Madras High Court
G.Janakiraman vs The Principal Commissioner And ... on 26 October, 2021
W.P.No.12415 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.12415 of 2013
and M.P.No.1 of 2013
1.G.Janakiraman
2.J.Nirmala
3.J.Senthil Kumar
4.S.Hemalatha
5.S.Kavitha ... Petitioners
Vs
1.The Principal Commissioner and Secretary
of Land Reforms, Chepauk, Chennai - 600 005.
2.The Assistant Commissioner (Urban Land Ceiling)
No.169, Sannadhi Street, Tambaram Office
Adambakkam, Chennai - 600 089.
3.The Tahsildhar,
Sholinganallur Taluk,
Sholinganallur,
Kanchipuram District. ... Respondents
1/21
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W.P.No.12415 of 2013
Prayer : Writ Petition has been filed under Article 226 of the Constitution of
India, to issue a Writ of declaration to declare that the land comprised in
Survey No.722/1 and 722/2 part of Pallikaranai Village, Sholinganallur
Taluk, Kancheepuram District belonging to the petitioners acquired under the
various provisions of Act 24 of 1978 as null and void so as to enable the third
respondent to incorporate the name of the petitioners as owner in the revenue
records.
For Petitioners : Mr.V.Ramesh
For Respondents : Mr.Richardson Wilson,
Government Advocate
**********
ORDER
This writ petition has been filed to issue a Writ of declaration to
declare that the land comprised in Survey No.722/1 and 722/2 part of
Pallikaranai Village, Sholinganallur Taluk, Kancheepuram District belonging
to the petitioners acquired under the various provisions of Act 24 of 1978 as
null and void so as to enable the third respondent to incorporate the name of
the petitioners as owner in the revenue records.
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W.P.No.12415 of 2013
2. The case of the petitioners is that the petitioners are the owners
of the property comprising in Survey No.722/1 Part situated at Pallikaranai
Village, by virtue of the five sale deeds tabulated hereunder:
SL. Name of the Date of Sale and Survey No. Extent
No. Petitioners Document
1. G.Janakiraman 09/01/2012 722/A part 2400 sq.ft.
158 of 2012 722/2 part out of 6 acres
32 cents
2. J.Nirmala 09/01/2012 722/1 2400 sq.ft.
159 of 2012 722/2
3. S.Kavitha 12/01/2012 722/1 2400 sq.ft.
242 of 2012 722/2
4. J.Senthilkumar 30/12/2011 722/2A 2400 sq.ft.
11594/2011 part out of 37
cents
5. S.Hemalatha 12/01/2012 722/1 2400 sq.ft.
3. The petitioners have purchased the land from one M.S.Mohamed
Ibrahim and Amjath Ali who are the legal heirs of M.S.Sulthan Ibrahim.
They traced their title by the registered sale deed dated 28.05.1963 vide
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W.P.No.12415 of 2013
Document No.1998 of 1963. From the date of their purchase, they are in
possession and enjoyment of the subject property.
4. While the petitioners applied for patta, they were informed that
the land comprised in Survey No.722/2 has been acquired under the Tamil
Nadu Urban Land (Ceiling and Regulation) Act (hereinafter called as "Act")
and as such the patta cannot be issued in their favour. Their power of
attorney, namely, one V.N.Raja Mohammed obtained information under the
Right to Information Act came to understand that the land comprised in
Survey No.722/1 has been acquired from one Mrs.Kamala Sethi. Therefore,
the proceedings initiated under the Act declared to be void.
5. The learned counsel for the petitioners would submit that
originally the subject land belonged to one M.S.Sulthan Ibrahim by virtue of
a sale deed dated 28.05.1963 registered vide Document No.1998 of 1963 and
all the revenue records were mutated in his name and patta was also issued in
his favour. Therefore, the said Mrs.Kamala Sethi was not the owner of the
subject property at any point of time. The subject property originally owned
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W.P.No.12415 of 2013
by one Shanmugam Pillai by virtue of a sale deed dated 27.06.1954 registered
vide Document No.1499 of 1956 on the file of the Joint Registrar - II,
Saidapet. He had three sons and they sold out the land by sale deed dated
30.08.1962 registered vide Document No.4391 of 1962 to one N.P.Mohideen
Pichai, who in turn sold out the land in favour of the said M.S.Sulthan
Ibrahim.
