IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 02-11-2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.11334 OF 2006 R.R.Nadham, represented by Power of Attorney N.Chiranjeevi. ... Petitioner -vs- 1.State of Tamil Nadu, rep.by Secretary to Government, Revenue Department, Fort St.George, Chennai-600 009. 2.The Commissioner of Urban Land Ceiling, Chennai-5. 3.The Competent Authority of Urban Land Ceiling and Assistant Commissioner of Urban Land Tax, Poonamallee, No.5, Sannadhi Street, Poonamallee, Chennai-56. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of Declaration, declaring that the entire proceedings initiated by the respondents under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, finding that the petitioner's land in Survey No.461/2A of Thirumullaivoyal Village, Poonamallee Sub-division of Chengalpet District under Patta No.227 to an extent of 1633 sq.metres in excess of the ceiling have abated. For petitioner : Mr.Venkatachalapathy, Senior Counsel, for Mr.M.Sriram. For respondents : Mr.V.Viswanathan, Addl.Govt.Pleader. https://hcservices.ecourts.gov.in/hcservices/ O R D E R What is sought for in this Writ Petition by the petitioner is a Declaration, declaring that the entire proceedings, initiated by the respondents under the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, finding that the petitioner's land in Survey No.461/2A of Thirumullaivoyal Village, Poonamallee Sub-division of Chengalpet District under Patta No.227 to an extent of 1633 sq.metres in excess of the ceiling, have abated. 2. The facts are as follows : 2.1. The petitioner owns lands in Survey No.461/2, 461/3 and 461/4 of Thirumullaivoyal Village, Poonamallee Sub-division of Chengalpet District under Patta No.227 to an extent of 4654.5 square metres and the said lands were originally cultivable lands. Due to urbanisation, the said lands were wrongly treated within the urban agglomeration as defined under Section 2 (n) of the erstwhile Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978 (in short, "the Act"). 2.2. The petitioner submitted a statement on 09.02.1976 under Section 6 (1) of the Act, in which it was brought out that the lands were cultivable lands and the Act had no application. The third respondent, without reference to the same, unilaterally proceeded to conduct an enquiry and started issuing notices. So, the petitioner, to get out of the Act, applied for exemption. Though the matter was prolonged under correspondence, simultaneous proceedings were taken to treat the land as surplus under the Act. 2.3. A Draft Notification under Section 9 (i) of the Act was made on 19.04.1978 and proceedings under Section 11 (3) were made under Notification No.1030/83, dated 31.10.1983, declaring an extent of 1633 sq.metres in Survey No.461/2A, after assessing the ceiling limit for the petitioner, as excess, and the same was published in the Tamil Nadu Government Gazette, dated 22.11.1983. The notice, fixing an enquiry under Section 12 (7), was also issued on 12.01.1984. An errata to the final statement under Section 10 (i), dated 28.10.1981, was issued on 06.06.1983. The award enquiry was prolonged and the compensation amount was fixed under Section 12 (6) and the Notice of the order was issued on 23.02.1984. Thereafter, the amounts were kept under Revenue Deposit as the petitioner did not receive the award amount and as he did not appear for enquiry before the authorities periodically. Ultimately, in G.O.Ms.No.1485, Revenue, dated 11.11.1986, the Government passed orders under Section 21 (i) (a), dismissing the petitioner's application for exemption on the ground that the petitioner had not turned up for the enquiry and was not interested in establishing an industry in the land in question. https://hcservices.ecourts.gov.in/hcservices/ 2.4. Since the erstwhile Act had a specific provision of taking possession, the entries if any made in the Revenue records will have no effect, as physical possession has not been taken away by the authorities under the Act. The petitioner is in effective possession of the land and, therefore, the entire proceedings shall stand abated, in view of Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act,1999 (in short, "the Repeal Act"). Hence, the petitioner has filed this Writ Petition. 3. Respondents have filed a counter, stating as under : 3.1. The petitioner, who is an urban land owner, has filed the return under Section 6 (1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, on 09.12.1976 for the land measuring 1.15 acres in S.No.461 of Thirumullaivoyal village. He also applied to the first respondent to grant exemption and enable him to retain the lands. The actual extent of land held by the petitioner was arrived at by the competent authority, namely, the second respondent as follows : S.No. Survey No. Name of the Village Extent Nature 1 461/2 Thirumullaivoyal 1821.50 sq.mts. 2 461/3 Thirumullaivoyal 364.50 sq.mts. 3 461/4 Thirumullaivoyal 2468.5 sq.mts. 4654.50 sq.mts Treated as vacant land 4 Acharappan Street, Chennai -1. 