IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.11.2010 CORAM THE HONOURABLE THIRU JUSTICE S. MANIKUMAR W.P.No.250 of 2010 M.P.Nos.1 and 3 of 2010 1.Haripriya Rayaningar 2.Parmasani Rayaningar 3.Raghava Varma ... Petitioners Vs. 1. The Secretary to Government, Department of Revenue, Government of Tamil nadu, Secretariat, Chennai 600 009. 2. The Special Commissioner & Commissioner of Land Reforms, Chepauk, Chennai 600 005. 3. The Assistant Commissioner, Mylapore ULC, No.345, Arcot Road, Kodambakkam, Chennai 600 024. 4. The Managing Director, Tamil Nadu Adi-Dravidar Housing Development Corporation Ltd., Tamil Nadu Housing Shopping Complex, Thirumangalam, Chennai-101. ... Respondents (R4 impleaded as per the order, dated 05.07.10, in M.P.No.2 of 2010) Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of declaration, declaring that the petitioners are entitled to restoration of ownership of the lands measuring an extent of 641 Sq.mts., comprised in Survey No.3847/96, Block No.76, in Cenotoph Road, 2nd Lane, Chennai 600 018, in terms of the Sub-Section 3.2 and Section 4 of the Repeal Act, 1999 and further direct the petitioners to pay compensation whatever received from the respondents with interest and annul all proceedings prior to the date of Repeal Act, i.e., 16.06.1999. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.P.Subba Reddy For Respondents 1 to 3 : Mr.R.Murali, GA For 4th Respondent : Mr.R.Subramanian O R D E R On the basis of a Will executed by Rangamma Gayathiri Devi probated by this Court in O.P.No.175 of 2009 the petitioner's sisters and brother of the testatrix claiming to be the beneficiaries of the will, have filed the present writ petition for a declaration that they are entitled for restoration of ownership of the lands measuring an extent of 641 sq.mts comprised in Survey No.3847 of 1996, Block 76 in Senatop Road, 2nd lane, Chennai, in terms of sub section 3(2) and (4) of the Repeal Act, 1999 and sought for a further direction to the petitioners permitting them to repay the compensation, what ever paid by the respondents with interest and to abate all proceedings prior to the date of Repeal Act i.e., 16.06.1999. 2. The submissions of the contesting parties are summarised as follows: 3. Under a Deed of Settlement executed by Mr.Rajah D.K.Varma on 11.06.1956 Registered as Document No.688 of 1956 in the Office of the Sub Registrar, Mylapore, Chennai, the petitioner's sister, late Mrs.Rangamma Gayathri Devi became the absolute owner of the property in Door No.4-B Cenotaph Road, Adyar, and situated in R.S.No.3847, Mylapore Registration Sub-District and Registration District of Madras–Chengalpet. Petitioner's late sister had obtained Patta on 05.03.1965 relating to the above property for 17 grounds 1264 Sq. Ft in R.S.3847/1 and she was the owner of the property. She died on 22.04.2000. The petitioners, who are sisters and brother are the beneficiaries of her will and the same was probated by this Court in O.P.No.175 of 2001. 4. When the Principal Act, viz., Tamil Nadu Urban Land (Ceiling and Regulation) Act (Tamil Nadu Act 24/78), was in force many urban land owners applied for exemption and obtained it. The Petitioner's late sister also applied for exemption and the same was dismissed by the Commissioner in his Letter D.Dis.32639/81, dated 25.9.1982. Aggrieved by the same, she filed W.P.No.10810 of 1982 before this Court and an order of interim stay was granted. Reposing faith in Government's objectives, as set out in the Preamble to the Principal Act, the petitioner's sister submitted an Appeal Petition, dated 19.09.1986, under Section 33 of the Principal Act to the Special Commissioner for Urban Land Reforms, Chennai, surrendering 641 sq.mts in the rear side, as shown in the sketch https://hcservices.ecourts.gov.in/hcservices/ referred to, by the second respondent, in R.S. No.3847/96, Block 76, in his order, dated 14.11.86. This petition came up for hearing on 07.11.1986 before the Special Commissioner and Commissioner for Land Reforms, Chepauk, Chennai, second respondent herein, who accepted her offer and passed an Order No.D.Dis.33122/86, dated 14.11.1986, subject to usage of passage being allowed. When this order was issued, it was within the purview of the Principal Act, when it was in force. Therefore, the second respondent herein had a mandatory obligation to take actual physical possession of the land, in accordance with Section 24 of the Principal Act and the rules framed thereunder, to meet the objective of the construction, as set out in the Preamble. 