Madras High Court
M/S.Forgetech Pvt.Ltd vs The Special Commissioner & on 9 February, 2021
1/23 W.P.No.2967/2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 09-02-2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.No.2967 of 2009
M/s.Forgetech Pvt.Ltd. ... Petitioner
-vs-
1The Special Commissioner &
Commissioner of Land Reforms,
Chepauk, hennai-600 005.
2.The Assistant Commissioner/U.L.T.,
Competent Authority (Urban Land Ceiling),
Alandur, Sannadhi Street, Adambakkam,
Chennai-88.
3.The Tahsildar,
Tambaram Taluk,
Tambaram,
Chennai. ... Respondents
Petition under Article 226 of the Constitution of India, praying for issuance
of a writ of Certiorarified Mandamus, to call for the records of the respondents,
especially the orders of the second respondent, dated 31.03.1987, vide Rc.1448/86/A
under Section 9 (5) and Notice, dated 27.09.1988, under Section 11 (5) respectively of
the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, in respect of land
measuring an extent of 1393 sq.mts. in R.S.No.286/3C and new Survey No.286/3C2
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and later subdivided as Survey No.286/3C2B of Kottivakkam Village, Saidapet Taluk,
Kancheepurram District, and quash the same and treat the proceedings of the second
respondent as abated under Section 4 of the Tamil Nadu Urban Land (Ceiling &
Regulation) Repeal Act, (Act 20 of 1999) so as to enable the third respondent to
incorporate the name of the petitioner as owner in respect of lands referred to above in
all revenue records.
For Petitioner : Mr.V.Ramesh
For Respondents : Mrs.A.Madumathi,
Special Govt.Pleader.
ORDER
Petitioner is a private limited company, registered under the Companies
Act, 1956. It purchased land, measuring an extent of about 1 acre in Kottivakkam
Village, comprised in old Paimash Nos.184/1, 184/3 and 184/5, corresponding to
R.S.No.286/3C and new Survey No.286/3C2 as per the registered Sale Deed, dated
27.04.1982. Petitioner states that the land was purchaed from M/s.Sri Ram Industries.
Since a few constructions were also there in the land, it is stated by the petitioner that
their vendor M/s.Sri Ram Industries had filed an application for exemption of certain
land from urban land ceiling and that they were conscious that the holding of their
vendor did not exceed the ceiling limit. Petitioner also states that they are in possession
of the property as absolute owner from the date of purchase i.e., on 27.04.1982 and that
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they have put up additional constructions, which are assessed in the name of the
petitioner by the local body. Physical possession of the property by the petitioner is
evidenced by the additional constructions, electricity connection, payment of electricity
charges etc.
2. When that be so, the respondents have initiated proeedings to acquire the
land under the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978, hereinafter,
referred to as ''the Act''. Petitioner's vendor though raised some objection questioning
the urban land ceiling proceedings, it is admitted that an order came to be passed under
Section 9 (5) of the Act, vide order, dated 31.03.1987. Though an appeal was filed
against the said order by one Mr.S.Ramamurthy, the previous owner, the appeal was not
pursued properly and it was dismissed, as the erstwhile owner did not prosecute further.
3. It is stated by the petitioner that he was not aware of the proceedings and
that his vendor had not pursued the appeal properly. In connection with the acquisition
proceedings by National Highways Department, petitioner had to approach the revenue
officials for patta and that he was informed about the acquisition of an extent of 1393
sq.mts. under the provisions of the Act. Hence, petitioner applied to first respondent
seeking certified copies of the orders passed under Sections 9 (5) and 11 (5) of the Act.
Second respondent furnished certified copies of the orders under Section 9 (5), dated
31.03.1987, and the Notice under Section 11 (5), dated 27.09.1988, during the first
week of August,2008. After getting certified copies of the proceedings impugned in the
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Writ Petition, the present Writ Petition was filed to quash the proceedings of the second
respondent, as stated supra, in respect of the land, which was declared as surplus and
consequently to treat the said proceedings as abated under Section 4 of the Tamil Nadu
Urban Land (Ceiling and Regulation) Repeal Act (Act 20 of 1999), in short, ''the Repeal
Act.''
4. Though the petitioner has raised many grounds challenging the validity
of the proceedings impugned in the Writ Petition, the main point that is urged before
this Court is about the abatement of proceedings by virtue of Section 4 of the Repeal
Act.
