Judgment:
ORDER
D. Hariparanthaman, J.
1. The writ petition is preferred by the land owners against the order dated 01.11.2000 passed in T.R.P. No. 187 of 1999 by the Tamil Nadu Land Reforms Special Appellate Tribunal, confirming the order dated 25.10.1989 of the Competent Authority, the third respondent herein, under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as the Act) and the order dated 07.09.1990 of the Appellate Authority, the second respondent herein.
2. Tmt. Kalpana Krishnamoorthy owned urban land in Kottivakkam. She is the wife of the first petitioner and mother of the petitioners 2 to 5. She did not file the return under Section 7(1) of the Act. Hence, a notice dated 17.05.1982 under Section 7(2) was issued to her by the third respondent, the Competent Authority, seeking her to file return.
3. Thereafter, a draft statement under Section 9(1) was prepared by the Competent Authority regarding the vacant land held by the land owner in excess of ceiling limit and the same was served under Section 9(4) of the Act indicating that she was in possession of 6700 Sq.mts land in excess of the ceiling limit, after permitting her to retain 500 Sq.mts. She was asked to make her objections within 30 days.
4. The first petitioner sent an objection dated 19.09.1988 stating that Tmt. Kalpana Krishnamoorthy is his wife and she died on 26.01.1987 leaving him and the petitioners 2 to 5 as legal heirs and contended that the concerned land is agricultural land and therefore, those lands could not be acquired under the Act.
5. An order dated 25.10.1989 was issued under Section 9(5) of the Act by the Competent Authority, the third respondent herein, considering the objections made to 9(1) draft statement. As per the order, 2000 Sq.mts. was allowed to the land owners for retention and the extent of land in excess of ceiling limit was determined as 5250 Sq.mts.
6. Thereafter, as mentioned in the aforesaid order dated 25.10.1989 under Section 9(5) of the Act, the Competent Authority, the third respondent herein determined the surplus land as 5250 Sq.mts under Section 10(1) of the Act and a final statement in Form III prescribed under Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 (hereinafter referred to as the Rules) was issued. The same was served on the first petitioner, showing the surplus land as 5250 Sq.mts.
7. After the service of the final statement in Form III under Section 10(1) of the Act, the Competent Authority issued a notification under Section 11(1) in Form V calling for claims from all persons interested in the vacant land. The said notification under Section 11(1) was issued in the Tamil Nadu Government Gazette dated 30.05.1990.
8. After issuing notification under Section 11(1) of the Act calling for any claims from the interested persons over the surplus land, the Competent Authority issued a notification under Section 11(3) of the Act. The said notification was published in the Tamil Nadu Government Gazette dated 25.07.1990 and as per the notification, a declaration was made that the land shall be deem to have vested with the Government with effect from 25.08.1990.
9. The petitioners filed appeal to the second respondent under Section 33 of the Act.
10. The second respondent passed an order dated 07.09.1990 dismissing the appeal and held that the order under Section 9(5) of the Act was served on the petitioners on 09.12.1989 and the petitioners filed appeal on 11.01.1990 and hence there was a delay of 4 days. The appeal was thus dismissed on the ground of delay in preferring the appeal belatedly by four days.
11. Therefore, the petitioners filed writ petition in W.P. No. 12892 of 1991 to quash the order dated 25.10.1989 of the third respondent and 07.09.1990 of the second respondent and for consequent direction to the respondents to drop all further proceedings. On constitution of the Tamil Nadu Land Reforms Special Appellate Tribunal, the writ petition was transferred to the Tribunal and the same was renumbered as T.R.P. No. 187 of 1999. Four issues were framed by the Tribunal and those issues are as follows:
1) Whether the lands are agricultural lands as contended by the petitioners or urban lands?
2) Whether notice under Section 11(5) was served in this case?
3) Whether possession of the excess urban land was taken over by the Revenue authorities on 17.11.90 as stated in their additional counter affidavit?
4) Whether the petitioners are entitled to the relief prayed for?
The Tribunal held against the petitioners in all the four issues. Ultimately, the Tribunal dismissed the T.R.P. No. 187 of 1999 on 01.11.2000.