5. The petitioner's sister, late Rangamma Gayathri Devi, on her part kept her word and more than that, by a Deed of Gift dated 09.02.1988 and a Rectification Deed dated 13.05.1988(Registered as Documents No. 168 and 527 of 1988 respectively), gifted to the Corporation of Madras, a total of 853.5 Sq.m. of land for the use of passage. She also paid Rs.47,544/- to the Corporation of Madras as fees. However the second respondent did not ensure compliance with his own order by taking actual physical possession of the land legally in accordance with the provisions of the Principal Act, its preamble and Rule 23.6 of The Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, when they were in force. 6. Compliance of the order, dated 14.11.1986, passed by the second respondent, should be mutual and not one sided in favour of the Government, which violated the provisions of the Principal Act, 1978 and the rules regarding acquisition and distribution whereas the petitioner's late sister had to surrender the 641 sq.mts of the land and comply with the second Respondent's order. 7. On the aspect of taking over possession and the competent authority, who has to take possession of excess land, learned counsel for the petitioners submitted that as per the Principal Act, the Collector was the designated Official for taking over possession of the land and hand it over to the allottee, according to the Rule 23 (6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules. The Collector neither took possession of the land nor did he hand it over to the allottee pursuant to the second respondent's order, dated 14.11.1986. 8. According to the learned counsel, possession said to have been taken was only a paper possession and not actual physical possession, during the lifetime of the Principal Act. Physical possession of the land in terms of Section 24 was never taken and therefore, the purported acquisition has lost its statutory sanction, when the Principal Act was repealed. The Principal Act and the Repeal Act, 1999 do not permit the Government to, hold on to the land indefinitely keeping it vacant, as happened in respect of the https://hcservices.ecourts.gov.in/hcservices/ petitioner's land. Upto Sections 12 of the Principal Act were intermediate stages, in implementation of the Principal Act and without implementing properly before it was repealed, the Government have abandoned its mandatory obligations, under the Principal Act and therefore, they cannot claim that paper possession of the land under the Sub-Section 11.5 and the Transfer Certificate issued by the SDT/RI on 29.04.1988 are final and irrevocable. The Transfer Certificate issued by the SDT/RII is null and void for the following reasons: "(a) It did not quote the authority under which it was issued. It did not even refer to the Section 11.5 of the Principal Act. (b) It was issued by the unauthorised officials. The Principal Act' was repealed entirely including the Transfer Certificate issued and the entry in the Land Register, by Section 2 of the Repeal Act 1999. (c) It was a possession on paper (book transfer), whereas, the Preamble and Section 24 of the Principal Act stipulate actual physical possession, by the allottee for construction of any building on the acquired land. The State Government or any person authorised by the State Government in this behalf or Competent Authority never took such actual physical possession. (d) The-savings Clause 3.1 of the Repeal Act does not save the land Transfer Certificate and any entry in the land Register. Therefore, they are lapsed and became reversible on 16.06.1999 for restoration to the petitioners in terms of Section 3(2) of the Repeal Act 1999. 