6. In fact, the reply received under the Right to Information Act
clearly shows that no compensation award amount was received by the said
Kamala Sethi and no records were available in the name of Kamala Sethi. No
notice was served as contemplated under Sections 7(2), 9(1), 9(4), 10(1) and
11(5) of the Act to the petitioners' vendor namely M.S.Sulthan Ibrahim or
M.S.Mohamed Ibrahim. Therefore, such an acquisition is in violation of
mandatory provisions of Act and Rules and would offend Article 300-A of
the Constitution of India.
7. The petitioners are in possession and enjoyment of their
respective subject land and even till today, the physical possession has not
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W.P.No.12415 of 2013
been taken from the petitioners as per the provisions of Act 20 of 1999 stood
repealed the Act with effect from 16.06.1999. Therefore, all the proceedings
would abate under Section 4 of Act 20 of 1999. The notice under Section
11(5) of the Act was not at all served on the petitioners' vendor or to the
petitioners. It contemplates that it shall be served on the "person in
possession of the property". Therefore, the non compliance of the procedure
as contemplated under Section 11(5) is fatal to the acquisition proceedings.
8. There is no record with the respondents to prove that the
possession has been taken after preparing a Panchnama or Memorandum
signed by the witnesses from the petitioners. In the absence of all these
records, the entire proceedings shall abate under Section 4 of the Act 20 of
1999. It amounts to infringement of Article 300-A of the Constitution of
India. So accordingly, no person can be deprived of the property without
following the procedure laid down. If the land owner or person fails to
surrender the land in his possession, then the power is conferred on the
respondents to take possession of the land by use of force as contemplated
under Section 11(6) of the Act. Therefore, no proceedings has been initiated
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W.P.No.12415 of 2013
to take forcible possession from the petitioner as contemplated under Section
11(6) of the Act.
9. Per contra, the respondents filed counter and stated that all the
petitioners are subsequent purchasers of the property and as such they have
no locus to challenge the acquisition proceedings under the Act. This writ
petition has been filed after the period of 17 years for taking possession of
the acquired land. They purchased without verifying the ownership of the
subject land and as such the writ petition itself is liable to be dismissed on the
ground of laches. The draft statement under Section 9(1) of the Act along
with the notice as contemplated under Section 9(4) of the Act were issued to
Mrs.Kamala Sethi and two others on 25.04.1984 for the proposed acquisition
of excess vacant land admeasuring 25500 sq.mts., in Survey No.722 of
Pallikaranai Village after allowing 1500 sq.mts., of land as entitlement area to
the Urban Land Owners.
10. On receipt of the same, the Urban Land Owners did not file any
objection for the proposed acquisition of excess vacant land. Thereafter, a
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W.P.No.12415 of 2013
notice reminding the Urban Land Owner for filing objections for the
proposed acquisition was issued on 12.09.1984, since no objections were
received from the Urban Land Owner. After issuance of statement under
Section 9(1) along with notice under Section 9(4) of the Act, the excess
vacant land admeasuring 25500 sq.mts., was acquired in Survey No.722/1
situated at Pallikaranai Village. The Notification as contemplated under
Section 11(1) of the Act dated 18.05.1993 was issued under Rule 10(1)
published in the Tamil Nadu Government Gazette dated 16.06.1993. It was
issued on 28.10.1993 under Section 11(3) of the Act in the Tamil Nadu
Government Gazette dated 24.11.1993.
11. The possession of the excess vacant land was handed over to
the Revenue Department on 12.12.1995. Then 16900 sq.mts., of land out of
25500 sq.mts., acquired along with 12900 sq.mts., of land acquired in Survey
No.722/1 of Pallikaranai Village were allotted to the Tamil Nadu Slum
Clearance Board in G.O.Ms.No.463 dated 20.09.2010 for the residential use
of Slum Dwellers. In fact, one Satya Nagar Welfare Association has filed a
writ petition in W.P.No.7449 of 2009 for allotment of the above land which
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W.P.No.12415 of 2013
are not acquired under the Act for its members. In fact, the power agent of
M.S.Mohamed Ibrahim filed writ petition in W.P.No.11922 of 2011
challenging the acquisition proceedings. Subsequently, the said writ petition
was allowed by an order dated 21.01.2016.
