Madras High Court
The Special Commissioner And vs Lakshmi Devi (Died) on 12 January, 2023
W.A.No.3621 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.01.2023
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
Writ Appeal No.3621 of 2019
and C.M.P.No.23215 of 2019
1.The Special Commissioner and
Commissioner of Land Reforms
Chepauk, Chennai-600 005.
2.The Assistant Commissioner (ULT)
Competent Authoirty (Urban Land Ceiling)
(Alandur), Sannathi Street
Adambakkam, Chennai-600 008.
3.The Tahsildhar
Tambaram Taluk
Tambaram, Chennai. .. Appellants
Vs.
1.Lakshmi Devi (died)
2.M.Geetha
3.D.Sowmya .. Respondents
(1st Respondent died and her legal representatives
were impleaded as respondents 2 & 3 vide
order of this Court dated 12.01.2023 made in
C.M.P.No.18863 of 2022)
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W.A.No.3621 of 2019
Prayer: Writ Appeal is filed under Clause 15 of the Letter Patent against
the order of this Court dated 29.04.2013 made in W.P.No.6253 of 2008
on the file of this Court.
For Appellants : Mr.S.Silambanan, Senior Counsel
Additional Advocate General – II
assisted by Mr.Vadivel, Addl.Govt.Pleader
For Respondents : Mr.S.Sivashanmugam
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
The present writ appeal is filed against the order of this Court
dated 29.04.2013 made in W.P.No.6253 of 2008 on the file of this Court.
2.Pending appeal, Lakshmidevi, the petitioner in W.P.No.6253 of
2008, who is the respondent in the present writ appeal died and her legal
representatives were impladed as respondents 2 & 3 vide order of this
Court dated 12.01.2023 in C.M.P.No.18863 of 2022 in W.A.No.3621 of
2019.
3.The 1st respondent is owner of land in S.No.190/2B1(part)
measuring an extent of 33 cents in Chitlapakkam Village, Tambaram
Taluk, Chengalpet District. The appellants initiated proceedings under
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W.A.No.3621 of 2019
the Tamil Nadu Urban Land (Ceiling and Regulation) Act 24 of 1978
(hereinafter referred to as “the Act”) alleging that the 1st respondent
possessed excess vacant land and passed an order on 31.05.1990
acquiring lands of the 1st respondent. The 1st respondent filed an appeal
and the appeal was remanded back to the 2nd appellant. After remand, the
2nd appellant passed an order under Section 9(5) of the Act dated
09.03.1994 holding that the lands in Rajakilpakkam Village are
agricultural lands and the extent of 3350 sq.mtrs of land in Chitlapakkam
Village is excess vacant land, after allowing 1000 sq.mtrs towards family
entitlement.
4.According to the appellants, after order under Section 9(5) of the
Act, the 2nd appellant issued notice under Section 11(5) of the Act on
31.10.1996 for handing over possession of excess vacant land by the 1st
respondent. The 1st respondent did not hand over the said land. The 2nd
appellant took possession of the excess vacant land and handed over to
the Revenue authorities.
5.It is the case of the 1st respondent that she was not aware of the
proceedings initiated by the 2nd appellant after remand and she came to
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W.A.No.3621 of 2019
know about the same from the Village Administrative Officer, only when
she applied for issue of patta in her favour. The 2nd appellant did not take
possession of the land from the 1st respondent and as per Section 4 of
Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999
(hereinafter referred to as “Repeal Act”), the proceedings initiated under
Tamil Nadu Urban Land (Ceiling and Regulation) Act by the 2nd
appellant lapsed and filed writ petition for the relief stated therein.
6.The appellants filed counter affidavit and submitted that the 1st
respondent was aware of the proceedings, at each stage, order passed
under Section 9(5) of the Act and notice under Section 11(5) of the Act
have been served on the 1st respondent. The possession was taken by the
appellants on 12.02.1997 and handed over to the Revenue Authorities.
The appellants did not initiate any proceedings till Repeal Act came into
force. The 1st respondent filed writ petition only in the year 2008 and the
writ petition is liable to be dismissed on the ground of delay and latches.
The appellants also stated that they took possession of the land from the
1st respondent on 12.02.1997 and therefore, Section 4 of the Repeal Act
is not applicable. The 1st respondent is not entitled for the relief sought
for and prayed for dismissal of the writ petition.
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W.A.No.3621 of 2019
7.The learned Judge considering the materials placed before him
and files produced by the appellants, held that 1st respondent did not
surrender excess vacant land and appellants have not produced any
materials to show that they have taken possession from the 1st respondent
and allowed the writ petition.
8.Challenging the said order of this Court dated 29.04.2013 made
in W.P.No.6253 of 2008, the present writ appeal is filed.
9.The appellants raised various grounds in the present writ appeal.
The learned Additional Advocate General appearing for the appellants
submitted that writ petition ought to have been dismissed on the ground
of delay as the 1st respondent has filed the writ petition after 11 years of
taking possession of excess vacant land by the appellants. The
possession was taken by the Firka Revenue Inspector, Tambaram and
handed over to the Revenue Department on 12.02.1997. The appellants
proved the same by producing the file. In view of taking possession on
12.02.1997 itself, the 1st respondent is not entitled to the benefit under
Section 4 of Repeal Act and prayed for setting aside the order of the
learned Judge and allowing the appeal.
