This Writ Petition has been filed by the petitioner seeking a Writ of Certiorarified Mandamus or any other appropriate orders in the nature of a writ, calling for the records relating to the respondents dated 23.03.1987 and quash the same. Consequently, direct the third respondent to drop all the proceedings pursuant to the impugned order dated 23.03.1987.
2. It is an admitted fact that the land in S.F.No.142/2, 143/2 and 144/2 in UppiliPalayam Village, Coimbatore District was owned by one Govindaswami Naidu, after his death his wife Mrs. Manickammal and his other legal heirs inherited the same. According to the petitioner, the land in Survey No. S.F.142/2B an extent of 11003 Sq. meters, S.F.No.143/2, an extent of 9100 Sq. meters, and S.F.No.144/2A, an extent of 10,900 Sq. meters were declared as surplus and acquisition proceeding was ordered under Section 9(5) of the Tamil Nadu Urban Land Ceiling and Regulation Act 1978, herein after referred to as "the Act", by the then Assistant Commissioner, Coimbatore in his proceeding in S.R.No.44/86 A-4, dated 23.03.1987. According to the petitioner, as per Registered Partition Deed, dated 02.11.1978 in Document No.3491, Mrs. Manickammal's family had inherited the properties in S.F.No.142/2, 143/2 and 144/2 of Uppilipalayam Village and accordingly, the same were allotted to her son Sundararajan S/o. Govindaswami Naidu. Thereafter, Sundararajan executed a sale deed in favour of Manickammal for 0.70 cents and K. Sarangapani, 0.70 cents, J. Srinivasan 0.70 cents and they sold the same to the writ petitioner, by way of Registered Sale Deed on 05.05.1981. Thus, the writ petitioner herein became the absolute owner of the property on 05.05.1981 itself.
3. Mrs.P.Bagyalakshmi, learned counsel appearing for the petitioner submitted that the petitioner purchased the property in the year 1981 and having been possession an enjoyment of property after duly obtained permission of the local authorities and put up permanent superstructure. subsequently, when the petitioner approached the Tahsildar, Coimbatore (South) for getting charge of Patta, it was brought to the notice of the petitioner, that the land was subjected to land ceiling proceedings. According to the learned counsel appearing for the petitioner, the land ceiling proceeding was initiated under
Section 6 of the Act and was published only on 30.08.1989, nearly eight years after purchase of the land by the petitioner, hence, the same is not binding on the petitioners.
4. Per Contra, Mrs.C.K.Vishnupriya, learned Additional Government Pleader appearing for the respondents produced a file relating to the land ceiling proceeding. It is seen that in the first page, Form No. 1 of the First Schedule relating to the Tamil Nadu Urban Land (Ceiling and Regulation Rules 1976) Proceeding that the date has been specified as 30.09.1997. It is contended by the learned counsel for the petitioner that the petitioner is a bonafide purchaser, for valuable consideration and he purchased the property only by way of a Registered Sale Deed, dated 05.05.1981 and that the supporting documents would show that the petitioner is continuously in possession and enjoyment of the property, obtained layout approval plan, building permit and also constructed superstructure. It is also not in dispute that property tax was assessed by the authorities only in the name of the petitioner herein. However, the petitioner was not put on any notice about the land ceiling proceeding initiated by the respondents.
5. Mrs.P.Bagyalakshmi, learned counsel appearing for the petitioner drew the attention of this Court to
Section 11(5) and Sub-section (3) of the Tamil Nadu Urban (Land Ceiling and Regulation) Act, 1978, whereby the State Government is empowered and accordingly, the competent authority may, by issuing notice in writing, order any person who was in possession of the land to surrender or deliver possession thereof to the State Government, within thirty days of the service of the notice. However, no such notice was issued on the petitioner by any authority, as contemplated under the Act.
6. According to the learned Additional Government Pleader, notice was served on owner of property Manickammal, though she had sold the property on 05.05.1981.
