Madras High Court
The Special Commissioner And ... vs Valliammal on 25 April, 2023
W.A.No.1953 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 25.04.2023
CORAM
THE HONOURABLE Ms. JUSTICE V.M.VELUMANI
AND
THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN
W.A.No.1953 of 2018
AND
C.M.P.Nos.15571 & 15572 of 2018
1.The Special Commissioner and Commissioner
for Urban Land Ceiling and Urban Land Tax
Chepauk, Chennai 600 005
2.The Assistant Commissioner
for Urban Land Tax-cum-Competent Authority
Alandur, No.169, Sannathi Street
Chennai 600 088 .. Appellants
Vs.
Valliammal
Rep. by her power of attorney holder
R.Babu .. Respondent
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order dated 22.01.2013 passed by this Court in W.P.No.11933 of 2005.
1/12
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
For Appellants : Mr.A.Silambanan
Additional Advocate General
Assisted by
Mr.Vadivelu Deenadayalan
Additional Government Pleader
For Respondent : Mr.S.Wilson
JUDGMENT
(Delivered by V.LAKSHMINARAYANAN, J.)
This appeal arises against the order dated 22.01.2013 passed by the
learned Single Judge in W.P.No.11933 of 2005.
2. Facts leading to the writ petition are as under :
2.1. The writ petitioner had acquired an extent of 0.69 acres
comprised in survey No.558/2 and 559/1 of Gerugambakkam Village,
Sriperumbudur Taluk, Kancheepuram District by way of a partition deed.
The said partition deed was executed on 06.01.1989 and registered as
document No.54/1989. The partition was between the sons and wife of one
Kanniappa Mudaliar. The writ petitioner is the wife of Kanniappa Mudaliar.
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
2.2. According to the writ petitioner, she received the impugned order
in Na.Ka.No.951/98/B dated 10.07.1998 holding that she is in possession of
excess vacant land of 500 sq. mtrs. According to her, prior to the issuance
of the impugned order, no notice was served on her. The impugned order
would state that notice had been served by way of affixture on the land.
Since no objection had been received from the land owner, it was
confirmed. The writ petitioner would state that her address had not been
ascertained and that she continues to use the land for agricultural purposes
by raising paddy. She would state that the physical possession of the
property continues to be with her and since the repeal Act viz., Tamil Nadu
Urban land (Ceiling & Regulation) Act, 1999 (Act 20 of 1999) had come
into force, the 2nd respondent has no right to take possession of the property.
She would allege that the passing of an ex parte order against her was
wrong as the revenue records stand in her name and the same could have
been easily verified.
2.3. A counter affidavit was filed by the 2nd respondent admitting to
the fact that the said Valliammal/writ petitioner is the owner of 2300
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
sq. mtrs. land. It is alleged that the land owner failed to file returns under
Section 7(1) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act,
1978 (in short “the 1978 Act”) and therefore, a notice was issued on
27.02.1998 to the writ petitioner. The said notice was served on 25.03.1998.
The Deputy Tahsildar attached to the office of the 2nd respondent had
inspected the land on 08.05.1998 and had reported that it is no longer an
agricultural land as it has been converted into house site.
2.4. On the basis of the revenue records and the report of the Deputy
Tahsildar, the 2nd respondent had issued a notice together with a draft
statement under Section 9(4) of the 1978 Act to the writ petitioner. It is
alleged that it was served on the writ petitioner's daughter on 19.05.1998.
Since the writ petitioner nor any of her representative filed any reply, the
2nd respondent inspected the land on 10.07.1998 and confirmed that it had
lost its agricultural status and had become an urban land.
2.5. The 2nd respondent would state that the excess land available with
the writ petitioner was determined as 2300 sq. mtrs. and consequently, it
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
was acquired and handed over to the Revenue Department on 03.06.1999.
He would state that the Government had taken over the said extent and had
allotted 500 sq. mtrs. towards writ petitioner's entitlement.
