IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA WP.No.12542/2004 & WPMP.No.14656/2004 & WVMP.No.198/2008 M/s.Thiruvalluvar Brick Works 292, Poonamallee High road Chennai 600 029. .. Petitioner Vs 1. The Secretary to Government Revenue Department Government of Tamil Nadu Fort St. George, Chennai 600 009. 2. The Assistant Commissioner Urban Land Ceiling Poonamallee Division, Tiruvallur District Chennai 600 056. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records in G.O.Ms.No.83 dated 10.02.2004 of the 1st respondent and quash the same. For Petitioner : Mr.V.Ramachandran, Senior Counsel for Mr.K.Mani For RR 1 & 2 : Mr.L.S.M.Hasan Fizal, GA ORDER The challenge in this writ petition is to the order passed in G.O.Ms.No.83 dated 10.02.2004 passed by the 1st respondent and to quash the same. 2.The case of the petitioner is that he is the absolute owner of the property comprising the land and factory building situated at Noombal Village, Survey Nos.0/1,71/9, 72/7, 72/8, 73/1, 73/2 to 73/5 and 73/6. The petitioner had applied to the Government for exemption of the aforesaid property from Urban Land Ceiling insofar as the said property was used for industrial purpose. The Government granted https://hcservices.ecourts.gov.in/hcservices/ exemption by G.O.Ms.No.958 Revenue Department dated 06.06.1990 initially for a period of 2 years and thereafter, the said exemption was extended on the application filed by the petitioner. The petitioner was running an industry engaged in the manufacturing of bricks for several years and the land was used exclusively for the manufacture of bricks and factory was set up in the said land. The Managing Partner of the petitioner Firm one P.Ganeshappa died on 02.03.1990 which resulted in slow down of the manufacturing operation. But the factory was in existence and it was working continuously. 3.The petitioner received a letter dated 15.02.2002 from the respondents stating that the petitioner was granted exemption in respect of the above the above property that was being used for industrial purpose and the exemption had expired on 05.06.1992. It was also stated in the said letter that the land was not used for industrial purpose and called for the petitioner to show cause as to why action should not be taken in the Urban Land Ceiling Act. The petitioner denied such allegation by giving a detailed reply dated 09.03.2002 and he was also examined during an enquiry conducted by the 2nd respondent and during the course of examination, the petitioner had explained that the brick industry was in full operation till 1998 and after the death of the Managing Partner only the manufacturing process was slowed down but continued to work. The said examination of the petitioner and his explanation to the effect that the land was exclusively used for the industrial purpose was not taken note of while issuing notice dated 15.02.2002. But the petitioner has not violated the condition of exemption at any point of time and the substantial portion of the property was occupied by the Brick Kiln and factory building and bricks are stored in the same premises. Such being the position, the petitioner was shocked and surprised to receive the impugned G.O.Ms.No.83 dated 10.02.2004 stating that the land was not being used for the purpose for which the exemption was granted and further action would be taken under the Tamil Nadu Urban Land Ceiling Act on the ground that the conditions of the exemption have not been complied with. Pursuant to the said Government order, the 2nd respondent had also issued a notice calling upon the petitioner to show cause as to why the possession of the land be not assumed by the Government. Being aggrieved against the said orders, the petitioner has come forward with the above writ petition seeking for the above relief. 4.Mr.V.Ramachandran, learned senior counsel for the petitioner would contend that the petitioner has not violated the conditions of the exemption at any point of time. It is submitted that the said land was exclusively used only for industrial purpose and the factory building and machineries were very much available in the premises. It is pointed out that the petitioner through his reply to the notice has categorically stated that there is absolutely no violation of the exemption conditions and also pointed out that the petitioner was https://hcservices.ecourts.gov.in/hcservices/ examined by the 2nd respondent/the Assistant Commissioner, Urban Land Ceiling and at that time also, the petitioner explained about the actual position and uninterrupted functioning of the process of the manufacturing bricks. Learned senior counsel vehemently contended that the possession of the disputed land was not taken over by the respondents at any point of time and such being the position, in view of the Tamil Nadu Urban Land [Ceiling and Regulation] Repeal Act, 1999 [Act 20, 1999], it is not open to the respondents to withdraw the exemption already granted or to assume the possession of land in respect of which admittedly, no order is vesting with the Government has been passed till now. 5.The learned senior counsel would also further contend that even assuming that there is any violation of the condition of exemption, in view of the admitted fact that the respondents have not taken the possession, they cannot now resort to the action of cancelling the exemption and assuming the possession of land at this stage, more particularly, in view of the Repealing Act, 20 of 1999. In support of his contention, the learned senior counsel would also place reliance on the following decisions:- Sl.No. CITATION PARTIES CONCERNED 1 2004 [3] L.W. 208 A.Joseph Louis & another Vs. State of Tamil Nadu rep.by the Secretary to Government, Revenue Department, Chennai- 9. 