IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.28993 of 2007, 16690, 24933 to 24935, 25998 to 26002 of 2009 K.Radhalakshmi ... Petitioner in W.P.No.28993 of 2007 2.M/s.Preet Enterprises rep.by its Proprietor, C.J.Francies, Chennai ..Petitioner in W.P.No.16690/09 3.M/s.R.Tech Industries Rep.by its proprietor R.Rajendra Babu, Chennai ...Petitioner in W.P.No.24933/09 4.M/s.Lovelypet Rep.by its Proprietor, Suresh Mehta, Chennai ...Petitioner in W.P.No.24934/09. 5.M/s.Indian Auto Gas Company Limited., Rep.by its CEO Mr.Antony Thomas Chennai. ...Petitioner in W.P.24935/09 6.M/s.Girinar Polymer Rep.by its proprietor, Vikram K.Jani ...Petitioner in W.P.No.24936/09 7.M/s.Manikandan Enterprises, Rep.by its Proprietor, R.Ramaswamy, Chennai. ...Petitioner in w.P.No.25999/09 8.M/s.Chennai Metal Process Rep.by its Proprietor, Govardhaneswar, Chennai ...Petitioner in W.P.No.26000/09. 9.M/s.Tirupathi Poly Packs, rep.by its proprietor, P.Lakshmi, Chennai ...Petitioner in W.P.No.26001/09. 10.M/s.S.R.Technologies, rep.by its Proprietor, R.Chockkalingam, Chennai ...Petitioner in W.P.No.26002/09. https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. The Secretary Department of Revenue Government of Tamilnadu Secretariat, Fort St.George Chennai – 600 009. 2. The Principal Commissioner and Commissioner of Land Reforms Ezhilagam, Kamarajar Salai Chepauk, Chennai – 600 005. 3. The Assistant Commissioner Mylapore, ULC, 345, Arcot Road Kodambakkam, Chennai – 600 024. 4. The Assistant Commissioner (Urban Land Ceiling) Door No.153, Karunagar Street Opposite to IOB Building Adambakkam, Chennai – 600 088. (Impleaded by order dated 13.2.2008 made in MP:1/2008 in WP:28993/2007) 5. Telace Plants and Equipment Pvt. Ltd. 3/88, Mount Poonamallee Road Ramapuram, Chennai – 600 089. .. Respondents (Impleaded by order dated 4.8.2008 made in MP:2/2008 in WP:28993/2007) and batch cases. 1 THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, FORT ST. GEORGE CHENNAI- 600009 2 THE SPECIAL COMISSIONER & COMMISSINER OF URBAN LAND CEILING & URBAN LAND TAX CHEPUAK CHENNAI 600005 3 THE ASSISTANT COMMISSIONER MYLAPORE (URBAN LAND CEILING) 345 ARCOT ROAD KODAMBAKKAM,CHENNAI -24 4 THE ASSISTANT COMMISSIONER (URBAN LAND CEILING) DOOR NO.153, KARUNEGAR STREET, OPP. TO IOB BUILDING, ADAMBAKKAM, CHENANI-600 088. https://hcservices.ecourts.gov.in/hcservices/ 5 MS. K. RADHALAKSHMI 6 TELACE PLANTS & EQUIPMENTS PVT LTD (UNER PROCESS OF STRIKING OFF) 3/88 MOUNT, POONAMALLEE ROAD, RAMAPURAM, CHENNAI 600 089 RESPONDENTS in all Wps except W.P.No.28993/2007 Prayer: Writ of Mandamus directing the 1st respondent to allot the land measuring 3000,1500, 1800, 3000, 2000, 500, 600, 1200, 1200 sq. feet of land occupied by the petitioner from out of an extent of 4131 sq. mts in survey No.151/1B Ramapuram Village Tiruvallur District in favour of the petitioner for industrial purpose as per procedure established by law. W.P.No.28993 of 2007: Writ of Declaration declaring that the petitioner is entitled to retain the lands measuring an extent of 4131.598 sq.mts comprised in survey No.151/1 part Ramapuram village as per section 3.2. of the Tamilnadu urban land (ceiling and Regulation) Act 1999 enabling her to get patta. For Petitioner : Mr.P.Subba Reddy in WP:28993/2007 and 5th respondent in WP:16690, 25998 to 26002 and 24993 to 24935 of 2009 For Petitioner : Mrs.Nalini Chidambaram, in WP:16990/2009 Senior Counsel, for M/s.C.Uma For Petitioners in : Mr.S.Srinivasan WP:25998 to 26002 and 24933 to 24935/09 For Respondents : Mr.N.Senthil Kumar 1 to 4 in all WPs. Addl. Government Pleader For 5th respondent : No appearance in WP:28993/2007 and 6th respondent in WP:16690, 25998 to 26002 and 24993 to 24935 of 2009 ORDER The brief facts of the case, sans unnecessary details, leading to the filing of these writ petitions are stated hereunder. https://hcservices.ecourts.gov.in/hcservices/ 2.1. The petitioner in W.P.No.28993 of 2007, who is the fifth respondent in all other writ petitions, viz., K.Radhalakshmi, is stated to have purchased 1.5 Acres of land comprised in Survey Nos.151/1 and 151/2 situated at Ramapuram Village on 1.1.1976 under a registered document, and is stated to have been in possession and enjoyment of the same along with her family members. The extent contains land and buildings. 2.2. The said K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) is stated to have been holding major share in M/s.Telace Plants and Equipment Private Limited, a company later impleaded as fifth respondent in W.P.No.28993 of 2007, which company has also been arrayed as sixth respondent in other writ petitions, and she applied for transfer of one acre excess land to the said company in the year 1978 as per the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, (Tamil Nadu Act XXIV of 1978), (for brevity, "the Principal Act"). It is her case that the Government passed orders determining the excess land under the Principal Act, but the Government has not taken possession of the excess land and she and her legal heirs are in possession of the property. In the meantime, Telace Plants and Equipment Private Limited was closed and the lease given to it was surrendered. 