STATE OF TAMIL NADU & ORS. versus M. S. VISWANATHAN & ORS. on 20 September 2021

STATE OF TAMIL NADU & ORS.

v.

M. S. VISWANATHAN & ORS.

(Civil Appeal No. 5881 of 2010)

SEPTEMBER 20, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978– Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act,1999 – s.3 – The land owner, mother of the respondents, was requiredto surrender the excess land of 6750 sq. mts. under the 1978 Act –A notice was served to her regarding the same u/s.9(4) of the 1978Act – Thereafter, notifications were issued u/s.11(1) and s.11(3) ofthe 1978 Act and she was directed to surrender or deliver the vacantpossession of the excess land – In compliance, she surrenderedland vide letter dated 11.11.1980 and the compensation payable toher was determined and paid – The Government first allotted thesaid excess land of 6750 sq. mts. to the Madras Snake Park Trust,however, the said allotment was cancelled and the excess land wasre-allotted to the forest department – In the meantime, the 1978 Actwas repealed through the Tamil Nadu Urban Land (Ceiling andRegulation) Repeal Act, 1999 – The land owner died in 1998 –After five years of the said repeal, the respondents-owners filedwrit petition before the High Court for declaration that the entireproceeding under the 1978 Act and process of allotment and re-allotment was void ab initio under the Repeal Act – The writ petitionwas allowed by the Single Judge of the High Court on the shortground that as per Inspection Reports of the competent authorityand the Assistant Commissioner, the acquired land was lying vacantenclosed by a compound wall – The intra-Court appeal wasdismissed by the Division Bench of the High Court – On appeal,held: Admittedly, by her own letter dated 11.11.1980, the land ownervoluntarily surrendered and delivered possession – The respondentscannot go beyond the contents of the letter dated 11.11.1980 – TheHigh Court did not look into the letter dated 11.11.1980 nor therecords of the Department were examined – Both the Single Judgeas well as the Division Bench proceeded on the premise that theland was lying vacant with a compound wall and that therefore, the

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Aclaim of the land owner to be in possession must be correct – Thepresumption was wrong – The existence of the compound wallenclosing the land that had already been sold by the land owner tothe Trust, and it is admitted by the land owner herself in her letterdated 11.11.1980 – Therefore, the High Court committed a graveerror in granting the benefit of s.3(2) of the Repeal Act to theBrespondents – Thus, the judgment of the Single Judge as well as theDivision Bench are set aside and the writ petition of the respondents-owners is dismissed.

Allowing C.A. No. 5885 of 2010 and closing C.A.No. 5881of 2010, the CourtC

HELD: 1. Section 3 of Tamil Nadu Urban Land (Ceilingand Regulation) Repeal Act, 1999 incorporates, in simple terms,two rules. They are: (i) the repeal of the principal Act will notaffect the vesting of any vacant land under Section 11(3), if thepossession thereof has been taken over either by the StateDGovernment or by any person duly authorised by the StateGovernment or by the competent authority; (ii) but if thepossession of a land which is deemed to have vested in the StateGovernment under Section 11(3), has not been taken over bythe Government or the competent authority, the same shall beErestored to the person in respect of whom the land was declaredsurplus, provided the amount paid by the State Governmenttowards compensation has been refunded to the StateGovernment. [Para 17][614-B-D]

2. In essence, “taking over possession” forms the lifeline ofFSection 3 of the Repeal Act and a person seeking the benefit ofthe Repeal Act for restoration of the land should plead and provethat possession was not taken over. However, in the instant case,admittedly by her own letter dated 11.11.1980, the land ownervoluntarily surrendered and delivered possession pursuant tothe notice under Section 11(5) of the Act dated 24.10.1980. TheGrespondents, who are the sons and daughters of the land owner,cannot go beyond the contents of the aforesaid letter dated11.11.1980, as she admittedly passed away on 26.10.1998, evenbefore the Repeal Act was enacted. From 11.11.1980 till her deathin 1998, the land owner never went back on the contents of theHsaid letter. [Paras 18, 19 and 20][614-E-H]