5. It is contended by the petitioner that Notice under Section 11 (5), dated
27.09.1988, was issued to Mr.S.Ramamurthy, the previous owner, to surrender
possession of the land. Since possession and enjoyment was with the petitioner, it is
stated that it was impossible for the addressee to respond to the notice for surrender of
possession. When the addressee of the notice issued under Section 11 (5) of the Act
failed to surrender possession as directed by the competent authority, it was open to the
competent authority to take action under Section 11 (6), using force. Since no efforts
were taken to take possession or to demolish building by using force, it is contended by
the learned counsel for the petitioner that the proceedings under the Act have now come
to an end and, therefore, by virtue of the Repeal Act, proceedings of second respondent
impugned in the Writ Petition should be treated as abated.
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6. Section 11 (5) of the Act contemplates service of notice on any person,
who is in possession of the land. Since the word ''any person'', used under the Section, is
quite different from the words, which are used to indicate ownership in the earlier
provisions of the Act, it is contended by the learned counsel for the petitioner that no
proceeding is initiated in a lawful manner to take possession of the land and, therefore,
all proceedings stand abated under Section 4 of the Repeal Act. Accordingly, learned
counsel for the petitioner would contend that the petitioner is entitled to the benefit of
Section 4 of the Repeal Act for releasing the lands from the purview of ULC Act.
7. Since the petitioner's title, possession and enjoyment of the property are
established by overwhelming documents produced in the typed set of papers, learned
counel for the petitioner submitted that the proeedings as against the petitioner, who
was in lawful possession and running an industrial unit in the property, which was
declared surplus in the holdings of the previous owner, will not stand. It is also
contended that paper possession will not be of any use to the respondents, as the Act
does not contemplate a symbolic or paper possession.
8. In the Counter Affidavit filed by the respondents, in paragraph 3, it is
stated as follows :
''3. The petitioner - M/s.Forgetech Private Limited had applied
to the Government on 25.2.1982 requesting to grant permission to
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purchase the entire extent with all the superstructure and machinery.
Meanwhile, the Urban Land Owner Thiru S.Ramamurthy sold the
entire land with industry to M/s.Forgetech Private Limited vide
Document No.1508/82, dated 27.4.1982. The Government, in their
Letter No.(Per) 438, Revenue dated 3.4.1986, rejected the request of
M/s.Sree Ram Industries on the ground that the company sold the land
to M/s.Forgetech Private Limited in violation of Section 6 of the Tamil
Nadu Urban Land (Ceiling and Regulation) Act,1978, and ordered to
acquire the excess vacant land measuring 1290.30 sq.metres under
Section 9 to 11 of the said Act from the urban land owner Thiru
S.Ramamurthy.''
Again, the respondents have categorically admitted that the proceedings were initiated
under the provisions of the Act against the erstwhile owner M/s.Sri Ram Industries and
that no notice was issued to the petitioner, even though the land was purchased by the
petitioner wayback in 1982. Even, Notice under Section 11 (5) of the Act was issued on
27.09.1988, requesting the previous owner to surrender possession of the excess land
and it was served on the urban land owner on 08.10.1988 by RPAD. It is further stated
that though possession of excess vacant land was taken over and handed over to
revenue department on 28.04.1989, it is not known how and in what manner the
petitioner was dispossessed even without being issued the notice at any stage of the
proceedings. Further, the proceedings under Section 12 (7), dated 17.10.1989, and the
Order under Section 12 (6) of the Act, determining the amount payable for acquiring
land, were isued only to the urban land owner i.e., the previous owner. Since the
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petitioner purchased the land as per the registered sale deed, dated 27.04.1982, it is
contended by the respondents that the sale or transfer is null and void as per Section 6
of the Act. It is also stated by the respondents that possession and enjoyment of the
Government land by the petitioner company for the past 19 years is against the
provisions of the Act and, therefore, the petitioner would be evicted. It is further
contended that the petitioner has no locus standi. In the counter affidavit, the
respondents have also mentioned the chronological events, by which, the land
belonging to the petitioner was acquired under the Act, by treating the land in the
holdings of the erstwhile owner.
9. In the above factual scenario, the question that arises for consideration
before this Court is, whether the proceedings under the Tamil Nadu Urban Land
(Ceiling and Regulation) Act,1978, should be treated as abated, in view of non-
compliance of the specific provisions contained under Section 11 (5) of the Act ?