236.00 sq.mts Land with building (residential house) 3.2. An extent of 2000 sq.mts. was allowed as entitlement for his family and 1000 sq.fts.as notional shares of two married sons. The net excess vacant land was arrived at 1654.5 sq.mts. The exemption request was rejected by the Government in Lr.No.40592/T1/78-4, Revenue Department, dated 18.08.1979, as there was no ground to comply with the request. The third respondent issued notices to the petitioner on 17.11.1979, 22.02.1980, 05.03.1980, 15.10.1980 and 10.04.1981. The petitioner had appeared for enquiry on 25.04.1981 and stated that he proposed to have layout road to have approach road to his land and if the road was formed, https://hcservices.ecourts.gov.in/hcservices/ there would not be any excess in his holdings. After considering the objections, the notice under Section 9 (4) along with statement was issued by the third respondent, calling for objections if any for the proposed acquisition of the excess vacant land. Since no objection was received, the third respondent passed orders under Section 9 (5) of the Act in his file No.Rc.1963/81, dated 26.09.1981, to acquire excess vacant land of 1654.50 sq.mts. in Thirumullaivoyal village. 3.3. The final statement under Section 10 (1) of the Act was issued on 28.10.1981. Since there was an error in the extent of total extent vacant land, an erratum was issued by the third respondent in his proceedings No.Rc.1983/81/D, dated 06.06.1983, by determining the total extent as 4633 sq.mts. After allowing an extent of 1800 sq.mts., excess vacant land was determined as 1633 sq.mts. The notification under Section 11 (1) was issued on 06.06.1983 and published in the Tamil Nadu Government Gazette Part VI, dated 17.08.1983. The notification under Section 11 (3), vesting the excess vacant land with effect from 16.11.1983 was issued on 31.10.1983, and the same was published in the Tamil Nadu Government Gazette, dated 23.11.1983. The notice under Section 11 (5) was issued on 09.12.1983 and the same was sent to the petitioner, which was refused to be received. Thereafter, the possession of excess vacant land measuring 1633 sq.mts.in S.No.461/2A of Thirumallavoyal was handed over to the Revenue Inspector, Ambattur (Revenue Department) on 19.01.984. 3.4. After exemption request of the petitioner was processed, the third respondent in his letter No.Rc.1963/81, dated 24.10.1983, had recommended to negative the request of the petitioner to retain the excess vacant land for industrial purposes, as the petitioner had not turned up for the enquiry with documentary evidence in response to his claim. The third respondent issued the notice under Section 12 (7) on 12.01.1984 and served it by registered post with acknowledgement due on 27.01.1984 and another notice was also issued on 28.01.1984, which was served on the petitioner on 01.02.1984. The third respondent passed orders under Section 12 (6) in Rc.No.1963/81, dated 23.02.1984, and determined the amount payable for the excess vacant land as Rs.8165/-. Out of the total sum, Rs.2041.25, being 25% of land value, was drawn and kept in revenue deposit on 21.07.1984, as the land owner did not turn up in spite of receipt of proceedings on 08.03.1984. The first instalment of land value of a sum of Rs.408.25 and interest of Rs.468.05 totalling to Rs.876.30 was sanctioned by the respondent in proceedings No.1963/81, dated 08.03.1985. The said proceedings were sent by registered post and the same were acknowledged on 29.03.1985. 3.5. The petitioner, in his letter dated 21.05.1985, had informed to the third respondent that there was no excess vacant land available; the common passage around his land had been taken into https://hcservices.ecourts.gov.in/hcservices/ account and hence he was unable to accept the compensation. Therefore, the land value amount was drawn and kept in Revenue Deposit on 06.10.1986. The first respondent also examined the records and rejected the exemption request of the petitioner in G.O.Ms.No.1485/Revenue Department, dated 11.11.1986, as the petitioner had not appeared for the enquiry and produced the required details in support of his claim. Hence, the writ petition is liable to be dismissed. 