2.3. It is stated that in the year 2002, the petitioner in W.P.No.28993 of 2007 has applied to the Commissioner of Land Reforms, the second respondent, for transfer of land and the second respondent is stated to have cleared the same and referred to the Assistant Commissioner, the third respondent and therefore, according to her, the second respondent has accepted the physical possession of the lands with her. She is stated to have built up around 60 industrial sheds in the year 1998 and applied for regularization and in the 60 industries operating in the premises, around 1000 workers are engaged. It is stated that since the authorities required issuance of patta for the purpose of further construction, she applied to the Government for releasing the property from the purview of the Principal Act. However, she along with her legal heirs have been paying the statutory duties to the public authorities like the Panchayat. 2.4. The Principal Act was enacted for the purpose of fixation of ceiling limit of urban lands and taking possession of the excess vacant lands and ultimately, the Principal Act came to be repealed by the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 20 of 1999), (for brevity "the Repeal Act"). As per the Repeal Act, the lands which were covered under the Principal Act, being the excess lands, possession of which was not taken over by the Government, were directed to be restored to the original owners after refund of the amount received and therefore, according to the petitioner in W.P.No.28993 of 2007, the Government has no right or https://hcservices.ecourts.gov.in/hcservices/ power to retain possession, since the Principal Act itself was repealed and possession continued to be with her and her family members and according to the Repeal Act, the taking over of possession from the land owners under the Principal Act must be physical possession and not merely vesting of right with the government. Therefore, according to her, since possession of the entire land has not been taken over by the government at any point of time, she is entitled to restoration of ownership and it is in those circumstances, she has requested the respondent/Government to release the land so as to enable her to get patta. 2.5. It is the case of the petitioner in W.P.No.28993 of 2007 that the company floated by her, viz., Telace Plants and Equipment Private Limited, does not require the land and the land has been surrendered to her and she is paying the statutory duties. Since the company was unable to pay the amount to the Government and in the meantime, the said company has been closed, she undertook to pay the instalment amounts to be paid by the company and because the property has not been released, she was unable to get the building plan approved for further construction and therefore, she has filed the said writ petition in W.P.No.28993 of 2007 for a declaration that she is entitled to retain the lands measuring an extent of 4131.598 Square Meters comprised in Survey No.151/1 Part, Ramapuram Village, as per Section 3(2) of the Repeal Act to enable her to get patta on the grounds that the Commissioner under Principal Act has accepted that the possession of the land and building are with her; that since the company to which the petitioner transferred the land stood closed, she is entitled to retain the land and therefore, patta should be transferred to her name; and that the Repeal Act does not provide any saving clause and in fact benefits have been conferred under Section 3(2) of the Repeal Act and the proceedings under the Principal Act itself are not over and by virtue of the Repeal Act all proceedings stand abated. 3.1. The other writ petitioners, including the petitioner in W.P.No.16690 of 2009, who are occupying various industrial sheds of different extents in the total extent of 4131.598 Square Meters of land, are stated to be the tenants in respect of those sheds constructed by the said K.Radhalakshmi (petitioner in W.P.No.28993 of 2007), who is arrayed as fifth respondent in their writ petitions. 3.2. While it is admitted that the said K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) has purchased total extent of 1.5 Acres in Survey Nos.151/1 and 151/2 under registered document from Late Sri Gemini Ganesan, it is their case that after the Principal Act came into existence on 3.8.1976, in respect of which various provisions were notified on 17.5.1978, out of 1.5 Acres of land purchased by her, one Acre, which is to the extent of 4131.598 Square Meters in Survey No.151/1 Part of Ramapuram Village, was declared to be excess land in her hand and that was sub-divided into https://hcservices.ecourts.gov.in/hcservices/ Survey Nos.151/1B and 151/1C and the extent of 4131.598 Square Meters, sought to be acquired under the Principal Act, was brought in Survey