9. Since the taking over proceedings of the land were pending before the Collector, immediately before the commencement of the Repeal Act, 1999, they are also abated under Section 4. In view of the above, the land was never acquired by the State Government. Therefore, the action taken for acquiring the land by the Competent Authority pursuant to the second Respondent's order dated 14.11.86, by issue of notice under Sub-Section 11.5 of the Principal Act and the consequent issue of Transfer Certificate are null and void. Further, the transfer certificate issued pursuant to the second respondent's order, dated 14.11.86, became inoperative on 16.06.1999. Therefore, petitioner's late sister's surrender of the land which was not legally acquired stood withdrawn on that date. They are revocable for restoration of the land to the petitioners in terms of the sub-section 3.2 and section 4 of the Repeal Act, 1999 and therefore, the second Respondent's order dated 14.11.86 has become inoperative, insofar as, further proceedings regarding the https://hcservices.ecourts.gov.in/hcservices/ acquisition of the 641 sq.m land are concerned. 10. Section 2 of the Repeal Act 1999 repealed the entire Principal Act without saving any section, including paper possession under the Sub-section 11.5 held by the SDT/RI. The savings clause under Section 3(1) and 3(2) which do not refer to Sub-section 11.5, while mentioning possession taken over. This means that the Repeal Act does not recognise possession held by the SDT/RI purportedly, under the Sub-section 11.5 of the Principal Act, as possession taken over by the State Government or any person authorised by the State Government in this behalf or by Competent Authority, thus attracting the Sub-section 3.2 of the Repeal Act, 1999 for restoration to the petitioners. As lands were vacant on 16.06.1999, it can be restored to the urban land owners, the phrase, "possession not taken over" in Sub-section 3.2 of the Repeal Act, 1999 means, lands physically not taken over by the State Government or any person authorised by the State Government in this behalf or by Competent Authority before the Repeal Act came into force and lying vacant. 11. The interpretation of the expression, "possession not taken over" would cover only cases, where notice under the Sub-section 11.5 and its sequel transfer certificate were not issued to urban land owners by the Government. The provisions of the repealing Act would apply to all land owners whose lands have been declared as surplus. The question to be considered is whether actual physical possession has been taken over by the Government and it cannot be restricted to a narrow interpretation of issuance of mere notice under Section 11 (5) of the Act and the Transfer Certificate, which is only a paper possession. Therefore, possession of the land is not taken over by the State Government or person authorised by the State Government in this behalf or by Competent Authority and therefore, as per Section 3 (2) and Section 4 of the Repeal Act, 1999, the land owners can seek for restoration. 12. On the aspect of possession not taken over in accordance with law, the learned counsel has relied on many decisions, which are dealt with in the latter portion of this judgment. 13. Placing reliance on the order made in W.P.No.1616 of 2001, dated 06.06.2002 [Mr.C.V.Narasimhan Vs The Government of Tamil Nadu], learned counsel for the petitioners submitted that statutory vesting of the land in the Government on 5.11.82 after notification in the Gazette as mentioned in the second Respondent's order dated 14.11.86 does not affect the petitioners claim for restoration under the Sub- Section 3.2 of the Repeal Act 1999. 14. Learned counsel for the petitioners further submitted that the words "Restore" and "Refund" apply to urban land owners like the petitioner's late sister to whom or to their legal heirs and the lands lying vacant on 16.6.1999 can be restored, after refund of https://hcservices.ecourts.gov.in/hcservices/ compensation if any, paid. According to him, even assuming that the landowner had voluntarily submitted returns, the same cannot be treated as estoppel by conduct, as there cannot be estoppel against statute. 