12. Therefore, the writ petitioners have illegally purchased the
portions of the land acquired by the Government and filed these writ petitions
after 17 years from the date of completion of acquisition. Further it revealed
that the said Mrs.Kamala Sethi is the registered Urban Land Owner as on
03.08.1976 and she failed to file her return and as such the Competent
Authority initiated action against her and acquired excess vacant land under
the Act. The possession of the land was handed over to the Revenue
Authorities as early as on 12.12.1995. After following the procedures laid
down under the Act.
13. Perusal of records would show that no records are produced to
show that the Urban Land Owner is Mrs.Kamala Sethi. Whereas the
petitioners have purchased their respective house plots from one
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W.P.No.12415 of 2013
M.S.Mohamed Ibrahim and Amjath Ali who are the legal heirs of
M.S.Sulthan Ibrahim. They traced out the title by the sale deed dated
28.05.1963 registered vide Document No.1998 of 1963. Therefore, nowhere
found that the said Mrs.Kamala Sethi was the Urban Land Owner.
14. According to the respondents, they served notice under Section
9(1) along with the notice under Section 9(4) of the Act on 25.04.1984.
However, the Urban Land Owner did not file any objection and as such the
proposed acquisition was issued on 12.09.1984. Thereafter, the excess vacant
land admeasuring 25500 sq.mts., was acquired in Survey No.722/1 situated at
Pallikaranai Village. Admittedly, the petitioners are in possession and
enjoyment of their respective house plots from the date of their purchase
namely 09.01.2012 to 12.01.2012 respectively. There is no record to show
that the original Urban Land Owner was served with notice under Section
11(5) of the Act, whereas the counter revealed that the possession of the
excess vacant land was handed over to the Revenue Department dated
12.12.1995 and thereafter, the land admeasuring 16900 sq.mts., out of
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W.P.No.12415 of 2013
25500 sq.mts., were allotted to the Tamil Nadu Slum Clearance Board by the
G.O.Ms.No.463 dated 20.09.2010 for the residential use of Slum Dwellers.
15. As rightly pointed out by the learned counsel for the petitioners,
if the Urban Land Owner failed to surrender the possession of the excess
land, the respondents ought to have issue notice under Section 11(6) to take
forcible possession. Admittedly, no notice was issued under Section 11(6) of
the Act to take forcible possession of the subject property, since the
petitioners are in possession and enjoyment of the said property. Though the
respondents specifically raised ground that the present writ petition after 17
years from the date of acquisition proceedings and also the petitioners being
the subsequent purchasers have no locus-standi to maintain this writ petition,
the acquisition proceedings itself was not initiated as against the erstwhile
owners namely the vendors of the petitioners and the entire proceedings were
initiated as against one Mrs.Kamala Sethi.
16. As stated supra, nowhere found that the said Mrs.Kamala Sethi
was the Urban Land Owner in respect of the property comprised in Survey
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W.P.No.12415 of 2013
No.722/1 situated at Pallikaranai Village. Therefore, the possession of the
subject land has not been taken even till today. Therefore, the entire
acquisition proceedings have lapsed as per Section 4 of the Act 20 of 1999,
since the possession has not been taken even till today. In this regard, the
learned counsel for the petitioners relied upon the Judgment of the Hon'ble
Division Bench of this Court dated 09.03.2020 in W.A.Nos.970 and 1738 of
2017 The State of Tamil Nadu, Rep. by its Secretary , Revenue Department,
Fort St. George, Chennai - 9 and another -vs- Rane Brake Linings Limited
Rep. by its Vice President Finance and Secretary Mr.V.Krishnan having its
registered Office at "Maithri", No.132, Cathedral Road, Chennai - 600 086,
this Court held as follows:
"26. The question of possession and
vesting has already been dealt with by us herein
above, but the learned Additional Advocate General
has come up with three judgments, the first is of the
Apex Court in the case of State of U.P. and others v.
Adarsh Seva Sahkari Samiti Limited, (2016) 12
SCC 493. It is urged that according to the said
judgment a subsequent transferee has no right as
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W.P.No.12415 of 2013
his transfer is void ab initio, being in violation of
the provisions of the Urban Land (Ceiling
and Regulation) Act, 1976. The said decision is
related to the Urban Land (Ceiling and Regulation)
Act, 1976 as applicable in the State of Uttar
Pradesh. We may point out that Sections
10(5) and 10(6) of the Central Act as applicable to
the State of Uttar Pradesh are pari materia
to Sections 11(5) and 11(6) involved herein. The
said decision nowhere has dealt with the law laid
down in the case of State of Uttar Pradesh Vs. Hari
Ram (supra). To the contrary, in paragraph (6), the
Apex Court has declined to examine the said
question in the following words:
"6. In our opinion, the respondent herein has
no locus standi to challenge the inaction on the
part of the appellants viz. not taking possession
legally strictly complying with the statutory
provisions under Section 10(5) of the Act and
taking over possession as provided
under Section 10(6) of the Act. At this juncture,
this aspect need not be examined by this Court
at the instance of the respondent.” In the said
case also, it is evident that the possession had
been taken over and had been handed over to a
Development Authority, thereby introducing a
third party in possession, which is not a fact in
the present case."
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W.P.No.12415 of 2013
27. The second decision relied on by Shri
Pandian is the Apex Court decision in the case
of State of Uttar Pradesh and others v. Surendra
Pratap and others, (2016) 12 SCC 497, which in
turn has relied on the above mentioned judgment. In
the said case also, the Apex Court had arrived at
the finding that possession certificate was issued
and an objection was filed against the same which
came to be rejected and thus, on such facts, it was
held that W.A.Nos.970 and 1738 of 2017 there was
no statable claim of possession. The said case is
also distinguishable on facts, in as much as in the
present case the land delivery receipt nowhere
bears the signature of either the land owner or the
writ petitioners, as already observed herein above.
There is no evidence with regard to taking over of
possession. Apart from this, the decision in the case
of State of Uttar Pradesh and others v. Surendra
Pratap and others (supra), nowhere even refers to
the judgment in the case of State of Uttar Pradesh
Vs. Hari Ram (supra).
28. The third judgment which has been
cited and which has been heavily relied on by Shri
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W.P.No.12415 of 2013
Pandian is the latest Five-Judges Constitution
Bench judgment in the case of Indore Development
Authority v. Manoharlal and others, etc., [decided
on 6.3.2020 in SLP (C) Nos.9036-9038 of 2016], on
the strength whereof he contends that this Five-
Judges Constitution Bench judgment in effect has
impliedly overruled the judgment in the case of
State of Uttar Pradesh Vs. Hari Ram (supra),
inasmuch as it has expressly approved of the
judgment in the case of State of Assam v. Bhaskar
Jyoti Sarma and others, (2015) 5 SCC 321. For
this, he has extensively relied on the answer given
by the Constitution Bench against Issue No.4, which
is the mode of taking possession under the Act of
1894 and paragraph 244 to paragraph 277 and
then to paragraph 341 to paragraph 346 and again
to paragraph 363 to contend that the mode of
taking possession by virtue of the vesting of the land
in the present case is full and complete and the
Apex Court has rendered the Five Judges
Constitution Bench judgment after taking into
consideration the judgment in the case of State of
Assam v. Bhaskar Jyoti Sarma and others (supra),
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W.P.No.12415 of 2013
which was directly in issue in relation to the taking
over of surplus land declared in Urban Land
Ceiling proceedings. He, therefore, submits that
once the land has vested, then this will amount to
vesting of possession and title both.