7. The learned counsel appearing for the petitioner further submitted that the proceeding initiated against the property, that was purchased long back by the petitioner is not sustainable in law, based on the notice sent to the erstwhile owner of the property. In support of her contention, the learned counsel relied on the following decisions :
1. Smt. Angoori Devi vs. State of U.P & Ors., JT.2000 (Suppl.1) SC 295
2. Allind Metal Fabricators Pvt. Ltd., vs. the Secretary to Government, Revenue Department, 2002 (2) CTC 716
3. Gurunathan, V vs. The Assistant Commissioner of Urban Land Tax and Ceiling, 2007(3) CTC 362
4. V. Elumalai Naicker vs. the Government of Tamil Nadu and others, 2009 Writ L.R 451
5. Mrs.Ayesha Haque, vs. State of Tamil Nadu & others, others, 2003 Writ L.R, 193
6. A.Kaliammal and others vs. The Tahsildar, Salem & another, 2010 Writ L.R, 147
8.The Constitution Bench of the Hon'ble Apex Court in the decision, Smt. Angoori Devi Vs. State of U.P and Ors. reported in JT 2000 (Suppl.1) SC 295 held that, in view of the provisions containing in
Section 3 of the Repealing Act and the fact that the possession of the vacant land has not been taken over by the State Government, which is asserted by the counsel appearing for the appellants and is also apparent from the interim orders passed by this Court, the question for consideration, no longer survives and further, under
Section 4 of the Repealing Act must be held to have been abated. It is seen that the Civil Appeals has been referred to the Constitution Bench of the Hon'ble Apex Court and ultimately decided and the same is squarely applicable to the case on hand.
9. In Allind Metal Fabricators Pvt. Ltd., Vs. the Secretary to Government, Revenue Department reported in 2002(2) CTC 716, it has been held that the Tamil Nadu urban Land (Ceiling and Regulation) Act, 1978, has been repealed by the Repealing Act (Act 20 of 1999) and accordingly, all pending proceedings initiated, as per the earlier Act were declared as abated. The Hon'ble Supreme Court in said Civil Appeals reporting in JT 2000 (Supl.1) SC 295, (cited supra) by a Five Judge Constitution Bench has ruled that the proceedings of a land which had not been taken over prior to the Repeal Act by the authority, such possession could not be taken over in the eye of law and the proceeding initiated thereafter, in view of the repealed enactment would not be sustainable. It is seen that the petitioner had the benefit of an interim order protecting his possession.
10. In V. Gurunathan, rep. by Power of Attorney Agent Vs. The Assistant Commissioner of Urban Land Tax and Ceiling and others reported in 2007(3) CTC 362, this Court has held that acquisition proceeding initiated under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, as per the Repeal Act, 1999, if actual possession of the land was not taken over by the authority and compensation not paid, the proceeding initiated under 1978 Act ought to be construed as abated on coming into force of the Repeal Act, 1999 and in this regard, mere vesting of land in the Government is not sufficient.
11. In V. Elumalai Naicker Vs. The Government of Tamil Nadu, rep. by its Secretary, Revenue Department and others reported in 2009 Writ L.R. 451, this Court has held that since there was no handing over of land and nothing to show that actual physical possession of land was taken over by the respondents, held that the land acquisition proceeding is abated.
12. In A. Kaliammal and others Vs. The Thasildar, Salem and others reported in 2010 Writ L.R. 147, relying on various decisions of the Apex Court, this Court held that in view of the records produced before this Court do not indicate that the mandatory requirement under
Section 11(5) was followed to take actual physical possession of the land, which was declared as surplus, the alleged taken over of possession was not legally accepted. This Court, in this decision held that the Statutory notice under sub Section 2 of Section 7 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 to the actual owners of the land, could have been effected. Based on which, further notice could have been issued under
Section 9 (4) of the Act. In the instant case, it is clear that the petitioner herein had purchased the land on 05.05.1981 itself, as per his sale deed. Though the respondents have stated in the counter affidavit filed by them that the third respondent had taken over the possession of the excess vacant land on 31.05.1999, till date no notice was issued on the petitioner, who was the actual owner of the property, by virtue of the sale deed, dated 05.05.1981 and also in possession and enjoyment of the same.
