Madras High Court
K.Senthamarai Kannan vs The State Of Tamil Nadu on 16 December, 2021
W.P.No.28909 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P. No.28909 of 2018
and W.M.P.No.33777 of 2018
K.Senthamarai Kannan ... Petitioner
-Vs-
1. The State of Tamil Nadu,
Rep. by its Secretary,
Tamil Nadu Revenue Department,
Fort St. George,
Chennai – 600 009.
2. The Competent Authority,
(Urban Land Ceiling)
The Assistant Commissioner
of Urban Land Ceiling and Land Taxes,
Collectorate Compound,
Coimbatore – 641 018.
3. The Tahsildar,
Coimbatore South Taluk,
Gopalapuram,
Coimbatore – 641 018. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, to direct the respondents to
treat the land acquisition proceedings as abated and to restore the property in
R.S.No.196/3, thereafter re-numbered as 196/3A2 to an extent of 65 cents in
Sundakkamuthur Village, Coimbatore (South), Coimbatore, to the petitioner in
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W.P.No.28909 of 2018
accordance with the provisions of the Tamil Nadu Urban Land (Ceiling and
Regulation) Repeal Act, 1999 and to issue patta in respect of the same to the
petitioner.
For Petitioner : Ms.N.Kavitha Rameshwar
For Respondents : Mr.P.Baladhandayutham
Special Government Pleader
ORDER
This Writ Petition has been filed to direct the respondents to treat
the land acquisition proceedings as abated and to restore the property in
R.S.No.196/3, thereafter re-numbered as 196/3A2 to an extent of 65 cents in
Sundakkamuthur Village, Coimbatore (South), Coimbatore, to the petitioner in
accordance with the provisions of the Tamil Nadu Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (herein after referred to as “the Repeal Act”)
and to issue patta in respect of the same to the petitioner.
2. The case of the petitioner is that his father had purchased 14 acres
of land comprised in R.S.No.196/3, Sundakkamuthur Village, Coimbatore, in
the year 1963. After his demise, the legal heirs were partitioned the property,
after sold out some portion of the land. In pursuant to the partition between the
legal heirs, the petitioner was allotted with 1.74 acres of land, in which the
petitioner had sold out 54 cents and settled another 5 cents in favour of his
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W.P.No.28909 of 2018
elder brother. The remaining land to an extent of 70 cents is in possession and
enjoyment of the petitioner.
3. While being so, in the year 1989, the proceedings under the
provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978
(herein after referred to as “the Act”) were initiated in respect of the property
comprised in R.S.No.196/3, to an extent of 9141 sq.mts., owned by the
petitioner and his mother. In the said 9141 sq.mts., the petitioner's property is
only 2630.55 sq.mt., (65 cents). The petitioner and other land owners were
participated in the enquiry and raised primarily objection that the subject land
in question is agricultural land and it would not attract the provisions of the
Act. However, their objections were not considered and the land was notified
for acquisition under the provisions of the Act.
4. Thereafter, the notification dated 25.01.1991 was issued under
Section 11(3) of the Act, thereby notified that the lands were absolutely vested
with the Stated Government with effect from 12.07.1990. After publication of
the declaration under Section 11(3) of the Act, no steps were taken to take
physical possession of the land. The petitioner was never served with notice
under Section 11(5) of the Act and the physical possession have not been taken
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W.P.No.28909 of 2018
even till today and the petitioner is in possession and enjoyment of the
property and he is doing cultivation. Therefore, the petitioner filed the present
petition with the above said prayer.
5. The learned counsel appearing for the petitioner would submit that
the entire proceedings have been lapsed, since the physical possession have not
been taken over from the petitioner in respect of the subject property. As per
Section 3(2) of the Repeal Act, the entire proceedings have been lapsed. In
support of her contention, she relied upon the following reported judgments :-
(i) 2012 (6) MLJ 522 – M/s.Sree Jayalakshmi Brick Industries Vs. The
Special Commissioner & ors.
(ii) AIR 2013 SC 1793 – State of UP Vs. Hari Ram
(iii) 2014 (12) SCC 523 – Gajanan Kamlya Patil Vs. Addl. Collector
and Comp. Authority & ors.
(iv) W.A(MD).Nos.511 to 521 of 2019 dated 12.06.2019 – The
Assistant Commissioner Vs. G.D.Vaithiyalingam.
6. Per contra, the second respondent filed counter and stated that the
petitioner and his mother were the owners of the land comprised in
S.F.No.196/3 ad measuring 12141 sq.mts., situated at Sundakamuthur Village.
Since the urban land owners had failed to file return under Section 7(1) of the
Act, notice under Section 7(2) of the Act was issued by the second respondent
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W.P.No.28909 of 2018
and the same was served on them on 21.10.1989. On receipt of the same, the
urban land owners failed to file return and did not raise any objections.