10. Learned counsel appearing for the petitioner has convinced this Court
that actual possession of the property is with the petitioner and that, as on the date,
when the Repeal Act was enacted, the petitioner was not in mere possession and
enjoyment of the land, but was also running an industry. In support of his contention,
the learned counsel relied upon a Division Bench decision of this Court in the case of
V.Somasundaram and Others v. Secretary to Government, Revenue Department,
reported in 2007 (2) LW 109, wherein, in similar circumstances, it was held as follows :
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''7. Heard the learned Special Government Pleader for the
respondents 1 and 2, who also produced the entire file and submitted
that the possession was taken on 30.4.1999. We have perused the file
and we find that there is no proof that notice was given to the appellants
before taking possession under section 11(5) of the Act. The learned
Special Government Pleader submitted that the possession having been
taken before the repeal of the Act, the appellants are not entitled to
challenge the orders of the respondents.
8. We have considered the rival contentions of the learned counsel
for the appellants as well as the learned Special Government Pleader
for the respondents 1 and 2.
9. From the perusal of the file it is clear that proceedings were
initiated against the third respondent, who is the erstwhile owner of the
lands in question, in respect of transfer of his land to the appellants
herein. Section 11(5) notice was also issued to the third respondent,
who was not the real owner . As per section 11(5) of the Act, the
competent authority is bound to issue notice in writing to any person,
who may be in possession of the land, to surrender and delivery
possession thereof, to the State Government or to any person duly
authorised by the State Government, within thirty days time. No notice
having been issued against the appellants, who are in possession of the
lands as stated supra, taking possession of lands on 30.4.1999 by the
second respondent is non-est. It is to be noted that due to the repealing
of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, with
effect from 16.9.1999, it is not open to the authorities to proceed against
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the appellants at this stage to rectify the non-compliance of section
11(5) of the Act.''
The Hon'ble Division Bench also approved the view taken by a learned single Judge of
this Court in another case, where facts were similar.
11. Learned counsel for the petitioner has also relied upon yet another
judgment of the Hon'ble Supreme Court in Civil Appeal No.2326 of 2013 in the case of
State of U.P. v. Hari Ram and other batch cases, wherein, the Apex Court, dealing with
similar provisions under the U.P.Act and the subsequent Repeal Act, held that if the
land owner did not surrender possession voluntarily after notice or the land owner is not
dispossessed by use of force, it cannot be said that the State Government has taken
possession of the vacant land. The position is clarified by the Hon'ble Supreme Court
in the following lines :
''36. Above-mentioned directives make it clear that sub-
section (3) takes in only de jure possession and not de facto
possession, therefore, if the land owner is not surrendering
possession voluntarily under sub-section (3) of Section 10, or
surrendering or delivering possession after notice, under Section
10(5) or dispossession by use of force, it cannot be said that the
State Government has taken possession of the vacant land ''
''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
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establish that there has 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.''
12. Another Division Bench of this Court, in M/s.Sree Jayalakshmi Brick
Industries v. The Special Commissioner and Secretary to Government and Others, 2009
(4) L.W.819, elaborately discussed the issue and, after referring to several judgments of
this Court earlier, including the judgment of the Division Bench referred to above, held
as under :
''8. The learned counsel for the petitioner vehemently argued
that though the third respondent was aware of the purchase of the
concerned lands by him in the year 1980 itself, no notice was issued
to him under Section 11(5) of the Act. He further argued that the
Tribunal erred in holding that the petitioner need not be given
notice under Section 11(5) of the Act as the sale in 1980 is hit by
Section 6 of the Act. The learned counsel for the petitioner draws
attention of the word #any person# used in Section 11(5) of the Act.
He further contended that any person who is in possession of the
land is entitled to notice to surrender or deliver possession to the
Government. He heavily relied on the judgment of the Division
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Bench of this Court (presided over by Honourable Mr.Justice
Sathasivam as he then was) in V.Somasundaram and others Vs.
Secretary to Government, Revenue Department, Chennai and others
reported in 2007(1) MLJ 750. Paragraph No. 9 of the said
judgment is heavily relied on by the learned counsel for the
petitioners, which is extracted here-under:
"9.From the perusal of the file it is clear that proceedings
were initiated against the third respondent, who is the erstwhile
owner of the lands in question, in respect of transfer of his land to
the appellants herein. Section 11(5) notice was also issued to the
third respondent, who was not the real owner. As per Section 11(5)
of the Act, the competent authority is bound to issue notice in
writing to any person, who may be in possession of the land, to
surrender and deliver possession thereof, to the State Government
or to any person duly authorised by the State Government, within
thirty days' time. No notice having been issued against the
appellants, who are in possession of the lands as stated supra,
taking possession of lands on 30.04.1999 by the second respondent
is non-est. It is to be noted that due to the repealing of the Tamil
Nadu Urban Land (Ceiling and Regulation) Act, 1978, with effect
from 16.09.1999, it is not open to the authorities to proceed against
the appellants at this stage to rectify the non-compliance of Section
11(5) of the Act".
