The writ petition is filed for direction against the respondents 1 to 3 to restore legal possession of the property in Survey No.187/1A1B in Pammal village, covered under G.O.Ms.No.58 (Revenue) dated 8.1.1982 and the proceedings of the Assistant Commissioner (ULT), Tambaram dated 26.4.1983 issued under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, to the petitioners.
2. Late M.Ahmed Basha was the absolute owner of the land to an extent of 2.01 acres comprised in survey No.187/1A1, having purchased under sale deeds dated 29.4.1974 and 7.4.1976 and obtained patta in his name and he had been in possession till his death on 18.5.1996 and after his death, the first petitioner being his wife and all other petitioners as children stated to be in possession and enjoyment of the land, now reclassified as survey Nos.182/1A1B.
2(a). It was in 2005, when the petitioners approached the Tahsildar for mutation of records, they were informed that certain proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, had been initiated in respect of the property. On enquiry, it was revealed that proceedings were initiated to acquire the land of an extent of 4896 sq.mts. under the said Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, which appeared to have been objected to by late M.Ahmed Basha and when the objection was overruled, an appeal was filed before the Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai. It is stated that when the said appeal was pending, an order was passed allotting the said land to M/s.Arvind Leather Exports (Private) Limited, which has been impleaded as 4th respondent, on 2.6.1995.
2(b). W.P.No.10563 of 1995 was filed challenging the said allotment, in which there was an order of interim stay of the said allotment. However, the appellate authority in the appeal filed by M.Ahmed Basha did not pass any order on the basis of pendency of the said writ petition. After the death of M.Ahmed Basha on 18.5.1996, the writ petition was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai and re-numbered as TRP No.383 of 1999 and on the advent of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, the said petition came to be closed as abated.
2(c). It is the case of the petitioners that possession of the said land is still with them and they have never been paid any compensation. In the meantime, it appears that the impleaded 4th respondent is said to have executed various documents to third parties, about which certain criminal as well as civil proceedings are pending. It is stated that late M.Ahmed Basha, husband of 1st petitioner and father of other petitioners had been paying the urban land tax as well as the property tax and subsequently, the petitioners are paying all the taxes. Under the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, (Act 20 of 1999), the lands in respect of which proceedings were initiated under the Land Ceiling Act are deemed to have been vested with the Government and if compensation has been paid to the owners, the same has to be returned to the Government.
2(d). According to the petitioners, no physical possession of the property was ever taken from them or from late M.Ahmed Bhasa or no compensation has been paid in respect of the land and therefore, the property does not vest with the Government. Inspite of explaining the same to the third respondent, the Tahsildar has refused to mutate the revenue records by incorporating the petitioners' names as owners. According to the petitioners, inasmuch as physical possession is with them, it cannot be allotted to any third party. The writ petition in W.P.No.23732 of 2005 for declaration in respect of the property was filed and the same was dismissed as withdrawn with liberty to file a fresh writ petition. Accordingly, the present writ petition is filed on the basis that the respondents have statutory obligation to restore legal possession of the property under section 3(2)(a) of the Repeal Act 20 of 1999. In these circumstances, the present writ petition is filed for the relief as stated above.
3. In the counter affidavit filed by the first respondent on behalf of respondents 1 to 3 it is stated that late M.Ahmed Basha, filed his return under section 6(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978 (in short, "the Act") stating that in Pammal village in survey No.187/1, he owns 8500 sq.mts. of land and the exemption application filed by him was rejected. It was, in those circumstances, proceedings under sections 9(4) and 9(1) of the Act was initiated proposing to acquire the excess vacant land to the extent of 4896 sq.mts. and draft statement was served on 9.10.1982. In the objection dated 9.11.1982, late M.Ahmed Basha has stated that he shifted his industry to Vaniampadi and leased out the factory at Pammal to the 4th respondent for a period of 5 years and he intended to re-shift the industry from Vaniampadi to Madras. However, the objection was overruled and the authority under the Urban Land Ceiling Act declared that an extent of 4896 sq. mts. of land as excess vacant land, under
section 9(5) of the said Act.