15. Elaborating the same, he submitted that as the land is still vacant, it is subject to restoration to petitioners in terms of the Section 3(2) and section 4 of the Repeal Act, 1999. The petitioners undertake to refund the amount of compensation paid to their late sister. Payment of full compensation is no bar for restoration, as it can be clearly seen from the wording of Section 3 (2) of the Repeal Act of 1999. According to him, acquisition proceedings that were never completed legally before the coming into force of the Repeal Act, stands abated on 16.06.1999, as per Section 4 of the Repeal Act, 1999. He also submitted that payment of entire compensation is sine qua non for taking over actual physical possession, and when payment of part of the compensation, ie., incomplete, possession cannot be said to have been taken over and in such circumstances, the land owner is entitled to seek for restoration. In this context, he referred to various decisions of this Court to that effect that the payment of compensation is not a bar for restoration of land, as per Section 3(2) of the Repeal Act. 16. Learned counsel for the petitioners further submitted that not only the Government contravened the provisions of the Principal Act and the Rules 23.6 for acquisition, but also contravened Section 24 of the Principal Act, in distribution of the land. As per the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, which stood prior to its repeal in the year 1999, the Government was empowered to acquire excess vacant land on the basis of the whole of the Principal Act, 1978 and not on the basis of Section 12 only. Upto Sections 12, the Principal Act deals with acquisition and distribution of land in terms of Section 24, to meet the objectives, set out in the preamble. The Government made a public commitment, that it was acquiring the petitioner's land for distribution strictly in terms of Section 24. However, the Government did not do so and failed to honour its commitment. The purpose for which the acquisition was made has not been honoured and therefore, it is submitted that the acquisition itself can be questioned by the petitioners. 17. According to the learned counsel for the petitioners, the Principal Act did not envisage the Government to indulge in profiteering by allotting it for any purpose, other than that stipulated in Section 24, which limited the allotment to industries or the employees of industries for residential purposes. However, the Government have wrongly implemented the Principal Act, by allotting the land in contravention of Section 24 of the Principal Act and therefore, the whole proceedings are ultra-vires of the Principal Act. https://hcservices.ecourts.gov.in/hcservices/ 18. Learned counsel for the petitioners further submitted that the allotment to the Tamil Nadu Adi Dravida Housing Development Corporation (TAHDCO), proved to be infructuous, as the Corporation has failed to comply with the terms of the allotment order and did not take actual physical possession of the land for construction of a building, during the lifetime of the Principal Act, as stipulated in the preamble and section 24 and the lands were left vacant. Therefore, as stated supra, the second respondent's order, dated 14.11.1986 became inoperative, since 16.06.1999, insofar as the acquisition of the 641 sq.m of land is concerned, since actual physical possession was not taken over as per the statutory provisions. 19. He further submitted that no fresh proceedings can be initiated for re-allotment, as the Government has no authority, as Section 24 of the Principal Act is not saved by the Repeal Act and the land was never acquired legally by the Government. The respondents are trying to take steps only from the third week of November' 2009 to show that they are in physical possession. However, Patta shows that the name of the petitioners' late sister, as owner of the above land. The entry in the land register on the basis of the transfer certificate issued by the unauthorised official SDT/RI on 29.4.88 became defunct on 16.06.1999. Therefore, the petitioners' claim for restoration of ownership of the 641 Sq.mts of land in R.S.3847/96 Block 76, Cenotaph Road Second Lane, Chennai-18 is legally defensible. 