12. The present writ petition is against the said order of the Tribunal. The fourth respondent was impleaded by this Court as per suo motu order dated 07.08.2007.
13. We heard the submissions made on either side. The official respondents as well as the fourth respondent filed counter affidavits. The official respondents also produced Notes File for our perusal.
14. While the matter was pending before the Tribunal, a significant event takes place i.e. the Act was repealed by the Act 20 of 1999. As per Section 4 of the Act 20 of 1999, all proceedings relating to any order made under the Act before any Court, Tribunal, any authority shall abate, if the possession of the land was not taken over by the State Government. Therefore, core question that arose for consideration before the Tribunal was whether the possession was taken over by the State Government. As noted above, the Tribunal found it against the petitioners.
15. The first contention of the petitioners is that they were not served with the notice under Section 11(5) of the Act and that notice under Section 11(5) is mandatory. Secondly, according to the learned Counsel for the petitioners, the Act contemplates actual take over of possession i.e. taking over of physical possession of the surplus land and in this case, there was no actual take over of possession of surplus lands. Hence, the petitioners would succeed in view of Section 4 of Act 20 of 1999.
16. In support of his first plea, the learned Counsel for the petitioners contended that the notice under Section 11(5) in Form VII was said to have been sent under RPAD as per the notice found at page No. 173 of the Notes File produced by the Department. But neither the acknowledgment nor the receipt for having sent through RPAD is found in the Notes File. Moreover, the letter dated 22.10.1990 found in the Notes File states that the notice was sought to be served personally and the same was not served since the land owner was not available.
17. Thereafter, the third respondent in the letter dated 13.11.1990 directed the Deputy Tahsildar - II to serve notice under Section 11(5) of the Act in Form VII on the land owner. The said letter was signed on 27.11.1990. But the notice under Section 11(5) was not served by the Deputy Tahsildar - II as per the records.
18. The learned Counsel for the petitioners argued that the Notes File reveals that notice under Section 11(5), which is mandatory, was not served on the petitioners. Therefore, there could not have been handing over and taking over of possession of surplus lands.
19. However, the Tribunal held in paragraph No. 19 of its order found at page No. 36 of the typed set that it has to be presumed that the notice under Section 11(5) of the Act should have been served on the petitioners. Reliance on Section 114 of the Indian Evidence Act was made for such presumption. According to the Tribunal, under the normal course, the service should have been effected as the notice was sent through Registered Post. This reasoning of the Tribunal is not agreeable to us. The Tribunal is justified in coming to such a conclusion if the receipt for sending the registered post was found in the Notes File. Further, the third respondent himself noted that the notice was not served and issued a letter dated 13.11.1990 to the Deputy Tahsildar - II to serve notice under Section 11(5) in Form VII. Admittedly, the Deputy Tahsildar - II did not serve the notice as per the records produced. That being so, the presumption of service under Section 114 of the Indian Evidence Act by the Tribunal is not warranted.
20. Placed with the aforesaid difficulty, both the learned Special Government Pleader as well as the learned Senior counsel for the fourth respondent argued that the notice contemplated under Section 11(5) is not mandatory. The learned Special Government Pleader fairly admitted that as per the records, notice under Section 11(5) was not served on the petitioners. They heavily relied on 'may' used in Section 11(5) of the Act in support of their submission that notice under Section 11(5) is not mandatory. We are not in agreement with their submissions, as it is concluded by various judgments of this Court and more particularly the judgment of the Division Bench of this Court (presided over by Honourable Mr. Justice Sathasivam as he then was) in V. Somasundaram and Ors. v. Secretary to Government, Revenue Department, Chennai and Ors. reported in : 2007(1) MLJ 750. Paragraph No. 9 of the said judgment is heavily relied on by the learned Counsel for the petitioners, which is extracted here-under:
9. From the perusal of the file it is clear that proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in question, in respect of transfer of his land to the appellants herein. Section 11(5) notice was also issued to the third respondent, who was not the real owner. As per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and deliver possession thereof, to the State Government or to any person duly authorised by the State Government, within thirty days' time. No notice having been issued against the appellants, who are in possession of the lands as stated supra, taking possession of lands on 30.04.1999 by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with effect from 16.09.1999, it is not open to the authorities to proceed against the appellants at this stage to rectify the non-compliance of Section 11(5) of the Act.
