Nalla Meeral Beevi vs The Assistant Commissioner
2023 Latest Caselaw 9319 Mad

                                                                          W.P(MD)Nos.13965 & 13966 of 2014


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 01.08.2023

                                                          CORAM

                         THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                        W.P(MD)Nos.13965 & 13966 of 2014
                                                     and
                                            M.P.(MD)Nos.1 & 1 of 2014

                     In W.P.(MD)No.13965 of 2014

                     Nalla Meeral Beevi                                              ... Petitioner

                                                              Vs.

                     1.The Assistant Commissioner,
                       Urban Land Ceiling,
                       Tirunelveli.

                     2.The Tahsildar,
                       Tirunelveli Taluk,
                       Tirunelveli.                                                ... Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, to forbear the first respondent from taking physical possession of the land to an extent of 0.61.68 hectares situated in S.No.785, Suthamalli Village, Tirunelveli Taluk, Tirunelveli from the petitioner on the basis of the order declaring the land as surplus in R.O.C.No.A1/1123/95, dated 31.10.1995 and further direct the second respondent to effect change of patta in the name of the petitioner.

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

For Petitioner : Mr.H.Arumugam For Respondents : Mr.N.Satheesh Kumar Additional Government Pleader

In W.P.(MD)No.13966 of 2014

M.A.S.Akbar Zindha Mohideen (died)

2.Nalla Meeral

3.Peer Fathima

4.Mohammed Abdul Latheef

5.Mahamudal Ibrahim

6.Ameena Saliha (the petitioners 2 to 6 are impleaded vide order dated 01.08.2023 in W.M.P.(MD)No.15487 of 2023) ... Petitioners

Vs.

1.The Assistant Commissioner, Urban Land Ceiling, Tirunelveli.

                     2.The Tahsildar,
                       Tirunelveli Taluk,
                       Tirunelveli.                                              ... Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, to forbear the first respondent from taking physical possession of the land to an extent of 1.44.88 hectares situated in S.No.766/1, Suthamalli Village, Tirunelveli Taluk, Tirunelveli from the petitioner on the basis of the order declaring the land as surplus in

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

R.O.C.No.A1/1123/95, dated 31.10.1995 and further direct the second respondent to effect change of patta in the name of the petitioner.

For Petitioners : Mr.H.Arumugam For Respondents : Mr.N.Satheesh Kumar Additional Government Pleader

COMMON ORDER

W.P.(MD)No.13965 of 2014 was filed by Nalla Meeral Beevi,

while the other writ petition was filed by her husband. The petitioner

in W.P.(MD)No.13966 of 2014 is no more and his legal heirs have

come on record.

2. The subject matter of these writ petitions is comprised in

Survey No.766/1 and 785/1, Suthamalli Village, Tirunelveli Taluk.

The proceedings were initiated under the provisions of Tamil Nadu

Urban Land (Ceiling and Regulation) Act, 1978. According to the

Government, 2.06.56 hectare of land was the urban excess vacant

land. The proceedings were initiated and final notice under Section

11(5) of the Act was also issued. It is not in dispute that

Thiru.M.A.S.Akbar Zindha Mohideen received 25% of the

compensation immediately. The Government proposed to pay the

remaining balance amount in 13 installments. Since he refused to

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

receive the balance amount, the same was kept in the revenue deposit.

These proceedings had taken place during the period from 1979 to

1982. The land owner filed W.P.No.11122 of 1996 before the Madras

High Court and an interim order was also granted on 23.08.1996.

The writ petition was transferred to Tamil Nadu Land Reforms

Special Appellate Tribunal and re-numbered as T.R.P.No.407 of 1999.

The said petition came to be dismissed on 14.11.2000. In the

meanwhile, the Urban Land Ceiling Act itself was repealed on

16.06.1999. The case of the petitioner is that they continue to remain

in possession and in view of the repealing of the Act itself, this Court

should not only restrain the first respondent from taking physical

possession of the land declared as excess but also direct the

jurisdictional Tahsildar to issue patta in their favour.