4. The one and only contention of the learned Senior Counsel for the petitioner is that in view of the commencement of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act,1999, the entire proceedings initiated by the respondents for acquisition of the excess vacant land of the petitioner would become ab initio void and that the entries, if any, made in the revenue records would have no effect, as physical possession had not been taken by the authorities and mere symbolic possession would not amount to actual possession. In support of his contention, the learned counsel has relied upon the following decisions : (i) Pt.Madan Swaroop Shrotiya Public Charitable Trust v. Stateof U.P. And Others, AIR 2000 Supreme Court 3415 : "4. In the counter-affidavit, not a word has been said about the possession of the surplus land. In fact, it is maintained by the appellant that the possession is still with the appellant who was also granted an interim order regarding "status quo". 5. Since there is nothing on record to indicate that the State had taken possession over the surplus land, the present proceedings have to be abated and are hereby abated under Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act,1999." (ii) Mrs.Ayesha Haque v. State of Tamil Nadu & Others, 2003 Writ L.R.193 : "9. A perusal of the above quoted sections 3 and 4 makes it clear that the repeal shall not affect only the cases where the vesting of the land has taken place in favour of the Government under Section 11 (3) and possession having been taken by the State Government. 10. In this case, though orders have been passed, declaring the land as excess, there are two facts which would militate against the https://hcservices.ecourts.gov.in/hcservices/ continued applicability of the Ceiling Act. Firstly, the possession remains with the petitioner and therefore no complete vesting has taken place in favour of the State Government. Secondly, as against the order passed by the third respondent, an appeal has been filed before the Principal Commissioner, the second respondent herein, and therefore the proceedings declaring the excess land cannot be stated to have become final. Therefore, I am inclined to hold that Section 3 of Act 20 of 1999 cannot apply and in terms of Section 4, the proceedings have to be held as abated." (iii) K.Vijayakumar and Others v. The Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-5, and Others, W.P.No.22553 of 2003, dated 06.08.2004 : "12. The notice under Section 11 (5) regarding surrender of delivery of the excess land has been sent to Second Street, Nehru Nagar and the same has been returned as 'no such addressee'. But, it is seen from the records that even in the year 1983, the respondents were aware that Tmt.Nagalakshmi Ammal was residing at Kasturba Nagar. The records amply indicate this. Further, this notice is also sent only toTmt.Nagalakshmi Ammal and not to her three sons." "13. Thereafter, possession of the lands is stated to have been taken. By proceedings dated 20.01.1998, the Assistant Commissioner, Urban Land Tax has sent a communication to the Tahsildar, Tambaram Taluk, stating that the notice under Section 11 (5) of the Act was served by way of affixure. The date on which the affixture was made is left blank. And the Tahsildar has directed to instruct the Firka Revenue Inspector and Village Administrative Officer to take possession of the excess vacant land immediately. On 12.03.1998, the Deputy Tahsildar (Urban Land Ceiling) submits a report that the excess land was taken from Tmt.Nagalakshmi Ammal and at that time, the land was vacant and possession thereof was taken on 12.3.1998. Of course, there is a land delivery receipt in which the name of the urban land owner is shown as Nagalakshmi Ammal; the mother of the petitioners and the details of structures, if any, is shown to be vacant. The https://hcservices.ecourts.gov.in/hcservices/ Deputy Tahsildar (Urban Land Ceiling) has affixed a stamp over the words, "handed over by" and adjacent to that, the Revenue Inspector has signed. In the order of the second respondent, there is a clear mention of a dilapidated building in Survey No.14/2A, whereas the land delivery receipt which is purported to be the record of taking delivery shows that the land is vacant. It is clear that there was no actual taking of possession." "14. In this case, the proceedings are totally vitiated for the following reasons : xxxxxx (g) The records do not show that possession of the lands was actually taken." (iv) S.Ramasamy v. State of Tamil Nadu & Others, W.P.No.6641 of 1997, dated 09.09.2004 : "8. The declaration made under Sub-section 3 of Section 11 would result in the vesting of the land in State Government and the deemed possession of it. Under Sub-section 5 of Section 11, after the vesting of the land in State Government as provided under Sub-section 3 takes place, the competent authority will have to issue a notice in writing to the person who is in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government within 30 days of the service of the notice. If any person refuses or fails to comply with an order made under the sub- section (5), the competent authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorised by the State Government in this behalf and may for that purpose use such force as maya be