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W.A.No.3621 of 2019
10.The learned counsel appearing for the respondents submitted
that the appellants did not take possession of alleged excess vacant land.
Even now the 1st respondent is in possession of the said land. The learned
counsel further submitted that this Court and the Hon'ble Apex Court
held that when land owner fails to surrender possession, the authority
must take possession in the presence of the witnesses by preparing
Panchanama. In the present case, no such proceedings was followed. The
learned Judge after considering entire materials allowed the writ petition.
There is no delay as entire proceedings initiated by the appellants has
lapsed on coming into force Tamil Nadu Urban Land and Regulation
Ceiling Repeal Act (Act 20 of 1999) and prayed for dismissal of the
appeal.
11.Heard the learned Additional Advocate General appearing for
the appellants as well as the learned counsel appearing for the
respondents and perused the entire materials on record.
12.It is admitted that the 2nd appellant has initiated proceedings and
passed order under Section 9(5) of the Act that the 1 st respondent is in
possession of excess of land measuring 3350 sq.mtrs. Notice under
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W.A.No.3621 of 2019
Section 11(5) of the Act was also issued to the 1st respondent. After
issuing such notice, the 1st respondent did not surrender excess land
identified by the 2nd appellant. When the 1st respondent did not surrender
excess land, the appellants ought to have taken possession by initiating
proceedings under Section 11(6) of the Act. Merely stating that
possession is taken from the 1st respondent will not amount to complying
with the procedure contemplated by this Court and Honb'le Apex Court.
The authority can take possession only in the presence of the witnesses
after preparing Panchanama and after obtaining signature of the
witnesses in proof of taking possession of the land in question. In the
present case, the appellants did not follow the procedure. As per the
Repeal Act, when possession is not taken from the land owner, the
proceedings initiated under old Tamil Nadu Urban Land (Ceiling and
Regulation) Act automatically lapsed. In view of the same, there is no
question of delay and latches on the part of the 1 st respondent. The
learned Judge considering all the materials produced before him passed
the following order:
“8. However, it has to be seen, as to whether
possession was taken from the petitioner. The records
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W.A.No.3621 of 2019
produced by the learned Additional Government
Pleader disclose that the petitioner has not
Kulasekaran, the ULT Revenue Inspector, Tambaram
has signed the file saying that she has handed over the
delivery of possession to Firka Revenue Inspector of
Tambaram on 12.2.1997. This will clearly reveal that
possession has not be taken from the petitioner. Even in
the counter affidavit, it is stated that the petitioner has
not surrendered possession of the excess vacant land
and hence, it was taken over by the department and
handed over to the Revenue Department represented by
the Firka Revenue Inspector, Tambaram on 12.2.1997.
Even assuming, if the land owner or person in
possession fails to surrender the land in his possession,
then power is conferred on the respondents to take
possession of the land by using force under Section
11(6) of the Act. Since it is not the case of the
respondents that the petitioner has surrendered the land
under Section 11(5) of the Act, the proceedings under
Section 11(6) of the Act should have been taken and
there is nothing on record to show that such
proceedings were initiated against the petitioner.
9. In the decisions reported in AIR 1975 SC
1767- B.N. Bhagte vs. M.D. Bhagvt and AIR 1996 SC
3377- Tamil Nadu Housing Board vs. A. Viswam, the
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W.A.No.3621 of 2019
Hon’ble Apex court has held that a person shall be
deprived of possession only after preparation of a
Memorandum or Panchanama signed by witnesses. In
the given case on hand, there is nothing in the file to
show that the possession has been taken over by the
ULT Revenue Inspector, Tambaram in the presence of
the witness. Therefore, in my considered view, the
claim made by the respondents that possession has
been taken over from the petitioner and the possession
vests with the respondents cannot be accepted.
10. In view of Section 4 of the Tamil Nadu
Urban Land (Ceiling and Regulation) Repeal Act, (Act
20 of 1999), the entire proceedings taken under the Act
has abated, since the possession has not been taken
from the petitioner. As stated already, though it is stated
that possession has been taken from the petitioner,
there is nothing on record to prove the same, It could
be only a paper delivery from one department to
another. ”
In view of the above, there is no infirmity in the said order of the learned
Judge warranting interference by this Court. The appeal is devoid of
merits and is liable to be dismissed.
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W.A.No.3621 of 2019
13.In the result, the writ appeal stands dismissed confirming the
order of this Court dated 29.04.2013 made in W.P.No.6253 of 2008. No
costs. Consequently, connected Miscellaneous Petition is closed.
(V.M.V., J) (R.H., J)
12.01.2023
Index : Yes / No (2/2)
Internet : Yes / No
Neutral Citation : Yes / No
kj
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W.A.No.3621 of 2019
V.M.VELUMANI, J.
and
R.HEMALATHA,J.
kj
Writ Appeal No.3621 of 2019
and C.M.P.No.23215 of 2019
12.01.2023
(2/2)
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