3. The learned counsel appearing for the petitioner reiterated all

the contentions set out in the affidavit filed in support of the writ

petition and called upon this Court to grant relief as prayed for. His

primary contention is that possession is still with the petitioners and

that this Court should liberally construe the provisions of the

repealing Act.

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

4. The respondents have filed counter affidavit and the learned

Additional Government Pleader took me through its contents. The

learned Additional Government Pleader would contend that the

proceedings under the Tamil Nadu Urban Land (Ceiling and

Regulation) Act, 1978 were not challenged as contemplated by the

statute. Instead, the writ petition was filed in the year 1996. It was

transferred to the Tribunal. The Tribunal eventually dismissed the

petition. The order passed by the Tribunal was never assailed by the

writ petitioners. The finding set out therein holds good. So long as

the findings have not been vacated, the writ petitions are not

maintainable. He also pointed out that one of the items involved was

the subject matter of O.S.No.845 of 1996 on the file of the PDM,

Tirunelveli.. Even while dismissing the suit vide Judgment and

decree dated 17.04.2003, the trial Court had recorded the testimony

of M.A.S.Akbar Zindha Mohideen that he is not in possession of the

subject land. He therefore submitted that possession was taken over

by the Government way back in the year 1982 and that the petitioners

cannot claim advantage of the repealing Act. He pressed for

dismissal of the writ petition.

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

5. I carefully considered the rival contentions and went through

the materials on record.

6. Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978

was enacted to give effect of the socialistic principles. The said Act

came to be repealed vide Tamil Nadu Act 20 of 1999. Section 3 & 4

of the Act read as follows:-

“ 3. Savings:- (1) The repeal of the principal Act shall not affect-

(a) the vesting of any vacant land under sub-section (3) of section 11, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub- section (1) of section 21 or any action taken thereunder.

(2) Where -

(a) any land is deemed to have vested in the State Government under sub-section (3) of section 11 of the principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.

4. Abatement of legal proceedings. - All proceedings relating to any order made or purported to be made under the principal Act

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

pending immediately before the commencement of this Act, before any court, tribunal or any authority shall abate:

Provided that this section shall not apply to the proceedings relating to sections 12, 13, 14, 15, 15-B and 16 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.”

7. A careful reading of the aforesaid provisions would indicate

that the entire issue boils down to this namely, whether possession of

the land remains with the writ petitioners or it had been taken over by

the department. It is true that the original writ petitioner in W.P.

(MD)No.13966 of 2014 obtained an interim order in his favour on

23.08.1996 in W.M.P.(MD)No.14889 of 1996 in W.P.No.111292 of

1996. The prayer in W.M.P. was as follows:-

“Petition praying that the High Court will be pleased to grant ad-interim injunction restraining the respondent or their subordinate from in any way dealing with the lands in S.No.785/1 and 766/1 in Suthamalli Village, Tirunelveli Taluk, Tirunelveli Kattabomman District pending disposal of the above writ petition.”

Grant of injunction in such W.M.P cannot advance the case of the

writ petitioners. If any finding of fact had been recorded that the writ

petitioner was in possession and that he should not be dispossessed,

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

that would be a different matter altogether. But that is not the case.

The only injunction which the writ petitioner obtained was to restrain

the authorities from dealing with the petition mentioned lands. The

learned Additional Government Pleader appearing for the respondents

drew my attention to the writ prayer. It reads as follows:-

“Writ Petition No.11122 of 1996 was filed in the High Court praying for the issue of a Writ of Certiorarified Mandamus calling for the records from the file of the respondents in their proceedings No.SRA 17/79, dated 25.08.80 on the file of the second respondent and EE3/28365/95, dated 20.10.19956 and j1/40232/95, dated 30.01.1996 on the file of the first respondent and quash the same and further direct the respondents to restore the lands in survey No.785/1 and 766/1 in Suthamalli Village, Tirunelveli Taluk, Tirunelveli Kattabomman District which were acquired under the Tamil Nadu Land Ceiling and Regulation Act, 1976.”