necessary. Thus, Section 11 of the Act provides the manner in which the excess land available with the person should be notified, declared and physical possession taken from the concerned person." "9. In the case on hand, though from the available materials on record, it transpires that the third respondent proceeded against the petitioner up to the stage of the notification under Section 11 (5) of the Act, there is nothing https://hcservices.ecourts.gov.in/hcservices/ on record to suggest taking over of the physical possession under sub-section (6) of Section 11 from the petitioner, in order to make the act of acquisition complete in all respects. Even though the order of the second respondent dated 10/8/1996 would state that the possession was really taken on 30/10/1991, there is absolutely no material to support the said position." "10. On a perusal of the counter affidavit filed on behalf of the respondents also, there is no specific averment to the effect as to how the physical possession of the land was taken on 30/10/1991, by following the procedure prescribed under the provisions of the Act. In such circumstances, it will have to be necessarily held that though the declaration under Section 11 (3) of the Act came to be issued on 2/3/1991, the possession after issuance of 11/5 notice had not been validly taken as contemplated under the provisions of the Act." (v) Sosamma Thampy v. The Assistant Commissioner (ULT)-cum-Competent Authority (ULC) & Another, 2006 (3) L.W.50 : "8.12. In Aarkay Distilleries Pvt.Ltd. v.The Assistant Commissioner (ULT) cum Competent Authority, in W.P.No.35490 of 2004, by an order, dated 23.09.2005, this Court has held that when physical possession continues with the owner, the statutory vesting under Section 11 (3) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act,1978, is of no relevance and therefore under Section 4 of the Repealing Act, Act 20 of 1999, the entire proceedings initiated under the Principal Act would stand abated." (vi) V.Somasundaram and Others v. Secretary to Government, Revenue Department, Chennai, and Others, 2007 (1) MLJ 750 : "In view of Section 11 (5) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act,1978, competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and deliver possession thereof to the State Government or to any person duly authorised by the State Government, within https://hcservices.ecourts.gov.in/hcservices/ thirty days' time. Proceedings initiated against the erstwhile owner is non est in law. Non compliance of Section 11 (5) of the Act, cannot be rectified at a later stage." "When the alternative remedy of appeal is lost due to the enactment of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act,1999 from 16.9.1999, the aggrieved party can maintain a writ petition against the proceedings initiated under Section 11 (5) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act,1978." (vii) Kalliyaperumal v. Pudupettai Chokkanathaswamy and Another, 2007 (1) MLJ 755 : "2. Though many points were urged in support of the appeal, the preliminary point urged was that possession has not been taken pursuant to orders passed by the authorities under the Act. An affidavit has been filed indicating that the possession of the land has not been taken and the land in question continues to be in possession of the appellant and his sons." | "6. In view of the affidavit filed by the appellant to which no objection has been filed, undisputed position is that the State has not taken the possession over the surplus land. Therefore, the proceedings have to be treated to have abated under Section 4 of the Repeal Act." (viii) S.Sivaparamam & Others v. The State of Tamil Nadu & Others, CDJ 2007 MHC 3110 : "8....When the respondent does not say that the petitioner had surrendered possession on its own, then the respondent ought to have taken possession under Section 11 (6) of the Principal Act, whenever a urban land owner fails to surrender possession as demanded under Section 11 (5) of the Act, then the competent authority may take possession of the land and may, for that purpose, use such force as may be necessary. Therefore, from the above two aspects, namely, the urban land owner was directed to surrender possession and since he is not shown to have surrendered possession and the power of the Government to use such force as may be necessary https://hcservices.ecourts.gov.in/hcservices/ in taking possession, clearly indicate that the physical possession of the land must be taken by the competent authority. There is nothing on record to show that on what day possession was taken; was any representative of the writ petitioner present; the name of the person who took possession; the person from whom the possession was taken; are there any contemporary record to show that possession was in fact taken at such a time and on such a date, when