Madras High Court
The Special Commissioner vs “39. The Mere Vesting Of The Land ... on 5 July, 2021
W.A.No.990 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.990 of 2021
and C.M.P.No.6159 of 2021
1.The Special Commissioner
and Commissioner Urban Land
Ceiling and Urban Land Tax,
Ezhilagam, Chepauk, Chennai-600 005.
2.The Assistant Commissioner for
Urban Land Tax,
Ambattur, Chennai-600 029
(Presently Assistant Commissioner
Urban Land Tax) Egmore,
@ Kuralagam, 3rd Floor,
Broadway, Chennai-600 108. .... Appellants
verus
Mrs.Kumari Kannan .... Respondent
Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, against the
order passed by the learned single Judge dated 13.01.2020 in W.P.No.27229
of 2013.
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W.A.No.990 of 2021
For Appellants .. Mr.J.Rajasingh, G.A.
For Respondent .. Mr.S.Senthilnathan
JUDGMENT
(Judgment of the Court was made by R.N.MANJULA, J.)
This intra-Court Writ Appeal has been directed against the common
order of a learned single Judge dated 13.01.2020 in W.P.No.27229 of 2013.
2. The brief facts which led to the filing of the present Writ Appeal, can
be stated as under:
The respondent has purchased a house site bearing Plot No.8 in
S.No.30/1 to an extent of 2852 sq.ft. situated at Kunnoor Village, Perambur
Purasaiwakkam Taluk, Chennai District, vide sale deed dated 24.05.1982 and
she has constructed a house and is residing therein. The 2nd appellant herein,
issued a notice under the Urban Land (Ceiling and Regulation Act)
(hereinafter referred to as 'the Act') to the erstwhile owner, Mrs.Amma
Thayarammal, who was the great grand-mother of the vendor of the writ
petitioner, stating that out of the above said land, an extent of 1600 sq.mts.,
has been declared as surplus.
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W.A.No.990 of 2021
3. The respondent obtained certified copies of the acquisition
proceedings and came to know that all the proceedings were initiated against
erstwhile owner who died even prior to her purchase. Since, she has been in
possession and enjoyment of the subject property and no notice was issued by
the appellants to her under the Act, the writ petitioner has moved the Writ
Petition in W.P.No.27229 of 2013 before this Court, seeking to declare that
the acquisition proceedings initiated by the 2nd appellant herein, are abated
in view of Section 4 of the Urban Land (Regulation and Ceiling) Repeal Act,
1999 (in short, 'the Repeal Act').
4. Having considered the pleadings and rival contentions, more
particularly, an admitted fact contained in the counter affidavit to the effect
that the possession has been handed over to the Revenue Authorities by
making necessary changes in the Village Accounts, which would clearly
indicate that it is a paper possession, the learned single Judge has held that
no actual physical possession has been taken by the Government. The entries
in the records have been effected under the pretext of symbolic possession,
just in order to counterblast the application of Section 4 of the Repeal Act.
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W.A.No.990 of 2021
By holding so, the learned single Judge has allowed the Writ Petition.
Challenging the same, the appellants/authorities have preferred the present
Writ Appeal.
5. The learned Government Advocate appearing for the appellants
would contend that the Act itself came into force on 03.08.1976 on which
date, the subject land stood in the name of the urban land owner, namely,
Tmt.Amma Thayammal and hence, the acquisition proceedings were initiated
in the name of the said urban land owner. He would also contend that by
virtue of Section 6 of the Act, any sale made after the Act coming into force,
is null and void and hence, it is not open to the subsequent purchaser, i.e. writ
petitioner/respondent to contend that the entire acquisition proceedings were
invalid on the ground that no physical possession was taken over either from
original urban land owner or from her vendor and that the same were abated
by virtue of the Repeal Act. It is submitted that the acquisition proceedings
were completed as early as on 04.08.1997 and the writ petitioner purchased
the subject property in the year 1982 and filed the writ petition after a lapse
of 16 years and hence, it is not maintainable.