9.The learned counsel for the petitioner relied on
another decision dated 18.06.2007 of the Division Bench presided
over by the Honourable Mr.Justice S.J.Mukhopadhaya, in
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W.A.Nos.693 to 695 of 2003 in Annie Jacob and others Vs. The State
of Tamil Nadu and another, wherein also a similar view was
expressed. Paragraph No.8 of the decision is extracted here-under:
"8.There is nothing on the record to suggest that the
competent authority issued any notice in writing directing the
original land holder or the appellants to surrender or deliver
possession of the lands in question. Nothing has been produced to
suggest that the original land holder or the appellants refused or
failed to comply with such order and on failure the possession of the
lands were taken by force. In absence of such notice under section
11(5) or action taken under Section 11(6), a bald statement as made
by the respondents that possession was taken on 10th February,
1995, cannot be accepted.....".
10.The learned counsel for the petitioner contended that while
notices under Section 9(4) or under Section 7(2) of the Act ought to
be addressed to the owner of the land for the purpose of determining
the excess vacant land, the notice contemplated under Section 11(5)
of the Act is to be issued to the person in possession also, since the
purpose was seeking delivery of possession. He further pointed out
that notice contemplated under Section 11(5) of the Act is quite
different from notice contemplated under other provisions of the Act.
He also pointed out that the words used in Section 11(5) of the Act
"any persons who may be in possession" and no such wording is
found in Sections that deals with the acquisition of the land.
11.On the other hand, the learned Special Government
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Pleader contended that the petitioner is not entitled to notice under
Section 11(5) of the Act in view of the Division Bench decision of
this Court in Prabhavathi Jain and 4 others Vs. The Government of
Tamil Nadu and 8 others reported in 1995 (2) L.W. 200. We have
perused the judgment. We are of the view that the judgment did not
decide whether Section 11(5) contemplates service of notice on the
person who is in possession of the concerned excess land. On the
other hand, the judgments cited by the petitioner are on the point.
Further it is not the case of the petitioner that he is entitled to notice
under Section 7 or 9 while acquiring the land.
12. In view of such categorical pronouncements of this Court,
we are of the view that the notice under Section 11(5) should be
served on the petitioner. Though, his purchase by a sale deed is
made invalid by Section 6 of the Act, in view of the word #any
person who may be in possession# used in Section 11(5) of the Act,
notice ought to have been served on the petitioner to surrender or
deliver possession to the Government.
13. Further, the learned counsel for the petitioner argued
from the records produced that even the vendor of the land was also
not served with the notice under Section 11(5) of the Act read with
Rule 10(3). According to him, the notice under Section 11(5) should
be sent by RPAD. In this case, admittedly, the records do not
indicate that notice was sent through RPAD to the erstwhile owner.
The learned counsel also pointed out that there was no endorsement
from the erstwhile owner for the receipt of the notice. On the other
hand, the records reveal that an endorsement was made by the
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official at page No.937 of the record file that notice was served on
the erstwhile owners. According to the learned counsel for the
petitioner, this does not amount to service of notice under Section
11(5) of the Act. The learned counsel for the petitioner strenuously
contended that if such a method is approved, then the officials would
cook up the records by simply making an endorsement in the notice
without getting endorsement from the concerned persons for proof
of service or by sending through RPAD. We find force in the
submission of the petitioner.
14. We therefore, hold that there was no notice served under
Section 11(5) of the Act either on the petitioner or on the erstwhile
owner, viz., the vendor of the land.
15. The learned counsel for the petitioner further argued that
the take over of possession is complete only when it is signed by the
land owner or the person in possession while delivering the excess
land under Section 11(5) of the Act read with Rule 10(3) of the
Rules. If no such delivery of possession took place, the third
respondent has to resort to Section 11(6) of the Act. It was argued
that neither the erstwhile land owner (vendor) nor the petitioner
signed the Land Delivery Receipt and the alleged take over of
possession was not actual and real and it was only a paper
possession and therefore, the petitioner is entitled to the benefit of
the Section 4 of the Repealing Act 20 of 1999.
16. The learned counsel for the petitioner strenuously
contended that the Tribunal erred in holding that the take over of
possession on paper by the Revenue authorities on 31.12.1990 was
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sufficient. In view of such a finding, the Tribunal came to an
erroneous conclusion that Section 4 of the Repealing Act 1999
would not help the petitioner, according to the learned counsel for
the petitioner.
