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Judgment
K. Chandru, J.—This writ petition came to be posted before this Court on being specially ordered by the Hon''ble Chief Justice vide order dated 27.07.2010.
Heard both sides.
The Petitioner has filed the present writ petition, seeking to challenge the order of the second Respondent Assistant Commissioner, Urban Land Ceiling, Madhavaram, dated 29.06.1994 made u/s 9(5) of the of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 (for short Act) as well as the notice u/s 11(5) dated 13.06.1997 in respect of the land in Survey No. 12/3 of Kathirvedu Village, measuring 3700 sq.mts and after setting aside the same, seeks for a direction to the Respondents to treat the proceedings initiated under the Act as having been abated in terms of Section 4 of the T.N. Act 20 of 1999 so as to enable the Petitioner to incorporate her name as the owner of the entire extent of the land in revenue records.
The writ petition was admitted on 26.10.2005 along with two other writ petitions and an interim stay was granted. Subsequently, the interim stay was directed to be continued until further orders by a further order dated 21.06.2006.
Thereafter on 18.08.2007, interim stay already granted was made absolute.
Though a counter affidavit dated 21.07.2007 was filed along with a vacate stay application, the said application was not moved by the Respondents.
It is the case of the Petitioner that the land in S. No. 12/3, KadhirveduVillage, Ambattur Taluk originally belonged to one Kandasamy Naicker, who purchasedthe property by way of sale deed dated 27.04.1946. The land was purely agriculturalland. The said Kandasamy Naicker died leaving behind his wife, four daughters andtwo sons as legal heirs. His wife Kanagammal and his two sons Elumalai andRanganathan also died and the remaining legal heirs of late Kandaswamy Naicker werein possession and enjoyment of the land. It was stated that they were not aware ofany proceedings initiated under the Act. When one of the daughters of KandasamyNaicker came to know that the excess vacant land have been taken over, she filed anappeal u/s 33 of the Act. When the said appeal was pending before theAppellate Authority, viz., Principal Commissioner and Commissioner of Land Reforms,the State of Tamil Nadu enacted T.N. Act 20 of 1999 repealing the provisions of theUrban and Ceiling Act. Since no orders were passed on the appeal, the erstwhileland owners of the land thought that in view of the repealing Act, all the previousproceedings have ended as abated. Therefore, they executed a Power of Attorneydated 21.07.2003 in favour of the husband of the Petitioner and with that power, heexecuted a sale deed in favour of the writ Petitioner dated 12.11.2004. The landwas registered as an agricultural land. When the husband of the Petitionerapproached the Village Administrative Officer for issuance of Patta, the VillageAdministrative Officer informed that the land has been acquired under the UrbanLand Ceiling Act. Thereafter, he applied for certified copies of the order andfiled the present writ petition.
It was contended by the Petitioner that no notice was served u/s 9(4) of the Act in accordance with law. Pursuant to the notice u/s 11(5), the Petitioner has not surrendered the land and prior to the purchase, her predecessors were absolute owners and were cultivating the land. Therefore,in view of the possession of the land, the Petitioner is entitled to have retention of the land.
In the counter affidavit, it was contended that notice u/s 7(2) of the Act was issued on 02.04.1992 and served by Affixture. The notice u/s 9(4) of the Act along with the statement u/s 9(1) was issued on 19.08.1992. The Village Administrative Officer has served the notice by affixture on 25.01.1993.
The original file relating to the acquisition was also circulated for perusal by this Court. It is seen from the records that the excess vacant land was handed over to the Revenue Department on 08.08.1997 well before the Repealing Act came into force. The land delivery receipt is also found in Page 97 of the original file. It must be noted that the Petitioner is the subsequent purchaser.The Petitioner''s husband alone has sworn to the affidavit and infact he is Power of Attorney holder for the remaining legal heirs of the original owner. Even the writ petition was not filed in the name of the original owners and the proceedings having come to a close as early as 08.08.1997, the Petitioner who is a subsequent purchaser cannot be allowed to challenge the same after a period of nine years by feigning ignorance about the transaction. None of the vendors of the Petitioner is before this Court. Even the Petitioner''s husband, who has taken steps to sell the property as Power of Attorney of the remaining legal heirs had not chosen to file it in the name of the erstwhile owners. It is only the original owners who can speak about the non-observance of the procedure adopted by the Respondents.Further, when once the land has been handed over by the department to the Revenue Authorities, they cannot contend that there was no possession and hence they are eligible for retention of the land in the light of the repealing Act.
The nature of taking possession of the acquired land came to be considered by the Supreme Court in Tamil Nadu Housing Board Vs. A. Viswam (Dead) by Lrs., . In that case, after considering the judgment in Narayan Bhagde''s case, this Court observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde''s case had been rendered and held as under:
It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperative in taking possession of the land.
The said judgment came to be quoted with approval and followed by the Supreme Court recently in Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Govt. of N.C.T. Delhi and Others, , where after referring to Viswam''s case (cited supra), in paragraph 9, it was observed as follows:
It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswas and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government.
Apart from that, the Division Bench of this Court in W.A. No. 508 of 2009 (The Special Commissioner and Commissioner of Land Reforms v. K.S. Subramanian) dated 21.09.2010 questioned the locus standi of the subsequent purchaser in attacking the proceedings. In paragraphs 11 and 12, the Division Bench has observed as follows:
Admittedly, the land owners in whose names the land originally stood atthe time of the statutory proceedigs did not challenge the proceedings. The appealitself was filed only after the repeal of the Act. Therefore, the very proceedingsinitiated at the instance of the Respondent was an incompetent proceeding. Sincethe original owner never challenged the statutory proceeding, it was not open tothe transferee to challenge the proceeding as the very transfer was illegal andnon-est in the eyes of law. This aspect was not considered by the learned SingleJudge.
The regisitered owners of the property have no grievance about the stepstaken by statutory authorities. The senior most member of the family was issuednotice. The notice was returned with endorsement "refused". This was disbelievedby the learned single Judge on the sole ground that the cover does not contain thesignature of the postman. These are all statutory proceedings and there is nothingon record to suspect the bona fides of the authorities who conducted the proceedings.
In view of the above, the writ petition stands dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.