20. The official respondents and the fourth respondent have filed separate counter affidavits. The contentions are similar. 21. It is submitted that Tmt.Rangamma Gayatri Devi (hereinafter referred as Urban Land Owner) was residing at No.29, Sir C.V.Raman Road, Madras-600 018. As the land in question stood registered in her name, as per the Revenue Records, as on 03.08.1976, she filed a statement on 13.10.1978 under section 7(1) read with rule (4) in Form I of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) (hereinafter referred as the Principal Act) in respect of the property in R.S.No.3847/1 measuring 3907.8 Sq.Metres (17 Gr.1264 Sq.ft.) in Block No.76 of Mylapore Village and also filed an application dated 12.10.79 for exemption of land under Section 21 (1) (b) of the Principal Act. The Government granted exemption for 269.88 Sq.metres under section 21(1) (b) of the Principal Act, vide G.O.Ms.No.2576, dated 14.11.1980 and ordered to acquire the remaining part of land measuring 641 Sq.metres in R.S.No.3847/1. On receipt of the above Government orders, the 3rd respondent had computed the excess vacant land as follows: https://hcservices.ecourts.gov.in/hcservices/ 1.Total extent : 3907.8 Sq.mts 2.Plinth area of the building : 246.700 Sq.mts 3.Regulation area : 500.000 Sq.mts. 4.Contiguous vacant land for two dwelling units : 1000.000 Sq.mts. 6. Pathway : 250.000 Sq.mts 7. Entitlement area : 1000.000 Sq.mts 2996.700 Sq.mts Exemption granted u/s.21 (l)(b) of the Act for common road vide G.O.2576, dated 14.11.1980 269.881 Sq.mts Excess vacant land to be acquired 641 sq.mts. 22. The draft statement under section 9(1) along with notice under section 9(4) of the Principal Act was issued to the land owner by the Assistant Commissioner, Mylapore Urban Land Ceiling, Chennai, 3rd respondent, vide reference No.A2/SRA.327/78, dated 12.2.1981 calling for objections, if any, for the proposed acquisition of excess vacant land and that the same was served on 27.2.1981. Father of the Urban Land owner Thiru R.P. Rayaningar filed an objection petition on 24.3.1981 stating that the common passage of 519.881 Sq.metres had not taken into account and computation of excess vacant land is wrong. The objection raised was examined and observed that the common passage of 269.881 Sq.metres was already exempted by the Government under the provisions of the Principal Act vide G.O.Ms.No.2576, dt. 14.11.1980. Thereafter, the 3rd Respondent being the Competent Authority for Urban Land Ceiling, Mylapore passed Orders, under section 9(5) of the Principal Act, vide Proceedings S.R. A/327/78, dated 7.4.1981 to acquire the above excess vacant land. 23. Aggrieved by the partial exemption granted by the Government, the Urban Land owner, viz., Tmt. Rangamma Gayathri filed a Writ petition in W.P.No.2033/1981, challenging G.O.Ms.No.2576, Revenue, dated 14.11.1980 and it was dismissed by this Court on 10.4.1981. Then, final statement under section 11(1) of the Principal Act was issued on 4.7.1981, by the 3rd respondent and served on the land owner by Registered Post with Acknowledgement Due on 10.7.1981. https://hcservices.ecourts.gov.in/hcservices/ 24. The Urban Land Owner filed a petition under section 33 of the Principal Act on 3.7.1981 before the Special Commissioner and Commissioner of Land Reforms, Chennai, 2nd respondent stating that the 3rd respondent had failed to note that 519.881 Sq.mts. is covered by a road, while computing the excess vacant land. The copy of appeal petition was communicated to the Assistant Commissioner, Mylapore Urban Land Ceiling, Chennai, 3rd respondent on 13.8.1981 for a report. After examining the records, the Special Commissioner and Commissioner of Land Reforms, Chennai, 2nd respondent dismissed the appeal petition, vide Proceedings No. D.Dis.32639/81, dated 25.9.1982, since 250 Sq.mts had already been treated as pathway and the Government had already granted exemption for pathway of 269.881 Sq.fts under Section 21(1)(b) of the Principal Act, vide G.O.Ms.No.2576, dated 14.11.1980. Hence, the computation of excess vacant land by the Competent Authority was confirmed as correct. Thereafter, further action was pursued by the 3rd