21. In another decision dated 18.06.2007 of the Division Bench presided over by the Honourable Mr. Justice S.J. Mukhopadhaya, in W.A. Nos. 693 to 695 of 2003 in Annie Jacob and Ors. v. The State of Tamil Nadu and Anr. a similar view was expressed. Paragraph No. 8 of the decision is extracted here-under:
8. There is nothing on the record to suggest that the competent authority issued any notice in writing directing the original land holder or the appellants to surrender or deliver possession of the lands in question. Nothing has been produced to suggest that the original land holder or the appellants refused or failed to comply with such order and on failure the possession of the lands were taken by force. In absence of such notice under Section 11(5) or action taken under Section 11(6), a bald statement as made by the respondents that possession was taken on 10th February, 1995, cannot be accepted....
22. In view of categorical pronouncements of this Court, we are of the view that the notice under Section 11(5) is mandatory and in the absence of 11(5) notice, the entire proceeding is vitiated.
23. Regarding the second contention as to the possession being not taken over by the State Government, the learned Counsel for the petitioners argued that in the absence on non service of notice under Section 11(5) of the Act, there is no question of taking over of possession of the excess land.
24. The learned Counsel for the petitioners strenuously contended that the Act contemplates that if the persons in possession failed to deliver possession within 30 days of receipt of notice under Section 11(5), the Competent Authority has to take possession under Section 11(6) of the Act. The learned Counsel has brought to our notice that the words 'may for that purpose use such force as may be necessary' used in 11(6) indicates that to take actual possession, the Competent Authority is clothed with power under Section 11(6). In the absence of delivery of possession by land owner pursuant to notice under Section 11(5), the possession should have been taken through the manner suggested under Section 11(6). Since the notice under Section 11(5) was not even served, the symbolic possession is not a possession as contemplated under Sections 11(5) and 11(6) of the Act.
25. Further, it is surprising that while the third respondent issued a letter dated 13.11.1990 signed on 27.11.1990 directing the Deputy Tahsildar - II to serve notice under Section 11(5) of the Act, the Land Delivery Receipt was signed by the third respondent on the same day i.e. 17.11.1990 at the place 'handing over' and the FIRKA Revenue Inspector signed at the place 'taking over'. That is, before the notice under Section 11(5) was served as per his own letter dated 13.11.1990 that was signed on 27.11.1990, the alleged taking over of possession in papers took place on 17.11.1990 and the same was relied on by the Government to sustain the order of the Tribunal.
26. The letter dated 13.11.1990 of the Competent Authority states that four Land Delivery Receipts were enclosed with the 11(5) notice in Form VII and those receipts are found at page 191-195 of the Notes File. The letter directed the Deputy Tahsildar - II has to serve two notices to the land owner. The Land Delivery Receipts state as follows:
The above extent has been delivered by me and taken possession of by FIRKA REVENUE DEPARTMENT.
(LAND OWNER) (REVENUE INSPECTOR)
HANDED OVER BY TAKEN OVER BY
Therefore, it is very clear that the take over of possession is complete only when it is signed by the land owner while delivering the excess land pursuant to under Section 11(5) of the Act in Form VII prescribed under the Rule 10(3) of the Rules. As stated above, if no such delivery of possession took place, the third respondent has to resort to 11(6) of the Act. Admittedly, in this case, the petitioners did not sign in the Land Delivery Receipt.
27. The learned Counsel for the petitioners argued that there should be actual take over of possession and the take over of possession in paper is not the physical possession of the surplus lands. If the land owner is not a party to the Land Delivery Receipt, the take over should be established by getting signature from independent witnesses, preparing Panchanama, etc. But the records reveal that it is only possession in papers.