17. 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. If the land owner is not a party to the Land Delivery Receipt,
the take over should be established by getting signature from
independent witnesses, preparing Panchanama, etc. But the records
reveal that it is only possession in papers.
18. 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 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
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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)
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of the Act is of no relevance at all".
19. 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
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R.Balasubramanian, dated 22.8.2006 passed in W.P.No.17416 of
2004, where the learned Judge, reiterating the position 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."
20. 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."
21. 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
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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). Since the notice
under Section 11(5) was not even served, the symbolic possession is
not a possession as contemplated under Sections 11(5) and 11(6) of
the Act. The learned counsel for the petitioner also produced
various receipts for payment of tax and the latest receipt is dated
07.03.2007 and various electricity bills including the last one dated
14.11.2008 besides Small Scale Industries Registration Certificate
about the carrying on the manufacturing of bricks, in support of his
submission that the concerned lands are in his actual possession.
22. The learned Special Government Pleader vehemently
argued that symbolic possession is sufficient when the actual take
over of possession is not contemplated under the Act. We are not in
agreement with that submission in view of the categorical
pronouncements of this Court referred to above.
23. Once the possession is not taken over by the Government
as held by us, all the proceedings under the Act must be held to have
abated under Section 4 of the Repealing act, in view of the
categorical pronouncement 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.''
In the above case, a similar argument was considered by the Division Bench. It was
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contended by the Revenue that no notice need be given to the purchaser, as the sale in
1980 was hit by Section 6 of the Act. Rejecting the said contention, the Division Bench
accepted the case of the appellant that a person in possession of the land is entitled to
notice to surrender or deliver possession of land to Government and, in the absence of
actual physical possession being taken from the person in possession, all proceedings
under the Act must be held to have abated under Section 4 of the Repeal Act.
13. The Hon'ble Supreme Court, in the case of Vinayak Kashinath Shilkar
v. Deputy Collector and Competent Authority, 2012 (4) SCC 718, with reference to
Urban Land (Ceiling and Regulation) Act,1999, as applicable to State of Maharashtra,
held that while possession of the vacant land had not been taken over by the State
Government, proceedings under the old Act would not survive. It was further held that
mere vesting of vacant land with State Government by operation of law without actual
possession is not sufficient for operation of Section 3 (1) of the saving clause of the
Repeal Act. It is to be pointed out that the provisions of Maharashtra Act are in pari
materia and, therefore, the decision of the Hon'ble Supreme Court can be applied to the
present case.
14. Another Division Bench of this Court, in Government of Tamil Nadu
and Others v. M/s.Mecca Prime Tannery, rep.by its Managing Director, 2012 (4)
L.W.289, had an occasion to consider the tenability of the arguments advanced by the
respondents in the present case to the effect that the Government became the owner of
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the property after vesting of the land under Section 11 (3) of the Act and that even if
possession of the land is retained by the land holder or any other person, it will be
considered as unlawful and illegal. The Division Bench negatived the argument and
held that the appeals of the State were liable to be dismissed on the ground that the
Revenue failed to satisfy the Court that possession of the land was taken over by the
competent authority.
15. In view of the categorical pronouncements of the Hon'ble Supreme
Court and also the Division Benches of this Court, this Court, agreeing with the
principles laid down therein, coupled with the reiterated precedents, holds that the
petitioner, though had purchased the property in the year 1982, is entitled to claim the
benefit of Section 4 of the Repeal Act. Accordingly, the impugned proceedings initiated
by the respondents against the erstwhile owner shall be treated as abated and the lands,
which are the subject matter of proceedings under the Act, stood released from the
purview of the Act so as to enable the petitioner to deal with the property as the
absolute owner. Third respondent or any other revenue authority concerned is directed
to incorporate the name of the petitioner as the owner in respect of the lands in question
in the revenue records.
16. Writ Petition is allowed accordingly. No costs. Consequently, the
connected M.P.No.1 of 2009 is closed.
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22/23 W.P.No.2967/2009
Index : Yes 09-02-2021
Internet : Yes
Speaking Order : Yes
dixit
To
1The Special Commissioner &
Commissioner of Land Reforms,
Chepauk, hennai-600 005.
2.The Assistant Commissioner/U.L.T.,
Competent Authority (Urban Land Ceiling),
Alandur, Sannadhi Street, Adambakkam,
Chennai-88.
3.The Tahsildar,
Tambaram Taluk,
Tambaram,
Chennai.
S.S.SUNDAR,J.
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23/23 W.P.No.2967/2009
dixit
W.P.No.2967 of 2009
09-02-2021
https://www.mhc.tn.gov.in/judis/