3(a). The said excess is in survey No.187/1A1B and final statement under
section 10(1) of the Act is stated to have been issued on 26.4.1983 and the same was sent to the petitioner, who received the same on 5.5.1983. It is stated that after following the procedures, notice under
section 11(5) of the Act was issued on 1.2.1990 and served on 9.2.1990. It is stated that the excess vacant land to the extent of 4896 sq.mts. was handed over to the Revenue Department. In the meantime, the 4th respondent applied for the excess land and hence, the excess land was allotted to the 4th respondent in G.O.Ms.No.489 Revenue Department, dated 2.6.1995. Challenging the said allotment, late M.Ahmed Basha filed W.P.No.10563 of 1995, in which there was a stay and subsequently, it was transferred to the Land Reforms Special Appellate Tribunal and later, it was closed on 24.7.2000 by virtue of repealing Act and also due to the death of M.Ahmed Basha.
3(b). 4. The petitioners filed W.P.Nos.27949 of 2005 and 28523 of 2005 and this Court granted interim injunction on 31.8.2005 and 6.9.2005. After possession was taken over on 23.8.1990, the same was allotted to the 4th respondent under G.O.Ms.No.489, dated 2.6.1995. The counter also admits about the exemption claimed by late M.Ahmed Basha and the subsequent writ petition filed by him.
3(c). It is also admitted that in respect of allotment stated to have been made to the 4th respondent, there has been an order of interim stay and subsequently, by virtue of repealing Act, the petition was closed. It is also the case of the said respondent that by the repealing Act the vesting as per
section 11(3) of the Act is not affected. According to the respondents, the vacant land was acquired and handed over on 23.8.1990 and therefore, the vesting has already taken place.
4. Mr.T.V.Ramanujun, learned senior counsel appearing for the petitioners would submit that by virtue of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, (Act 20 of 1999), the vesting is deemed to be completed only in respect of lands where physical possession has been taken by the Government. He would rely upon various judgments to contend that unless and until the actual physical possession has been taken over by the Government before the repeal Act came into existence, the owner who is in possession is entitled to continue to be the owner.
5. On the other hand, the learned Additional Government Pleader Mr.V.Viswanathan, would submit that as per records, physical possession was taken on 23.8.1990 and the repeal Act came into existence only in the year 1999. He has also produced the original file relating to the land ceiling proceedings.
6. On a perusal of the original file, it is seen that notice under section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulations) Act, 1978 was published in Gazette on 3.1.1990 stating that the excess land is deemed to have vested absolutely in the Government and notice under
section 11(5) of the Act was issued on 1.2.1990 which is stated to have been served on M.Ahmed Basha on 9.2.1990. Thereafter, a Transfer Charge Certificate was issued and the file contain the said certificate, which is as follows:
"Transfer Charge Certificate I, Thiru V.Kamalanathan, Deputy Tahsildar, Office of the Assistant Commissioner, Urban Land tax Tambaram, hereby certify that I have personally handed over to Alandur Firka Revenue Inspector, Taluk Office, Saidapet, the piece of land described as follows.
Certify that I have taken over symbolic possession on the day of .
District: Chengai Anna District.
Taluk: Saidapet Village: 129.Pammal Survey No.187/1A1B Extent:0.48.96 BOUNDARIES:
North by : S.No.187/1A1 A East by : S.No.187 1B,187/1A2 South by : S.No.187/2 West by : S.No.187/1A1A,186.
7. The said Transfer Charge Certificate is only an exchange of letters between the officials to the effect that symbolic possession of the land in dispute was taken on 23.8.1990. Other than this, there is no record to show that physical possession was taken from the owners of the land. The specific averment made by the petitioners that in respect of the said land declared as surplus and consequently, stated to have been acquired under the Tamil Nadu Urban Land (Ceiling and Regulations) Act, 1978, no compensation has been paid, has not been denied in the counter affidavit filed by the respondents 1 to 3. It is also not the case of said respondents that they have paid compensation in respect of the excess land.
8. Section 3 of the Repeal Act, 1999 (Tamil Nadu Act 20/99) states as follows:
"
Section 3.(1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-section (3) of
section 11, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-section (1) of
section 21 of any action taken thereunder.
(2) Where-
(a) any land is deemed to have vested in the State Government under sub-section (3) of
section 11 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and
(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
9. Further, under
section 4, any proceedings pending under the Land Ceiling Act before any Court or Tribunal stands abated and the said section is as follows:
"
Section 4. All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, tribunal or any authority shall abate:
Provided that this section shall not apply to the proceedings relating to
sections 12,13,14,15, 15-B and
16 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority."