No.151/1B. 3.3. While it is admitted that K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) has applied for exemption from the Principal Act, it is stated that she floated the company called Telace Plants and Equipment Private Limited and she was holding major share in it and her husband was a Director and on behalf of the company, an application was made to the first respondent/Government on 24.11.1977 requesting to transfer the said excess land in favour of the company for industrial purposes. On behalf of the first respondent proposals were sent on 17.5.1979 to acquire the excess land from K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) as per the provisions of Sections 9 to 11 of the Principal Act and transfer it to Telace Plants and Equipment Private Limited for industrial purposes as per Section 24(4) of the Principal Act. 3.4. According to the said petitioners, the acquisition has been completed and the property is vested absolutely with the Government, which is stated to have taken possession on 5.8.1983, as confirmed by the Assistant Commissioner, Urban Land Tax, Kundrathur, Chennai – 600 088 in the proceedings dated 8.1.2008 and 2.9.2008, and the excess land was allotted to Telace Plants and Equipment Private Limited by the Government as per Section 24(4) of the Principal Act under G.O.Ms.No.657, Revenue Department, dated 19.4.1990. 3.5. It is stated that K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) has received 25% of the compensation amount on 17.3.1984 amounting to Rs.5,062.50 towards the acquisition and it is stated that on 5.4.1987, she has received first four instalments towards compensation amount, amounting to Rs.1802/- and she refused to receive the balance amount, viz., 5th to 15th instalment, and the same was deposited with the Revenue Department. 3.6. It is stated that Telace Plants and Equipment Private Limited, to which the lands were allotted for industrial purpose, has not utilised the land for the said purpose and ultimately, the company came to be closed and wound up and therefore, G.O.Ms.No.657, Revenue Department, dated 19.4.1990 is liable to be withdrawn. It is stated that even though K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) ceased to be the owner and possession was taken over by the Revenue Department, she constructed industrial sheds on the subject property and the portions were handed over to the said petitioners as tenants and according to them, they have been running the business in these years employing more than 1000 persons in all and they were all paying rents to K.Radhalakshmi towards the use of the industrial sheds by obtaining registration certificates, SSI licence, electricity connection, etc. https://hcservices.ecourts.gov.in/hcservices/ 3.7. The Repeal Act has repealed the Principal Act and as per Section 3(2) of the Repeal Act, in respect of the lands deemed to have vested under the Principal Act as per Section 11(3) of the Principal Act, in respect of which possession has not been taken over by the State Government and amount has been paid by the State Government as compensation, such lands shall not be restored unless the amount paid if any is refunded to the State Government. 3.8. According to them, K.Radhalakshmi (petitioner in W.P.No.28993 of 2007), after the Repeal Act has been enacted, has applied to the second respondent on 2.12.2002 requesting re- allotment, since possession has not been taken over from her, in respect of which no action was taken by the first and second respondents due to the reason that the first respondent has already taken over possession from the fifth respondent as per Section 11(5) of the Principal Act. Therefore, according to them, since possession has been taken over by the Government and handed over by way of transfer to Telace Plants and Equipment Private Limited, the interim order of status-quo passed by this Court on 13.2.2008 in M.P.No.1 of 2008 in W.P.No.26993 of 2007 filed by K.Radhalakshmi is of no avail, as she has not been in possession. 3.9. It is stated that the said petitioners, through their association, viz., Telace Industrial Estate Industries Owners Association, have made representation to the government on 6.10.2007 requesting to allot the individual area, which is on lease with the members of the association for industrial purposes and when that representation was not considered, the said association filed W.P.No.36047 of 2007, which was disposed by this Court on 3.12.2007, by directing the first respondent to consider the said representation and pass orders, on condition that the individual members of the association shall file individual representations. Accordingly, it is stated that the said petitioners have made individual representations requesting for allotment of various extents of land which are in their possession for using the same for industrial purposes at the prevalent price. 