IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.8.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.12793 of 2004 Lakshmi Rangamurthi W/o. Late K.S.Rangamurti rep. by Power of Agent S.Sundararaman 19/30, Dr.Ambedkar Road Kodambakkam Chennai – 600 034. .. Petitioner (Substituted as per order dated 5.8.2009 in WPMP No.503 of 2009) Vs. 1. The Competent Authority of Urban Land Ceiling and Assistant Commissioner of Urban Land Tax, T.Nagar at No.84, Arcot Road, Kodambakkam Chennai – 600 024. 2. The Union of India rep. by its Senior Superintendent of Post Office (South) Department of Postal T.Nagar, Chennai – 600 017. .. Respondents (Impleaded as per order dated 13.4.2009 passed in Civil Appeal No.2424-2428 of 2009 by the Hon'ble Supreme Court of India) PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Declaration to declare the action initiated by the first respondent in R.C.No.5677/78A, dated 5.9.1980 declaring the lands comprised in Plot No.27, R.S.No.210/2-A 1-A/23 in Thiruvanmiyur Village, Saidapet Taluk, Chingleput District to an extent of 1550 Square Meters under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 as excess vacant lands as illegal, unconstitutional and consequently declare the petitioner as the owner of the lands in question in the light of the provisions contained in Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 20 of 1999. (Amended as per the order dated 3.8.2011 made in W.P.M.P.No.572 of 2009). https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Muthukumarasamy Senior Counsel for M/s.S.Ramesh For Respondents : Mr.R.M.Muthukumar Government Advocate for 1st respondent Mr.K.Mohanamurali Special Panel Counsel for 2nd respondent ORDER This writ petition came to be posted on being specially ordered by the Hon'ble Chief Justice by order dated 27.7.2011. 2. In this writ petition, the original writ petitioner, represented by his Power Agent sought a direction to forbear the respondent from in any manner interfering with the right, possession and enjoyment of the land to the extent of 1550 Square Meters in Plot No.27, R.S.No.210/2-A 1-A/23 in Thiruvanmiyur Village in view of the Tamil Nadu Act 20 of 1999 (for short, "Act 20 of 1999") repealing the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (for short, "Act 24 of 1978") 3. The writ petition came to be allowed by a learned Judge of this Court on 11.9.2004. It was stated that since Act 20 of 1999 had repealed Act 24 of 1978 and in the light of the judgment of the Supreme Court in Angoori Devi v. State of Uttar Pradesh, JT 2000 Supp 1 (SC) 295, the writ petition was allowed. But subsequently, the first respondent filed a writ appeal, being W.A.No.1198 of 2006. The same was dismissed by a Division Bench on 13.9.2006. The Union of India, running the Department of Posts, also filed a review petition, being Review Petition No.64 of 2007 to review the order order passed by the Division Bench. That was also rejected by the Division Bench on 23.4.2008. Thereafter, the Union of India preferred special leave petitions before the Supreme Court in S.L.P.Nos.24582-24586 of 2008. The special leave petitions were converted to civil appeals and were numbered as Civil Appeal Nos.2424-2428 of 2009. The civil appeals were allowed by final order dated 13.4.2009. The Supreme Court, after setting aside the orders passed by the Single Judge as well as the Division Bench, directed this Court to rehear the writ petition after impleading the Union of India as party respondent and a request was also made to dispose of the writ petition expeditiously. Subsequently, the Union of India has been made as a party second respondent by this Court. However, during the pendency of the proceedings, since the original writ petitioner K.S.Rangamurti had passed away, his wife – Lakshmi Rangamurti got herself substituted as writ petitioner by order dated 5.8.2009. https://hcservices.ecourts.gov.in/hcservices/ 4. On notice from this Court, on behalf of the first respondent, a counter affidavit dated 12.7.2011 has been filed. On the side of the second respondent, a counter affidavit dated 10.9.2009 has been filed. 5. The petitioner had also filed W.P.M.P.Nos.572 and 573 of 2009 for amending the original prayer in the writ petition and also for leave to raise additional grounds. Both the petitions are also ordered today. 6. Heard the arguments of Mr.R.Muthukumarasamy, learned Senior Counsel appearing for Mr.S.Ramesh, counsel for the petitioner and Mr.K.Mohanamurali, learned counsel for the second respondent and Mr.R.M.Muthukumar, learned Government Advocate appearing for the first respondent. The original file was also circulated and perused by this Court. 