3. The respondents attempted to get over a categoricalstatement regarding surrender of possession made by the landowner herself in the first part of her letter dated 11.11.1980, byrelying upon the last few lines of the very same letter, which statedthat “I have left keys with the Secretary, Madras Snake ParkTrust for the purpose of safety...whenever required by you”. Itwas contended that a mere statement that the keys were leftwith the Trust may not tantamount to delivery of possession. Acareful reading of the last paragraph of the said letter would showthat the land owner had already sold to the Snake Park Trust, aland adjoining the surplus land, when both formed part of onelarge piece of land encompassed by a big compound wall with thegates. Therefore, she had left the keys with the Secretary of thesame Trust, to which the acquired land was also first allotted,after vesting took place in terms of Section 11(3). There was noindication in the last paragraph to retain control of possession.In fact, the first paragraph of the letter contains a categoricalstatement that the owner was surrendering and deliveringpossession. She was merely asking for payment of compensation.Therefore, this is not a case where there is any scope for wordplay. [Paras 21,22, 23 and 24][614-H; 615-A, H; 616-A-E]

4. Unfortunately, the High Court did not even look into theletter dated 11.11.1980 nor did the High Court examine therecords of the Department. Both the Single Judge as well as theDivision Bench proceeded on the premise that the land was lyingvacant with a compound wall and that therefore, the claim of theland owner to be in possession must be correct. There can hardlybe any such presumption. The existence of the compound wallenclosing even the land that had already been sold by the landowner to the Trust, is admitted by the land owner herself in herletter dated 11.11.1980. Therefore, the High Court committed agrave error in granting the benefit of Section 3(2) of the RepealAct to the respondents herein. [Para 26][617-A-C]

Gajanan Kamlya Patil v. Additional Collector AndCompetent Authority (ULC) And Others (2014) 12 SCC523 : [2014] 1 SCR 1032 – referred to.

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[2014] 1 SCR 1032referred toPara 22

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5881 of2010.BFrom the Judgment and Order dated 26.04.2006 of the High Court From the Judgment and Order dated 26.04.2006 of the High Courtof Judicature at Madras in W.A. M.P. No.937 of 2006 in ReviewApplication Sr. No.31171 of 2006 in W.A. No.2087 of 2005 dated26.10.2005.

WithCCivil Appeal No.5885 of 2010.

Sanjay Hegde, Sr. Adv., D. Kumanan, Sheikh Fakhruddin Kalia,Advs. for the Appellants.

R. Balasubramanian, Sr. Adv., S. Ramesh, R. Venkatraman,Kumar Dushyant Singh, Mukul Latter, Dharmendra Kumar Sinha,DMs. Subasri Jaganathan, E. C. Agrawala, Sameer Shah, Ms. MadhaviAgrawal, Ms. Prashi Tyagi, Satyam Agarwal, Advs. for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.E

1. The State of Tamil Nadu and the officials in the Department ofUrban Land Ceiling have come up with the above appeals challenging,(i) an order of the Division Bench of the Madras High Court dismissingan intra-court appeal; and (ii) the subsequent order of the Division Benchrefusing to condone the delay in seeking review of the original order.F

2. We have heard Mr. Sanjay R. Hegde, learned senior counselfor the appellant-State, Mr. E.C. Agrawala, learned counsel appearingfor the respondents and Capt. R. Balasubramanian, learned senior counselfor the party seeking intervention.

3. The Tamil Nadu Urban Land (Ceiling and Regulation) Act,G1978 (hereinafter referred to as the ‘Act’) came into force partly on28.03.1978 and was deemed to have come into force partly on 03.08.1976.One Smt. Nagarathinam Ammal wife of Sambanda Mudaliar, residingat No.29, Appu Mudali Street, Mylapore, Chennai-4, who owned twoparcels of land, one measuring 2428 sq.mts in survey No.279/2 andanother measuring 7810 sq.mts in Survey No.279/5 in KottivakkamH

Village, filed a return under Section 6(1) of the Act on 20.09.1976.Thereafter, she applied for exemption under Section 19 of the Act on26.02.1977 in respect of the excess vacant land, but the Governmentturned down the request vide letter dated 10.01.1978.

