IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:06-02-2009 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.Nos.39713 and 39714 of 2002 N.S.Jaya .. Petitioner in both the writ petitions. Versus 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 Commissioner (ULC) and Director (ULT), Ezhilagam, Chennai-600 005. 4.The Assistant Commissioner, Mylapore, 345, Arcot Road, Kodambakkam, Chennai-24. .. Respondents in both the writ petitions. Prayer in W.P.No.39713 of 2002: Petition filed seeking for a writ of Declaration, declaring that the petitioner is entitled to get back the lands measuring an extent of 650 Sq.Metres or 7098 Sq.Ft. comprised in Survey Nos.214/2 A1, A1, A1, A3, Thiruvanmiyur Village as per Section 3.2 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1999. Prayer in W.P.No.39714 of 2002: Petition filed seeking for a writ of Certiorarified Mandamus, calling for the records relating to the petitioner's lands measuring an extent of 650 Sq.Mts. or 7098 Sq.Ft. comprised in Survey Nos.214/2 A1, A1, A1, A3, Thiruvanmiyur Village and in pursuance of letter No.Rc.B2/19733/2000, dated 6.7.2001, of the second respondent and quash the same and consequently direct the respondents to restore and hand over possession of land measuring an extent of 650 Sq.Mts or 7098 Sq.ft comprised in Survey Nos.214/2 A1, A1, A1, A3, Thiruvanmiyur Village to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.P.Subba Reddy For Respondents : Mr.T.Seenivasan Additional Government Pleader COMMON ORDER Inasmuch as the issue involved in both the writ petitions are one and the same, a common order is being passed. 2. Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 3. It has been stated that late N.S.Ramaswami, brother of the petitioner, was the owner of the vacant land in Thiruvanmiyur Revenue Village, Chennai, in S.No.214/2, measuring 5 grounds and 498 Sq.Ft. The Government of Tamilnadu had acquired 2 grounds and 2298 Sq.Ft., 650 Sq.Mts. or 7080 Sq.Ft., under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. As he was a bachelor, he was allowed to retain 2 grounds and 600 sq.ft. He had died, on 21.2.87, and thereafter, the petitioner had succeeded to his estate, as his sole legal heir. 4. It has been stated that the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, had been repealed by the State Government by the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. Section 3(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, provides for restoration of the lands to the original owner, if actual possession had not been taken over by the Government, after taking back the amount paid as compensation. According to Section 11(5) and 11(6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, taking over of possession of the lands from the land owners should be physical possession and mere vesting of right in the Government will not give any right to the respondents to retain the lands in question. At no point of time, after the lands were acquired by the State Government, physical possession had been taken over, either by the State Government or by any officer or authority authorised on its behalf. 5. Even if the land could be said to have vested in the Government, under Section 11(3), it does not mean that physical possession had been taken over. As per the order in Rc.No.5767/85, dated 31.1.85, of the Assistant Commissioner, a sum of Rs.12,101.75/-, had been fixed as compensation for the lands said to have been acquired by the State Government. The petitioner and her late brother, N.S.Ramaswami, did not receive the entire amount of compensation. The last payment of Rs.1151/- had been received by the petitioner, vide Letter No.Na.Ka.A2/027/96, dated 22.12.96, received from the Assistant Commissioner, Mylapore, the fourth respondent herein. https://hcservices.ecourts.gov.in/hcservices/ 6. From the records available with the petitioner, it is seen that the said amount represents the 11th and 12th instalments. Even though the fourth respondent had not mentioned the number of instalments covered by the Payment of the said amount, in view of Section 3 of the Tamilnadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, the lands in question, said to have been acquired by the State Government, would continue to vest in the petitioner, since physical possession had not been taken over by the respondents. 7. In the counter affidavit filed on behalf of the respondents, the allegations made by the petitioner, in his affidavit, filed in support of the writ petition, have been denied. It has been stated that the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, came into force in the urban agglomerations of the State of Tamil Nadu, on 3.8.76. N.S.Ramaswami, the brother of the petitioner had owned 1161 Sq.Mts. of land in S.No.214/2 of Thiruvanmiyur Village, having purchased the same, as per Document No.2125/1961, dated 19.8.61. He had filed the return, under Section 6(1) of the said Act, on 23.12.76. He had applied for exemption, under Section 21(1) (b) of the Act. However, it was rejected by a Government Letter No.685- A/T2/77-6, dated 17.3.77. 8. As the land owner was a bachelor, he was entitled to hold 500 Sq.mts. of vacant land. Therefore, the competent authority, Alandur, had computed 661 Sq.Mts. as excess vacant land and he had issued a draft statement, under Section 9(1), with notice, under Section 9(4) of the Act. The land owner had received it on, 4.5.79 and the appeal had been filed to the Government for the grant of exemption, for the excess vacant land. The Government had once again rejected his request, vide Letter No.42728/T1/79, dated 17.4.80. 