2010 Supreme(Mad) 4899

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
Haripriya Rayaningar & Others
Versus
The Secretary to Government & Others
W.P.No.250 of 2010 M.P.Nos.1 & 3 of 2010
Decided On : 11-11-2010

Ratios
a. Encumbrance constitutes a burden on the title, which diminishes the value of the land.
b. Encumbrance means a burden or charge upon the property or a claim or lien on the land.
c. Acquisition of any excess urban land under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act would not abate on the repeal of the Act if the land was already vested with the State and the possession of such land was taken over by the State Government.
d. Land that was vested with the State Government as excess urban land would be reverted to its previous owner if the actual possession of such land was not taken over by the State Government.
e. Even if the State had paid compensation to the landowner for the excess urban land acquired, such land would be reverted back to the owner on repayment of the compensation so received, if the actual possession of such land was not taken by the State Government.
f. After vesting of title with the State under Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act and payment of compensation under Section 12 of the Act, whether the payment is in the process or completed, there is no statutory right with the previous land owner for restoration of physical possession of the land taken over by the Government.
g. The word "restore" which occur in Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act has to be understood only in the context of restoring "vesting" of title, interest or rights in the excess land and not in the context of restoring possession.
h. Completion of payment of full compensation for the excess land acquired under the Tamil Nadu Urban Land (Ceiling and Regulation) Act is not a condition precedent to deny the claim of the previous land owners for restoration of the land on the repeal of the Act.
i. Once possession of the acquired excess urban land is taken over by the State Government, the previous land owner cannot claim back the land so acquired by offering to repay the compensation received from the State Government.
j. Mere non use of the acquired excess urban land for the purposes mentioned in the Tamil Nadu Urban Land (Ceiling and Regulation) Act would not be a ground to invalidate the acquisition and claim back the land by the previous land owner.
k. Failure of the State Government to effect mutation of its name in the Registration Department in respect of the acquired excess urban land is not a ground to invalidate the acquisition and claim back the property by its previous owner

Headnote:(A)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N.Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N.Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting-Possession-Repeal-Abatement-Restoration-Compensation-Payment-Usage-Owner-Transfer-Validity-A part of the land of the deceased predecessor in title was declared as excess urban land and notification was issued-After series of proceedings by the owner challenging the acquisition failed, the predecessor in title surrendered the excess land to the State and also received major part of the compensation-State effected mutation of entries in its register and allotted it to another Corporation for its use-Allottee applied for reclassification of the land-On the repeal of the Act, after many years from the date of vesting, the petitioners, based on the will executed by the predecessor in title claimed back the land by contending that only paper possession was taken and not actual possession, land was not put to use for the purposes mentioned in the Act and full compensation was not paid-State resisted it and contended that the possession was handed over to it by the land owner voluntarily and the actual use of the acquired land or the payment of compensation was not conditional for the validity of the acquisition and when the possession was already handed over, redelivery could not be claimed-Held, on the vesting of the land with the State by operation of law, third parties could not claim title based on subsequent document-Payment of full compensation or the actual usage of the land for the purposes mentioned in the Act was not a condition precedent to sustain the validity of the acquisition-As the vesting was complete and the possession was already voluntarily handed over by its owner to the State, the provisions of the Repealing Act was not applicable-Acquisition was not abated-Writ petition was dismissed.

        (B)Words and Phrases-Land-Title-Encumbrance-Encumbrance constitutes a burden on the title, which diminishes the value of the land-Encumbrance means a burden or charge upon the property or a claim or lien on the land.

        "Encumbrance" actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon the property or a claim or lien on the land. It means a legal liability on the property. Thus, it constitutes a burden on the title, while diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property. Para 98

        (C)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N.Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N.Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting-Possession-Repeal-Abatement-Acquisition of any excess urban land under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act would not abate on the repeal of the Act if the land was already vested with the State and the possession of such land was taken over by the State Government.

        Section 3(1) of the Repeal Act shall not affect, where there is, (1) vesting of the land under Section 11(3) of the Act, (2) 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, (3) the validity of any order granting exemption under sub-section (1) of Section 20 of any action taken thereunder, notwithstanding any judgment of any court to the contrary and (4) any payment made thereof. Para 100

        (D)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N.Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N. Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting-Possession-Repeal-Abatement-Restoration-Compensation-Repayment-Land that was vested with the State Government as excess urban land would be reverted with its previous owner if the actual possession of such land was not taken over by the State Government-Even if the State had paid compensation to the landowner for the excess urban land acquired, such land would be reverted back to the owner on repayment of the compensation so received, if the actual possession of such land was not taken by the State Government.