The writ petitioner therein sought restoration of the lands. Section

11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act,

1978 reads as follows:-

“(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice”

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

8. In this case, it has been mentioned in the counter affidavit

that notice under Section 11(5) of the Act was issued and thereafter,

possession was also taken over in the year 1982 and mutation was

also made in the revenue records. The handicap expressed by the

learned Additional Government Pleader is that the files were

produced before the civil Court and therefore, the relevant document

could not be produced before this Court. But the present case is not

the first round of litigation. The writ petition filed by M.A.S.Akbar

Zindha Mohideen was transferred to the tribunal and it was taken up

for final disposal only on 14.11.2000. It is not as if an exparte order

was passed. The petitioner was represented by counsel. The

repealing Act had come into force on 16.06.1999 itself. If the

possession was still with the land owner, advantage would have been

taken under Section 4 of the Repealing Act (Tamil Nadu Act 20 of

1999). That such an argument was not advanced would definitely

come in the way or definitely raising the very same contention in the

next round. Paragraph No.5 of the order dated 14.11.2000 passed by

the tribunal reads as follows:-

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

“(5) Point:- The relief prayed for in this petition is to quash the order dated 20.10.1993 passed by the Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-5 and to direct the respondents to restore the excess land to him. The said impugned order dated 20.10.1995 states as follows:-

“I find from the records that the excess vacant land measuring 20656 sq.mt. In the case lands was handed over to the Tahsildar, Tirunelveli Taluk on 13.04.1991. The appellant has received 25% amount and also 13 installment amount so far as payment for the excess vacant lands acquired from him.

In view of the reasons set out in para 3 above, the appeal petition is dismissed.”

9. In O.S.No.845 of 1996 on the file of the PDM, Tirunelveli

conducted between Umar Pulavar Mohideen and others on the one

hand and M.A.S.Akbar Zindha Mohideen and others as defendants,

M.A.S.Akbar Zindha Mohideen was examined as D.W.1. In

Paragraph No.14 of the judgment rendered by the trial Court, it has

been categorically mentioned that M.A.S.Akbar Zindha Mohideen

admitted that the writ petition was dismissed and that the suit

property was in the possession of the Government. The trial Court

had rendered a categorical finding that the suit property was not in

the possession of M.A.S.Akbar Zindha Mohideen.

https://www.mhc.tn.gov.in/judis W.P(MD)Nos.13965 & 13966 of 2014

10. In view of the aforesaid three aspects namely the findings

rendered by the civil Court in O.S.No.845 of 1996, the findings

rendered by the Tribunal vide order dated 14.11.2000 and the writ

prayer in W.P.No.11122 of 1996 categorically showing that

possession was lost by the petitioners and that a stale claim was

sought to be revived a full 14 years after parting with possession, I

come to the conclusion that possession is not with the petitioners.

Both the writ petitions necessarily fail. These writ petitions are

dismissed. No costs. Consequently, connected miscellaneous

petitions are closed.

                                                                                     01.08.2023
                     NCC                : Yes/No
                     Index              : Yes / No
                     Internet           : Yes/ No
                     rmi




                                                                     G.R.SWAMINATHAN, J.




https://www.mhc.tn.gov.in/judis
                                                              W.P(MD)Nos.13965 & 13966 of 2014


                                                                                          rmi


                     To

                     1.The Assistant Commissioner,
                       Urban Land Ceiling,
                       Tirunelveli.

                     2.The Tahsildar,
                       Tirunelveli Taluk,
                       Tirunelveli.




                                                     W.P(MD)Nos.13965 & 13966 of 2014




                                                                                01.08.2023






https://www.mhc.tn.gov.in/judis