29. We have perused the relevant
paragraphs pointed out by Shri Pandian and we do
not find any consideration of paragraphs 41 and 42
of the judgment in the case of State of Uttar
Pradesh Vs. Hari Ram (supra) having been dealt
with or having been overruled by the Constitution
Bench. We may also point out that the Five Judges
Constitution Bench has extracted the ratio of the
judgment in the case of State of Assam v. Bhaskar
Jyoti Sarma and others (supra) contained in
paragraphs 15 to 17 thereof, that has been quoted
in paragraph 341. The said quotation even though
refers to the case of State of Uttar Pradesh Vs. Hari
Ram (supra), it appears that it was only the word
“may” that was taken into consideration for
interpreting an exercise of a discretion by the
Competent Authority to issue notice or otherwise. It
was also clearly stated in State of Assam v. Bhaskar
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W.P.No.12415 of 2013
Jyoti Sarma and others (supra) that the question
whether the breach of the provisions vitiate the act
of dispossession itself or render it non-est in the eye
of law had not fallen for consideration in the case
of State of Uttar Pradesh Vs. Hari Ram (supra).
Thus, it was on that distinction that the Apex Court
proceeded to deliver the judgment in the case
of State of Assam v. Bhaskar Jyoti Sarma and
others (supra). The decision of the Five-Judges
Bench in the case of Indore Development Authority
v. Manoharlal and others, etc. (supra), therefore, in
our opinion, cannot be read as a judgment
overruling the ratio in the case of State of Uttar
Pradesh Vs. Hari Ram (supra). Thus, paragraphs
41 and 42 of the judgment in the case of State of
Uttar Pradesh Vs. Hari Ram (supra), for the present
purpose, still hold the field and consequently, the
argument raised by Shri Pandian deserves to be
rejected."
17. The Hon'ble Division Bench of this Court held that the Act of
vesting has to be followed by taking over possession and is not simultaneous.
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W.P.No.12415 of 2013
There is no deemed actual physical possession, which has to be accomplished
later on either through Section 11(5) or Section 11(6) of the Act. The Tamil
Nadu Urban Land (Ceiling and Regulation) Act as confiscation of land being
excess and surplus area in order to above that prescribed therein, but when
the repeal Act came the very purpose of the repeal act of sale the land of
which possession has not been taken.
18. Therefore, even though the subject land had been declared as
surplus and it had been handed over to the Slum Clearance Board, the
possession of the subject land is very much with the petitioners. The
respondents contended that the petitioners are being the subsequent
purchasers, they cannot challenge the acquisition proceedings, since they
have no locus-standi. When the respondents are not able to produce any
records to show that the acquisition proceedings are vitiated in respect of the
subject properties which were purchased by the petitioners from legal heirs of
M.S.Sulthan Ibrahim who traced out the title by the registered sale deed dated
28.05.1963 vide Document No.1998 of 1963. Therefore, the contention
raised by the respondents cannot be considered.
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W.P.No.12415 of 2013
19. In view of the above, that the land comprised in Survey
No.722/1 and 722/2 part of Pallikaranai Village, Sholinganallur Taluk,
Kancheepuram District belonging to the petitioners acquired under the
various provisions of Act 24 of 1978 declared as null and void. The third
respondent is directed to mutate the Revenue records in the name of the
petitioners for their respective properties in the Revenue records and issue
patta in their favour as per their respective sale deed within a period of eight
weeks from the date of receipt of a copy of this order.
20. With the above directions, this writ petition is allowed. No
order as to costs. Consequently, the connected M.P.No.1 of 2013 is closed.
26.10.2021
Index:Yes/No
Speaking Order: Yes/No
rna
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W.P.No.12415 of 2013
To
1.The Principal Commissioner and Secretary
of Land Reforms, Chepauk, Chennai - 600 005.
2.The Assistant Commissioner (Urban Land Ceiling)
No.169, Sannadhi Street, Tambaram Office
Adambakkam, Chennai - 600 089.
3.The Tahsildhar,
Sholinganallur Taluk,
Sholinganallur,
Kanchipuram District.
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W.P.No.12415 of 2013
G.K.ILANTHIRAIYAN,J.
rna
W.P.No.12415 of 2013
and M.P.No.1 of 2013
26.10.2021
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