Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :
19. 03.2013 Coram THE HONBLE MR. JUSTICE VINOD K.SHARMA W.P.Nos.43112 and 45386 of 2002, 21917, 32648, 32687, 34817 of 2003, 34480 of 2005, 15270 of 2007 and 16279 of 2008 and M.P.Nos.570 to 572 of 2010 in W.P.No.21917 of 2010 and 379 of 2007 & 365 of 2008 in W.P.No.34480 of 2005 W.P.No.43112 of 2002 N.Sundarababu .. Petitioner .. Vs ..
1. The State of Tamil Nadu, Rep. by its Secretary, Urban Land Tax Department, Fort St. George, Chennai.
2. The Assistant Commissioner, Urban Land Tax, Madhavaram.
3. Santhosh Devi Sarang ...Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to forbear the respondents from taking any further proceedings pursuant to the notice bearing RC.No.3401/92/P dated 25.09.1998 issued by the 2nd respondent to the 3rd respondent. For Petitioners in W.P.No.43112/2002 : Mr.Sunder Mohan WP.No.45386/2002 : Mr.V.Ramesh WP.No.21917/2003 : Mr.J.Saravanavel WP.No.32648/2003 : Mr.AR.L.Sundaresan, S.C. for M/s.AL.Gandhimathi WP.No.32687/2003 : Mr.P.Balamurugan WP.No.34817/2003 : Mr.M.K.Vijayaraghavan WP.No.34480/2005 : Mr.V.Ramesh WP.No.15270/2007 : Mr.V.Ramesh WP.No.16279/2008 : Mr.S.Mohanasundarajan For Respondents : Mr.R.Ravichandran, Addl.G.P. in all WPs. * * * * * COMMON ORDER This order shall dispose of writ petitions W.P.Nos.43112 and 45386 of 2002, 21917, 32648, 32687, 34817 of 2003, 34480 of 2005, 15270 of 2007 and 16279 of 2008, as common questions of law and facts are involved in all the writ petitions. 2.For the sake of brevity, facts have been taken from W.P.No.43112 of 2002. 3.Respondent No.3, Mrs.Santhosh Devi Sarang was the owner of Punja land measuring 1 acre 53 cents in Survey No.85/1, Manjambakkam Village, Ambattur Taluk. 4.Tmt.Santhosh Bai sold 1 acre and 44 = cents out of this land to the petitioner vide sale deed dated 10.07.1997, registered vide Document No.3255 of 1997. The remaining portion of land was left for pathway. The petitioner took possession of the land immediately and patta was also issued in the name of the petitioner and entry also made in Adangal. The petitioner, thereafter also, continuously paid urban land tax till July, 2000. The stand of the petitioner is, that imposition of urban land tax on this land was illegal, as it was an agricultural land, therefore, it was contrary to the provisions of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. 5.It is submitted that the vendor of the petitioner concealed the fact of pending proceedings under the Act of 1978 from the petitioner at the time of sale. 6.It is admitted that notice under Section 11(5) of the Act was issued to the predecessor in interest of the petitioner, calling upon her to surrender possession. But, the stand is that this notice was issued on 25.09.1998, i.e. after the purchase of land by the petitioner. It is also pleaded case of the petitioner that after July, 2000, the urban land tax was not accepted from the petitioner on the ground that the land had vested in the Government under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. That it was only on his request that he was supplied with a copy of the proceedings on 18.10.2002. 7.The case set up by the petitioner is that the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was repealed by Act XX of 1999 and resultantly, the proceedings under the Act came to an end, as the possession of the land is continued with the petitioner since the purchase, as is clear from the fact that petitioner was not only issued patta but his name was also entered in Adangal. 8.The case of the petitioner is that neither the petitioner nor his predecessor parted with the possession. Therefore, by virtue of Sections 3 and 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, all the proceedings under the Act stood abated. 9.It is also the contention of the learned counsel that even otherwise, the land being agricultural land was not covered under the provisions of the Principal Act. 10.In support of the contention that the possession has not been taken, it is averred that no compensation has been paid by the State Government either to the petitioner or to his predecessor in interest, showing thereby that the possession of the land was still with the petitioner, till the Repeal Act was passed and continues to be so till date. 11.Therefore, it is prayed that notice RC.No.3401/92/P dated 25.09.1998 issued by the second respondent to third respondent seeking delivery of possession be quashed. 12.In support of the petition, the learned counsel for the petitioner placed reliance on the judgment of this Court in W.P.Nos.99 and 101 of 2006, (C.Rajagopal and Sundararajan vs. State of Tamil Nadu and another), decided on 9th July, 2012, holding therein as under:- "5.The petitioner continued to be in possession of the property for want of notice of the proceedings. It is not in dispute, that the Tamil Nadu Urban Land Ceiling and Regulation Act, 1978, was repealed by the Repealing Act 20 of 1999 and all the pending proceedings were declared to have abated. 6.It was ordered by the Hon'ble Supreme Court, that if the possession of the land had not been taken prior to Repeal, such possession cannot be taken thereafter, and no proceedings can be initiated under the repealed Act. The petitioners have been denied the benefit of Repealing Act, only on the ground that symbolic possession of the land was taken, by the State. 