf of by the competent authority; and (b) amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount