IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.1.2009 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.235 of 2003 1. Mrs.Subbalakshmi 2. H.Rajeswari 3. H.Rekha 4. H.Vijayalakshmi All represented by their power agent A.K.Mani Mannady, Chennai-600 001 .. Petitioners Versus 1. Assistant Commissioner of Urban Land Tax 248, Poonamallee High Road Madras-29 2. Secretary to the Government Revenue Department Secretariat Fort St. George Chennai-1 3. The Tahsildar Saidapet, Chennai .. Respondents Prayer: Petition filed seeking for a writ of declaration declaring that the continuance of the acquisition proceedings initiated by the first respondent in Rc.No.1231/81/D, dated 21.1.1982, under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with regard to the petitioner's property situated at Survey No.128/5-A admeasuring 42 cents and 128/3-A admeasuring 39 cents in Shotriyum Village, Ernavoor, Saidapet Taluk, (presently Ambattur Taluk) Chengalpattu District (presently Tiruvallur District) even subsequent to the repeal of the said enactment, as un-constitutional and illegal. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.Satish Parasaran For Respondents : Mr.P.Muthukumar Government Advocate O R D E R Heard the learned counsel appearing for the petitioners and the learned Government Advocate appearing for the respondents. 2. It has been stated that the petitioners are the joint owners of the property situated at Survey Nos.128/5-A and 128/3-A, in Shotriyum village, Ernavoor, Saidapet Taluk, Chengalpattu District. It has been further stated that the petitioners are the legal heirs of one Harinath Babu, who had purchased the property. The property in question had been purchased from Sivacharandoss, on 2.8.1982, by a sale deed, registered in the Sub-Registrar's office at Thiruvottriyur, as document No.2017. After the possession of the property was taken, it was known that the proceedings were pending, under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, (hereinafter referred to as "the Act"). It was learnt that the proceedings had been initiated in the year, 1981, and the Government had notified in the Government Gazette, with regard to the acquisition, under Section 11 (1) of the Act, in the year, 1983. Subsequently, another gazette notification, under Section 11 (3) of the Act had been published in the month of July, 1985, with regard to the petitioners' land. On coming to know about the pendency of the proceedings, the petitioners had written a letter, dated 20.11.1986, requesting for the grant of exemption, with regard to the lands in question. Further, a petition had been filed before the Special Land Reforms Commissioner for exempting the lands from the proceedings initiated under the Act. In reply to the petition filed by the petitioner for grant of exemption, he had received a communication, dated 24.7.1990, informing that the lands should not have been purchased during the pendency of the land acquisition proceedings and that the provisions of Section 6 of the Act would be attracted. 3. It was also stated that the third respondent had taken over the possession of the lands, on 17.2.1987. Thereafter, a request had been made, on 8.3.1991, asking the Special Commissioner of Land Reforms to allot the lands to the petitioners, since no exemption could be granted. It was stated that the petitioners were in continuous possession of the lands from the date of its purchase i.e., from 2.8.1982 and that the lands were required for residential purpose and for starting a cottage industry. https://hcservices.ecourts.gov.in/hcservices/ 4. It has also been stated that after the receipt of the notice, under Section 11(5) of the Act, a petition had been sent to the respondents setting out the fact that the possession of the land was with the petitioners and that the exemption should be granted, with regard to the land in the possession of the petitioners. While so, a notice, dated 9.5.1991, had been issued to Sivacharandoss, knowing full well that the lands had already been sold by him and that the petitioners were already in possession of the land. The respondents had stated that Sivacharandoss had not received the compensation, under Section 12 of the Act and therefore, the compensation amount was remitted to the Revenue Deposit-8443 and that it was still lying with the Government. In spite of the fact that the petitioners were the owners of the property in question and were in possession of the land, the notice, under Section 11(5) of the Act, had been wrongly issued to Sivacharandoss. Even the patta for the land is in the name of the petitioners. The chitta receipts would clearly establish the fact that the respondents had not taken over the possession of the property. The petitioners had constructed a mechanic shed in the property and they have been in continuous possession of the same since its purchase. While so, the respondents are proposing to acquire the lands bearing Survey Nos.128/5-A and 128/3-A owned by the petitioners, under the proceedings conducted in RC.No.1231/81. Thus, it is seen that on the one hand the respondents had stated that they had already acquired the lands in the year, 1987, and on the other hand, they had stated that the proceedings have been initiated to acquire the lands belonging to the petitioners. 5. The main contentions raised on behalf of the petitioners are that the notice, dated 21.3.1986, issued under Section 11(5) of the Act, for delivery of possession of the land, had been issued to the erstwhile owner of the land in question and not to the petitioners, who are in actual possession of the property. As such, it cannot be taken to be a proper notice issued in accordance with the provisions of the Act. Such a notice would be without jurisdiction and ab initio void. The non-issuance of proper notice would mean that the acquisition proceedings, said to have been initiated by the respondents, had not crossed the stage beyond Section 11(5) of the Act. Any subsequent act, based on the improper and invalid notice, would fail the test of legal scrutiny, as held by this Court in V.SOMASUNDARAM AND ORS Vs. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT AND ORS (2007-2- L.W.109). Similarly, in OM PRAKASH AND OTHERS Vs. THE GOVERNMENT OF TAMIL NADU AND OTHERS (MANU/TN/9871/2007), this Court had held that the land acquisition proceedings would stand abated, since the notice, under Section 11(5) of the Act, had been issued to the erstwhile owner of the property and not to those who were the real owners at the time of taking over of the possession. https://hcservices.ecourts.gov.in/hcservices/ 6. It has also been contended that the patta and the chitta stood in the name of the petitioners, clearly evidencing the factum of possession. The encumbrance certificate would also show that the petitioners are still in possession of the property in question. Since actual possession had not been taken by the respondents, before the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, had been repealed by the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, (Act 20 of 1999) (hereinafter referred to as the "Repeal Act"), all the proceedings pending, immediately before the commencement of the repeal act would abate, in view of Section 4 of the Repeal Act. The condition precedent for the applicability of the repeal Act is that the proceedings must not have crossed the stages contemplated under Sections 12, 13, 14, 15, 15-B, and 16 of the Principal Act and that possession should have not been taken over by the state Government. The fact that no proper notice, under Section 11(5) of the Act, had been issued to the actual owner, it is clear that the acquisition proceedings initiated by the respondents had not crossed the said stages, to deny the benefit of the Repeal Act to the petitioners. 7. The learned counsel appearing for the petitioners had also relied on the decision of this Court in ALLIND METAL FABRICATORS PVT. LTD., Vs. THE SECRETARY TO THE GOVERNMENT (2002 CTC 716), wherein, this Court, following the judgment rendered by the Supreme Court in ANGOORI DEVI Vs. STATE OF U.P. (JT 2000 SUPP 1 (SC) 295), had held that if the possession of the land had not been taken prior to the repeal, such possession cannot be taken thereafter. No proceedings can be initiated under the repealed enactment. In the present case, since the actual physical possession had not been taken by the respondents, the acquisition proceedings stood abated. Further, according to Section 3(2) of the repeal Act, even if a land was deemed to have been vested in the State Government, if possession had not been taken over by the State Government, such land would not be affected, under Section 3(2) of the Repeal Act. 8. Even when the land is physically vested with the State Government, under Section 11(3) of the Act, the rights in respect of the said land would be restored to the land owner, if he refunds to the State Government the amount paid as compensation, as held in MRS.AYESHA HAQUE Vs. STATE OF TAMIL NADU (2003 WRIT L.R.193). It is not in dispute that the amount meant to be paid as compensation to Sivacharandoss, the erstwhile owner of the land, is still lying with the Government, as it has not been paid to him. This Court, by an order, dated 31.7.2002, in W.P.Nos.16898 to 16900 of 1999, (MOTHI S.RAJAMANNAR AND OTHERS Vs. THE SECRETARY TO GOVERNMENT), had held that taking over of the possession, along with the vesting, is absolutely necessary to make the repeal Act effective. When it is found that the possession has not been taken over by the State Government and the compensation had also not been paid to the https://hcservices.ecourts.gov.in/hcservices/ land owners, the petitioners are entitled to the benefit of the Repeal Act, Act 20 of 1999. 9. It has also been stated that the petitioners had the benefit of an interim order protecting their possession, during the pendency of the writ petition. The contentions of the respondents that the property in question had been allotted to the labour Department cannot be accepted, since such an allotment would be invalid, in view of the fact that the original taking over of the possession had not been done in accordance with law. Since the respondents had failed to show, by producing the relevant records, that a notice under Section 11(5) of the Act had been issued to the persons in actual possession of the property in question and that taking over of the actual possession by the State had been completed and the payment of compensation had been made, the land acquisition proceedings, said to have been initiated by the respondents, would stand abated in view of the Repeal Act of 1999. 10. In the counter affidavit filed on behalf of the respondents, the averments made on behalf of the petitioners had been denied. It has been stated that the lands comprised in S.Nos.128/3-A, 128/5-A and 129/1 of Eranavoor Village had been held by one Sivacharandoss and that they have been classified as wet lands. The said Sivacharandoss had filed a return, under Section 7 (1) of the Act, on 26.3.1977, for the lands in Ernavoor Village and he had requested the State Government to grant exemption to use the lands for industrial purposes. His request for the grant of exemption had been rejected by the Government, vide letter No.8622/R2/80-1, dated 15.3.1980, since the lands were earmarked for residential purposes. His request for changing the classification from mixed residential to industrial area was rejected by the Government in letter No.73057/R2/81-4, Revenue, dated 18.12.1981. 11. It has also been stated that the action had been taken to acquire the excess land measuring 3600 sq.mts., under Sections 9 to 11 of the Act. Notices, under Section 9(4) and the draft statement, under Section 9(1) of the Act, had been issued in Rc.No.1231/81, dated 15.7.1981. The notice had been served by registered post, with Acknowledgment Due. Sivacharandoss, by his letter, dated 18.8.1981, had informed that he had applied for reclassification of the land and therefore, he had requested to drop further action. Since the Government had rejected his request for reclassification, vide letter, No.73057/R2/81-4, Revenue, dated 18.12.1981, orders under Section 9(5) of the Act were passed, on 21.1.1982, to acquire the excess vacant land of 3600 sq.mts. The orders were served by registered post with acknowledgment due, on 13.2.1982. Final statement under Section 10(1) of the Act had been issued, on 26.4.1982, and it was served by registered post with https://hcservices.ecourts.gov.in/hcservices/ acknowledgment due. Being aware of the fact that the land was covered under the Act, the land owner Sivacharandoss had sold the lands in S.Nos.128/5-A and 128/3-A to one Harinath Babu, who is an ancestor of the petitioners, on 2.8.1982. As per section 6 of the Act, no person holding the vacant land in excess of the ceiling limit can transfer any such land or part thereof, by way of sale, mortgage, gift, lease etc., and any such transfer made in contravention of the said provision shall be deemed to be null and void. 12. It has been further stated that the notification, under Section 11(1) of the Act, issued on 9.6.1982, and the notification, under Section 11(3) of the Act, dated 3.6.1985, were published in the Tamil Nadu Government Gazette No.26, dated 3.7.1985 and an amended notification had been published in the Tamil Nadu Government Gazette No.32, dated 14.8.1985. Regarding the surrender or delivery of excess land, a notice, under Section 11(5) of the Act, had been issued, on 24.3.1986, and it has been served on the land owner, on 12.4.1986, by registered post with Acknowledgment due. Since the land owner did not hand over possession of the excess vacant land, the possession was taken over and was handed over to the Revenue Department, on 17.2.1987, and necessary changes had been carried out in the revenue records. A sum of Rs.900/-, being 25% of the land value of Rs.3,600/- and the second to fifth installments had been drawn and kept in the revenue deposit, since the land owner refused to receive it. 13. As per Section 6 of the Act, the sale of excess vacant land, after the notification of the Act, is not maintainable, under the law in force. The petitioners have claimed that they have purchased an extent of 0.42 Acre in S.No.128/5-A and 0.34 acre in S.No.128/A, vide document No.2212, dated 2.8.1982. Since the said purchase is contrary to Section 6 of the Act, such purchase made by the petitioners is invalid in the eye of law. Since all the formalities relating to the acquisition proceedings had been completed and the acquired lands had been allotted to the Labour Department, vide G.O.Ms.No.1341, Revenue, dated 18.8.1999, the claims made by the petitioners cannot be entertained by this Court, at this stage. Hence, the writ petition is liable to be dismissed, as devoid of merits. 14. The learned counsel appearing for the petitioners had contended that the action of the respondents in attempting to take possession of the land in question, under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, is illegal, contrary to the well established principles of law and in direct contravention of the law laid down by the Apex Court in its various Rulings and violative of Articles 14, 19(1)(g) and 300-A of the Constitution of India. The claim of the respondents that they https://hcservices.ecourts.gov.in/hcservices/ had acquired the lands in the year, 1987, is contrary to the facts. No notice had been given to the petitioners before a final decision had been taken, under section 11 (5) of the Act. As the respondents had knowledge of the purchase of the lands in question by the petitioners, they should have heard the petitioners before finalising the acquisition proceedings. The issuing of notice, dated 21.3.1986, under section 11(5) of the Act, to the erstwhile owner of the land, for the delivery of possession of the land, is improper and without jurisdiction. The petitioners had been in possession of the lands in question at the relevant point of time. Therefore, the requirements of the provisions of the Act had not been complied with and therefore, any subsequent event that had followed section 11(5) notice is contrary to law, illegal and void. 15. Even though the decision to acquire the excess vacant land had been made by the respondents, they have not been given effect to, till date. As the petitioners are continuing to be in peaceful possession of the land in question, the claim of the respondents, with regard to the taking over of the possession of the land is neither true nor correct. Since actual possession had not been taken over by the respondents, the land acquisition proceedings would be deemed to have abated in view of the Repeal Act. The relevant documents like patta, encumbrance certificate and the chitta clearly show that the petitioners are still in possession of the land in question, contrary to the claims made by the respondents. 