9. On the basis of the Government order, the competent authority, Alandur, had proceeded and passed orders, under Section 9(5) of the Act, declaring 661 Sq.Mts. as excess vacant land, on 10.2.81, and it was sent to the urban Land owner, on 17.2.81. A final statement, under Section 10(1) of the Act, was issued, on 27.3.81, and served on the urban Land owner, on 4.4.81. A notification, under section 11(1) of the Act, was published in VI(1)/922/81, dated 22.7.81, and a notification, under Section 11(3), was published in VI(1)/1103/81, dated 24.8.81, of the Government Gazette. A Notice, under Section 11 (5) of the Act, was served on the urban land owner, on 5.12.81. The urban land owner had sent a consent letter for acquiring 661 Sq.Mts. and had requested for the compensation amount. Notice under Section 12 (7) of the Act, was sent, on 18.12.81. An order, under Section 12(6) of the Act, fixing the amount and to receive 25% of the total amount, was issued, on 18.12.81. The urban land owner had himself surrendered the surplus land to the Revenue Inspector, Mylapore-Triplicane Taluk, on 23.2.82 and the amount of Rs.1,625/-, being 25% of the amount payable, under Section 12 of the Act, had been received by the land owner, vide Cheque No.149557, dated 1.3.82. The land owner had https://hcservices.ecourts.gov.in/hcservices/ received four instalments and the remaining 11 instalments were received by his sister, N.S.Jaya, the petitioner herein. The acquired land of 661 Sq.Mts., taken as 650 Sq.Mts, had been allotted to All India Service Officers Co-operative Housing Society, vide G.O.Ms.No.26, Revenue, dated 8.1.93. 10. It has been further stated that all the necessary proceedings, under Sections 11(3), 11(5), 12(7) and 12(6) of the Tamil Nadu Act 24 of 1978, were issued and the amount which was fixed, as per Section 12(6) of the said Act and 25% of the said amount, had been received by the urban land owner in the year, 1982, itself. The urban land owner had himself given consent for the surrender of the excess land and he himself had surrendered the land to the revenue authorities. 11. It has been further stated that, as per the notification, under Section 11(3) of the Act, published in the Government Gazette, dated 16.9.81, the excess vacant land had vested with the Government, with effect from 23.9.81. The urban land owner had himself handed over possession of the excess vacant land, on 23.2.82. He had received 25% of the amount, payable, under Section 12(6) of the Act, on 1.3.82. The excess vacant land, which had been acquired, was also allotted to the All India Service Officers Co-operative Housing Society, vide G.O.Ms.No.26, Revenue, dated 8.1.93. When the Principal Act was repealed by the Tamil Nadu Act 20 of 1999, a saving clause was provided, under Section 3(1) of the Repeal Act, in respect of the lands, where possession had been taken over by the Government. In the present case, since the possession of the excess vacant land was handed over by the urban land owner, on 23.2.82, it would not be affected by the Repeal Act 20 of 1999. In such circumstances, the petitioner has no locus standi to make a claim for getting back the possession of the land in question. 12. The saving clause provided under the Repeal Act 20 of 1999, protected the lands in respect of which the possession had been taken over by the Government, as per the procedures laid down in the Act. Moreover, the full amount of compensation, for the surplus land acquired under the Act, had been paid. The last payment had been made, vide Cheque No.897199, dated 6.11.96, on 24.1.97 and the said amount had been received by the petitioner. 13. The learned counsel appearing on behalf of the petitioner had submitted that the claim of the respondents that the urban land in question, acquired by the State Government, had vested with the Government and the entire amount of compensation for the land had been received by the petitioner, is not correct. Though the respondents seem to have taken possession of the land, on paper, there was no actual taking over of physical possession of the land in question, by the respondents. Therefore, the petitioner is entitled to get the protection, under Section 3 of the Tamil Nadu Urban Land (Ceiling and https://hcservices.ecourts.gov.in/hcservices/ Regulation) Repeal Act, 1999. 14. The claim of the respondents that they have taken possession of the land in question, cannot be accepted. Further, the alleged allotment of the land to All India Service Officers Co-operative Housing Society, Chennai, had lapsed. As seen from the third respondent's letter, dated 16.2.2001, the repeated representations made by the petitioner, pointing out that the land acquisition proceedings, initiated by the respondents would be deemed to have abated, in view of the enactment of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, as it had come into force, on 17.6.99, have been rejected by the respondents, without proper consideration. Further, it is seen from the records that the land in question stands in the name of the petitioner's brother, as on 28.1.2002. Since the entire proceedings, with regard to the urban land in question, have not been completed, the said proceedings would abate, as per the provisions of the Repeal Act 20 of 1999. 15. As seen from the records, relating to the land in question, available with respondents, it is clear that the vesting of the land with the Government was on 23.9.81. On 22.10.81, Section 11(5) notice had been issued to the owner of the property. On 23.2.82, the Firka Revenue Inspector is said to have taken possession of the land. However, on a careful perusal of the particulars available, it would be clear that the physical possession of the land had not been taken over by the Assistant Commissioner, the fourth respondent herein. 