Full Judgment Text
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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
J U D G M E N T
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, an order of the Division Bench of the Madras High
(i)
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
Date: 2021.09.21
14:29:27 IST
Reason:
seeking review of the original order.
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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
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prepared by the 3 appellant, indicating that the total extent of
vacant land owned/held by Nagarathinam Ammal was 10238
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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
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intimated the 3 appellant and the District Collector that she was
surrendering the land and she requested for payment of
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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
’), with a mandate that the Trust should develop a
to as the ‘Trust
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.
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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
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(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
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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.
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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; but if the possession of a land which is deemed to
(ii)
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
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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
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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
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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
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Collector And Competent Authority (ULC) And Others
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
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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
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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
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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.
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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
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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