7.The question, whether mere symbolic possession or paper possession could disentitle the owners to the benefit of Section 4 of the Repealing Act, was considered by this Court in J.Natarajan vs. State of Tamil Nadu, Rep. by Secretary and another in W.P.No.96 of 2006 decided on 20.04.2012. This Court was pleased to hold, that mere symbolic possession or paper possession does not disentitle the owners the benefit of Section 4 of the Repealing Act, and had quashed the proceedings under Section 9 of the Tamil Nadu Urban Land Ceiling Act. 8.It is not in dispute, that the lis, raised in both these writ petitions is squarely covered by the decision of this Court in W.P.No.96 of 2006, decided on 20.04.2012, as the petitioners are in possession and only symbolic/paper possession were shown to have been taken." 13.The reliance is also placed on the Hon'ble Division Bench judgment of this Court in M/s.Sree Jayalakshmi Brick Industries vs. The Special Commissioner and Secretary to Government & 3 others, 2009-4-L.W.-819, laying down therein as under:- "12.In view of such categorical pronouncements of this Court, we are of the view that the notice under Section 11(5) should be served on the petitioner. Though, his purchase by a sale deed is made invalid by Section 6 of the Act, in view of the word "any person who may be in possession" used in Section 11(5) of the Act, notice ought to have been served on the petitioner to surrender or deliver possession to the Government. .... 14.We, therefore, hold that there was no notice served under Section 11(5) of the Act either on the petitioner or on the erstwhile owner, viz., the vendor of the land. .... 23.Once the possession is not taken over by the Government as held by us, all the proceedings under the Act must be held to have abated under Section 4 of the Repealing act, in view of the categorical pronouncement of the constitutional Bench of the Honourable Apex Court in Smt.Angoori Devi vs. State of Uttar Pradesh and Others reported in JT 200.(Suppl.1) SC 295." 14.The writ petitions are opposed by the learned Additional Government Pleader by vehemently contending that in this case, the petitioners cannot have any benefit of Repeal Act, as the possession of the land was taken over by the State much prior to Repeal Act. In support of this contention, reliance is placed on the judgment of the Hon'ble Division Bench of this Court in W.A.No.145 of 2009, S.Deenadayalan vs. The Secretary to Government, decided on 17.06.2009, holding therein as under:- "The lands belonging to the petitioner/appellant were taken possession of by the respondent-State and its officers under the provisions of Tamil Nadu Urban Land (Ceiling and Regulation ) Act No.24/1978. That was in view of the lands being found in surplus. Thereafter, a petition was filed in the year 2008 stating that the Act does not apply to the lands belonging to the petitioner. It is too late in the day. The possession was taken much prior to the Act being repealed later on by the 1999 Act. In the circumstances, such a declaration, as sought for, could not have been granted. The learned single Judge has directed the petitioner to write to the third respondent, if he wanted any information regarding the factual position. We do not find any error in the order of the learned single Judge. The writ appeal is dismissed. No costs." 15.On consideration, I find that all these writ petitions deserve to succeed. It is not disputed that the land continues to be in the name of the registered owner, and possession is not shown to be that of the State Government. The respondents have not produced any record in proof of the stand that physical possession of the land was taken. The possession, if any by the State, was only symbolic possession and not physical possession, as in that case it was not possible for the petitioners to have raised constructions on the land. 16.The fact that possession has not been taken is further fortified from the fact that no compensation has been paid for the land either to the petitioners or to their predecessors in interest. 17.The Honble Division Bench of this Court, in the case of V.Somasundaram vs. Secretary to Government, Revenue Department, (2007) 1 MLJ 750.has laid down as under:- "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 30.4.1999 by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, with effect from 16.9.1999, 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. ... 11.As rightly contended by the learned counsel for the appellants, the appellants were not entitled to file appeal due to enactment of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act, 1999, from 16.9.1999. Hence the writ petition filed without availing the alternate remedy of filing appeal under Section 33 of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, is maintainable." 18.Therefore, in view of the settled law referred to above, the impugned notice asking the petitioners to hand over possession cannot be sustained in law. 19.Consequently, giving the benefit of Repeal Act, all these writ petitions are allowed. The proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, are ordered to be quashed. 20.Learned counsel for the petitioner in W.P.No.21917 of 2003 prays for liberty of this Court to withdraw M.P.Nos.570 to 572 of 2010. An endorsement is also made in support of this submission. The prayer is allowed. Consequently, M.P.Nos.570 to 572 of 2010 are ordered to be dismissed as withdrawn. 21.No costs. Consequently, other connected M.Ps. are closed. 19.03.2013 Index : Yes Internet : Yes sra To 1. The State of Tamil Nadu, Rep. by its Secretary, Urban Land Tax Department, Fort St. George, Chennai.
2. The Assistant Commissioner, Urban Land Tax, Madhavaram. VINOD K.SHARMA, J.
(sra) W.P.Nos.43112 and 45386 of 2002, 21917, 32648, 32687, 34817 of 2003, 34480 of 2005, 15270 of 2007 and 16279 o”
19. 03.2013