3.10. It is stated that the petitioners have been paying rent to K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) till May, 2008 without default. Since K.Radhalakshmi (petitioner in W.P.No.28993 of 2007), in the month of May, 2008, asked the petitioners to vacate the premises and threatened to disconnect electricity supply, some of the tenants have moved the civil court challenging the eviction and rents are being paid to the credit of the civil court. 3.11. It is stated that the said entire area is covered under the industrial zone as per the master plan of the Chennai Metropolitan Development Authority. On an information received under the Right to Information Act from the Assistant Commissioner (Urban Land Ceiling), Adambakkam, Chennai – 600 088, the said petitioners https://hcservices.ecourts.gov.in/hcservices/ learnt that the subject property has been handed over to the Revenue Department and it continues to vest with the government and the same was never handed over to K.Radhalakshmi (petitioner in W.P.No.28993 of 2007). 3.12. As per the direction given by this Court on 3.12.2007, the second respondent passed an order on 20.9.2008 stating that since the writ petition filed by K.Radhalakshmi is pending, no order can be passed and it was thereafter, the said petitioners have filed implead petitions in W.P.No.28993 of 2007 filed by K.Radhalakshmi and the implead petitions were all directed to be heard at the time of final disposal of W.P.No.28993 of 2007. 3.13. The said petitioners are aggrieved by the order of the second respondent dated 20.9.2008 refusing to pass orders as per the earlier direction given by this Court on 3.12.2007 in W.P.No.36047 of 2007. According to them, their representations should have been considered independently, since K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) is not entitled to re-allotment as per the provisions of the Repeal Act, where re-allotment is provided only in a case where the government has not taken possession of land and in the case on hand, possession has been taken over from K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) in the year 1983 itself. Therefore, the petitioners have filed writ petitions in W.P.Nos.16690, 24933 to 24935, 25998 to 26002 of 2009 for a direction against the first respondent/government to allot the lands in their possession measuring various extents from and out of an extent of 4131.598 Square Meters in Survey No.151/1B, Ramapuram Village, Thiruvallur District to them. 4. Even though the government has not filed any counter, the learned Additional Government Pleader has produced the files. 5.1. It is the contention of Mr.P.Subba Reddy, learned counsel appearing for the petitioner in W.P.No.28993 of 2007, viz., the original land owner who purchased the property in the year 1976, who has been arrayed as fifth respondent in all other writ petitions, that admittedly the physical possession of the excess lands as per the Principal Act was not taken over by the government and therefore, by virtue of the Repeal Act, which came into force in 1999, when possession has not been taken, the land ceiling proceedings stand abated and the only right of the government is to get back the amount paid, including the compensation. It is his submission that there are records to show that even as on date the property tax has been paid by her to the tax authorities and records are available up to 2007 to that effect. 5.2. It is his submission that on filing of the writ petition in W.P.No.28993 of 2007, there has been an interim order protecting the possession of the property, which is still with her, and the status- https://hcservices.ecourts.gov.in/hcservices/ quo order passed has been confirmed by a detailed order dated 11.8.2008, by which there was an order of injunction also restraining the respondents from interfering with the possession and enjoyment of the property by his client. 5.3. He would also rely upon a judgment of the Supreme Court in Angoori Devi v. State of U.P. and others, JT 2000 (Supp 1) SC 295 to substantiate his contention that when once possession has not been taken over by the government, the owner who is in possession at the time of the Ceiling Act is entitled to continue and retain possession. 5.4. According to him, as per the Repeal Act, there must be record to show that the State has taken physical possession of the surplus land and he would rely upon the judgment in [2000] 6 SCC 325. He would also rely upon the judgments in 2002 (2) CTC 716, 2004 (4) MLJ 676 and 2006 (4) LW 784, apart from many other unreported judgements to substantiate his contention in that regard. 5.5. He would submit that as far as the other writ petitioners are concerned, they are admittedly tenants under K.Radhalakshmi and in a dispute between her and the government, the tenants are third parties. In this regard, he would rely upon the decision in 2001 (3) CTC 520. He further added that the tenants only want to usurp the property belonging to K.Radhalakshmi, which cannot be permitted in law. 5.6. He would also submit that by no stretch of imagination the other writ petitioners, who are tenants under K.Radhalakshmi, can claim right over any portion of the property either by allotment or otherwise, since the relationship is only that of landlord and tenant. 