28. The learned Counsel for the petitioners relied on the judgment of the Honourable Mrs. Justice Prabha Sridevan in W.P. No. 19845 of 2006 dated 31.07.2006, wherein in paragraph No. 13, the learned Judge held that mere recording of possession by the authorities will not amount to actually taking of possession. The learned Judge rejected the plea of taking of possession based on the similar Land Delivery Receipt produced in that case. In this context, the learned Judge recorded in paragraph No. 8 that the Land Delivery Receipt does not show in whose presence, the possession was taken. The learned Judge also relied on a paragraph in W.P. No. 35490 of 2004, which is as follows:
When the respondent does not say that the petitioner had surrendered possession on it's own, then the respondent ought to have taken possession. Under Section 11(6) of the Principal Act, whenever a urban land owner fails to surrender possession as demanded under Section 11(5) of the Act, then the competent authority may take possession of the lands and may, for that purpose, use such force as may be necessary. Therefore, from the above two aspects namely, the urban land owner was directed to surrender possession and since he is not shown to have surrendered possession and the power of the Government to use such force as may be necessary in taking possession, clearly indicate that physical possession of the land must be taken by the competent authority. There is nothing on record to show that 'on what day possession was taken; was any representative of the writ petitioner present; the name of the person who took possession the person from whom possession was taken; are there any contemporary record to show that possession was in fact taken at such a time and on such a date when possession was handed over to the Revenue Inspector, Pallikaranai; are there any record to show such handing over to the Revenue Inspector, Pallikaranai and the name of the officer, who received possession of the lands...
In 2002 (2) L.W. 764 (C.V. Narasimhan v. The Government of Tamil Nadu etc., and 2 Ors.), while considering the impact of the Repealing Act, had held that where physical possession of such land continues to be with the owner, the statutory vesting under Section 11(3) of the Act is of no relevance at all.
29. The learned Counsel for the petitioners further cited the decision dated 25.09.2006 of the Honourable Mr. Justice F.M. Ibrahim Kalifulla in W.P. Nos. 33839 and 33911 of 2004, wherein the learned Judge followed his earlier decision dated 09.09.2004 in W.P. No. 6641 of 1997 and the same is extracted here-under:
11. In this context, it is worthwhile to refer to the decision of S. JAGADEESAN, J in the judgment reported in C.V. Narasimhan rep. by his Power Agent Smt. Jayalakshmi, No. 12, Bishop Garden, Raja Annamalaipuram, Chennai 28 v. 1. The Government of Tamil Nadu, rep. by its Secretary, Revenue Department, Fort St. George, Chennai-9. 2. The Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-5. 3. The Competent Authority, Urban Land Ceiling, Alandur 2002-2-L.W.-764, wherein the learned Judge has clearly stated that so long as the physical possession of the land continues to be with the owner, even the statutory vesting of the land will be of no consequence.
The learned Judge in paragraph No. 7 of the same judgment dated 25.09.2006 has held as follows:
7. To the same effect is the order of Justice R. Balasubramanian, dated 22.8.2006 passed in W.P. No. 17416 of 2004, where the learned Judge, reiterating the position that the possession means taking physical possession, had held, 'Therefore, the sine qua non to keep the property declared as surplus under the provisions of the Act is that physical possession of the said property ought to have taken by the competent authority despite coming into force of the Repealing Act.
30. The learned Counsel for the petitioners heavily relied on paragraph No. 10 of the judgment dated 19.10.2006 of the Honourable Mr. Justice K. Chandru in W.P. No. 29061 of 2003, which is as follows:
This Court in its judgment reported in : (2006) 2 M.L.J. 664 (Sosamma Thampy v. The Assistant Commissioner (ULT) - Cum - Competent Authority (ULC), has analysed all the previous case laws and categorically held that physical possession is required and mandatory under the ULC Act and noting in the file that symbolic possession is taken cannot be accepted as taking of physical possession. This Court is in complete agreement with the ratio laid down in the aforesaid decision which also squarely applies to the facts and circumstances of the case.