2 2009 [8] MLJ 522 Sree Jayalakshmi Brick Industries re.by its Proprietor, Rama Bhagavad Dasa @ G.Ramamoorthy Vs. Special Commissioner & Secretary to Government, Govt. of Tamilnadu, Revenue Department, Chennai and others. 3 2007 [1] MLJ 750 V.Somasundaram and others Vs. Secretary to Government, Revenue Department, Chennai and others. 4 2006 [3] L.W. 437 M/s.Anees Leathers Manufacturers rep.by its Proprietor Mrs.Anees Ahmed Vs. Govt. of Tamilnadu rep. by its Secretary, Revenue Department, Chennai and others https://hcservices.ecourts.gov.in/hcservices/ Sl.No. CITATION PARTIES CONCERNED 5 2008 [1] MLJ 838 Tessy John Vs. Principal Commissioner and Commissioner of Land Reforms, Chennai and others 6.The learned Government Advocate appearing for the respondents would contend that the petitioner had been granted exemption initially in the year 1990 mainly on the ground that the petitioner was exclusively using the said land for industrial purpose, viz., for manufacturing bricks. It is contended that thereafter, as the land was not used for the industrial purpose from the year 1998, the respondents sent notice in the year 2001 for cancelling the exemption already granted to the petitioner. It is contended that thereafter, the impugned Government Order was passed as well as the notice of the 2nd respondent was served on the petitioner for taking steps to assume the possession of the property. It is also contended that even though the act of canceling was repealed under Act 20, 1999 in view of the saving clause u/s.3[1][a] of the Repeal of Principal Act shall not affect the vesting of any vacant land under sub-section 3 of section 11, possession of which had been taken over by the State Government or by the Competent Authority. It is further contended that the petitioner is entitled to the exemption only in the event of strictly complying with the conditions. But in the instant case, the petitioner having violated the condition by not using the land exclusively for industrial purpose, is not entitled to enjoy the exemption order already granted. Therefore, the learned Government Advocate submitted that there is no infirmity or illegality in the impugned Government order passed and the notice of the 2nd respondent served on the petitioner for taking possession of the property by the respondents. 7.I have carefully considered the rival submissions made on either side and also perused the entire materials available on record including the impugned Government order and the notice issued by the 2nd respondent. 8.The undisputed fact remains that the petitioner has been granted the exemption in respect of the property comprising in Survey Nos.0/1,71/9, 72/7, 72/8, 73/1, 73/2 to 73/5 and 73/6 as per the order of the 1st respondent in G.O.Ms.No.958 dated 06.06.1990 and the condition for exemption is to the effect that the said land should be used exclusively for industrial purpose. It is not disputed that the petitioner was using the said land exclusively for the industrial purpose right from the year 1990. The only objection by the respondents is to the effect that the petitioner was not using the land exclusively for the industrial purpose as there was no manufacturing of bricks in the said premises from the year 1998. It https://hcservices.ecourts.gov.in/hcservices/ is seen that the respondents have not taken any action till the year 2001 as the respondents have chosen to issue notice only in the year 2001 by sending a show cause notice dated 18.01.2001. The petitioner emphatically denied such allegation and categorically stated in his reply dated 09.03.2002 that the land was continuously used exclusively for industrial purpose. It is also pointed out by the petitioner in his reply that the Managing Partner of the Firm died and thereafter only there was a slow down in respect of the business activities. But the business continued as the factory and other materials, viz., bricks were stored in the said land. It is also pertinent to note that the petitioner has also categorically stated in his reply that he was also examined by the 2nd respondent and during the course of his examination, he has categorically stated that the land was continued to be used for industrial purpose and all those factors have not been taken into consideration or referred while issuing the show cause notice in the year 2001. 9.It is also relevant to note that after issuing the show cause notice in the year 2001, the respondents have not taken any further steps or any action whatsoever against the petitioner herein. The respondents thought it fit to swing into action once again only in the year 2004 by issuing the impugned G.O.Ms.No.83 dated 10.02.2004 and also issuing the consequential notice by the 2nd respondent. At this stage, it is also pertinent to note that admittedly the possession of the land was not taken by the respondents. This court granted an order of interim stay of the operation of the impugned order at the time of the admission of the writ petition as early as in the year 2004. 