6.1. Per contra, it is the contention of Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioner in W.P.No.16690 of 2009, by referring to Section 11(5) of the Principal Act, that when as per the Principal Act the excess land is vested with the government, which has become final, especially when the compensation has been passed on, by a combined reading of Sections 11(3) and 12 (1) of the Act, the possession is deemed to have been taken, particularly when what was available was only a vacant land. She would rely upon the decision in [2008] 4 SCC 594 to substantiate her contention in respect of legal possession, especially regarding vacant land. She would also reply upon 2009 (4) LW 826 in this regard. 6.2. It is her submission that when once it is admitted by K.Radhalakshmi herself that Telace Plants and Equipment Private Limited, which is a company having independent entity, by way of allotment by the government under Section 24(4) of the Principal Act has taken possession, it means that physical possession has been taken away from K.Radhalakshmi as its owner and handed over to another person, viz., Telace Plants and Equipment Private Limited, https://hcservices.ecourts.gov.in/hcservices/ and it is no more open to K.Radhalakshmi to say that she continues to be in possession. According to her, even if Telace Plants and Equipment Private Limited is controlled by K.Radhalakshmi, inasmuch as Telace Plants and Equipment Private Limited is a legal person, to which possession has been handed over by the government, if Telace Plants and Equipment Private Limited has been liquidated, the property has to vest with the government and K.Radhalakshmi cannot claim herself to be in possession at all. 6.3. She would also submit that when once the government legally has allotted land to Telace Plants and Equipment Private Limited by G.O.Ms.No.657, Revenue Department, dated 19.4.1990, it is not open to K.Radhalakshmi to continue to claim to be in possession, because the government by allotment of land to Telace Plants and Equipment Private Limited is deemed to have taken physical possession from K.Radhalakshmi and given to Telace Plants and Equipment Private Limited. When once the company and shareholders are not one and the same, it is her submission that under the Repeal Act, it relates only about the original owner and not the allottee and since, Telace Plants and Equipment Private Limited has become subsequent allottee under Section 24(4) of the Principal Act, the original owner does not come into the picture at all. 6.4. In effect, it is her submission that when once it is admitted that possession has been handed over to Telace Plants and Equipment Private Limited for industrial purposes, K.Radhalakshmi loses her physical possession and that itself is sufficient to show that vesting of the property with the government has been completed as per the provisions of the Principal Act. 7.1. It is the contention of Mr.S.Srinivasan, learned counsel appearing for the petitioners in W.P.Nos.24933 to 24935, 25998 to 26002 of 2009, while adopting the submissions made by Mrs.Nalini Chidambaram, learned Senior Counsel, that the writ petition filed by K.Radhalakshmi is not maintainable for the simple reason that she has alienated her right to Telace Plants and Equipment Private Limited, in which she is only a shareholder and therefore, she cannot claim herself to be the owner of the company. 7.2. According to him, when Telace Plants and Equipment Private Limited was liquidated, the property is deemed to have vested with the government and it is for the government to decide about the allotment of land to others, after the Repeal Act has come into existence and therefore, it is not open to K.Radhalakshmi to question the rights of the tenants to claim allotment from the government. 7.3. He would also insist that as per G.O.Ms.No.657, Revenue Department, dated 19.4.1990, the vesting of property with Telace Plants and Equipment Private Limited has already been completed and there is no question of K.Radhalakshmi claiming herself to be in https://hcservices.ecourts.gov.in/hcservices/ possession. 8. I have heard the learned counsel for the petitioner in W.P.No.28993 of 2007, the learned Senior Counsel appearing for the petitioner in W.P.No.16690 of 2009, the learned counsel for the petitioners in W.P.Nos.24933 to 24935, 25998 to 26002 of 2009 and the learned Additional Government Pleader appearing for the Government, perused the files and given by anxious thought to the issue involved in this case. 9. The purchase by K.Radhalakshmi (petitioner in W.P.No.28993 of 2007) in respect of 1.5 Acres or 27 grounds or 66000 sq.ft. of agricultural land in Survey Nos.151/1 Part and 151/2 Part, Ramapuram Village from its previous owner Gemini R.Ganesan under a registered sale deed dated