D.HARIPARANTHAMAN, J.
The writ petitioner purchased an extent of 2.8 acres of agricultural land in Survey Nos.8/1, 8/2, 8/3 in Pallikaranai Village, Saidapet Taluk during 1965. After the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as the Act) was enacted, the petitioner filed statement under
Section 7(1) of the Act furnishing details as to the lands held by him.
2.A draft statement was prepared by the competent authority, the third respondent herein, regarding the vacant land held by the petitioner in excess of ceiling limit and the same was served under
Section 9(4) of the Act. He was asked to make his objections within 30 days.
3.The petitioner sent an objection dated 18.03.1984. He pleaded that the lands are agricultural lands and therefore, those lands could not be acquired under the Act.
4.An order dated 31.08.1985 was issued under
Section 9(5) of the Act by the competent authority, the third respondent herein, considering the objections made to 9(1) draft statement.
5.Thereafter, the competent authority issued a final statement under
Section 10(1) of the Act and determined the surplus land as 8800 sq.mts. and the same was served on the petitioner.
6.The petitioner filed appeal under
Section 33 of the Act against the order under
Section 9(5) of the Act before the second respondent. The appeal was dismissed by the second respondent on 08.02.1987. The petitioner filed a writ petition in W.P.No.18370 of 1992 before this Court to quash the aforesaid order dated 08.02.1987 of the second respondent confirming the order dated 31.08.1985 of the third respondent. The writ petition was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal and was renumbered as T.R.P.No.311 of 1989. The Tribunal dismissed the T.R.P.No.311 of 1989 on 21.09.2000. This writ petition is against the said order of the Tribunal.
7.In the meantime, notification dated 21.03.1988 under Section 11(1) calling for claims from interested persons over the surplus land was issued in Tamil Nadu Government Gazette dated 06.04.1988 and also a notification under Section 11(3) vesting the surplus land with the Government was published in Tamil Nadu Government Gazette dated 11.05.1988. Thereafter, a notice dated 09.12.1988 under
Section 11(5) was served on him directing him to surrender possession.
8.The petitioner filed appeal before the second respondent against the said notice. The appeal was dismissed by an order dated 13.08.1989. However, the petitioner is in possession of the surplus land, according to petitioner.
9.We have heard the submissions made on either side. The learned Special Government Pleader produced the entire records for our perusal and we have perused the same.
10.The learned counsel for the petitioner argued that he did not hand over possession pursuant to the notice dated 09.12.1988 under Section 11(5) of the Act, which was served on him. On the other hand, he preferred an appeal against the said notice under Section 11(5) of the Act. He never handed over possession pursuant to the notice under Section 11(5) of the Act. Though his appeal against the notice under Section 11(5) of the Act was dismissed on 13.08.1989, no action was taken by the third respondent under
Section 11(6) of the Act to take possession of the excess land. Since the petitioner is in possession of the land, he is entitled to the benefit of
Section 4 of the Repealing Act 20 of 1999.
11.The learned counsel for the petitioner strenuously contended that the Act contemplates that if the persons in possession failed to deliver possession within 30 days of receipt of notice under Section 11(5), the Competent Authority has to take possession under Section 11(6) of the Act. The learned counsel has brought to our notice that the words "may for that purpose use such force as may be necessary" used in 11(6) indicates that to take actual possession, the Competent Authority is clothed with power under Section 11(6). In the absence of delivery of possession by land owner pursuant to notice under Section 11(5), the possession should have been taken through the manner suggested under Section 11(6). A symbolic possession in paper is not the possession that is contemplated under Sections 11(5) or 11(6) of the Act.
12.The learned counsel for the petitioner also brought to our notice the Land Delivery Receipt at page No.295 of the records. As per the Land Delivery Receipt, the land has to be delivered by the land owner and on such delivery, the land has to be taken over by the FIRKA Revenue Inspector, but, neither the petitioner nor the FIRKA Revenue Inspector signed at page No.295. On the other hand, the learned counsel for the petitioner pointed out that the Land Delivery Receipt dated 22.07.1989 at page No.341 of the records reveals that the competent authority signed at the place meant for land owner for handing over the land and the Revenue Inspector signed for taking over the land. The learned counsel for the petitioner also pointed out that this paper possession is not actual possession and the Tribunal committed error in accepting this possession is sufficient and holding that the petitioner is not entitled to the relief under
Section 4 of the Repealing Act 20 of 1999.