4. A draft statement under Section 9(1) of the Act was preparedby the 3[rd] appellant, indicating that the total extent of vacant land owned/held by Nagarathinam Ammal was 10238 sq.mts and that after deductingthe ceiling area of 3500 sq.mts, she was required to surrender the excessvacant land of 6738 sq.mts. This draft statement under Section 9(1) wasserved on the owner along with a notice under Section 9(4) dated07.04.1979. The said notice under Section 9(4) was received byNagarathinam Ammal on 18.04.1979 and she filed a petition forreconsideration of the order of rejection regarding exemption on16.05.1979. But the said petition was rejected on 06.11.1979 and orderswere passed under Section 9(5) of the Act on 31.03.1980.

5. A final statement was issued under Section 10(1) of the Act on01.04.1980, followed by notifications under Section 11(1) dated 09.05.1980and Section 11(3) dated 03.10.1980. The notification under Section 11(1)was also published in the Tamil Nadu Government Gazette dated21.05.1980, and Nagarathinam Ammal was directed to surrender ordeliver vacant possession of excess land measuring 6750 sq.mts.

6. By a letter dated 11.11.1980 Nagarathinam Ammal intimatedthe 3[rd] appellant and the District Collector that she was surrendering theland and she requested for payment of compensation. Under a landdelivery receipt dated 18.02.1981, Nagarathinam Ammal also handedover the possession.

7. Thereafter, a notice dated 03.03.1981 under Section 12(7) wasissued to her, calling upon her to appear for an enquiry to show the shareof the compensation payable to her under Section 12. It appears that asper the scheme of the Act, the compensation was determined and paidto Nagarathinam Ammal in 15 instalments.

8. The Government then issued an order in G.O.MS. No.147Revenue dated 25.01.1982 allotting the excess vacant land of 6750 sq.mtsto the Madras Snake Park Trust (hereinafter referred to as the ‘Trust’),with a mandate that the Trust should develop a snake park on modernlines within two years. The Collector of Chengalpattu, was directed to A

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Ahandover physical possession to the trust and the Trust was called uponto pay a sum of Rs.2,90,000/-.

9. It appears that after several extentions of time to the Trust, theTrust surrendered the land back to the Government on the ground thatthey were unable to carry out the desired objective. Upon coming toBknow of the surrender of the land, the Principal Chief Conservator ofForests requested the Government by a letter dated 02.09.1998 to allotthe land to the Forest Department in view of the fact that the originalallottee, namely the Trust, was actually functioning already from a forestland and that therefore the land in question could be used by the forestDepartment for the establishment of an Urban Nursery Ecological andCAwareness Centre. Accordingly, the Government issued G.O.MS. No.297 Revenue dated 08.07.2002, cancelling the allotment made in favourof the Snake Park Trust and allotting the same to the forest Department.It was mentioned in the Government Order that the allotment of the landto the Forest Department was made along with the compound wallDenclosing the land.

10. In the meantime, the Act was repealed through the TamilNadu Urban Land (Ceiling and Regulation) Repeal Act, 1999(hereinafter referred to as the ‘Repeal Act’). It came into force on16.06.1999. Section 3 of the said Repeal Act contained a savings clauseEwhich reads as follows:- “3. Savings – (1) the repeal of the principal Act shall not affect- (a) the vesting of any vacant land under sub-section (3) of section10, possession of which has been taken over by the StateGovernment or any person duly authorised by the StateFGovernment in this behalf or by the competent authority; (b) the validity of any order granting exemption under sub-section(1) of section 20 or any action taken therunder, notwithstandingany judgment of any Court to the contrary;

(c) any payment made to the State Government as a condition forGgranting exemption under sub-section (1) of section 20.

