State Of Tamil Nadu vs M.S. Viswanathan on 20 September, 2021


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

State Of Tamil Nadu vs M.S. Viswanathan on 20 September, 2021

Author: V. Ramasubramanian

Bench: Hemant Gupta, V. Ramasubramanian

                                                   1


                                                                     REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION

                                   CIVIL APPEAL NO.5881 OF 2010



         STATE OF TAMIL NADU & ORS.                          ...     APPELLANT(S)


                                               VERSUS


         M.S. VISWANATHAN & ORS.                             ...   RESPONDENT(S)


                                                 WITH


                                  CIVIL APPEAL NO. 5885 OF 2010


                                           JUDGMENT

V. Ramasubramanian, J.

1. The State of Tamil Nadu and the officials in the Department

of Urban Land Ceiling have come up with the above appeals

challenging, (i) an order of the Division Bench of the Madras High

Court dismissing an intra­court appeal; and (ii) the subsequent

order of the Division Bench refusing to condone the delay in
Signature Not Verified

Digitally signed by
Jayant Kumar Arora

seeking review of the original order.

Date: 2021.09.21
14:29:27 IST
Reason:

2

2. We have heard Mr. Sanjay R. Hegde, learned senior counsel

for the appellant­State, Mr. E.C. Agrawala, learned counsel

appearing for the respondents and Capt. R. Balasubramanian,

learned senior counsel for the party seeking intervention.

3. The Tamil Nadu Urban Land (Ceiling and Regulation) Act,

1978 (hereinafter referred to as the ‘Act’) came into force partly on

28.03.1978 and was deemed to have come into force partly on

03.08.1976. One Smt. Nagarathinam Ammal wife of Sambanda

Mudaliar, residing at No.29, Appu Mudali Street, Mylapore,

Chennai­4, who owned two parcels of land, one measuring 2428

sq.mts in survey No.279/2 and another measuring 7810 sq.mts

in Survey No.279/5 in Kottivakkam Village, filed a return under

Section 6(1) of the Act on 20.09.1976. Thereafter, she applied for

exemption under Section 19 of the Act on 26.02.1977 in respect

of the excess vacant land, but the Government turned down the

request vide letter dated 10.01.1978.

4. A draft statement under Section 9(1) of the Act was

prepared by the 3rd appellant, indicating that the total extent of

vacant land owned/held by Nagarathinam Ammal was 10238
3

sq.mts and that after deducting the ceiling area of 3500 sq.mts,

she was required to surrender the excess vacant land of 6738

sq.mts. This draft statement under Section 9(1) was served on

the owner along with a notice under Section 9(4) dated

07.04.1979. The said notice under Section 9(4) was received by

Nagarathinam Ammal on 18.04.1979 and she filed a petition for

reconsideration of the order of rejection regarding exemption on

16.05.1979. But the said petition was rejected on 06.11.1979

and orders were passed under Section 9(5) of the Act on

31.03.1980.

5. A final statement was issued under Section 10(1) of the Act

on 01.04.1980, followed by notifications under Section 11(1)

dated 09.05.1980 and Section 11(3) dated 03.10.1980. The

notification under Section 11(1) was also published in the Tamil

Nadu Government Gazette dated 21.05.1980, and Nagarathinam

Ammal was directed to surrender or deliver vacant possession of

excess land measuring 6750 sq.mts.

6. By a letter dated 11.11.1980 Nagarathinam Ammal

intimated the 3rd appellant and the District Collector that she was

surrendering the land and she requested for payment of
4

compensation. Under a land delivery receipt dated 18.02.1981,

Nagarathinam Ammal also handed over the possession.

7. Thereafter, a notice dated 03.03.1981 under Section 12(7)

was issued to her, calling upon her to appear for an enquiry to

show the share of the compensation payable to her under Section

12. It appears that as per the scheme of the Act, the

compensation was determined and paid to Nagarathinam Ammal

in 15 instalments.

8. The Government then issued an order in G.O.MS. No.147

Revenue dated 25.01.1982 allotting the excess vacant land of

6750 sq.mts to the Madras Snake Park Trust (hereinafter referred

to as the ‘Trust’), with a mandate that the Trust should develop a

snake park on modern lines within two years. The Collector of

Chengalpattu, was directed to handover physical possession to

the trust and the Trust was called upon to pay a sum of

Rs.2,90,000/­.

