WP/36437/2003 of Vs on 12 December 2003

ORDER

The writ petition has been filed by the petitioner toissue a writ of Certiorarified Mandamus, to call for the entirerecords pertaining to the issue of the impugned order of the 2[nd]respondent, in R.C.No.C.5424/88 dt. 23.10.2003 served on thepetitioner on 07.01.2004 and quash the same as illegal,arbitrary, without jurisdiction and consequently forbearing therespondents 1 and 2 from in any manner interfering with thepetitioner's lawful possession of the lands comprised inS.No.38/1, 41 and 42 etc., of an extent of 21 acres 50 cents, atAyanambakkam Village, Ambattur Taluk, Thiruvallur District.

2. The case of the petitioner is that the petitioner wasowning about 21.5 acres of agriculture lands comprised inS.Nos.38/1, 41 and 42, Ayanambakkam Village, used for brickworks. The lands are agricultural in nature and was used forbrick industry purpose. The subject lands do not fall under thepurview of the definition of urban land and the same is evidentfrom the revenue records. The petitioner was in continuous anduninterrupted possession of the subject lands for the pastseveral decades. The petitioner has also applied for exemptionon 30.09.1983 and 06.09.1989. The 3[rd]respondent withoutconsidering the case on merits rejected the application forexemption under Section 21 of Tamilnadu Urban Land Ceiling andRegulation Act, 1978. Aggrieved by the said rejection, thepetitioner filed W.P.No.13035 of 1991 and this Court. ThisCourt while entertaining the writ petition by its order dated24.12.1991 granted interim stay and restrained the respondentsfrom interfering with the lawful possession of the subjectlands. Thereafter, the said case was transferred to the SpecialTribunal, Santhome and the Tribunal by its order dated27.06.2000 dismissed the TRP 189/1999 in view of the repeal ofthe original Act by Repeal Act 20/1999 with effect from16.06.1999. However, till date the physical possession of thesubject land is with the petitioner and the said physicalpossession is confirmed from the date of Interim stay granted bythis Court to till date. The petitioner after the Repeal Actsold several pieces of land to various persons on various datesand as on date the petitioner is in possession of the remainingextent only. However, the impugned order is pertaining to 21acres and 50 cents and being the original owner and vendor, thepetitioner is obliged to protect their valid and legalpossession and rights. While being so, even after the RepealAct, the authorities proceeded the matter and passed an impugned

order under Section 12(6) of the Tamilnadu Urban Land (Ceilingand Regulation) Act 24 of 1978 and called upon the petitionerfor enquiry and for awarding of compensation, against which, thepresent writ petition came to be filed.

3. Mr.Balaji, the learned counsel appearing for thepetitioner would submit that though the Act was repealed on16.06.1999 by the Repeal Act 20 of 1999, in several cases therights of the innocent land owners were protected. Further, theState Government also passed a G.O.Ms.No.111 dated 03.03.2007,protecting the innocent land owners. Even thereafter therespondent proceeded with the matter and awarded compensation,which is unsustainable.

4. The learned counsel for the petitioner would furthersubmit that in respect of taking possession under Section 11(5)and 11(6) is not followed in the present case. Wherever therespondent intend to take possession under Section 11(5), theyhave to issue notice to the petitioner through R.P.A.D. Afterreceipt of the notice, when the petitioner voluntarilysurrenders the possession then the authority can take possessionunder Section 11(5) of the Act. If the petitioner fails tosurrender the possession, the authority is entitled to takepossession forcibly by invoking 11(6) of the Repeal Act. Thesaid procedure was not followed, which is a clear violation ofRule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation)Rules, 1978. The very same issue has been dealt by the DivisionBench of this Court that when the physical possession is nottaken from the land owner and procedure contemplated underSection 11(5) and 11(6) not followed, the Repeal Act will applyand the proceedings taken earlier will stand abated andaccordingly dismissed the appeal preferred by the State. Thelearned counsel relied upon the decision of this court held inW.P.No.22045 of 2007 (Sarasammal V. The State of Tamil Nadu,rep. by Secretary to Government, Revenue Department andanother). The relevant portion is extracted hereunder:

“Since in all these writ appeals, which are 27in number, a common question of interpretation of therelevant provisions of the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978 and the Tamil NaduUrban Land (Ceiling and Regulation) Repeal Act 20 of1999 has to be answered, they have been heard togetherand answered by this common judgment. All theseappeals arose out of separate judgments delivered bylearned single Judge in various writ petitions filed byaggrieved land owners. Almost all the writ petitionshave been allowed mainly on the ground that physicalpossession of the lands continued with the land ownersor the persons claiming through them. The factualdetails of each case have been discussed in the latter part of this judgment.

33. The phrases shall be deemed to have beenacquired and shall be deemed to have been vestedabsolutely in the State Government occuring in Section11(3) of the Act, in our considered opinion, mean thatthe right, title and interest in respect of the landshall be deemed to have been vested in the StateGovernment and not possession of the land. After theright, title and invested is vested in the StateGovernment by notification under Section 11(3), theState Government has to take further action for takingpossession of the land, if the land owner or any personin possession refuses or fails to surrender or deliverpossession of the land so vested in the Government.