7. It is seen from the records that the original petitioner, Late K.S.Rangamurti belonging to I.A. & A.S. service filed a return under Section 6(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 (amended in 1978) before the Assistant Commissioner and Competent Authority on 28.9.1976 in respect of his holdings in Plot No.27, R.S.No.210 (Part) in Thiruvanmiyur Village measuring 88 Cents. He also requested for an exemption for holding excess land in terms of Section 19 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, by a letter dated 12.9.1978. The request of the original petitioner was rejected by the Government vide letter dated 16.4.1980. 8. It was thereafter the first respondent/Competent Authority, by a notice dated 13.5.1980 issued under Section 9(4) along with Section 9(1) of Act 24 of 1978, expressed their intention to acquire the excess vacant land measuring 1550 Square Meters. The original petitioner, by a letter dated 10.7.1980, requested that since the land was owned by him as well as his father-in-law, who was the owner of the Plot No.26, it may allowed to be retained and Plot No.27 may be taken over by the Government as excess vacant land, as it will be advantageous to both the Government and the petitioner. But his request was not considered by the then Assistant Commissioner (ULT), who issued a final statement under Section 10(1) of Act 24 of 1978 on 5.9.1980. 9. After the notice was served, notifications under Section 11 (1) and 11(3) of Act 24 of 1978 were published in the government gazette on 24.6.1981 and 16.9.1981 respectively. Thereafter, notice under Section 11(5) of Act 24 of 1978 was issued on 22.10.1981, directing the original petitioner to deliver possession of the land. The draft notices under Sections 12(7) and 12(6) of Act 24 of 1978 were also sent to the petitioner on 27.11.1981. https://hcservices.ecourts.gov.in/hcservices/ 10. Thereafter, the original petitioner, by letter dated 30.12.1981, requested the Government to pay the entire amount of compensation in one lumpsum for the excess land acquired by them, and by a reply dated 4.1.1982, an advance stamped receipt for payment of 25% of the amount payable under Section 12(6) of Act 24 of 1978 was sent to the petitioner. Thereafter, the first respondent, by his letter dated 23.2.1982, requested the Tahsildar, Mylapore-Triplicane Taluk to depute a Revenue Inspector of his office for taking possession of the excess vacant land from the original petitioner and the possession of the excess vacant land of 1550 Square Meters was handed over to the Tahsildar on 23.2.1982. 11. The then Assistant Commissioner (ULT), by a letter dated 29.4.1982, sent a demand draft dated 24.4.1982 paying a sum of ` 5,212.50 towards 25% of the payment for the cost of excess vacant land taken over by the Government. It was received by the owner on 21.5.1982. Subsequently, the entire amount payable under Section 12(6) of Act 24 of 1978 was paid to the original owner. 12. Thereafter, the second respondent, by a letter dated 27.2.1985, made a request to the first respondent for allotment of the said land for constructing a post office and quarters for the staff. The Government of Tamil Nadu, by G.O.Ms.No.2774, Revenue Department, dated 30.12.1989, allotted the said plot to the second respondent for construction of post office and staff quarters on collection of cost of acquisition plus 40% service charges, subject to conditions. Subsequently, the amount towards the land cost was paid by the Postal Department and a transfer certificate was issued by the Tahsildar, Mylapore-Triplicane Taluk transferring the land in favour of the Postal Department and it was also taken over by the Assistant Superintendent of Post Offices, Chennai Division on 21.9.1993. 13. It was long after this exercise, the State of Tamil Nadu repealed Act 24 of 1978 by the Act 20 of 1999. Act 20 of 1999 was brought into force on 16.6.1999 and Section 3 of the Act reads as follows: "Section 3. Savings: (1) The repeal of the principal Act shall not effect:- (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 and any person duly authorised by the State Government in this behalf or by the Competent authority; (b) The validity of any order granting exemption under https://hcservices.ecourts.gov.in/hcservices/ 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 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 duly authorised by the State Government in this behalf or by competent authority; and (b) any amount has been paid by the State Government with respect to such land, then such land shall not be restored unless the amount paid if any, has been refunded to the State Government." 14. The name of the land owner has also been recorded in the name of the Postal Department by a communication sent by the Revenue Department dated 30.4.2003. In fact, it was also stated that subsequent to the taking over of the possession, the Postal Department had put up a board in the plot stating that the land belongs to the Postal Department. The second respondent was sanctioned with funds for proceeding with the construction of post office and staff quarters. 