9. It appears that after several extentions of time to the Trust,

the Trust surrendered the land back to the Government on the

ground that they were unable to carry out the desired objective.
5

Upon coming to know of the surrender of the land, the Principal

Chief Conservator of Forests requested the Government by a

letter dated 02.09.1998 to allot the land to the Forest

Department in view of the fact that the original allottee, namely

the Trust, was actually functioning already from a forest land

and that therefore the land in question could be used by the

forest Department for the establishment of an Urban Nursery

Ecological and Awareness Centre. Accordingly, the Government

issued G.O.MS. No. 297 Revenue dated 08.07.2002, cancelling

the allotment made in favour of the Snake Park Trust and

allotting the same to the forest Department. It was mentioned in

the Government Order that the allotment of the land to the

Forest Department was made along with the compound wall

enclosing the land.

10. In the meantime, the Act was repealed through the Tamil

Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999

(hereinafter referred to as the ‘Repeal Act’). It came into force on

16.06.1999. Section 3 of the said Repeal Act contained a savings

clause which reads as follows:­

“3. Savings – (1) the repeal of the principal Act shall not affect­
6

(a) the vesting of any vacant land under sub­section (3) of
section 10, possession of which has been taken over by the
State Government or any person duly authorised by the State
Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub­
section (1)of section 20 or any action taken therunder,
notwithstanding any judgment of any Court to the contrary;

(c) any payment made to the State Government as a condition
for granting exemption under sub­section (1) of section 20.

(2)Where­

(a) any land is deemed to have vested in the State Government
under sub­section (3) of section 10 of the principal Act but
possession of which has not been taken over by the State
Government or any person duly authorised by the State
Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with
respect to such land, then, such land shall not be restored
unless the amount paid, if any, has been refunded to the State
Government”

11. After five years of the said repeal, the three sons and two

daughters of Nagarathinam Ammal joined together and filed a

writ petition in Writ Petition No.39419 of 2004, seeking a

declaration that the entire proceedings under the Act followed by

the allotment in favour of the Trust and the re­allotment in favour

of the Forest Department are void ab initio in view of the Repeal

Act. It appears that the writ petition was filed in December, 2004.

12. The said writ petition was allowed by a learned Single Judge

of the High Court by an order dated 24.06.2005, on the short

ground that as per the Inspection Report of the competent
7

authority dated 05.11.1996 and the Inspection Report of the

Assistant Commissioner dated 20.01.2005, the acquired land was

still lying vacant enclosed by a compound wall and that therefore

the claim of the writ petitioners that possession was not taken

over, must be taken to be true.

13. Challenging the order of the Ld. Single Judge, the appellants

herein filed an intra­court appeal in W.A.No.2087 of 2005. The

said appeal was dismissed by the Division Bench of the High

Court by an order dated 26.10.2005, again on the basis of the

Inspection Report of the Assistant Commissioner dated

20.01.2005 to the effect that the land was lying vacant and that

therefore, finding recorded by the Ld. Single Judge regarding

possession must be taken to be correct.

14. The appellants filed an application for review along with a

petition for condonation of the delay of 113 days in filing the

review application. The Division Bench of the High Court, by its

order dated 26.04.2006 dismissed the application for condonation

of delay, on the ground that no sufficient cause was shown for the

condonation of delay.

8

15. Challenging the refusal of the Division Bench of the High

Court to condone the delay in filing the review petition, the

appellants have come up with Civil Appeal No.5881 of 2010.

Challenging the substantial order passed in the intra­court

appeal on 26.10.2005, the appellants have come up with the next

appeal namely Civil Appeal No.5885 of 2010.

16. Since Civil Appeal No.5885 of 2010 challenges the original

order passed in the intra­court appeal, the disposal of the same

would decide the fate of Civil Appeal No.5881 of 2010. Therefore,

we shall deal with Civil Appeal No.5885 of 2010, first.

17. We have already extracted Section 3 of the Repeal Act.

Section 3 incorporates, in simple terms, two rules. They are: (i)

the repeal of the principal Act will not affect the vesting of any

vacant land under Section 11(3), if the possession thereof has

been taken over either by the State Government or by any person

duly authorised by the State Government or by the competent

authority; (ii) but if the possession of a land which is deemed to

have vested in the State Government under Section 11(3), has not

been taken over by the Government or the competent authority,

the same shall be restored to the person in respect of whom the
9

land was declared surplus, provided the amount paid by the State

Government towards compensation has been refunded to the

State Government.