2.6. The service of notice according to the respondents, was not in
any of the modes contemplated under the 1978 Act, but by way of an
affixture. The 2nd respondent would allege that since the notification had
been issued under Section 11(1) of the 1978 Act on 05.01.1998 and
published in the Gazette on 30.12.1998 and this was followed by a
notification as per Section 11(3) of the 1978 Act on 08.02.1999. Therefore,
the 2nd respondent would state the land vests with the Government.
He would state that even the notice under Section 11(5) of the 1978 Act was
served only by affixture, since the land owner did not surrender the
possession of the land.
2.7. The 2nd respondent alleged that possession was taken on
03.06.1999 and the revenue records have also been mutated. According to
him, since the land had already been taken possession on 03.06.1999, which
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
was before the enactment of the repeal act, the writ petition has to fail and
would seek for dismissal of the writ petition. Based on this counter, the
appellants would want us to allow the appeal.
2.8. When the matter was taken up by the learned Single Judge, he
framed an issue whether the writ petitioner is in possession of the property
as on date of the repeal act and on relying upon the judgment of this Court
in The Government of Tamil Nadu Vs. Mecca Prime Tannery and Others
(W.A.No.137 of 2010 etc. batch decided on 23.07.2012), he quashed the
proceedings. Aggrieved by that order, the present writ appeal has been filed.
3. We have heard Mr.A.Silambanan, learned Additional Advocate
General, assisted by Mr.Vadivelu Deenadayalan, learned Additional
Government Pleader for the Government and Mr.S.Wilson, learned counsel
appearing for the writ petitioner.
4. In order to dispose of this writ appeal, we have to see the view
taken by this Court in a batch of writ appeals in Mecca Prime Tannery
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
(supra). The Division Bench had held that pursuant to a notification under
Section 11(3) of the 1978 Act, it is the right, title and interest, in respect of
the land that is deemed to have vested with the Government. However,
unless and until, possession of the land is taken as required under the Act, it
cannot be held that the Government is in possession of the property. The
relevant portion of the judgment are extracted below :
“4. ... ...
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 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.
40. In 2009 (8) M.L.J. 522 (supra), though the petitioner had
purchased the land in the year 1980, the authorities had initiated
proceedings under the Urban Land Ceiling Act in the year 1990 without
issuing any notice to him. The Tamil Nadu Land Reforms Special
Appellate Tribunal dismissed the petition filed by the petitioner
challenging the said proceedings, against which the petitioner filed the
writ petition contending that as per Section 11(5) of the Act, any person
who is in possession of the land is entitled to notice to surrender or
deliver possession to the Government, and that actual physical possession
of the acquired land was not taken over by the Government and it was
only a paper possession and therefore, the petitioner is entitled to the
benefit of Section 4 of the Repealing Act of 1999. The Division Bench,
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
holding that there was no notice under Section 11(5) of the Act either on
the petitioner or on the erstwhile owner/vendor of the land and that actual
physical possession was not taken over by the Government, quashed the
order of the Tribunal and the acquisition proceedings were held to have
been abated, in view of Section 4 of the Repealing Act of 1999.
41. In 2011 (4) M.L.J. 577 (supra), the respondents challenged the
proceedings initiated in respect of their lands under the Ceiling Act
contending that possession of the land was not taken over in a manner
known to law on the date when the said Act was repealed and therefore,
the proceedings shall lapse after the coming into force of the Repealing
Act. The writ petitions were allowed and in the writ appeals filed by the
State, it was contended that since symbolic possession was taken a day
prior to the Repealing Act came into force, the question of giving the
benefit of the Repealing Act would not arise. The respondents/land
owners contended there was no proper notice on the land owners, which
violated the provisions of Section 11(5) of the Ceiling Act. The Division
Bench held that even assuming that possession had allegedly been taken
over, such taking over of possession cannot be considered to be valid in
the eye of law so long as Section 11(5) of the Ceiling Act was not
complied with, in that there was no notice on the owners of the land or
the persons in possession of such land and the respondents were given the
benefit of the Repealing Act. The relevant paragraphs of the judgment of
the Division Bench are extracted hereunder :-
“7. In order to find out as to whether the notice as required
under Section 11(5) of the Act read with Rule 8 of the Rules
was served on the respondents or not, we called for the
records and perused. Admittedly, there is no such notice sent
through registered post, except the competent authority
affixing the said notice on the vacant site, which should be
only a last resort after making an attempt to send the notice by
registered post and in spite of the same, they could not be
served with the notice. In that view of the matter, even
assuming that the possession is said to have been taken as
contended by the learned Special Government Pleader, such
taking over of possession cannot be considered to be valid in
the eye of law so long as the provisions of Section 11(5) of the
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
Act read with Rule 8 of the Rules was not complied with. On
this ground alone, the contention of the respondents that in the
event of physical possession not being taken in the prescribed
manner, the provisions of the Repealing Act would come to the
benefit of the respondents must be accepted.
