IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.12.2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Writ Petition No.6856 of 2003 Mohamed Ashref Noor ... Petitioner Vs. 1.Secretary to Government Revenue Department State of Tamil Nadu Secretariat Fort St. George, Chennai-9. 2.The Chief Commissioner & Commissioner for Land Reforms Chepauk, Chennai-5. 3.The Special Commissioner & Commissioner for Urban Land Tax and Urban Land Ceiling Chepauk, Chennai-5. ... Respondents This petition has been filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records of the first respondent in proceedings G.O.Ms.No.8 (Revenue) dated 8.1.2003 and the government letter Ms.No.615 (Revenue) dated 22.11.1999 in so far as relating to exemption aspects and quash the same. For petitioner : Mr.R.Natarajan For respondents : Mr.P.Gurunathan Government Advocate for RR 1 to 3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The writ petitioner has come before this court challenging the proceedings in G.O.Ms.No.8(Revenue) dated 8.1.2003 relating to exemption granted by the authorities under the Urban Land Ceiling Act. 2. The case of the petitioner is that he purchased 12.5 grounds of land and factory building comprised in Survey No.404/1, Sameen Pallavaram, Chengleput District by sale deed dated 31.5.1975. The petitioner applied exemption under Section 21 of the Urban land (Ceiling and Regulation) Act in respect of excess vacant land measuring to an extent of 2400 square meters for starting a leather processing unit and exemption was granted in G.O.Ms.No.642 dated 6.4.1984 under Section 21 of the Act. The said exemption was periodically extended and meanwhile the factory was constructed after getting necessary approvals from the authorities concerned. 3. Finally by a letter dated 6.6.1998 the petitioner requested for extension of time and for which a reply was sent by the respondent stating that the petitioner violated the exemption conditions. Meanwhile, the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1976 was repealed by Act 1999, which came into force on 16.6.1999. 4. By a letter of the Revenue Department dated 22.11.1999, it was clarified that Section 21(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1976 is not affected by the repealed Act and if the exempted person violates the conditions of the exemption order he has to face the consequence of withdrawal of exemption under Section 21(2) of the Act. Based on the said G.O., a show cause notice dated 5.3.2002 was sent to the petitioner when he was out of country. Therefore in the absence of any reply from the petitioner, the first respondent passed an order under G.O.Ms.No.8 dated 8.1.2003 cancelling the exemption granted to the petitioner under Section 21(1) of the Urban Land (Ceiling and Regulation) Act 1976 and the same is impugned before this court. 5. Mr.Natarajan, learned counsel for the petitioner submitted that the impugned order was passed after the repeal of the Urban Land (Ceiling and Regulation Act)1976 and therefore any proceeding which is based on the repealed Act has no sanctity in view of absence of principal Act. He further submitted that by virtue of exemption, the respondents have not taken possession and the very exemption order proves that the petitioner continues to be in possession of the properties. 6. By the repealed Act, the original proceeding would abate if the possession of the properties is found to be with land owner and if the proceedings in respect of the Urban Land (Ceiling https://hcservices.ecourts.gov.in/hcservices/ and Regulation) Act are pending as per Section (3) (2)(a) of the Act 20 of 1999 (Repealed Act). 7. Mr.Natarajan,learned counsel submitted the Honourable Supreme Court as well as this court recognise the right of the land owner to retain the possession of the land if the possession was not taken. He produced G.O.Ms.No.111 Revenue (ULCI(1) Department dated 3.3.2007. Only after examining various judgements given by the Honourable Supreme Court and this court, the government passed an order that all actions taken under Sub-section (2) of 21 of the Tamilnadu Land (Ceiling and Regulation Act)1978 shall abate and further action to be dropped. By producing the said G.O.,learned counsel submitted that Section 21(2) spoke about the exemption. In view of that the proceedings against the petitioner's land should get abated and further action should be dropped. 8. Mr.Gurunathan, learned Government Advocate submitted that vide communication through Assistant Commissioner (Urban Land Tax), Tambaram, it has been stated that as per the records the petitioner's land comprised in Survey No.404/1, Sameen Pallavaram, Chengleput District measuring an extent of 2400 square metres was not taken by the authorities. 9. A perusal of the repealing Act would show that the principal Act was repealed and no action could be taken under the repealed Act. Whereas admittedly the petitioner is in possession of the property and the impugned order itself proves the petitioner's possession. It has been decided by the The Honourable Supreme Court in Angoori Devi versus The State of Uttrapradesh reported in JT 2000 Supplement (1) SC 295 held that when the possession was found to be with the Urban land owner, the benefit under the repealing Act should be given to the owner and accordingly the proceedings against the petitioner should get abated. 10. Admittedly in this case, by way of exemption under Section 21(2), the government exempted to retain excess land for the purpose of constructing factory. When the repealing Act came into force on 16.6.1999, the authorities cannot initiate proceedings on 5.3.2002 that is after the expiry of two years of the principal Act. Section 3(2)(a) protects the possession of the land owners who retains the possession with them. In view of Section 3(2)(a) also the writ petitioner has to succeed. Apart from that the government issued G.O.Ms.No.111 Revenue (ULCI(1) Department dated 3.3.2007, which is extracted as follows: " The Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978 was enacted with a view to imposing Ceiling on vacant land in urban agglomeration and to prevent the concentration of urban land in the hands of https://hcservices.ecourts.gov.in/hcservices/ a few persons. The said Act was implemented in Chennai, Coimbatore, Madurai, Salem, Tiruchirapalli and Tirunelveli Urban Agglomeration. The Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, (Tamil Jadu Act 24 of 1978) was repealed by the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Tamil Nadu Act 20/1999). 2. Section 3(1)(b) of the Repeal Act, which reads, "the validity of any order granting exemption under sub-section (1) of Section 21 of the Principal Act or any action taken there under" shall not be affected. It has been originally interpreted the wording "any action taken thereunder" as though Section 21(2) also has been saved and accordingly action has been initiated against all violations of exemption conditions. The Tamil Nadu Land Reforms Special Appellate Tribunal and the Hon'ble High Court, Chennai, have however viewed that Section 3(1)(b) of the Repeal Act carries a specific reference only to exemption orders passed under Section 21(1) and that it does not cover cases where orders have been passed withdrawing exemptions issued under Section 21(2) for violation of conditions or any order refusing grant of exemption. Holding that Section 21(2) of the Principal Act has not been saved and quoting the decision of the Apex Court wherever applicable, the Tribunal and the High Court, Chennai, have set aside, without exception, all the exemption withdrawal orders and further proceedings by the competent authority in several cases disposed till now. It was proposed to examine an amendment to the said Repeal Act so as to overcome the legal constrains and enable the Government to proceed against the cases of violation and withdrawal of exemption, based on the suggestions made by the Special Commissioner and Commissioner of Land Reforms and Special Commissioner and Commissioner of Urban Land Ceiling and Urban Land Tax in the references fist and second read above. 3. The Government have examined the issue in consultation with the Advocate General in detail. 4. The Government after careful consideration have come to the conclusion that Tamil Nadu Act 20 1999 is very clear and categorical, besides being comprehensive and hence, the question of bringing out any amendment with retrospective effect is neither necessary nor feasible and any such amendment with retrospective effect will not stand judicial scrutiny. 5. Accordingly, the Government, pass the order that all actions taken under sub-section (2) of Section 21 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978 (Tamil Nadu 24 of 1978) shall abate https://hcservices.ecourts.gov.in/hcservices/ and further actions be dropped. 6. The Principal Commissioner and Commissioner of Land Reforms is requested to take necessary follow up action in the matter." 11. By the above G.O, the government passed an order that all actions taken under Section (2) of Section 21 of the Act shall abate. In view of the said G.O. and in view of the letter given by the Assistant Commissioner, (Urban Land Tax), Tambaram East, Chennai through communication dated 10.12.2009, that possession of petitioner's land was not taken by the authorities, the impugned proceedings are quashed and the writ petition is allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vk To 1.Secretary to Government Revenue Department State of Tamil Nadu Secretariat Fort St. George, Chennai-9. 2.The Chief Commissioner & Commissioner for Land Reforms Chepauk, Chennai-5. 3.The Special Commissioner & Commissioner for Urban Land Tax and Urban Land Ceiling Chepauk, Chennai-5. + 1 CC TO Govt., Pleader CC SR 69269 + 2 cc to Mr.R.Natarajan, Advocate CC Sr 6900 W.P.No.6856 of 2003 RSY (CO) RH (3.3.10) https://hcservices.ecourts.gov.in/hcservices/