18. In essence, “taking over possession” forms the lifeline of

Section 3 of the Repeal Act and a person seeking the benefit of

the Repeal Act for restoration of the land should plead and prove

that possession was not taken over.

19. It is true that the word ‘possession’ has been subjected to

repeated assaults by judicial pronouncements and courts have

considered several facets of possession such as actual

possession, physical possession, paper possession, symbolic

possession etc. But fortunately this case does not provide any

room for display of any such semantic acrobatics. This is for the

reason that admittedly by her own letter dated 11.11.1980, the

land owner Nagarathinam Ammal voluntarily surrendered and

delivered possession pursuant to the notice under Section 11(5)

of the Act dated 24.10.1980.

20. Today, the respondents, who are the sons and daughters of

Nagarathinam Ammal, cannot go beyond the contents of the
10

aforesaid letter dated 11.11.1980, as she admittedly passed away

on 26.10.1998, even before the Repeal Act was enacted. From

11.11.1980 till her death in 1998, Nagarathinam Ammal never

went back on the contents of the said letter.

21. However, a valiant attempt was made Mr. E.C.Agrawala,

learned counsel for the respondents to get over a categorical

statement regarding surrender of possession made by the land

owner herself in the first part of her letter dated 11.11.1980, by

relying upon the last few lines of the very same letter. Though we

could have rejected the said contention outright on the ground

that after the death of the author of the letter, her legal heirs

cannot seek to interpret it, we would still deal with the

contention. Before we do so, it may be useful to extract the said

letter in entirety as follows:­

“In pursuance of instructions of Assistant Commissioner,
Urban Land (Ceiling and Regulations) Act 1978 contained in
the notice issued to me in form VII of the above Act regarding
the surrender and delivery of possession of the excess vacant
land acquitted under sub section 3 of section 11 of the same
act of 1978. I surrender and deliver possession of Re­survey
Nos.279/5B and 279/2B of 141 Kottivakkam of Saidapet taluk
as conceded by R.c. 3457/77 dated 24­10­1980 in the office of
Assistant Commissioner, Urban Land Tax, Alandur.

Previously, I signed the subdivision statements in respect
of these lands and soon after a notification (G.O. VI (1)
497/80, dated 9.5.80 was issued in Tamil Nadu gazette
clarifying the details of Re­survey Nos. 279/5B and 279/2B.
On the strength of the aforesaid, I sold Re­survey Nos.279/5A
and 279/2A to the Madras Snake Park Trust covered by the
11

sale deed registered in the office of Sub Registrar, Saidapet as
document No. 1722 dated 29­5­1980 after meticulously
following the prescribed procedure in procuring the
encumbrance certificates for the entire land in my possession
and also the income tax clearance certificate. I handed over
the relevant records to the Secretary, Madras Snake Park
Trust.

As I am pressed financially on account of domestic
difficulties, I make humble request to the competent authority
to complete the acquisition and order payment of
compensation based on the prevailing market rate and rate
fixed in the aforesaid sale deed to Madras Snake Park Trust on
29­5­1980.

Since the present acquired land of 30 grounds and the 15
grounds of land sold by me to the Madras Snake Park Trust
originally formed one piece of land encompassed by a big
compound wall, with gates, I have left the keys with the
Secretary, Madras Snake Park Trust for purpose of safety.
Since my husband is very sick and unable to move about. I
am not in a position to leave my house frequently. The Madras
snake Park Trust through its Hon. Secretary have agreed to
give the keys and show the relevant records whenever required
by you.”

22. Mr. Agrawala, learned counsel, sought to contend that a

mere statement that the keys were left with the Trust may not

tantamount to delivery of possession. He places reliance upon the

decision of this Court in Gajanan Kamlya Patil vs. Additional

Collector And Competent Authority (ULC) And Others1

23. But we do not agree. A careful reading of the last paragraph

of the above letter would show that the land owner had already

sold to the Snake Park Trust, a land adjoining the surplus land,

when both formed part of one large piece of land encompassed by

1 (2014) 12 SCC 523
12

a big compound wall with the gates. Therefore, she had left the

keys with the Secretary of the same Trust, to which the acquired

land was also first allotted, after vesting took place in terms of

Section 11(3). There was no indication in the last paragraph to

retain control of possession. Actually there could not have been

one in the teeth of the first paragraph of the letter.