13.The learned counsel for the petitioner argued that when the appeal against the notice under Section 11(5) was pending, the taking over of possession would not arise. He further argued that when the appeal was dismissed on 13.08.1989, the take over of possession on papers was on 22.07.1989 and that therefore, the same should be ignored as illegal.
14.The learned counsel for the petitioner argued that there should be actual take over of possession and the take over of possession in record is not the physical possession of the surplus lands with the Government. If the land owner is not a party to the Land Delivery Receipt, the take over of possession should be established by getting signature from independent witnesses, preparing Panchanama, etc. But the records reveal that it is only possession in papers.
15.The learned counsel for the petitioner relied on the judgment of the Honourable Mrs.Justice Prabha Sridevan in W.P.No.19845 of 2006 dated 31.07.2006, wherein in paragraph No.13, the learned Judge held that mere recording of possession by the authorities will not amount to actually taking of possession. The learned Judge rejected the plea of taking of possession based on the similar Land Delivery Receipt produced in that case. In this context, the learned Judge recorded in paragraph No.8 that the Land Delivery Receipt does not show in whose presence, the possession was taken. The learned Judge also relied on a paragraph in the decision in W.P.No.35490 of 2004, which is as follows:
"When the respondent does not say that the petitioner had surrendered possession on it's own, then the respondent ought to have taken possession. Under Section 11(6) of the Principal Act, whenever a urban land owner fails to surrender possession as demanded under Section 11(5) of the Act, then the competent authority may take possession of the lands and may, for that purpose, use such force as may be necessary. Therefore, from the above two aspects namely, the urban land owner was directed to surrender possession and since he is not shown to have surrendered possession and the power of the Government to use such force as may be necessary in taking possession, clearly indicate that physical possession of the land must be taken by the competent authority. There is nothing on record to show that "on what day possession was taken; was any representative of the writ petitioner present; the name of the person who took possession the person from whom possession was taken; are there any contemporary record to show that possession was in fact taken at such a time and on such a date when possession was handed over to the Revenue Inspector, Pallikaranai; are there any record to show such handing over to the Revenue Inspector, Pallikaranai and the name of the officer, who received possession of the lands.....
In 2002 (2) L.W.764 (C.V.Narasimhan Vs. The Government of Tamil Nadu etc., and 2 others), while considering the impact of the Repealing Act, had held that where physical possession of such land continues to be with the owner, the statutory vesting under Section 11(3) of the Act is of no relevance at all".
16.The learned counsel for the petitioner further cited the decision dated 25.09.2006 of the Honourable Mr.Justice F.M.Ibrahim Kalifulla in W.P.Nos.33839 and 33911 of 2004, wherein the learned Judge followed his earlier decision dated 09.09.2004 in W.P.No.6641 of 1997 and the same is extracted here-under:
"11.In this context, it is worthwhile to refer to the decision of S.JAGADEESAN, J in the judgment reported in C.V.NARASIMHAN rep. by HIS POWER AGENT SMT. JAYALAKSHMI, No.12, BISHOP GARDEN, RAJA ANNAMALAIPURAM, CHENNAI 28 vs. 1. THE GOVERNMENT OF TAMIL NADU, rep. BY ITS SECRETARY, REVENUE DEPARTMENT, FORT ST.GEORGE, CHENNAI-9. 2. THE SPECIAL COMMISSIONER AND COMMISSIONER OF LAND REFORMS, CHEPAUK, CHENNAI-5. 3. THE COMPETENT AUTHORITY, URBAN LAND CEILING, ALANDUR (2002-2-L.W.-764), wherein the learned Judge has clearly stated that so long as the physical possession of the land continues to be with the owner, even the statutory vesting of the land will be of no consequence."