Therefore, the notice under Section 9(4) of the Act, with statement under
Section 9(1) of the Act was issued to the urban land owners on 29.11.1989, for
the proposed acquisition of 9150 sq.mts. Thereafter, the notice under Section
9(5) of the Act and the final statement under Section 10(1) of the Act were
issued on 31.01.1990. On receipt of the same, the petitioner filed an appeal
under Section 33 of the Act, and the same was rejected by the Appellate
Authority by an order dated 11.12.1990.
7. Further, the notification under Section 11(1) of the Act was issued
on 09.05.1990 and the same was published in the Tamil Nadu Government
Gazette on 13.06.1990. Thereafter, the notification under Section 11(3) of the
Act, was issued on 25.01.1991 and the same was published in Tamil Nadu
Government Gazette on 13.03.1991, thereby vesting the land with the
Government. The notice under Section 11(5) of the Act was issued on
29.10.1998 to the urban land owners requesting to surrender the vacant
possession of the subject property within a period of 30 days. Since the urban
land owners failed to surrender their possession, the second respondent
initiated action under Section 11(6) of the Act and the possession has been
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W.P.No.28909 of 2018
taken over and the same was handed over to the Revenue Authorities on
19.03.1999. Thereafter, necessary changes were carried out in the revenue
records as “Government urban land ceiling lands” on 04.03.1999. Therefore,
after the period of 19 years from the date of take over the land, now the
petitioner filed this Writ Petition.
8. The learned Special Government Pleader appearing for the
respondents submitted that after completion of the acquisition proceedings
under the Act, the possession of the excess vacant lands were taken over and
handed over to the Revenue Authorities, well before the commencement of the
Repeal Act. Therefore, the acquisition proceeding has been saved under
Section 3(1)(a) of the Repeal Act. The petitioner raised disputable question of
fact, whether the physical possession of the land was taken or not. Such a
question of fact could not have been gone into and adjudicated before this
Court. To support of his contention, he also relied upon the judgment reported
in 2015 (5) SCC 321 in the case of State of Assam Vs. Bhasker Jyothi
Sarama & ors., in which the Hon'ble Supreme Court of India held as follows :-
15...... the question whether actual physical
possession was taken over remains a seriously disputed
question of fact which is not amenable to a satisfactory
determination by the High Court in proceedings under
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W.P.No.28909 of 2018
Article 226 of the Constitution no matter the High Court
may in its discretion in certain situations upon such
determination. Remand to the High Court to have a
finding on the question of dispossession, therefore, does
not appear to us to be a viable solution.”
Therefore, he prayed for dismissal of the present Writ Petition.
9. Heard Ms.N.Kavitha Rameshwar, learned counsel appearing for
the petitioner and Mr.P.Baladhandayutham, learned Special Government
Pleader appearing for the respondents.
10. The only point for consideration in this Writ Petition is that
whether the physical possession of the subject land has been taken from the
petitioner, so as to suspend the urban land ceiling proceeding as against the
petitioner.
11. On perusal of the original records produced by the second
respondent revealed that the urban land owners were issued notice under
Section 11(5) of the Act on 29.10.1998. The said notice was received by the
petitioner's mother in respect of her share alone. There is no record to show
that the petitioner was served with notice under Section 11(5) of the Act. That
apart, the physical possession of the subject land is still with the petitioner and
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W.P.No.28909 of 2018
the same had not taken over even till today. Even according to the second
respondent after issuance of notice under Section 11(5) of the Act, the urban
land owners failed to surrender the possession of the land. Therefore, they
initiated proceedings under Section 11(6) of the Act and taken physical
possession of the property and handed over to the Revenue authorities on
19.03.1999. There is absolutely no record to show that the respondents had
initiated action under Section 11(6) of the Act and took physical possession of
the subject land. It shows that they had done desk work and no physical
possession of the subject land was taken over.
12. It is also to be noted that there are two types of possession of the
property viz., symbolic and physical. While the former is a paper possession,
the latter is actual one. It is not in dispute that urban land ceiling proceedings
were initiated against the subject land. However, the main contention of the
petitioner is that he is continuously in possession and enjoyment of the subject
land and he has not dispossessed at any point of time from the property. If the
petitioner has not dispossessed physically and continuously enjoying the
subject property, the Repeal Act comes to rescue him to declare that the entire
urban land ceiling proceedings as abated. If actual possession was not taken,
the petition is entitled to get benefit under the Repeal Act.