31. The learned Senior counsel for the fourth respondent as well as the learned Government Advocate vehemently argued that symbolic possession is sufficient and the actual take over of possession is not contemplated under the Act. We are not in agreement with that submission in view of the categorical pronouncements of this Court that were brought to our notice by the learned Counsel for the petitioners. Further, the learned Counsel for the petitioners brought to our notice that as per the records produced by the Department, there is a serious infirmity in the publication of notification under Section 11(3) of the Act.
32. The learned Counsel for the petitioners argued that as per Section 11(3) of the Act, the notification under Section 11(3) has to be published in the Government of Tamil Nadu Gazette after the publication of notification under Section 11(1) of the Act. Since the notification under Section 11(1) was dated 30.05.1990, this notification dated 25.07.1990 is in order.
33. The learned Counsel pointed out that however, the third respondent having found that there was a mistake in the notification dated 30.05.1990, requested the Works Manager, Government Central Press, Madras - 79 in his letter dated 30.06.1990 that was despatched on 30.07.1990 to publish errata in the Government Gazette about the extent of land. In the earlier notification dated 25.07.1990, the surplus land was mentioned as 0.52 Hectares, whereas the excess land was 0.52.50 Hectares, i.e. 5250 Sq.mts. In the file produced by the respondents, this errata was not published. Hence, the notification under Section 11(3) dated 25.07.1990 is defective and should not be relied on. The third respondent, after the publication of the errata should have issued another publication under Section 11(3) by way of an errata. Therefore, it is a case wherein there is no vesting of the land itself took place in view of the said serious defect committed by the third respondent.
34. The learned Senior counsel for the fourth respondent argued that the Government has allotted the concerned land to them and the fourth respondent is involved in noble cause of helping the disabled persons. He therefore, argued that the writ petition deserves to be dismissed.
35. We are not in agreement with his submission. Even according to the fourth respondent, the land is still remain vacant due to the stay granted by this Court while the earlier W.P. No. 12892 of 1991 was admitted. Further, in view of our categorical findings that the respondents failed to comply with the mandatory provisions of Sections 11(5) and 11(6) and since there was no actual take over of possession, the writ petitioners are entitled to for the benefits of Section 4 of the Repealing Act 20 of 1999.
36. The learned Counsel for the petitioners also relied on the judgment of the constitutional Bench of the Honourable Apex Court in Smt. Angoori Devi v. State of Uttar Pradesh and Ors. reported in JT 2000 (Suppl.1) SC 295 wherein it is held that all the proceedings under the Act must be held to have abated if the lands were not taken possession by the Government.
37. In these circumstances, we are inclined to set aside the order passed by the Tamil Nadu Land Reforms Special Appellate Tribunal. Accordingly, the order dated 01.11.2000 passed in TRP. No. 187 of 1999 by the Tamil Nadu Land Reforms Special Appellate Tribunal is quashed. We, further declare that all the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, had abated in view of the Repealing Act. Accordingly, the writ petition is allowed. No costs.
P.K. Misra, J.
1. I have gone through the judgment prepared meticulously by my learned brother Judge and I agree with the views expressed. However, I would like to highlight one point which was raised at the fag end of the hearing.
2. At the time of conclusion of the arguments, learned Counsel for the State raised a technical objection that the Land Reforms Tribunal, whose order is being impugned in the present writ petitions, has not been impleaded as a party and, therefore, the writ petitions should be dismissed for non-joinder of necessary parties.
3. It is no doubt true that in Certiorari proceedings, the inferior Tribunal whose order is being impugned before this Court, is required to be made as a party. The basic principle in impleading the inferior Tribunal as a party is with a view to ensure production of records before the High Court. The inferior Tribunal, which is obviously discharging judicial function, is not impleaded as a party with a view to give any opportunity of hearing as it cannot be said that the Tribunal has got any interest in one way or the other. Since, in the present case, being called upon, the Counsel for the State has produced all the records including that of the Tribunal, non-impletion of the Tribunal as a formal party cannot be considered as a ground to dismiss the writ petition, particularly when no such objection was raised when the writ petition was filed and entertained or subsequently when the matter had remained pending in the High Court for a pretty long period. Since the objection of impleading of inferior Tribunal has been achieved and as a matter of fact learned Counsel for the State has been heard at length, non-impletion is fatal in the present case.