15. After receiving the compensation for the excess vacant urban land taken over from him, the petitioner, on coming to know about the land being allotted to the Postal Department, sent a communication to the Hon'ble Minister for Postal Communication of the Government of India and requested him to release the land and at this stage, the petitioner filed the writ petition attempting to take advantage of Section 3 of Act 20 of 1999. 16. In the affidavit of the power agent, representing the original writ petitioner, he has stated as follows: "4. After the issue of Section 10(1) Statements, without following the procedure contemplated under Section 9(5), the respondent proceeded to issue a Notification under Section 11(1) dated 24.6.1981 followed by a further notification under Section 11(3) declaring that the lands in question, on and from 23.9.1981, shall be deemed to have been acquired by the State Government and vested absolutely in the State Government. This was followed by a notice dated 22.10.1981 under Section 11 (5) for the surrender of the excess vacant land so determine, followed by payment of paltry compensation amount." https://hcservices.ecourts.gov.in/hcservices/ Notwithstanding these facts, it was contended that since the original petitioner continues to be in physical possession of the property without any interference, he is entitled to take advantage of the Tamil Nadu Act 20 of 1999. 17. In the original affidavit, there was nowhere any contention raised regarding the procedure for acquisition not being followed by the first respondent/State. It is only after the matter was remanded by the Supreme Court, in the petition for raising additional grounds, such contentions are raised. 18. Mr.R.Muthukumarasamy, learned Senior Counsel for the petitioner placed reliance upon a judgment of a Division Bench of this Court in V.Somasundaram and others v. Secretary to Government, Revenue Department, Chennai and others, [2007] 1 MLJ 750. This is for the purpose of contenting that if no notice was issued in terms of Section 11(5) of Act 24 of 1978, taking possession of the land becomes non est and subsequent to Act 20 of 1999, no liberty will be available for the authorities to proceed to follow the procedure. 19. He also placed reliance upon a judgment of this Court in G.P.Saraswathi and others v. Assistant Commissioner-cum-Competent Authority (Urban Land Ceiling), Salem and another, [2010] 8 MLJ 449, wherein this Court held that if no notice under Section 11(5) of Act 24 of 1978 was sent to the original owner and the exercise under Section 11(5) of Act 24 of 1978 was not carried, the question of lawful possession under Section 11(6) of Act 24 of 1978 will not arise. 20. Further reliance was placed upon a subsequent Division Bench judgment of this Court in Government of Tamil Nadu, rep. by its Secretary to Government, Revenue Department, Chennai v. Nandagopal and others, [2011] 4 MLJ 577 for contending that in the event of physical possession not being taken in the prescribed manner, the land owners are entitled to the benefits of the provisions of Act 20 of 1999 and in paragraph [7], it was observed as follows: "7. In order to find out as to whether the notice as required under Section 11(5) of the Act read with Rule 8 of the Rules was served on the respondents or not, we called for the records and perused. Admittedly, there is no such notice sent through registered post, except the competent authority affixing the said notice on the vacant site, which should be only a last resort after making an attempt to send the notice by registered post and in spite of the same, they could not be served with the notice. In that view of the matter, even assuming that the possession is said to have been taken as contended by the learned Special Government Pleader, such taking over of possession cannot be considered to https://hcservices.ecourts.gov.in/hcservices/ be valid in the eye of law so long as the provisions of Section 11(5) of the Act read with Rule 8 of the Rules was not complied with. On this ground alone, the contention of the respondents that in the event of physical possession not being taken in the prescribed manner, the provisions of the Repealing Act would come to the benefit of the respondents must be accepted." 21. Per contra, Mr.K.Mohanamurali, learned counsel referred to the judgment of this Court in G.Sadagopan, rep. by Power of Attorney D.Sampath v. Special Commissioner, Land Reforms and Assistant Commissioner, ULT and ULC, Egmore, (W.P.No.8604 of 2004, dated 7.6.2011), wherein it was stated that if the lands were taken over after following appropriate procedure and the land owner has also received compensation, then the land owner cannot come to this Court long after such exercise was completed and if he is guilty of delay and laches, the Court should not entertain any review of the exercise already undergone. 