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W.P.No.28909 of 2018
13. In this regard, it is relevant to rely upon the judgment reported in
2015 (1) CWC 388 in the case of The Government of Tamil Nadu Vs. Aalim
Muhammed Salegh Trust, as follows:-
“10. In our considered view, all the above
issues need not be gone into at this stage, as the
only relevant issue for consideration is as to
whether the land owner was dispossessed by the
appellants in pursuant to the impugned
proceedings or not. For such purpose, we have
perused the files. The files disclose that a notice
under Section 11(5) of the Act was issued on the
said Baskara Pillai on 28.12.1992, calling upon
him to surrender or deliver possession of the
subject matter lands. Further, the competent
authority addressed the District Collector of the
then Chengalpet-MGR District at Kancheepuram,
through proceedings dated 28.12.1992,
requesting that the Tahsildar, Saidapet may be
instructed to take possession of the lands from the
urban land owner. Similar proceedings were also
addressed to the Tahsildar of Saidapet on the
very same day. Thereafter, there is nothing in the
files to show that the land owner has either
voluntarily surrendered the possession or the
authorities have taken steps to take physical
possession of the lands forcibly as per the
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W.P.No.28909 of 2018
procedures contemplated under the Act. On the
other hand, only a Land Delivery Receipt, dated
24.2.1994 is available in the files, which shows
that the subject matter lands have been handed
over by the Revenue Inspector, Poonamallee and
taken over by Firka Revenue Inspector, Mori
Firka. The said Land Delivery Receipt does not
show anywhere that the said Baskara Pillai
delivered the possession of the lands on his own
or he was dispossessed forcibly, except showing
him as the owner. Therefore, it is evident from the
perusal of the files that only a symbolic or paper
possession was taken by the Revenue officials of
the appellants and factual and physical
possession was never taken from the hands of the
original owner or from the writ petitioner at any
point of time.
11. Whether symbolic or paper possession
is a valid possession to sustain the proceedings
initiated under the Act, has already come up for
consideration before this Bench in Writ Appeal
No.949 of 2013 and by judgment dated 3.9.2014,
we have observed in paragraphs 8 to 10 as
follows:
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W.P.No.28909 of 2018
"8. The issue as to whether taking over of
the land by symbolic possession can be construed
as possession taken and based on such act,
whether the authorities can claim right over the
land after the Repeal Act, has already been
considered and decided by the Hon'ble Supreme
Court in the case of State of U.P. vs., Hari Ram
reported in 2013-3-MLJ-408(SC) at para 38 and
39, which reads as follows:-
"38. Let us now examine the effect of
Section 3 of the Repeal Act 15 of 1999 on sub-
section (3) to Section 10 of the Act. The Repeal
Act 1999 has expressly repealed the Act 33 of
1976. The Object and Reasons of the Repeal Act
has already been referred to in the earlier part of
this Judgment. Repeal Act has, however, retained
a saving clause. The question whether a right has
been acquired or liability incurred under a
statute before it is repealed will in each case
depend on the construction of the statute and the
facts of the particular case.
39. The mere vesting of the land under sub-
section (3) of Section 10 would not confer any
right on the State Government to have de facto
possession of the vacant land unless there has
been a voluntary surrender of vacant land before
18.3.1999. State has to establish that there has
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W.P.No.28909 of 2018
been a voluntary surrender of vacant land or
surrender and delivery of peaceful possession
under sub-section (5) of Section 10 or forceful
dispossession under sub-section (6) of Section 10.
On failure to establish any of those situations, the
land owner or holder can claim the benefit of
Section 3 of the Repeal Act. The State
Government in this appeal could not establish
any of those situations and hence the High Court
is right in holding that the respondent is entitled
to get the benefit of Section 3 of the Repeal Act."
9. Likewise in a decision rendered by the Hon'ble
Division Bench of this Court in the case of
Government of Tamil Nadu vs., Mecca Prime
Tannery reported in 2012-6-MLJ-273, it has been
held at para 33 to 35 as follows:-
"33. The phrases shall be deemed to have
been acquired and shall be deemed to have been
vested absolutely in the State Government
occurring in Section 11(3) of the Act, in our
considered opinion, mean that the right, title and
interest in respect of the land shall be deemed to
have been vested in the State Government and not
possession of the land. After the right, title and
invested is vested in the State Government by
notification under Section 11(3), the State
Government has to take further action for taking
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W.P.No.28909 of 2018
possession of the land, if the land owner or any
person in possession refuses or fails to surrender
or deliver possession of the land so vested in the
Government.
34. There are cases where after notice
under Section 11(5) of the Act, the land owner
delivers possession of the land and acknowledges
the same in writing, and the State, after taking
possession of the land so delivered voluntarily by
the land owner, either comes into possession of
the same or allots those lands to other persons,
then in such cases, even thereafter, if the land
owner or any person claims to be in possession of
those lands, then we have no hesitation in holding
that continuance of such possession even after
surrendering or delivering the land to the State is
illegal possession and they shall be treated as
encroachers.