respondent to acquire excess of vacant of 641 sq.mts. under sections 9 to 11 of the Principal Act. 25. Thereafter, notification under section 11(1) of the Principal Act was published in the Tamil Nadu Government Gazette No. 4 Part VI Sec.I dated 3.2.1982. The notification under section '11(3) of the Principal Act vesting the land with Government was issued on 12.10.1982 and was published in Tamil Nadu Government Gazette No. 43 Dated 10.11.1982, in Part VI(l)/1224/82 (Page No.559). Then notice under section 11(5) of the Principal Act was issued on 27.11.1982. On receipt of the above notice, the Urban Land owner filed a Writ Petition in W.P.No.10810/82 before this Court and stay was granted on 28.12.1982. When the Writ petition was pending, the Urban Land owner filed an appeal petition under section 33 of the Principal Act before the 2nd respondent on 10.9.1986 stating that she was ready to' surrender' the same extent of excess vacant land in the rear portion of the land 'instead of front portion'. The offer made by the land to surrender the rear portion of the land was accepted. The above petition was allowed by the Special Commissioner and Commissioner of Land Reforms in proceedings No.33122/86 dated 14.11.1986, on condition that the urban land owner should withdraw the Writ Petition. 26. Subsequently, as per the proceedings of the third respondent, in his letter No.A2/SRA/327/78, dated 24.07.1987, an errata to the notifications under sections 11(1) and 11(3) of the Principal Act was also issued and published in the Tamil Nadu Government Gazette No.22 dated 10.6.1987 to read the acquired as R.S.No.3847/96, instead of R.S.No.3847/95. Notice under Section 11 (5) of the Principal Act was issued on 14.07.1987 to surrender the excess land, within 30 days and it was acknowledged by the land owner on 04.08.1987. Accordingly, the Writ petition was dismissed as https://hcservices.ecourts.gov.in/hcservices/ withdrawn, vide order of this Court, dated 18.4.1988 and the land owner surrendered the land on 29.04.1988. Possession of excess vacant land was taken over and handed over by the Special Deputy Tahsildar, Office of the 3rd respondent to the Revenue Inspector of Mylapore- Triplicane Taluk on 29.4.1988. The Urban Land owner had also signed the Land Delivery Receipt. 27. After taking over possession, notice under section 12(1) of the Principal Act was issued on 31.08.1988 and served on the land owner on 27.09.1988, regarding payment of land value under section 12 (6) of the Principal Act. The amount was claimed and paid to the Urban Land owner periodically. The amount sanctioned under section 12 (6) of the Principal Act, was calculated at Rs.50/- per Sq. mt. and for 641 Sq.metres the total amount came to Rs.32,050/- and paid as follows: Payment detail Amount Interest Total Disbursed on Initial payment (25% of amount 8012.5 -- 8012.50 25.04.89 1st Instalment 1602.50 166.75 1769.25 25.04.89 2nd Instalment 1602.50 134.60 1737.10 25.04.89 3rd Instalment 1602.50 125.00 1727.50 25.04.89 4th Instalment 1602.50 115.40 1717.90 25.04.89 5th Instalment 1602.50 105.40 1707.65 25.04.89 6th Instalment 1602.50 95.60 1698.10 25.04.89 Difference amount of interest 6394/- 10.11.1989 10357.50 7th Instalment 1602.50 865.35 2467.85 or 2468 04.05.90 https://hcservices.ecourts.gov.in/hcservices/ Payment detail Amount Interest Total Disbursed on 8th Instalment 1602.50 769.20 2371.70 or 2372 12.05.91 9th Instalment 1602.50 673.05 2275.55 or 2276 24.09.92 10th Instalment 1602.50 576.90 2179.40 or 2179 18.01.94 11th Instalment 1602.50 480.75 2083.25 or 2083 07.02.94 12th Instalment 1602.50 384.60 1987.10 or 1987 27.05.95 13th Instalment 1602.50 384.60 1987.10 or 1987 01.02.96 14th Instalment 1602.50 35.80 1638.30 or 1638 31.03.97 15th Instalment 1602.50 96.00 1698.50 or 1699 Kept in R.D., on 29.11.04 28. The excess vacant land of 641 Sq.metres in R.S. No.3847/96 was acquired and handed over possession to the Revenue Department on 29.4.88 itself. The land value for taken over by Government was .also paid in instalments and almost completed. The Urban Land Owner received 25% and the 14 Annual instalments. The last and the final 15th instalment of land value was