Madras High Court
U.Sumathi vs The Secretary To Government on 31 January, 2025
Author: P.T. Asha
Bench: P.T. Asha
W.P.No.35905 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2025
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
W.P.No.35905 of 2024
1.U.Sumathi
2.U.Suganthi
3.U.Venkata Sabapathy ... Petitioners
Vs.
1.The Secretary To Government
Revenue Department,
Fort St Goerge Chennai 600 009
2.The Assistant Commissioner Of
Urban Land Ceiling And Tax (Kundrathur),
Office At No 153 Karunigar Street,
Adambakkam Chennai 60 088
3.The Tahsildar
Kundrathur Taluk Office,
Mehta Nagar Main Road, Kundrathur,
Chennai 600 056 Kanchipuram District.
...Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of Declaration, to declare that the
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W.P.No.35905 of 2024
proceedings initiated by the 2nd respondent in file No. Na.Ka 3990 /
97B under the Tamil Nadu Urban Land (Ceiling and Regulation) Act
1978, stands abated under section 4 of the Tamil Nadu Urban Land
(Ceiling and Regulation) Repeal Act, 1999 in so far as the petitioners'
property situated a Plot No.19, comprised in survey No 13 (part)
measuring an extent of 1570 Sq.ft at Mangadu 'A' village Kundrathur
Taluk, Kanchipuram District is concerned and further direct the 3rd
respondent to issue patta for the said property to the petitioners, within
a reasonable time as may be fixed by this Honble Court.
For Petitioner : M/s.A.E.Ravichandran
For Respondents : M/s.A.Selvendran, Spl.GP
for R.1 to R3.
ORDER
The writ petition is filed for the following reliefs:-
"To declare that the proceedings initiated by
the 2nd respondent in file No. Na.Ka 3990 / 97B
under the Tamil Nadu Urban Land (Ceiling and
Regulation) Act 1978, stands abated under section 4
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of the Tamil Nadu Urban Land (Ceiling and
Regulation) Repeal Act, 1999 in so far as the
petitioners' property situated a Plot No 19,
comprised in survey No 13 (part) measuring an
extent of 1570 Sq.ft at Mangadu 'A' village
Kundrathur Taluk, Kanchipuram District is
concerned and further direct the 3rd respondent to
issue patta for the said property to the petitioners,
within a reasonable time as may be fixed by this
Honble Court."
2. It is the contention of the petitioners that a larger extent of 1
acre and 97 cents in Survey Number 13, Mangadu Village,
Kundrathur Taluk Kanchipuam District was jointly possessed by one
Ponnusamy Pillai and his brother Dhanapillai by virtue of a sale deed
dated 24.09.1962. The brothers had partitioned the property on
01.09.1972 with each taking 97 cents.
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3. After the demise of Dhanapillaii, his legal heirs had
developed his share of the property measuring an extent of 66 cents
out of 97 cents into a lay out and the petitioners' father P.Umapathy,
purchased Plot No.19 in S.No.13 (part) measuring an extent of 1570
sq.ft. (i.e. 1368 sq.ft. + 202 sq.ft.) under two registered sale deed dated
22.03.1996 and 12.07.1996. The petitioner's father had constructed a
house on the said property in the year 1998 and had been residing
there ever since. After the death of the petitioners' father, the
petitioners have been in the joint possession of the said extent.
4. The petitioners had approached the 3rd respondent for grant of
patta in their names at which point in time they were informed that the
land in Survey No.13 (part) measuring an extent of 7450 sq.mt was
the subject matter of the proceedings under the the Tamil Nadu Urban
Land (Ceiling and Regulation) Act, 1978 (hereinafter called as the
"Act") and that patta would be issued only after NOC was obtained
from the 2nd respondent. Thereafter, the petitioners had made an
application under the RTI whereunder they came to learn that an
extent of 7450 sq.mts at Mandagu Village, Kundrathur Taluk,
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comprised in survey numbers 13/1, 13/2, 13/3A and 13/4 was acquired
under the Act from one Babu and possession was handed over to the
Revenue Department, namely, the 1st respondent herein on
06.05.1999. Incidentally, the Act itself had come to be repealed with
effect from 16.06.1999 under the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 and it appears that only paper
possession has been recorded. The petitioners would submit that
possession has always been with them from the date of the purchase
on 12.07.1996. Therefore, the petitioners have come forward with the
writ in question.