34. There are cases where after notice underSection 11(5) of the Act, the land owner deliverspossession of the land and acknowledges the same inwriting and the State, after taking possession of theland so delivered voluntarily by the land owner, eithercomes into possession of the same or allots those landsto other persons, then in such cases, even thereafter,if the land owner or any person claims to be inpossession of those lands, then we have no hesitationin holding that continuance of such possession evenafter surrendering or delivering the land to the Stateis illegal possession and they shall be treated asencroachers.

35. However, there are cases where although thecompetent authority issued the notice under Section 11(5) of the Act to the land owners or persons inpossession to surrender or deliver possession of theland, but the land owner or the person in possessionfails to deliver the land and continues to be inpossession of such land and the authority of the Statedid not take action under Section 11(6) of the Act fortaking delivery of possession, then in such cases, theState Government shall not be deemed to be inpossession of those lands.

In this appeal, the initial of the land ownerwas wrongly mentioned in the notice and there was noattempt to serve either the petitioner, who was thereal owner of his authorised representative, and theservice was carried out on a third party. The recordsin this case reveal that the notice under Section 11(5)was served by way of affixture, for which there was no explanation. Moreover, there was no record to showthat there was actual delivery of possession aftertaking over the land by the respondents. In theabsence of adherence to the statutory procedure intaking over the land from the petitioner and in theabsence of proper service of notice, the proceedingsstood abated. The order of the learned single Judgeneeds no interference. The appeal is, therefore,dismissed.

5. The learned Additional Government Pleader would submitthat though the acquisition proceedings under Tamil Nadu UrbanLand (Ceiling and Regulation) Act, 1978 is initiated in the year1981, the petitioner did not dispute the initial notice inrespect of 7(2) and other proceedings. However, the petitioneris disputing the procedure for taking possession and further theG.O. Ms.No.111 dated 03.03.2007 issued by the Government is notapplicable in the present case. The G.O.Ms.No.111 applicableonly to the innocent purchasers who purchased the property fromthe original owner. The petitioner is the Original owner whoreceived the notice. After receiving the notice, the petitionerhimself should come before the authorities for surrendering thepossession. The respondents took possession on 21.05.1990through delivery receipts and handed over the excess land to theRevenue Inspector, Maduravoyil Firka. When the possession wastaken, the Repeal Act will not have any effect. Accordingly,prays for appropriate orders.

6. Records perused, which clearly indicates that the TamilNadu Urban Land (Ceiling and Regulation) Authority afterfollowing the procedures contemplated under act, issued anotification under Section 11(3) of the Act and allowed theauthority to take possession under Section 11(5) of the Act.Accordingly, the authority issued notice through R.P.A.D. to oneP.Vajravel, the Proprietor of Kumaran Bricks Works. The saidnotice was issued on 11.01.1984 and the same was sent throughR.P.A.D. dated Nil. Further, the said notice was served on19.01.1984. The acknowledgement card is available in the file,which reveals that the notice was received by one unknown personwhose initial is G and the name starts with A and further nodetails of the person is given to whom the notice was served.Hence, this Court arrives to a conclusion that Rule 8 is notfollowed in the present case.

7. Hence, it is clear the official respondents have notfollowed the procedure contemplated under the Act when 11(5)notice was issued and possession is also not taken as per the procedure contemplated under Section 11(5) of the Act and thesame is not a valid one. In the present case, though the recordsreveal that the possession was taken from the petitioner andhanded over to the Revenue Inspector on 21.05.1990, however, thefact remains that the possession of the petitioner was protectedby this Court right from the year 1991 to till date. Till nowthe physical possession is with the petitioner and further inthe counter, the respondent has admitted that the physicalpossession is with the petitioner however that the petitioner istreated as the encroacher, the relevant portion is extractedhereunder:

13. With regard to the averments made inparagraph 7 of the affidavit it is submitted thatpossession of the petitioner has to be treated only asan encroachment in a Government land. The excessvacant land was acquitted from the then proprietor andthe possession was handed over to the RevenueAuthorities on 21.05.1990 by signing land deliveryreceipts.

20. When regard to the averments made inparagraph-10 of the affidavit, it is submitted that theorders passed under section 12(6) of the said Act areas per the provisions of the said Act. The possessionof the excess vacant land acquired was handed over tothe Revenue Authorities on 21.05.1990. The Repeal Actshall not apply to this case as per section 3(1) (a) ofthe Repeal Act.

8. The above averments in the counter affidavit makes itclear that the physical possession is with the petitioner andthe same has not been taken by the respondents in the mannerknown to law by following 11(6) of the Act. So in view of theabove, the entire Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978 procedure stands abated and the petitioneris entitled to succeed by virtue of Repeal Act 20 of 1999.

9. The writ petition stands allowed accordingly. Nocosts. Consequently, connected miscellaneous petitions areclosed.

Sd/-

Assistant Registrar (CS-V)

//True Copy//

Sub Assistant Registrar

kas

To

1. State of Tamilnadu, rep.by its Secretary to GovernmentRevenue DepartmentChennai-9

2. The Competent AuthorityUrban Land Ceiling and Asst.Commissioner of Urban Land TaxPoonamallee, chennai-56

3. The Special Commissionerand Commissioner for landReforms, Chepauk, Chennai-5

4. The District CollectorThiruvallur DistrictThiruvallur SVI(CO)GN(24/07/2019)

W.P.No.36437 of 2003andW.P.M.P.Nos.43753 of 2004& 10658 of 2019