10. It is not the case of the respondents that the petitioners or late M.Ahmed Basha had surrendered the possession. Under similar circumstances, in series of orders passed by this Court while dealing with the effect of provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, on the land acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, it was held that all proceedings initiated under the Act, 1978 would stand abated on the advent of Repeal Act, 1999, if possession has not been taken by the authorities prior to the Repeal Act and due compensation has not been paid. (vide: V.Gurunathan vs. The Assistant Commissioner of Urban Land Tax and Ceiling, Tambaram Area, Sannadhi Street, Adambakkam, Chennai 28 and others [2007 (3) CTC 362]; Anees Leathers Manufacturers, rep. By its Proprietor Mr.Anees Ahamed vs. The Government of Tamil Nadu rep. By its Secretary, Revenue Department, Fort St.George, Chennai and others (2006 (3) LW 437); Jayaseelan & Ratnaseelan vs. The Government of Tamil Nadu rep. By its Secretary, Revenue Department, Fort St.George, Chennai and others (2006 (3) LW 440); Sosamma Thampy vs. The Assistant Commissioner (ULT)-cum-Competent Authority (ULC) and others (2006 (2) MLJ 664); and Vijay Foundation (P) Ltd., rep. By its Director R.Thiagarajan vs. The Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai (2006 (5) CTC 52)]
11. Even under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, when excess lands are acquired, it was held that unless the procedures under
sections 7 to
12 are followed, it cannot be presumed that possession of lands have been taken and even if possession has been taken without following the procedures, the proceedings would stand abated. That was the view in Vijay Foundation (P) Ltd., rep. By its Director R.Thiagarajan vs. The Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai (2006 (5) CTC 52).
12. The Supreme Court in similar circumstances in Smt.Angroori Devi vs. State of U.P. And others [JT 2000 Supp. 1 (SC) 295] held that when it is proved that possession under the principal Act was not taken in accordance with law, the subsequent repealing Act would abate all proceedings under the old Act. I have held in S.Sivaparamam vs. The State of Tamil Nadu rep. By its Secretary, Revenue Department, Chennai [2007(6) MLJ 1279] that in the absence of anything on record to show that physical possession of lands has been taken over by the Government, it is not possible to hold that the vesting has taken place even before the repeal Act coming into effect. That is also the view taken subsequently in V.Gurunathan vs. The Assistant Commissioner of Urban Land Tax and Ceiling, Tambaram Area, Sannadhi Street, Adambakkam, Chennai 28 and others [2007(3) CTC 362] and T.Audikesavan and others vs. Government of Tamil Nadu rep. By its Secretary, Revenue Department, Chennai and others[2008 (3) MLJ 252].
13. Applying the said established judicial precedents to the facts of the present case which have been narrated above, on reference to the original file produced by the learned Additional Government Pleader, which shows that there is nothing on record that respondents 1 to 3 have taken physical possession of the property in dispute from its owners viz., the petitioners or late M.Ahmed Basha. Further, pending writ petition, injunction was granted and the same continues till date. In such circumstances, it has to be held that there is no vesting of alleged surplus land in favour of the Government under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 and therefore, there is no question of continuance of vesting under
section 11(3) of the Act, even after the Repeal Act,1999, came into existence. In such circumstances, the writ petition stands allowed.
14. In respect of the claim of the 4th respondent who is stated to have been a lessee inducted by late M.Ahmed Basha in the year 1977 and who is alleged to have been allotted the land by the Government, subsequent to the proceedings under the Urban Land Ceiling Act, admittedly, there has been an order of stay in respect of those proceedings and in the meantime, the Repeal Act,1999, came into existence and thereafter, the proceedings stood abated and hence, it is not possible to decide in this case as to whether the 4th respondent is entitled for possession or not. It is also stated across the bar that civil proceedings are pending between the petitioners and the 4th respondent in respect of title as well as possession and it is for the appropriate Court to decide the inter se dispute between the petitioners and the 4th respondent.
In such view of the matter and for the reasons stated above, the writ petition stands allowed with direction to the respondents 1 to 3 as prayed for. No costs. Connected miscellaneous petition is closed.
Index:Yes/NO Internet:Yes/No kh 23.07.2009. To 1. The Secretary State of Tamil Nadu Revenue Department Fort St.George, Chennai 600 009. 2. The Assistant Commissioner Urban Land Tax and Competent Authority Tambaram at Adambakkam. 3. The Tahsildar Tambaram. P.JYOTHIMANI,J. P.D.Order in W.P.No.27949 of 2005 Dated:23.07.2009