13. In the light of the various decisions of the Hon'ble Apex Court and this Court, it is clear that taken over the actual possession of the land in a land ceiling proceeding is mandatory, apart from payment of compensation for the acquired land. In the instant case, it is not in dispute that no compensation was paid either to the petitioner, who is the actual owner of the land or his vendors. There is no legal relevancy in the arguments advanced on behalf of the respondents that the possession of the land was taken over on 31.05.1999, since no possession could be taken over from a wrong person, who was neither the owner, nor in possession of the land in question. According to the respondents, the possession was taken over from Manickammal on 31.05.1999, though she had sold the land on 05.05.1981, nearly eighteen years prior to the date of the alleged taking over possession of the land.
14. As contended by Mrs.P.Bagyalakshmi, learned counsel appearing for the petitioner, this Court is of the view that the plea of taken over the possession of the land from Manickammal, who sold the land long back could not be legally accepted. There is no suppoerting documents to show that the said Manickammal had locus standi to hand over the possession of the land on 31.05.1999, having sold it on 05.05.1981 and also for the alleged handing over of the land by her. On the aforesaid facts and circumstances, the alleged taken over possession of the land in question is non-est in the eye of law.
15. Mrs.C.K.Vishnu Priya, learned Additional Government Pleader appearing for the respondents submitted that on 31.05.1999, the respondents initiated proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation Rules 1976), for which Form No. I, Schedule I, allegedly signed by Manickammal was produced. However, the said plea cannot be legally accepted, even in respect of the genuineness of signature available in Form No.I, which could not be verified by this Court. There is no satisfactory explanation or justification on the part of the respondents for not publishing the land ceiling proceedings initiated in the year 1987 and for the non-issuance of legal notice to the petitioner, the actual owner of the land. According to the learned counsel appearing for the petitioner, the order passed by the Assistant Commissioner, Comibatore on 23.03.1987 in S.R.No.44/86 A-4 under
Section 9 (5) of the Tamil Nadu Urban Land Ceiling and Regulation Act, 1978 is not legally sustainable, as the writ petitioner had purchased the land, even in the year 1981. Admittedly, the petitioner was not put on notice, only the vendor, Manickammal, who had no right in the property after the sale was served with the notice and even the Gazette publication was effected only on 30.08.1989.
16. The petitioner herein became the owner of the property, by way of purchase of the property. Therefore it is clear that the authority, without verifying the ownership of the land, has issued an order only against Manickammal, the previous owner, but passed the impugned order against the writ petitioner. As discussed earlier, in this Judgment, the alleged taken over possession from the previous owner cannot be construed as possession taken over, as contemplated under the Act.
17. In the light of various decisions of the Hon'ble Supreme Court and this Court, it is very clear that in a proceeding under Tamil Nadu Urban Land Ceiling and Regulation Act, 1978, it is mandatory on the part of the authorities, respondents herein to establish that (1) there was proper taken over possession of the land, as contemplated under the Land Ceiling Act and (2) Payment or depositing the compensation payable to the land owner by the authorities. In spite of the fact that the petitioner had purchased the land from Manickammal and her son on 05.05.1981 under a registered sale deed, a copy of the sale deed was also produced by the petitioner with the original for verification by the court and the Additional Government Pleader. However, the Gazette publication was made only on 30.08.1989 against the petitioner, the owner of the land, long after the purchase of the land by the writ petitioner. Hence, the land ceiling proceedings initiated by the respondents against the erstwhile land owner, after the sale and implement the same against the petitioner is not legally sustainable, as it is also violation of principles of natural justice.
18. Mrs.P.Bagyalakshmi, learned counsel appearing for the petitioner brought to the notice of this Court that earlier the erstwhile owner of the land, Manickammal had filed a writ petition in W.P.No.14156 of 1989 and also got an interim injunction and subsequently, that petition was dismissed. Manickammal had included the land that had been sold in favour of the petitioner in the said writ petition. After the sale in favour of the petitioner, she had no locus standi to include the land, that was already sold by her along with her son. After filing of this writ petition, the petitioner herein has obtained interim stay of all further proceedings. It is also not in dispute that as per the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No.20 of 1999), legal proceedings initiated, as per Section4 of the said Act are abated.
