Prabha Sridevan, J. - (1.) IN the writ petition, the learned single Judge observed that the facts revealed that even prior to the coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ('Repeal Act' in short) with effect from 16.6.1999, possession had been taken by the Government on 21.2.1997 and therefore, the case of the writ petitioners that that they were still in possession cannot be taken as a legal possession and therefore, the writ petition was dismissed. Against that, this appeal has been filed.
(2.) LEARNED counsel for the appellants submitted that the appellants had bona fide purchased the property in Plot Nos.19 and 20, subject matter of the writ petition, on 17.4.1989 and on 22.3.1993. There is a small scale industry in the said land and the appellants are in possession of the land by the proceedings under the Urban Land (Ceiling and Regulation) Act 1978 ('Act' in short), 350 sq. mts. had been declared as excess the order under Section 9(5) had been passed on 31.10.1995 and the final statement was dated 16.12.1997 it is only the vendor of the appellants who recieved the notice in these proceedings but what had grievously prejudiced the appellants is that, while Section 11(5) of the Act mandatorily requires that notice should be issued not only to the owner, but any person in possession, then regardless of the circumstances under which the person in possession may have come into possession thereof, still he is entitled to the notice. According to the learned counsel, the notice under Sections 11(5) and 11(6) of the Act were not given. LEARNED counsel also submitted that possession of the land could not have been taken from them in a manner known to law since no 'Panchnama' was prepared the recording of the taking of possession was not effected before witnesses and the respondents cannot create records as if possession had been taken sitting in their office. LEARNED counsel submitted that even assuming that the purchase by the appellants was not a valid purchase in the eye of law, in view of the provisions of the Act, yet the appellants were entitled to notice and when there is illegality in the procedure, the Government could not have taken possession of the land and the appellants are entitled to the benefits of the Repeal Act. LEARNED counsel referred to the following judgments, reported as well as unreported :(2007) 1 M.L.J. 750 [V. Somasundaram vs. Secretary to Government, Revenue Department](1999) 1 S.C.C. 215 [Anurag Virmani vs. State of M.P.]A.I.R. 1975 S.C. 1767 [B.N. Bhagde vs. M.D. Bhagwat]W.P. No.1584 of 2009 dated 7.8.2009 [Sree Jayalakshmi Brick Industries vs. Special Commissioner and Secretary to Government, Revenue Department] Per contra, Learned Special Government Pleader submitted that the appellants are not bona fide purchasers they were fully aware of the proceedings initiated under the Act the vendor of the appellants M/s. Kasaka Engineering had claimed exemption from the Act and the same was granted subject to certain conditions, but since the vendor had not complied with the conditions, proceedings were initiated for withdrawal of the exemption and even the, it was brought to the notice of the appellants that the withdrawal of exemption was pending enquiry and it was open to the appellants to make their submissions therefore, the operation of the Act and the consequent declaration of excess land had been postponed only beause there was a protection of exemption, and once that exemption was withdrawn, it was open to the State to declare how much was excess. Learned Special Government Pleader would point out that it is not as if the entire land belonging to the appellants was declared as excess, but it was only a small portion of 350 sq. mts. He submitted that even assuming that the appellants had a small scale industry, which was admittedly only in Plot Nos.15 and 16 as seen from the writ affidavit, while the property in question is situated in Plot Nos.19 and 20, there is enough appurtenant land to the factory in Plot Nos.19 and 20 itself, excluding the land declared as excess and therefore, none of the grounds raised is valid. Furthermore, he submitted that the records will show that possession of the land was actually taken even in 1997, whereas the writ petition has been filed only in 2005. Though the learned single Judge had specifically observed that the learned Government Advocate was directed to give particulars regarding the proceedings initiated under the provisions of the Act and that the facts revealed that possession was taken, the learned counsel for the appellants requested this Court to again go through the records and therefore, we had called for the records.
(3.) THE facts are stated hereunder :-On 9.9.1986, G.O. Ms. No.1231 was issued by the Revenue Department exempting an extent of 350 sq. mts. of excess urban vacant land for industrial expansion purposes. This was granted to the vendor of the appellants. THE conditions subject to which the exemption was granted was that the exempted land must be put to use for the stipulated purpose within two years of the order of exemption it cannot be sold, gifted, leased, mortgaged or alienated in any other manner and other similar conditions. Paragraph 5 of the Government Order provides that if the company violated any of the aforesaid conditions, the exemption granted under Section 21(2) of the Act will be withdrawn and if such exemption is withdrawn, the land shall be acquired by the Government. THE sale deed in favour of the appellants was executed on 17.4.1989 and in 1993. This relates to Plot Nos.19 and 20 bounded on the west by Plot Nos.15 and 16 belonging to the appellants. THEre is no mention of any superstructure in the said land. On 20.4.1990, the Assistant Commissioner (ULT), Tambaram issued a notice to the first appellant (since deceased) that M/s. Kasaka Engineering had sold the land covered by the exemption to the appellants and that there was an enquiry for which the appellants were asked to appear. Another notice was also issued in this behalf on 18.5.1990. On 22.6.1990, the vendor of the appellants wrote a letter not mentioning the sale in favour of the appellants and reporting that they would be able to show utilisation of the exempted land. On 21.3.1991, by G.O. Ms. No.482, Revenue Department, the Deputy Secretary to Government examined the objection with the necessary documents and since M/s. Kasaka Engineering had not complied with the conditions stipulated, the exemption granted was withdrawn and the request for further extension of time was rejected. THE Commissioner of Land Reforms was requested to take action to acquire the excess land. THE notice under Section 9(5) of the Act was served on the vendor of the appellants and they had also received it. On 31.10.1994, a Field Sketch Map is enclosed in the file which demarcates the land retained in Survey Nos.301/1A and 1B and the excess land and also the existing road. His area has been checked and the map is signed by the Inspector of Survey (ULT) and the competent authority. On 16.12.1994, a notice was issued along with the final statement under Section 10(1) of the Act. This was also received by the vendor of the appellants. A notification under Section 11(1) was also made. THE officers have visited the land and they found no one there and since the notice had also been issued to the owner, which has been served on him, possession had been taken on 21.2.1997. It is the case of the learned counsel for the appellants that when possession was with them, the respondents could not have taken possession in accordance with law and they have referred to various judgments. But the judgments referred to by them will help the appellants only if factually they are identical.;