(2) Where-

(a) any land is deemed to have vested in the State Governmentunder sub-section (3) of section 10 of the principal Act butpossession of which has not been taken over by the State H

STATE OF TAMIL NADU & ORS. v. M. S. VISWANATHAN &ORS. [V. RAMASUBRAMANIAN, J.]

Government or any person duly authorised by the StateGovernment in this behalf or by the competent authority; and (b) any amount has been paid by the State Government with respectto such land, then, such land shall not be restored unless the amountpaid, if any, has been refunded to the State Government”

11. After five years of the said repeal, the three sons and twodaughters of Nagarathinam Ammal joined together and filed a writ petitionin Writ Petition No. 39419 of 2004, seeking a declaration that the entireproceedings under the Act followed by the allotment in favour of theTrust and the re-allotment in favour of the Forest Department are voidab initio in view of the Repeal Act. It appears that the writ petition wasfiled in December, 2004.

12. The said writ petition was allowed by a learned Single Judgeof the High Court by an order dated 24.06.2005, on the short ground thatas per the Inspection Report of the competent authority dated 05.11.1996and the Inspection Report of the Assistant Commissioner dated20.01.2005, the acquired land was still lying vacant enclosed by acompound wall and that therefore the claim of the writ petitioners thatpossession was not taken over, must be taken to be true.

13. Challenging the order of the Ld. Single Judge, the appellantsherein filed an intra-court appeal in W.A.No.2087 of 2005. The saidappeal was dismissed by the Division Bench of the High Court by anorder dated 26.10.2005, again on the basis of the Inspection Report ofthe Assistant Commissioner dated 20.01.2005 to the effect that the landwas lying vacant and that therefore, finding recorded by the Ld. SingleJudge regarding possession must be taken to be correct.

14. The appellants filed an application for review along with apetition for condonation of the delay of 113 days in filing the reviewapplication. The Division Bench of the High Court, by its order dated26.04.2006 dismissed the application for condonation of delay, on theground that no sufficient cause was shown for the condonation of delay.

15. Challenging the refusal of the Division Bench of the HighCourt to condone the delay in filing the review petition, the appellantshave come up with Civil Appeal No.5881 of 2010. Challenging thesubstantial order passed in the intra-court appeal on 26.10.2005, theappellants have come up with the next appeal namely Civil AppealNo.5885 of 2010.

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A16. Since Civil Appeal No.5885 of 2010 challenges the originalorder passed in the intra-court appeal, the disposal of the same woulddecide the fate of Civil Appeal No.5881 of 2010. Therefore, we shalldeal with Civil Appeal No.5885 of 2010, first.

17. We have already extracted Section 3 of the Repeal Act.BSection 3 incorporates, in simple terms, two rules. They are: (i) the repealof the principal Act will not affect the vesting of any vacant land underSection 11(3), if the possession thereof has been taken over either bythe State Government or by any person duly authorised by the StateGovernment or by the competent authority; (ii) but if the possession of aland which is deemed to have vested in the State Government underCSection 11(3), has not been taken over by the Government or thecompetent authority, the same shall be restored to the person in respectof whom the land was declared surplus, provided the amount paid by theState Government towards compensation has been refunded to the StateGovernment.D18. In essence, “taking over possession” forms the lifeline ofSection 3 of the Repeal Act and a person seeking the benefit of theRepeal Act for restoration of the land should plead and prove thatpossession was not taken over.

19. It is true that the word ‘possession’ has been subjected toErepeated assaults by judicial pronouncements and courts have consideredseveral facets of possession such as actual possession, physicalpossession, paper possession, symbolic possession etc. But fortunatelythis case does not provide any room for display of any such semanticacrobatics. This is for the reason that admittedly by her own letter datedF11.11.1980, the land owner Nagarathinam Ammal voluntarily surrenderedand delivered possession pursuant to the notice under Section 11(5) ofthe Act dated 24.10.1980.