possession was handed over to the Revenue Inspector, Pallikaranai; are ;there any record to show such handing over to Revenue Inspector, Pallikaranai and the name of the officer, who received the possession of the land." (ix) M/s.Sree Jayalakshmi Brick Industries v. The Special Commissioner and Secretary to Government & three others, 2009 (4) L.W.819 : "18.... There is nothing on record to show that "on what day possession was taken; was any representative of the writ petitioner present; the name of the person who took possession the person from whom possession was taken; are there any contemporary record to show that possession was in fact taken at such a time and on such date when possession was handed over to the Revenue Inspector, Pallikaranai; are there any record to show such handing over to the Revenue Inspector, Pallikaranai and the name of the office, who received possession of the lands..." "20. This Court in its judgment reported in (2006) 2 M.L.J.664 =2006-3-L.W.50 (Sosamma Thampy v. The Assistant Commissioner (ULT) – Cum - Competent Authority (ULC), has analysed all the previous case laws and categorically held that physical possession is required and mandatory under the ULC Act and noting in the file that symbolic possession is taken cannot be accepted as taking of physical possession. This Court is in complete agreement with the ratio laid down in the aforesaid decision which also squarely applies to the facts and circumstances of the case." "23. Once the possession is not taken over by the Government as held by us, all the proceedings under the Act must be held to have abated under https://hcservices.ecourts.gov.in/hcservices/ Section 4 of the Repealing Act in view of the categorical pronouncement of the constitutional Bench of the Honourable Apex Court in Smt.Angoori Devi Vs. State of Uttar Pradesh and Others reported in JT 2000 (Suppl.1) SC 295." (x) Mangalore Urban Development Authority v. Leelavathi & Others, CDJ 2009 Kar HC 004 : "7. Learned AGA relied upon the so-called mahazar in proof of taking over possession of the land in question. Copy of the said mahazar is produced as Annexure-R4 along with the statement of objections filed by 4th respondent to the writ petition. After perusing the same, it is seen that it was prepared on 3/7/1998. Before the description of the land, it is mentioned that as per the direction of the Deputy Commissioner dated 2/7/1998 the land has been transferred to the Revenue Inspector. Immediately after the description of the land, the Revenue Inspector of Urban Land Ceiling has signed. It is not known who took possession of the land and who transferred to it to the Revenue Inspector. Thereafter, it is mentioned that the possession of the land is taken over by the Revenue Inspector of Urban Development Authority as he has signed it." "8. That apart, though it is captioned as 'mahazar', no witness has signed it to evidence the fact that the possession of the land in question was taken by the competent authority. Except the signatures of aforementioned two Revenue Inspectors, only the names of witnesses are mentioned and they have not signed it. It is also pertinent to note that the entire document is in Kannada language but the names of the witnesses are typed separately in English. This clearly indicates that the said names have been subsequently got typed. In view of all these factors, we hold that the said document is not a genuine document and possession of the land is not at all taken by the competent authority as required under Section 10 (6) of ULC Act." "9.Assuming that the Revenue Inspector took possession of the land, no document is produced to show that he was the competent authority under Section 10 (6) of ULC Act to take possession of https://hcservices.ecourts.gov.in/hcservices/ the land which is declared as surplus urban land under Section 10 (3) of the Act." (xi) M/s.P.T.R.Rice and Dhall Mill rep.by its Proprietor v. Competent Authority, Chennai, CDJ 2008 MHC 5435 : "5...A combined reading of Section 3 (1) and 3 (2) of the Repealing Act makes it clear that unless possession had already been taken after payment of entire compensation, the State Government would not have jurisdiction to retain the land. On the other hand, if the compensation had been paid by the Government the person is allowed to take possession of the land provided to refund the amount received. Since in the present case neither possession had been taken nor compensation had been paid, there is no jurisdiction for the State Government or for any authority to pass impugned order..." (xii) V.Balaguru & Others v. The Assistant Commissioner of Urban Land Tax & Others, CDJ 2009 MHC 1819 : "11.... It has not been shown by the learned counsel appearing for the respondents that a notice under Section 11 (6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978,