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W.A.No.990 of 2021
6. It is not in dispute that from the date of purchase, the
respondent/writ petitioner has been in actual possession of the subject
property till date and the entire acquisition proceedings right from the
issuance of Section 7(1) notice till the notice under Section 11(5) of the Act
were initiated only in the name of the erstwhile owner Amma Thayammal. It
is the specific contention of the writ petitioner/respondent that factually, no
physical possession was taken over either from the urban land owner
Tmt.Amma Thayammal or from her legal heirs, from whom, the respondent
has purchased the subject property.
7. In pith and substance, the Appellants contended that the land in
question were registered in the name of Tmt.Amma Thayammal in the
Revenue Records and as such, no notice could have been issued to the
petitioner and therefore, the action initiated by the Appellants in terms of
Section 11 of the Act was correct in law; besides that, the land in question
was vested with the Government under Section 11(3) of the Act on
15.06.1992 and subsequently handed over on 04.08.1997 to the Revenue
Authorities and as such, the respondent has no locus standi to question the
acquisition proceedings. In short, since the possession of the land in question
was taken and handed over, the provisions of the Repeal Act would not apply.
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W.A.No.990 of 2021
8. It is pertinent to note that the Appellants in their counter affidavit to
the Writ Petition, had clearly stated that the State Government had decided to
regularize the purchase of land by the innocent purchasers in respect of the
acquired land and had issued guidelines in G.O.Ms.No.565, Revenue
Department dated 26.09.2008 and that the Respondent/Petitioner is a
subsequent innocent purchaser and she also applied for regularization of the
land and the same was recommended for regularization under innocent buyer
category and a report was sent to the Commissioner (Urban Land Ceiling and
Urban Land Tax) by the then Assistant Commissioner (Urban Land Tax),
Egmore vide reference 745/2010/A, dated 9.11.2011. In fact, the respondent
has built a house therein and it has been subjected to assessment. But the
possession entries of the Government records does not show the same,
despite the building was put up immediately after the purchase made by the
respondent. It is settled law that actual physical possession has to be taken
over and mere mutation in revenue records or paper possession is not
acceptable in order to release the subject land from the benefits conferred
under Section 4 of the Repeal Act.
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W.A.No.990 of 2021
9. The Hon'ble Supreme Court, as well as this Court, in catena of
decisions, have held that land ceiling proceedings would abate in all cases,
where actual possession has not been taken by the State Government before
the date of coming into force of the Repeal Act. In fact, mere vesting of the
land under Section 10(3) will not confer any right on the Government to have
de-facto possession of the land, unless there has been a voluntary surrender
of vacant land before the Repeal Act came into force (w.e.f, 16.06.1999). In
the instant case, admittedly, no actual physical possession was taken over
from the original urban land owner.
10. The above legal position has also been held in State of U.P. Vs
Hari Ram) 2013-3-MLJ-408 (SC) by the Apex Court. In the said judgement,
it is held as under:
“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 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
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W.A.No.990 of 2021
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.”
11. Admittedly, since the appellants/authorities have failed to establish
actual taking over of possession as per the provisions of the Act and the fact
remains that the writ petitioner/respondent is still in possession of the subject
land, he is entitled to the benefit of Section 4 of the Repeal Act. In the light
of the above, we do not find any irregularity or infirmity in the Order of the
learned single Judge and it does not warrant any interference.
In the result, the Writ Appeal fails and the same is dismissed. No
costs. Consequently, connected CMP is closed.
(M.M.S., J.) (R.N.M., J.)
07.07.2021
Index:Yes/No
suk
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W.A.No.990 of 2021
To
1.The Special Commissioner
and Commissioner Urban Land
Ceiling and Urban Land Tax,
Ezhilagam, Chepauk, Chennai-600 005.
2.The Assistant Commissioner for
Urban Land Tax,
Ambattur, Chennai-600 029
(Presently Assistant Commissioner
Urban Land Tax) Egmore,
@ Kuralagam, 3rd Floor,
Broadway, Chennai-600 108.
https://www.mhc.tn.gov.in/judis/
W.A.No.990 of 2021
M.M.SUNDRESH, J.
and
R.N.MANJULA, J.
suk
W.A.No.990 of 2021
05.07.2021
https://www.mhc.tn.gov.in/judis/