20. Today, the respondents, who are the sons and daughters ofNagarathinam Ammal, cannot go beyond the contents of the aforesaidGletter dated 11.11.1980, as she admittedly passed away on 26.10.1998,even before the Repeal Act was enacted. From 11.11.1980 till her deathin 1998, Nagarathinam Ammal never went back on the contents of thesaid letter.

21. However, a valiant attempt was made Mr. E.C.Agrawala,learned counsel for the respondents to get over a categorical statementH

regarding surrender of possession made by the land owner herself in thefirst part of her letter dated 11.11.1980, by relying upon the last few linesof the very same letter. Though we could have rejected the said contentionoutright on the ground that after the death of the author of the letter, herlegal heirs cannot seek to interpret it, we would still deal with thecontention. Before we do so, it may be useful to extract the said letter inentirety as follows:- “In pursuance of instructions of Assistant Commissioner,Urban Land (Ceiling and Regulations) Act 1978 contained in thenotice issued to me in form VII of the above Act regarding thesurrender and delivery of possession of the excess vacant landacquitted under sub section 3 of section 11 of the same act of1978. I surrender and deliver possession of Re-survey Nos.279/5B and 279/2B of 141 Kottivakkam of Saidapet taluk as concededby R.c. 3457/77 dated 24-10-1980 in the office of AssistantCommissioner, Urban Land Tax, Alandur.

Previously, I signed the subdivision statements in respectof these lands and soon after a notification (G.O. VI (1) 497/80,dated 9.5.80 was issued in Tamil Nadu gazette clarifying the detailsof Re-survey Nos. 279/5B and 279/2B. On the strength of theaforesaid, I sold Re-survey Nos.279/5A and 279/2A to the MadrasSnake Park Trust covered by the sale deed registered in the officeof Sub Registrar, Saidapet as document No. 1722 dated29-5-1980 after meticulously following the prescribed procedurein procuring the encumbrance certificates for the entire land inmy possession and also the income tax clearance certificate. Ihanded over the relevant records to the Secretary, Madras SnakePark Trust.

As I am pressed financially on account of domesticdifficulties, I make humble request to the competent authority tocomplete the acquisition and order payment of compensation basedon the prevailing market rate and rate fixed in the aforesaid saledeed to Madras Snake Park Trust on 29-5-1980.

Since the present acquired land of 30 grounds and the 15grounds of land sold by me to the Madras Snake Park Trustoriginally formed one piece of land encompassed by a bigcompound wall, with gates, I have left the keys with the Secretary, A

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AMadras Snake Park Trust for purpose of safety. Since my husbandis very sick and unable to move about. I am not in a position toleave my house frequently. The Madras snake Park Trust throughits Hon. Secretary have agreed to give the keys and show therelevant records whenever required by you.”

B22. Mr. Agrawala, learned counsel, sought to contend that a merestatement that the keys were left with the Trust may not tantamount todelivery of possession. He places reliance upon the decision of this Courtin Gajanan Kamlya Patil vs. Additional Collector And CompetentAuthority (ULC) And Others[1]

C23. But we do not agree. A careful reading of the last paragraphof the above letter would show that the land owner had already sold tothe Snake Park Trust, a land adjoining the surplus land, when both formedpart of one large piece of land encompassed by a big compound wallwith the gates. Therefore, she had left the keys with the Secretary ofthe same Trust, to which the acquired land was also first allotted, afterDvesting took place in terms of Section 11(3). There was no indication inthe last paragraph to retain control of possession. Actually there couldnot have been one in the teeth of the first paragraph of the letter.

24. The first paragraph of the above letter contains a categoricalstatement that the owner was surrendering and delivering possession.EShe was merely asking for payment of compensation. Therefore, this isnot a case where there is any scope for word play.