10.The yet another important aspect to be borne in mind of this court is to the effect that the Urban Land Ceiling Act was repealed in the year 1999 by the Repeal Act, 20 of 1999 which came into force with effect from 16.06.1999. At that point of time also, the petitioner was enjoying the exemption and the exemption order was never concealed. Such being the position, the learned senior counsel for the petitioner rightly contended that in view of the Repeal Act, the respondents now cannot proceed against the petitioner for taking over the land as the land was never taken possession by the respondents. It is also pointed out by the learned senior counsel that the respondents cannot invoke the old section 21 of the Act for taking possession of the property though it is contended by the learned Government Advocate that as per the saving clause 3[1][a] of the Repeal Act, the respondents are entitled to take possession. It is pertinent to note that the respondents can very well resort to 3 [1][a] only in the event of possession of the property was already taken over by the State Government and in the instant case, it cannot be stated that the property was vested with the State Government at any point of time. 11.The said position is made very clear in a catena of decisions https://hcservices.ecourts.gov.in/hcservices/ of this court. A learned Single Judge of this court in A.Joseph Louis & another Vs. State of Tamil Nadu rep.by the Secretary to Government, Revenue Department, Chennai-9, reported in 2004 [3] L.W. 208 has held in paragraph 4 which reads as follows:- "4.The learned counsel for the State relied upon section 3[1][a] of the Tamilnadu Urban Land [Ceiling and Regulation] Repeal Act. The same has already been extracted above. In the present case, the possession of the land has not been taken over by the State at any time. On the other hand, exemption had been granted. The impugned order indicates that the authority wanted to take action on the ground that the order of exemption has been violated by the petitioners and requested the Special Commissioner of Land Reforms to take appropriate action to acquire the land by giving proper instructions to the Assistant Commissioner. This clearly indicates that possession had not been taken and the authority wanted to proceed further for acquisition of the land under the Act. Since such Act had been repealed, there is no jurisdiction vested with the authorities to proceed further." The above decision makes it crystal clear that even in the event of violation of the condition of exemption in view of the Act had been repealed, there is no jurisdiction vested with the authorities to proceed further as admittedly the possession of the land had not been taken over by the State Government at any point of time. 12.A Division Bench of this court by following the Constitutional Bench of the Hon'ble Apex Court in Sree Jayalakshmi Brick Industries re.by its Proprietor, Rama Bhagavad Dasa @ G.Ramamoorthy Vs. Special Commissioner & Secretary to Government, Govt. of Tamilnadu, Revenue Department, Chennai and others reported in 2009 [8] MLJ 522 has held here under:- "Once the possession is not taken over by the Government as held by the Court, all the proceedings under the Act must be held to have abated under section 4 of the Repealing Act, in view of the categorical pronouncement of the constitutional bench of the Honourable Apex Court in Angoori Devi Vs. State of Uttar Pradesh and others JT [2000] Suppl. 1 SC 295. The order passed by the Tamil Nadu Land Reforms Special Appellate Tribunal. Accordingly, the order dated 11.10.2000 passed in TRP No.313 of 1999 by the Tamil Nadu Land Reforms Special Appellate Tribunal is quashed and all the proceedings under the Act must be held to have abated in view of section 4 of the Repealing Act 20 of 1999. Accordingly, the writ petition is allowed." https://hcservices.ecourts.gov.in/hcservices/ 13.The principles laid down by the decisions of this court following the Principle laid down by the constitutional Bench of the Hon'ble Apex court, are squarely applicable to the facts of the instant case as in this case also, admittedly the possession of the property was not taken over by the Government at any point of time and as such, in view of section 4 of the Repealing Act 20 of 1999 and in view of the categorical pronouncement of the Constitutional Bench of the Apex court in Angoori Devi Vs. State of Uttar Pradesh and others reported in JT [2000] Suppl. 1 SC 295, all the proceedings under the Act must by held to have abated. 14.For the aforesaid reasons, this court is constrained to set aside the order of the 1st respondent dated 10.02.2004 passed in G.O.Ms.No.83 and accordingly, the same is set aside and the writ petition is allowed. No costs. Consequently connected miscellaneous petitions are also closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ap To 1. The Secretary to Government Revenue Department Government of Tamil Nadu Fort St. George, Chennai 600 009. 2. The Assistant Commissioner Urban Land Ceiling Poonamallee Division, Tiruvallur District Chennai 600 056. + 1 cc to M/s.Dr.Anita Sumanth, Advocate SR 14806 + 1 cc to the Govt., Pleader SR 15120 WP.No.12542/2004 DM (CO) RH (12.3.10) https://hcservices.ecourts.gov.in/hcservices/