5. A counter statement has been filed by the 2nd respondent
contending that since no return has been filed by the Urban Land
Owner under Section 7(1) of the Act, notice under Section 7(2) of the
Act has been issued on 13.05.1997 and the same was served by
affixture at the door of the house. Since, no response was received
from the Urban Land Owner, notice under Section 9(4) of the Act
along with draft statement under Section 9(1) of the Act was issued on
14.08.1997. As the person in residence had refused to receive the
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notice, it was served by affixture on the door of the house on
28.09.1997 in presence of witnesses. Thereafter, when the land in
question was inspected, a name board was found as "Vinayaga Real
Estate" and five houses had been constructed thereon. Thereafter,
orders under Section 9(5) of the Act was passed on 31.10.1997
determining an extent of 7450 sq.mts as excess vacant land out of the
total extent of 7950 sq.mts. after allowing 500 sq.mts towards
entitlement area. All the communications related to the Act had been
issued to one Babu who was shown as the owner of the subject
property as per the revenue records till 03.08.1976.
6. The 2nd respondent would submit that all proceedings and
procedures contemplated under the Act were followed and possession
of the property was taken on 06.05.1999 by the Revenue Inspector of
Mangadu Firka from the Special Deputy Tahsildar, Office of the
Competent Authority (Urban Land Tax), Kundrathur, since the
landowner had not come forward to hand over the possession of the
property. Therefore, the 2nd respondent sought for the dismissal of the
petition.
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7. Heard the counsel on either side and perused the records.
8. From a perusal of the records, particularly the counter, it is
clear that the proceedings had been initiated against a person who was
not the owner of the property. The property originally belonged to one
Dhanapillaii and Ponnusamy Pillai who had purchased the same
under a registered sale deed dated 24.09.1962. They had partitioned
the property in the year 1972. After the demise of Dhanapillai, his
legal heirs had developed his share of the property and formed a
layout. The petitioners' father had purchased the subject property from
the legal heirs of the said Dhanapillai in the year 1996.
9. The respondents would contend that the Urban Land Ceilings
proceeding itself had commenced on 13.05.1997. That is after the
purchase by the petitioners' father and the counter would also clearly
state that notice was effected by affixture. The property in question
between 1996 and 1998 was a vacant land and it is not known as to
where the affixture was made. Therefore, the very issue of service of
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notice is in question with relation to the subject property. The notice
has been issued to a person who is in no manner connected to the
property. The respondents who would state that the possession of the
subject property was taken on 16.05.1999 have not shown proof as to
the manner in which the possession of the property which at that point
in time consisted of a residential house had been taken. Therefore,
since possession had not been taken and the Repeal Act 1999 had been
enacted, proceedings under the Act automatically stood abated.
10. Section 11(5) of the Act talks about the competent authority
calling upon the person in possession to surrender or deliver
possession. Section 11(6) of the Act talks about how possession has
to be taken where the person in possession fails to comply with the
order made under Section 11(5).
11. In the case on hand, the land in question have been formed
into a housing plots and the petitioners' property had a house
constructed on the property. The construction had been put up in the
year 1998. Respondents claim that the affixture was made in the year
1997 when the property was merely a vacant site. Therefore, onus is
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cast upon the respondents to show a proof that they had taken physical
possession of the property.
12. The Division Bench of this Court in the case of The
Secretary, Revenue Department, Fort St.George, Chennai - 600 009
and two others vs. K.Gopal, reported in 2013-4-L.W.103, while
considering the provisions of Section 11(5) of the Act regarding
service of notice upon the person in possession of the land observed as
follows in paragraph 20:-
"20. Once we hold that the writ petitioner is in
possession of the land, it is mandatory on the part of the
official respondents to serve notice on the writ
petitioner in terms of Section 11(5) of the Act. But,
admittedly, no notice whatsoever, has been served on
the respondent/writ petitioner. The learned Single
Judge also considered the said issue in extenso and
found that the official respondents without complying
with the provisions of the Act in letter and spirit, have
passed the impugned proceedings and accordingly,
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allowed the writ petition. This Court, on an independent
application of mind to the materials placed, is of the
considered opinion that there is no error apparent or
infirmity in the impugned order passed by the learned
Single Judge in allowing the writ petition and this Court
finds no merit in the writ appeal and accordingly, the
same is dismissed. No costs. Consequently, connected
miscellaneous petition is closed."