22. He has also referred to a judgment of a Division Bench in S.Balasubramaniam and another v. The Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai and others, 2009-4-LW 826 for contending that in case of long delay in challenging the acquisition, the Court can deny the relief and even on the question of physical possession, in paragraph 9(c), the Court distinguished the judgment of the Supreme Court in B.N.Bhagde v. M.D.Bhagwat, AIR 1975 SC 1767 in the following words: "9(c) In AIR 1975 SC 1767 (supra), the Supreme Court held that there can be no question of symbolical possession and there should be actual possession. That was in relation to the Land Acquisition Act. But in the same decision, the Supreme Court had held, "the presence of the owner or the occupier 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....". The Supreme Court also held in that case that it is not an absolute and inviolable rule that a declaration by beat of drum or otherwise would be sufficient to constitute the taking of possession. They held that it would depend on the facts of the case. Therefore, this decision also does not help the appellants." 23. He further referred to a judgment of this Court in Maria Joseph Roy v. Competent Authority, Chennai, [2008] 2 MLJ 143, wherein this Court denied relief to a land owner who came to the Court after accepting the compensation and long after the proceedings were https://hcservices.ecourts.gov.in/hcservices/ completed. 24. Even on the question of vesting of the land, he referred to a judgment of this Court in N.Seethalakshmi v. The Secretary to Government and others (W.P.(MD) No.25 of 2009, dated 3.11.2010), wherein this Court held that if the land has been taken over under the provisions of Act 24 of 1978 and had got vested with the Government and then if it is allotted to some third party, the third party is entitled to proceed with the possession of the land and carry out the work for which they have acquired the land and in case it was able to prove that subsequent to the allotment the third party had proceeded by issuing appropriate tender and also incurred expenditure, it will prove the fact that possession was taken over by the third party and it was also held that if the cause of action arose on the basis of non issuance of notice under Section 11(5) of Act 24 of 1978, the writ petition cannot be filed belatedly by taking advantage of Act 20 of 1999. 25. A perusal of the original file shows that the petitioner had addressed several letters to the officer concerned regarding the taking over of the land and is fully aware of the proceedings initiated by the respondents. The notices addressed to the petitioner residing at No.15, Srinivasan Street, St.Mary Road, Chennai – 600 028 were received on his behalf and the acknowledgment is also found enclosed in page [255] of the original file. Even the demand draft for having received the 25% of the amount was received by the petitioner at his Hyderabad office, where he was working at the relevant time, and the acknowledgment card is found at page [265]. The final payment was also received by the petitioner, as averred in the counter affidavit, and there is no denial of the same. The first respondent has put up a note stating that on inspection the notice board put up by the Postal Department was found in the land in question and also the postal authorities have informed that they have taken possession of the land. It was also stated that the original petitioner was not in possession of the land the possession has been handed over to the Tahsildar, Mylapore-Triplicane Taluk even in the year 1982 itself and that Act 20 of 1999 will not apply to them. 26. Therefore, faced with these undenied facts, the learned Senior Counsel contended that under Section 3(1)(a) of Act 20 of 1999 if the possession is not taken over by the State Government pursuant to the vesting under Section 11(3) of the Act 24 of 1978, then Act 20 of 1999 will come into operation and the possession contained therein is only physical possession and not symbolic possession. 27. 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, JT 1996 (2) SC 549. In that case, after considering the judgment in Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC 1767, this Court observed that while taking possession of https://hcservices.ecourts.gov.in/hcservices/ 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." 28. 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, JT 2009 (12) SC 324, where after referring to Viswam's case (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." 29. 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:- "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 https://hcservices.ecourts.gov.in/hcservices/ 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. Bhagwat, [1976] 1 SCC 700 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 determining its extent, was