24. The first paragraph of the above letter contains a categorical

statement that the owner was surrendering and delivering

possession. She was merely asking for payment of compensation.

Therefore, this is not a case where there is any scope for word

play.

25. The decision in Gajanan Kamlya Patil (supra) will not go

to the rescue of the respondents, as there was no voluntary

surrendering of possession in that case. As noticed from the facts

of that case, the Repeal Act came into force in the State of

Maharashtra on 01.12.2007. A notice for taking possession had

been issued on 17.02.2005. The notice itself was challenged after

the Repeat Act came into force. It was sought to be contended by

the Government of Maharashtra that there was a possession

receipt. But it was dated subsequent to the repeal. In paragraph
13

11 of the judgment in Gajanan Kamlya Patil (supra), this Court

indicated that apart from the affidavits of the officials, no other

document was made available either to show that the land owner

had voluntarily surrendered possession or to show that the

officials had taken peaceful or forcible possession. Therefore, the

said decision is of no use to the respondents.

26. Unfortunately, the High Court did not even look into the

letter dated 11.11.1980 nor did the High Court examine the

records of the Department. Both the Single Judge as well as the

Division Bench proceeded on the premise that the land was lying

vacant with a compound wall and that therefore, the claim of the

land owner to be in possession must be correct. There can hardly

be any such presumption. The existence of the compound wall

enclosing even the land that had already been sold by the land

owner to the Trust, is admitted by the land owner herself in her

letter dated 11.11.1980. Therefore, the High Court committed a

grave error in granting the benefit of Section 3(2) of the Repeal Act

to the respondents herein.

27. There is one more reason why the respondents are not

entitled to pursue their claim for restoration of possession under
14

the Repeal Act. According to the respondents themselves, as seen

from their pleading in I.A.No.1 of 2008 in C.A.No.5881 of 2010,

they executed a General Power of Attorney on 14.02.2005 in

favour of one S. Sundararaman. The said S. Sundararaman, has

come up with an application for impleadment in I.A.No.3 of 2009

in C.A.No.5885 of 2010 claiming that he is a property developer

and that he had entered into an unregistered agreement of sale

on 14.02.2005 with the respondents. The said Sundararaman,

has also claimed that he had paid the entire sale consideration of

Rs.75,00,000/­ (Seventy Five Lakhs Only), on two dates namely

01.02.2006 and 10.02.2006.

28. It must be remembered that the writ petition seeking the

benefit of the Repeal Act was filed in December 2004 and the

learned Single Judge allowed the writ petition by an order dated

25.06.2005. It means that the respondents created a Power of

Attorney and the said Sundararaman claimed to have entered

into an agreement for the purchase of the land, after the filing of

the writ petition but before the writ petition was allowed. These

facts were not brought to the notice of the High court.
15

29. Interestingly, the land owners claim in their I.A.No.1 of 2008

in C.A.No.5881 of 2010 that Sundararaman had also mortgaged

the property under a registered deed for a consideration of Rs. 5

crores. The land owners now claim that they came to know about

the mortgage only after the disposal of the review petition and

that therefore, they cancelled the Power of Attorney by a deed of

revocation dated 11/12.6.2007. Thereafter, the land owners claim

to have executed a fresh Power of Attorney on 11.02.2008 in

favour of another realtor by name NADI Realtors, followed by an

agreement of sale dated 31.03.2008 with them. All these events

have led to civil, criminal and arbitration proceedings between the

respondents and third parties, showing thereby that there is a

concerted attempt by a group of realtors to grab the land already

vested with the Government. What the land owners and the 2

third parties namely Sundararaman and NADI Realtors have

actually done, is nothing but champerty and they are not entitled

to any relief from the court.

30. The reason why we have taken pains to point out the above

developments is that the land owners have actually parted with

their right to continue the litigation. The third parties are mere
16

interlopers and they have no right to question the proceedings

under the Act.

31. In view of the above, C.A.No.5885 of 2010 is allowed and the

judgment of the learned Single Judge as well as the Division

Bench are set aside and the writ petition of the respondents­land

owners is dismissed.

32. As a consequence, no orders are necessary in C.A.No.5881

of 2010 and hence it is closed. All applications for impleadment

are dismissed and the other applications also stand closed.

……………………………..J.

(Hemant Gupta)

……………………………..J.

(V. Ramasubramanian)

New Delhi
September 20, 2021



Source link