Section 4 of the Act reads as follows :
"Abatement of legal proceedings :- 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"
19. In the instant case admittedly there was no valid legal notice to the owner of the land, as contemplated under
Section 11(5) of the Act. Since the notification was made only on 30.08.1989, the plea of the respondents that they had initiated proceedings in the year 1977 cannot be accepted. Similarly, the land had been sold on 05.05.1981 in favour of the petitioner herein. The respondent cannot raise a legal plea that the possession was taken over by the respondents on 31.05.1999 from Mrs.Manickammal, previous owner of the land. Admittedly, no compensation was given to the petitioner, who is the owner of the property, since 05.05.1981 and the alleged taken over the possession of the land in question is non-est in the eye of law.
20. There is no evidence on the side of the respondents to show that the land ceiling proceeding was initiated against the previous owner, as per the law, prior to the purchase of the land on 05.05.1981 by the petitioner. It is not in dispute that the petitioner herein is the owner and also in actual possession and enjoyment of the property. He has obtained permission, sanction of plan from local authority for putting up construction and after putting up construction, he is paying tax, as per the assessment made by concerned authority. It is not in dispute that the constructions were made by the writ petitioner, as owner of the land. Hence, it is not open to the respondents to justify the impugned action under the Land Ceiling Act, on the ground that the previous owner of the property was put on notice, as the land was sold in favour of the writ petitioner long back by Mrs.Manickammal and her son.
21. In Mrs.Ayesha Haque, vs. State of Tamil Nadu & others, reported in 2003 Writ L.R. 193, this Court has held as follows:
"9. A Perusal of the above quoted
Sections 3 and
4 (of Act 20 of 1999 which has re-plead the Tamil Nadu Urban Land Ceiling Regulations Act) makes it clear that the repeal shall not affect only the cases where the vesting of the land has taken place in favour of the Government under
Section 11(3) and possession having been taken by the State Government.
10. In this case, though orders have been passed, declaring the land as excess, there are two facts which would militate against the continued applicability of the Ceiling Act. Firstly, the possession remains with the petitioner and therefore no complete vesting has taken place in favour of the State Government. Secondly, as against the order passed by the third respondent, an appeal has been filed before the Principal commissioner, the second respondent herein, and therefore the proceedings declaring the excess land cannot be stated to have become final. Therefore, I am inclined to hold that
Section 3 of Act 20 of 1999 cannot apply and in terms of
Section 4, the proceedings have to be held as abated."
22. In this case also, it is clear that the possession remains with the petitioner, who is the subsequent purchase of the land. Though he purchased the land in the year 1981, the respondents had issued notice only subsequently to the previous owner and no possession was taken over from the writ petitioner, though he has been in possession and enjoyment of the property since 1981 and developed the same from getting sanction and permit from the concerned authorities. In the aforesaid circumstances, the decision cited by the learned Additional Government Pleader, reported in JT 12 (2009) 324 (referred to above) is not applicable to the facts and circumstances of this case.
23. In the decision Tamil Nadu Housing Board vs. A.Viswam (Dead) by LRs reported in AIR (SC) 1996 3377, the Hon'ble Apex Court has ruled regarding acceptable legal modes in taking over possession of any acquired land, accordingly, it is the mandate of the Land Acquisition Officer or any authorised officer, as per law has to take over possession in the presence of witnesses signed by the concerned parties. In the instant case, on the alleged date of taking possession on 31.05.1999, only the petitioner herein was the owner of the land and he had purchased the land under a registered sale deed, nearly about eighteen years, prior to the proceeding under challenge. There was no legally acceptable procedure followed for establishing the alleged taking over possession of the land. Therefore, the plea of taking over possession by the respondents from the previous owner, subsequent to the sale in favour of the petitioner and the non-payment or deposit of the compensation amount payable for the land and the violation of principles of natural justice, as the petitioner was not put on notice, certainly vitiate the proceedings of the respondents. Hence, the writ petition has to be allowed and the impugned order is liable to be quashed.
24. In the result, this writ petition is allowed and the proceeding initiated by the respondents against the writ petitioner is quashed. The third respondent is directed to issue patta in favour of the petitioner, within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs.
23.08.2010 Index : Yes Internet : Yes trp / tsvn S.TAMILVANAN, J.
trp / tsvn To
1.The Secretary, Revenue Department, 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 Authorized Officer, Urban Land Ceiling and Asst. Commissioner for Urband Land Tax, Coimbatore W.P. No. 34344 of 2005 23.08.2010