The learned Judge in paragraph No.7 of the same judgment dated 25.09.2006 has held as follows:
"7.To the same effect is the order of Justice R.Balasubramanian, dated 22.8.2006 passed in W.P.No.17416 of 2004, where the learned Judge, reiterating the possession that the possession means taking physical possession, had held, "Therefore, the sine qua non to keep the property declared as surplus under the provisions of the Act is that physical possession of the said property ought to have taken by the competent authority despite coming into force of the Repealing Act."
17.The learned counsel for the petitioner heavily relied on paragraph No.10 of the judgment dated 19.10.2006 of the Honourable Mr.Justice K.Chandru in W.P.No.29061 of 2003, which is as follows:
"This Court in its judgment reported in (2006) 2 M.L.J. 664 (SOSAMMA THAMPY Vs. THE ASSISTANT COMMISSIONER (ULT) - CUM - COMPETENT AUTHORITY (ULC), has analysed all the previous case laws and categorically held that physical possession is required and mandatory under the ULC Act and noting in the file that symbolic possession is taken cannot be accepted as taking of physical possession. This Court is in complete agreement with the ratio laid down in the aforesaid decision which also squarely applies to the facts and circumstances of the case."
18.The learned Special Government Pleader vehemently argued that the symbolic possession is sufficient when the actual take over of possession is not contemplated under the Act. He further argued that subdivision of surplus lands were made by the Revenue authorities. Therefore, that would also established the taking over of the possession by the department.
19.We are not in agreement with the submission made by the learned Special Government Pleader in view of the catena of decisions cited by the learned counsel for the petitioner referred to above. If the physical possession of the lands with the petitioner is not seriously disputed, the paper possession and further subdivision in paper of the excess land would not suffice to sustain the order of the Tribunal.
20.The learned counsel for the petitioner also relied on the judgment of the constitutional Bench of the Honourable Apex Court in Smt.Angoori Devi Vs. State of Uttar Pradesh and others reported in JT 2000 (Suppl.1) SC 295 wherein it is held that all the proceedings under the Act must be held to have abated if the lands were not taken possession by the Government.
21.Since we have held that the paper possession is not the actual possession of lands that is contemplated under Sections 11(5) and 11(6) of the Act, we are inclined to set aside the order passed by the Tamil Nadu Land Reforms Special Appellate Tribunal. Accordingly, the order dated 21.09.2000 passed in T.R.P.No.311 of 1999 by the Tamil Nadu Land Reforms Special Appellate Tribunal is quashed and all the proceedings under the Act must be held to have abated in view of
Section 4 of the Repealing Act 20 of 1999. Accordingly, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
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P.K.MISRA, J.
I have gone through the draft judgment prepared meticulously by my learned brother Judge and I agree with the views expressed. However, I would like to highlight one point which was raised at the fag end of the hearing.
2. At the time of conclusion of the arguments, learned counsel for the State raised a technical objection that the Land Reforms Tribunal, whose order is being impugned in the present writ petitions, has not been impleaded as a party and, therefore, the writ petitions should be dismissed for non-joinder of necessary parties.
3. It is no doubt true that in Certiorari proceedings, the inferior Tribunal whose order is being impugned before this Court, is required to be made as a party. The basic principle in impleading the inferior Tribunal as a party is with a view to ensure production of records before the High Court. The inferior Tribunal, which is obviously discharging judicial function, is not impleaded as a party with a view to give any opportunity of hearing as it cannot be said that the Tribunal has got any interest in one way or the other. Since, in the present case, being called upon, the Counsel for the State has produced all the records including that of the Tribunal, non-impletion of the Tribunal as a formal party cannot be considered as a ground to dismiss the writ petition, particularly when no such objection was raised when the writ petition was filed and entertained or subsequently when the matter had remained pending in the High Court for a pretty long period. Since the objection of impleading of inferior Tribunal has been achieved and as a matter of fact learned counsel for the State has been heard at length, non-impletion is fatal in the present case.
dpk To
1.The Special Commissioner and Revenue Secretary to Government Government of Tamil Nadu Fort St. George, Chennai - 600 009.
2.The Special Commissioner and Commissioner of Land Reforms Chepauk, Chennai - 600 005.
3.The Assistant Commissioner / Competent Authority Urban Land Ceiling Alandur