16. It has also been contended that the respondents had failed to take into account the fact that, under Section 4 of the Repeal Act, all proceedings relating to the acquisition proceedings would abate, if actual physical possession had not been taken by the respondents and if compensation had not been paid to the petitioners, in full. Even the erstwhile owner, namely, Sivacharandoss had not received the compensation, as evident from the letter, dated 9.5.1991, written on behalf of the respondents, stating that the compensation amount was still lying with the Government. Therefore, The respondents cannot attempt to take possession of the land, at this stage, as there is no provision of law permitting them to do so, in view of the fact that the Act had been repealed by the Repeal Act of 1999. In such circumstances, the land acquisition proceedings initiated by the first respondent, in his proceedings, dated 21.1.1982, under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with regard to the petitioners' property is arbitrary, invalid, and unsustainable in the eye of law. 17. The learned counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions: https://hcservices.ecourts.gov.in/hcservices/ 17.1. In SARASWATHI AND ANOTHER Vs. THE PRINCIPAL COMMISSIONER & COMMISSIONER OF LAND REFORMS (2007 (4) CTC 714), this Court had held that the land acquisition proceedings would stand abated, if the respondents are not in a position to show that actual physical possession of the land in question had been taken over by the respondents and due compensation had been paid to the urban land owner concerned. 18. The learned Government Advocate appearing for the respondents had relied on the decision of a Division Bench of this Court in THE CHAIRMAN, TAMIL NADU HOUSING BOARD Vs. P.KARUPPA KONAR (2007 (5) CTC 355), to show that the writ petition is not maintainable on the ground of latches. However, the said decision is not applicable to the facts and circumstances of the present case, as it has not been shown by the respondents that the petitioners, who were in possession of the land in question, had slept over their rights, in spite of the relevant notices had been issued to them. Once the procedures adopted by the respondents, during the land acquisition proceedings, are found to be illegal, subsequent proceedings would not validate the illegality committed by the respondents. 19. Considering the averments made by the petitioners, as well as the respondents and the contentions raised by the learned counsels appearing on their behalf and in view of the decisions cited in support of the contentions and on a perusal of the records available, this Court is of the considered view that the land acquisition proceedings initiated against the properties belonging to the petitioners to an extent of 42 cents in S.No.128/5-A, and 39 cents in Survey No.128/3-A, in Shotriyum Village, Ernavoor, Saidapet Taluk, is liable to be quashed, as having abated, in view of the coming into force of the Repeal Act of 1999. It is clear that no proper notice, under Section 11(5) of the Act had been given to the actual owners of the lands in question, namely, the petitioners herein. The said notice, dated 21.3.1986, for the delivery of the land had been issued only to the erstwhile owner and not to the petitioners, who are in possession of the land. Therefore, the subsequent proceedings of the respondents would also be improper and irregular and unsustainable in the eye of law. There is nothing on record to show that actual physical possession of the land in question had been taken by the respondents nor is there any evidence to show that the compensation for the land in question had been paid to the petitioners, as contemplated under the law. 20. In Sosamma Thampy Vs. The Assistant Commissioner (ULT)- CUM-Competent Authority (ULC) and others, (2006 (2) MLJ 664; Anees Leathers Manufacturers, rep.by its proprietor, Mr.Anees Ahamed Vs https://hcservices.ecourts.gov.in/hcservices/ The Government of Tamil Nadu rep.by its Secretary, Revenue Department, Fort St.George, Chennai and others, 2006(3) LW 437, and Jayaseelan & Ratnaseelan Vs The Government of Tamil Nadu rep.by its Secretary, Revenue Department, Fort St.George, Chennai and others 2006(3) LW 440, this Court, while dealing with the effect of the provisions of the Tamil Nadu Urban Land Ceiling Repeal Act (Act 20 of 1999) on the land acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, has held that all such proceedings initiated under the said Act would abate on the coming into force of the Repeal Act of 1999, if the possession of the land had not been taken over by the authorities concerned prior to the repeal and if due compensation had not been paid to the petitioners. 21. Even though it has been contended on behalf of the respondents that the acquired lands had been allotted to the Labour Department, such allotment would not be sufficient to validate the acquisition proceedings. No additional sanctity would be attached to such proceedings by the mere allotment of the lands, said to have been acquired by the respondents, to the other departments of the Government, once it is found that the initial acquisition proceedings had been done contrary to the provisions of the Act. Accordingly, the writ petition stands allowed. No costs. lan Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. THE ASSISTANT COMMISSIONER OF URBAN LAND TAX, 248 POONAMALLEE HIGH ROAD, MADRAS-29. 2. THE SECRETARY TO THE GOVT REVENUE DEPARTMENT, FORT ST. GEORGE, CHENNAI 3. THE TAHSILDAR, SAIDAPET, CHENNAI. 1 cc to the Government Pleader, SR.3578 mbs (co) dv/12.2. W.P.No.235 of 2003 https://hcservices.ecourts.gov.in/hcservices/