16. The learned counsel had also submitted that the Firka Revenue Inspector is not the competent authority to take over the possession of the land acquired by the State Government, under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. As per Rule 23(6) of the Tamil Nadu Urban Land Ceiling and Regulation Rules, 1978, the Collector shall be the authority competent to take possession of the vacant land acquired by the Government. Further, the claim of the respondents that the land in question had already been allotted to the All India Service Officers Co-operative Housing Society, Chennai, cannot be accepted, in view of the fact that the said society had refused to receive the land, on the ground that the possession of the land in question is not with the State Government. 17. The learned counsel appearing on behalf of the respondents had submitted that the excess vacant land of 661 Sq.Mts., belonging to N.S.Ramaswami, in S.No.214/2 of Thiruvanmiyur Village, had been acquired by the State Government, after it had been declared as excess, on 10.2.81. After the notice, under Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, was served on the Urban land owner, on 5.2.91, he had sent a consent letter for acquiring 661 Sq.Mts of excess land and he had requested for compensation for the said land. Thereafter, the urban land owner had voluntarily surrendered the surplus land to the Revenue Inspector, https://hcservices.ecourts.gov.in/hcservices/ Mylapore and Triplicane Taluk, on 23.2.92 and he had received Rs.1625/-, being 25% of the amount payable, under Section 12 of the Act. He had also received four instalments of the balance amount and the remaining 11 instalments were received by his sister, who is the petitioner in the present writ petition. The acquired land of 661 Sq.Mts., was allotted to All India Service Officers Cooperative Housing Society, vide G.O.Ms.No.26, Revenue, dated 8.1.93. In such circumstances, the request of the petitioner to restore the land, under Section 3(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, cannot be accepted. Since the excess vacant land, belonging to N.S.Ramaswami, had been acquired by the State Government, following the procedures prescribed under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 and since physical possession of the land in question had been taken over by the respondents and full compensation having been paid in respect of the said land, the writ petitions are liable to be dismissed. 18. The main contentions of the learned counsel for the petitioner are that the reason assigned by the respondents that the possession of the land, which had been acquired, had been taken, cannot be accepted, since the full compensation for the property concerned had not been paid to the petitioner. The taking over of possession of the land is only on paper and the actual physical possession had not been taken by the respondents. The petitioner is entitled to get protection, under Section 3 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. The claim of the respondents that the possession of the land had been taken and that the said land had been allotted to the All India Service Officers Co- operative Housing Society, Chennai , has not been substantiated by records. The allotment said to have been made by the respondents to the All India Service Officers Co-operative Housing Society, Chennai, had lapsed, as seen from the third respondent's letter, dated 16.2.2001. As the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, does not provide for a saving clause the petitioner is entitled to have the benefits, under Section 3(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. The rejection of the claim made by the petitioner to restore the acquired vacant lands to the original land owners, in terms of Section 3(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, is arbitrary in nature. Since the proceedings, with regard to the land in question, had not been over, such proceedings would abate, in view of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. In such circumstances, the petitioner is entitled to the reliefs, as prayed for in the above writ petitions. 19. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions. https://hcservices.ecourts.gov.in/hcservices/ 19.1. In Smt.Angoori Devi Vs. State of U.P. and others (JT 2000 (Suppl.I) SC 295, the Supreme Court had held as follows: "2. These cases relate to the interpretation of different provisions of the Urban Land (Ceiling and Regulation) Act. During the pendency of these appeals in this Court, the Urban Land (Ceiling and Regulation) Act has been repealed by Act 15 of 1999 and the State of U.P. also has adopted the same by a Resolution. In view of the provisions contained in Section 3 of the Repealing Act and the fact that the possession of the vacant land has not been taken over by the State Government, which is asserted by the Counsel appearing for the appellants and is also apparent from the interim orders passed by this Court, the question for consideration no longer survives. 3. Further, under Section 4 of the Repealing Act all proceedings under the Act must be held to have abated. In that view of the matter, we do not think it necessary to proceed with this matter. These appeals stand disposed of accordingly." 19.2. In PT.Madan Swaroop Shrotiya Public Charitable Trust V. State of U.P (2000 (6) SCC 325), the Supreme Court had held as follows: "3. Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, provides as under: "4.Abatement of legal proceedings.-- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or other authority shall abate; Provided that this Section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the Principal Act insofar as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority." 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 https://hcservices.ecourts.gov.in/hcservices/ present proceedings have to be abated and are hereby abated under Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. 19.3. In Mukarram Ali Khan V. State of U.P and Others (2007-4- L.W. 797), the Supreme Court had held as follows: "In view of the affidavit filed by the appellant to which no objection has been filed, undisputed position is that the State had 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. Appeal from the judgment of HIgh Court of Allahabad allowed." 19.4. In Special Officer and Competent authority, Urban Land Ceiling, Hyderabad v. P.S.Rao (2000 (II) M.L.J. 101 S.C.), the Supreme Court had held as follows: "We are, therefore, unable to accept the contention of the learned counsel for the State that an application for exemption can be maintained only before the excess is determined under Section 10. In our view, the scheme of the act is to the contrary. The view taken by the Court following the decision of this Court in T.R.Thandur V. Union of India, (1996) 3 S.C.C. 690: A.I.R. 1996 S.C.W. 700: A.I.R. 1996 S.C. 1643, Darothi Clare Parrriara (Smt.) V. State of Maharashtra, (1996) 9 S.C.C. 633: A.I.R. 1996 S.C.W. 3179: A.I.R. 1996 S.C. 2553 and State of A.P. V. Valluru Venkateswara Rao (1997) 3 An.L.T. 417 does not call for any interference." 19.5. In The Special Commissioner, Revenue Secretary to Government, Revenue Department, Fort St. George, Madras-9 V. N.Kannan (W.A.No.1133 of 2002) , a Division Bench of this Court had held as follows: "This writ appeal is directed against the order of the learned Single Judge arising out of Urban Land (Ceiling and Regulation) Act, 1978. The said Act has been repealed later, and there is no saving clause as is contained in some legislative statutes. In fact, Section 4 saves only such action by which the excess land holder has been deprived of his possession and vested the property with the Government. But in so far as the proceedings before any Authority/Tribunal etc., arising under the Act, the legislative policy expressly states that such proceedings shall abate. Such abatement will ensure to the benefit of the party, who has filed a declaration and as such, the question of the appellate authority hearing appeal does not arise at all, as the order holding the first respondent as https://hcservices.ecourts.gov.in/hcservices/ excess landholder under the Urban Land (Ceiling and Regulation) Act had become non-est in law. In the circumstances, this writ appeal is dismissed......" 19.6. In V.Somasundaram and 2 others V. The Secretary to Government and 2 others (2007-2-L.W. 109), a Division Bench of this Court had held as follows: "The main contention urged by the learned counsel for the appellants is that the appellants are interested persons as they have purchased the lands from the third respondent and are in possession of their respective extent of land and hence the second respondent ought to have issued notice to the appellants, who are the real owners and therefore the action of the respondents are in violation of Sections 9(4), 10(1) and 11(2) of the Act. The learned counsel ultimately argued that the vesting of the lands in question with the Government cannot be accepted in view of the non-compliance of the specific provisions contained in Section 11(5) . From the perusal of the file it is clear that proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in question, in respect of transfer of this land to the appellants herein. Section 11(5) notice was also issued to the third respondent, who was not the real owner. As per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and delivery possession thereof, to the State Government or to any person duly authorised by the State Government, within thirty days time. No notice having been issued against the appellants, who are in possession of the lands as stated supra, taking possession of lands, on 30.4.1999, by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with effect from 16.9.1999, it is not open to the authorities to proceed against the appellants at this stage to rectify the non- compliance of Section 11(5) of the Act. As rightly contended by the learned counsel for the appellants, the appellants were not entitled to file appeal due to enactment of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, from 16.9.1999. Hence, the writ petition filed without availing the alternate remedy of filing of filing appeal under Section 33 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, is maintainable." https://hcservices.ecourts.gov.in/hcservices/ 19.7. In Allind Metal Fabricators Pvt. Limited Vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St. Geroge, Madras. (2002 (2) CTC 716), a learned Single Judge of this Court had held as follows: "The Tamil Nadu Urban Land (Ceiling and Regulation) Act has been repealed by the repealing Act (Act 20 of 1999) and all pending proceedings also having been declared to have abated. As held by the Supreme Court in the case of Angoori Devi V. State of U.P., JT 2000 Supp 1(SC) 295, a decision by a Constitution Bench, if the possession of the land had not been taken prior to the repeal, such possession cannot be taken thereafter and no proceedings can be thereafter initiated under the repealed enactment. During the pendency of this writ petition the petitioner had the benefit of an interim