8. For the said reason, we are also of the considered view
that the respondents are entitled to the benefit of the
Repealing Act and accordingly, we find no reason to interfere
with the impugned order. Accordingly, the writ appeals are
dismissed. However, the issue as to whether the State could
claim the taking over of symbolic possession and hence the
question of physical possession is necessary or not is left
open.”
42... (iii) W.A. No.1975 of 2010 :
This appeal has been filed by the State aggrieved by the order of
the learned single Judge dated 08.11.2001 passed in W.P.No.20398 of
1993. The writ petition was filed by the petitioners-land owners to quash
the acquisition proceedings initiated under the Tamil Nadu Urban Land
(Ceiling and Regulation) Act, 1978 which culminated in the notification
dated 15.01.1992 issued by the 3rd respondent, and quash the same, and
direct the respondents to hear the petitioners before passing any further
orders under Section 11(3) of the Act. Learned single Judge ordered the
writ petition holding that in view of the Tamil Nadu Urban Land (Ceiling
and Regulation) Repeal Act, 1999 (Act 20 of 1999) repealing Tamil Nadu
Urban Land (Ceiling and Regulation) Act, 1978, no factual adjudication
is required. Learned single Judge also observed that since the possession
of the lands continued to be with the petitioners, in view of the interim
injunction being in force all along the, petitioners are entitled to the
benefits of 1999 Repealing Act.
Learned Additional Advocate General is not in a position to satisfy
us that physical possession of the land either delivered by the land owner
to the Government or the Government took possession of the land. Hence,
the finding of the learned single Judge needs no interference. This appeal
is also dismissed.”
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
5. A perusal of the judgment shows that possession has not been taken
in the manner known to law. It was held that even assuming possession had
been taken, it does not comply with the requirements of Section 11 of the
1978 Act. In that case too, no notice was sent to the land owners or the
persons in possession of the land. It was held the land owners have to be
given the benefit of the repeal act. In the present case too, the records do
not reveal that possession had been taken in the manner contemplated under
the Act. Therefore, the said judgment is applicable to the case at hand.
6. Learned Additional Advocate General would state that though there
is no acknowledgment of service of notices on the respondent herein, from
the files relating to service of notice or orders on the proceedings of the land
owner, there is a seal in the Despatch Register stating “mDg;gg;gl;lJ” and
therefore, the Court has to presume that notice had been, in fact, sent and
served on the land owner.
7. We are unable to accept this contention. When the Act specifies a
particular manner of service of notice and that manner has not been
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
complied with, self-serving endorsement on the files does not comply with
the requirements of law. The files do not show the service of notice on the
land owner nor taking of possession prior to the repeal act. The learned
Single Judge was bound by the view taken by the Division Bench in the
batch of cases and he had rightly applied the law.
8. We do not find any irregularity or illegality in the order passed by
the learned Single Judge and therefore, the order of the learned Single Judge
dated 22.01.2013 passed in W.P.No.11933 of 2005 is confirmed and the writ
appeal is dismissed. No costs. Connected miscellaneous petitions are
closed.
(V.M.V.,J.) (V.L.N.,J.)
25.04.2023
Internet : Yes / No (2/2)
Neutral citation : Yes/No
gya
https://www.mhc.tn.gov.in/judis
W.A.No.1953 of 2018
V.M.VELUMANI, J.
AND
V.LAKSHMINARAYANAN, J.
gya
W.A.No.1953 of 2018
25.04.2023
(2/2)
https://www.mhc.tn.gov.in/judis