13. Another Division Bench Judgment in the case of State of
Tamil Nadu and 9 others vs. Sumathi Srinivas, reported in
2015~2~L.W.391, the Court held that where only a symbolic
possession is taken when actual real possession is with the Petitioner,
the Petitioner would be entitled to avail the benefits of Section 4 of the
Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.
14. Another Division Bench Judgment in the case of Principal
Commissioner and Commissioner for Land Reforms and Another
vs. B.Booshanam and Another, reported in (2020) 1 LW 410, the
Court held that when possession is not given under Section 11(5) of
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the Act, forcible possession has to be taken. Relevant portion of the
said Judgment reads as follows:-
"14. A perusal of the above position would show
that Section 10(5) postulates that the land owner
himself surrenders the possession. If the land owner
does not surrender possession, then procedure under
Section 10(6) of the Ceiling Act has to be adopted.
Section 10(6) of the Ceiling Act, therefore, postulates
that authorities must go to the land and taken physical
possession on the land itself. This procedure cannot be
adopted while sitting inside the office of the authorities.
Notice under Section 11(5) of the Act was served, on the
land owners only by affixture. There is nothing to show
where the notice was pasted. There is no witness to
show whether there was actual pasting or not. The
possession certificate only shows that the land was
handed over by the Deputy Tahsildar to the Zonal
Deputy Tahsildar. As observed earlier, the words ?from
the urban land owner? has been struck off. There is
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nothing on record to satisfy us that the Government
took physical possession of the property from the land
owners. There are no witnesses to show that the officers
went to the land physically and took over possession
which is normally done in favour of independent
witnesses. It looks as if the entire exercise of affixture
and taking over of the possession of the land was done
inside the office of the respondents. This Court is of an
opinion that there has to be some form of material
showing service of notice under Section 11(5) of the
Ceiling Act having being done through affixture. There
has to be some material to show voluntary surrender of
possession. In the absence of any material, it cannot be
presumed that there has been a voluntary surrender of
the land. In the absence of voluntary surrender of the
land, the State Government will have to resort to the
procedure under Section 11(6) of the Ceiling Act.
Admittedly, Section 11(6) of the Ceiling Act has not
been resorted to. The stand of the State Government
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that unless there is a physical resistance, Section 11(6)
need not be resorted at all, cannot be accepted.?"
15. In the instant case, there is nothing to show a voluntary
surrender of possession and admittedly the Respondents have not
resorted to the procedure contemplated under Section 11(6) of the Act.
Therefore, it is clear that possession continues with the Petitioner and
with the Repeal Act coming into force the proceedings under the
Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 stands
abated/closed.
16. Therefore, in the light of the above, the writ petition is
allowed and the land ceiling proceeding initiated by the 2nd
respondent in file No.Na.Ka 3990 / 97B under the Tamil Nadu Urban
Land (Ceiling and Regulation) Act 1978, stands abated under Section
4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act,
1999 in so far as the petitioners' property situated at Plot No 19,
comprised in survey No.13 (part) measuring an extent of 1570 Sq.ft at
Mangadu 'A' village Kundrathur Taluk, Kanchipuram District is
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concerned. Consequently, the 3rd respondent is directed to issue patta
to the petitioners in respect of the subject property within a period of 3
weeks from the date of receipt of a copy of this order. There shall be
no order as to costs.
31.01.2025
(shr)
Index : Yes/No
Speaking Order: Yes/No
Neutral Citation : Yes/No
To
1.The Secretary To Government
Revenue Department,
Fort St Goerge Chennai 600 009
2.The Assistant Commissioner Of
Urban Land Ceiling And Tax (Kundrathur),
Office At No 153 Karunigar Street,
Adambakkam Chennai 60 088
3.The Tahsildar
Kundrathur Taluk Office,
Mehta Nagar Main Road, Kundrathur,
Chennai 600 056 Kanchipuram District
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P.T. ASHA. J.,
(shr)
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31.01.2025
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