25. The decision in Gajanan Kamlya Patil (supra) will not go tothe rescue of the respondents, as there was no voluntary surrenderingof possession in that case. As noticed from the facts of that case, theFRepeal Act came into force in the State of Maharashtra on 01.12.2007.A notice for taking possession had been issued on 17.02.2005. The noticeitself was challenged after the Repeat Act came into force. It was soughtto be contended by the Government of Maharashtra that there was apossession receipt. But it was dated subsequent to the repeal. InGparagraph 11 of the judgment in Gajanan Kamlya Patil (supra), thisCourt indicated that apart from the affidavits of the officials, no otherdocument was made available either to show that the land owner hadvoluntarily surrendered possession or to show that the officials had taken peaceful or forcible possession. Therefore, the said decision is of no useto the respondents.

26. Unfortunately, the High Court did not even look into the letterdated 11.11.1980 nor did the High Court examine the records of theDepartment. Both the Single Judge as well as the Division Benchproceeded on the premise that the land was lying vacant with a compoundwall and that therefore, the claim of the land owner to be in possessionmust be correct. There can hardly be any such presumption. Theexistence of the compound wall enclosing even the land that had alreadybeen sold by the land owner to the Trust, is admitted by the land ownerherself in her letter dated 11.11.1980. Therefore, the High Courtcommitted a grave error in granting the benefit of Section 3(2) of theRepeal Act to the respondents herein.

27. There is one more reason why the respondents are not entitledto pursue their claim for restoration of possession under the Repeal Act.According to the respondents themselves, as seen from their pleading inI.A.No.1 of 2008 in C.A.No.5881 of 2010, they executed a GeneralPower of Attorney on 14.02.2005 in favour of one S. Sundararaman.The said S. Sundararaman, has come up with an application forimpleadment in I.A.No.3 of 2009 in C.A.No.5885 of 2010 claiming thathe is a property developer and that he had entered into an unregisteredagreement of sale on 14.02.2005 with the respondents. The saidSundararaman, has also claimed that he had paid the entire saleconsideration of Rs.75,00,000/- (Seventy Five Lakhs Only), on two datesnamely 01.02.2006 and 10.02.2006.

28. It must be remembered that the writ petition seeking the benefitof the Repeal Act was filed in December 2004 and the learned SingleJudge allowed the writ petition by an order dated 25.06.2005. It meansthat the respondents created a Power of Attorney and the saidSundararaman claimed to have entered into an agreement for thepurchase of the land, after the filing of the writ petition but before thewrit petition was allowed. These facts were not brought to the notice ofthe High court.

29. Interestingly, the land owners claim in their I.A.No.1 of 2008in C.A.No.5881 of 2010 that Sundararaman had also mortgaged theproperty under a registered deed for a consideration of Rs. 5 crores.The land owners now claim that they came to know about the mortgage A

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Aonly after the disposal of the review petition and that therefore, theycancelled the Power of Attorney by a deed of revocation dated11/12.6.2007. Thereafter, the land owners claim to have executed a freshPower of Attorney on 11.02.2008 in favour of another realtor by nameNADI Realtors, followed by an agreement of sale dated 31.03.2008with them. All these events have led to civil, criminal and arbitrationBproceedings between the respondents and third parties, showing therebythat there is a concerted attempt by a group of realtors to grab the landalready vested with the Government. What the land owners and the 2third parties namely Sundararaman and NADI Realtors have actuallydone, is nothing but champerty and they are not entitled to any reliefCfrom the court.

30. The reason why we have taken pains to point out the abovedevelopments is that the land owners have actually parted with theirright to continue the litigation. The third parties are mere interlopers andthey have no right to question the proceedings under the Act.

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31. In view of the above, C.A.No.5885 of 2010 is allowed and thejudgment of the learned Single Judge as well as the Division Bench areset aside and the writ petition of the respondents-land owners is dismissed.

32. As a consequence, no orders are necessary in C.A.No.5881of 2010 and hence it is closed. All applications for impleadment areEdismissed and the other applications also stand closed.

Ankit Gyan

Appeal allowed.

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