35. However, there are cases where
although the competent authority issued the
notice under Section 11(5) of the Act to the land
owners or persons in possession to surrender or
deliver possession of the land, but the land owner
or the person in possession fails to deliver the
land and continues to be in possession of such
land and the authority of the State did not take
action under Section 11(6) of the Act for taking
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W.P.No.28909 of 2018
delivery of possession, then in such cases, the
State Government shall not be deemed to be in
possession of those lands. "
10. From the perusal of the above said
decisions, it is very clear that the mere vesting of
land under sub-section (3) of Section 10 of the
said Act would not confer any right on the State
Government, in the absence of any proof that
there was voluntary surrender of vacant land or
there was a forceful dispossession under sub-
section (6) of Section 10 of the said Act. Symbolic
possession is totally different and distinct from
physical possession. It is only a paper possession,
which cannot be treated or construed as that of
possession as required under the Act."
12. Further, the Honourable Supreme
Court in the case reported in 2014 (2) CTC 665
(SC) (Gajanan Kamlya Patil Vs. Addl. Collector
& Competent Authority), held in paragraphs 12
and 13 as follows:
"12. We may indicate, apart from the
affidavits filed by the officials in this case, no
other document has been made available either
before the High Court or before this Court, either
showing that the Appellant had voluntarily
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W.P.No.28909 of 2018
surrendered or the Respondents had taken
peaceful or forcible possession of the
lands............
13. We have, therefore, clearly indicated
that it was always open to the authorities to take
forcible possession and, in fact, in the notice
issued under Section 10(5) of the ULC Act, it was
stated that if the possession had not been
surrendered, possession would be taken by
application of necessary force. For taking
forcible possession, certain procedures had to be
followed. Respondents have no case that such
procedures were followed and forcible possession
was taken. Further, there is nothing to show that
the Respondents had taken peaceful possession,
nor there is anything to show that the Appellants
had given voluntary possession. Facts would
clearly indicate that only de jure possession had
been taken by the Respondents and not de facto
possession before coming into force of the repeal
of the Act. Since there is nothing to show that de
facto possession had been taken from the
Appellants prior to the execution of the
possession receipt in favour of MRDA, it cannot
hold on to the lands in question, which are
legally owned and possessed by the Appellants.
Consequently, we are inclined to allow this
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W.P.No.28909 of 2018
appeal and quash the notice dated 17.2.2005 and
subsequent action taken therein in view of the
repeal of the ULC Act. The above reasoning
would apply in respect of other appeals as well
and all proceedings initiated against the
Appellants, therefore, would stand quashed."
Therefore, mere symbolic possession is not sufficient. The petitioner is in
possession and enjoyment of the subject property in question.
14. That apart, the subject property is an agricultural in nature and
hence it cannot attract the provisions of the Act. Though necessary changes
were carried out in the revenue records in respect of the subject property
comprised in S.F.No.196/3A2 to an extent of 9150 sq.mts., situated at
Sudakamuthur Village as Government Urban Land Ceiling Lands, by the
proceedings dated 04.03.1999, the entire proceedings have been done as desk
work and no physical possession has been taken in respect of the subject
property. Therefore, the entire acquisition proceedings were lapsed in view of
the provisions under Section 3(2) of the Repeal Act.
15. Accordingly, the entire land acquisition proceedings in respect of
the land comprised in R.S.No.196/3, re-numbered as 196/3A2 to an extent of
65 cents in Sundakkamuthur Village, Coimbatore (South), Coimbatore, is
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W.P.No.28909 of 2018
lapsed. The third respondent is directed to mutate the revenue records in favour
of the petitioner and issue patta in respect of the property within a period of six
weeks from the date of the receipt of a copy of this Order.
16. With the above directions, the Writ Petition stands allowed.
Consequently, connected miscellaneous petition is closed. There shall be no
order as to costs.
16.12.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The Secretary,
State of Tamil Nadu,
Tamil Nadu Revenue Department,
Fort St. George,
Chennai – 600 009.
2. The Competent Authority,
(Urban Land Ceiling)
The Assistant Commissioner
of Urban Land Ceiling and Land Taxes,
Collectorate Compound,
Coimbatore – 641 018.
3. The Tahsildar,
Coimbatore South Taluk,
Gopalapuram,
Coimbatore – 641 018.
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W.P.No.28909 of 2018
G.K.ILANTHIRAIYAN, J.
rts
W.P. No.28909 of 2018
and W.M.P.No.33777 of 2018
16.12.2021
https://www.mhc.tn.gov.in/judis