        Section 3(2) of the Repeal Act comes into operation when, (1) any land is deemed to have vested in the State Government under sub-Section (3) of Section 11 of the Principal Act; (2) 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; (3) any amount has been paid by the State Government with respect to such land; and (4) such land shall not be restored unless the amount paid has been refunded to the State Government. Para 101

        The important difference between Sections 3(1) and 3(2) is that, if possession is still retained by the land owner and compensation amount had been paid by the Government, with respect to such land, then such land shall not be restored, unless the amount paid not is refunded to the State Government. Thus it could be seen that if possession is not taken over by the State Government, then the word "restore" used in Section 3(b)(2) refers only to vesting of the title and not physical possession. Para 102

        If possession is not taken over by the Government before the Repealing Act, i.e., 16.06.1999, no action can be taken thereafter under Section 11(6) of the Principal Act and therefore in such circumstances, mere vesting of the land with the Government will not serve any purpose and the competent authority cannot exercise any power under the Principal Act to take possession as per Section 11(6) of the Principal Act, as it has been repealed. Para 168

        (E)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N. Act 24/78)-Sec.11-Land ceiling-Urban land-Vesting- Possession-Repeal- Abatement-Restoration-Compensation-Payment-Usage-Owner-Transfer-Validity-After vesting of title with the State under Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act and payment of compensation under Section 12 of the Act, whether the payment is in the process or completed, there is no statutory right with the previous land owner for restoration of physical possession of the land taken over by the Government.

        Once the land is vested in the State Government, as per Section 11(3), the title is vested with the Government by operation of law, free from all encumbrances and that the title to the land can be restored subject to the refund of the compensation amount received, if any. But once, payment of compensation commences, after taking over possession, then the land owner loses his claim for restoration and the proceedings under Section 12 of the Act follows. By virtue of Section 4 of the Repeal Act, it is saved. In otherwords, after vesting under Section 11(3) of the Act and payment of compensation under Section 12 of the Act, whether it is in the process or completed, there is no statutory right for restoration of physical possession of the land taken over by the Government. Para 105

        (F)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N. Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N. Act 20 of 1999)-Sec.3-Interpretation of statutes-Land ceiling-Urban land-Vesting-Possession-Repeal-Abatement-Restoration-Context-The word "restore" which occur in Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act has to be understood only in the context of restoring "vesting" of title, interest or rights in the excess land and not in the context of restoring possession.

        The word "restore" which occur in Section 11(3) of the Principal Act, has to be understood only in the context of restoring "vesting" of title, interest or rights in the excess land and not in the context of restoring possession, because, if possession had been taken over, then nothing remains to be adjudicated under the Principal Act and as per Section 4 of the Repeal Act, Sections 11, 12, 13 and 14 of the Principal Act, would continue to operate and shall not abate. Para 107

        (G)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N. Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N. Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting-Possession- Repeal-Abatement- Restoration-Compensation-Payment-Validity-Completion of payment of full compensation for the excess land acquired under the Tamil Nadu Urban Land (Ceiling and Regulation) Act is not a condition precedent to deny the claim of the previous land owners for restoration of the land on the repeal of the Act.

        Section 11(3) does not speak about possession. That is why, Section 3 of the Repeal Act, specifically states that, (1) Land should be vested, (2) Compensation should have been paid, (3) The amount received has been refunded, and (4) Restoration of land is permissible, if physical possession had not been taken. It should be noted that in the Principal Act, vesting is followed by possession. If physical possession had already been taken over by the Government, or any person duly authorised by the State Government, in this behalf or by the competent authority, then what follows is only payment of compensation, whether partially paid or fully paid before taking over possession and payment of compensation under the Principal Act, does not get abated, in terms of Section 4 of the Repeal Act. Para 162

        (H)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N.Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N.Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting-Possession-Repeal-Abatement-Restoration-Compensation-Repayment-Once possession of the acquired excess urban land is taken over by the State Government, the previous land owner cannot claim back the land so acquired by offering to repay the compensation received from the State Government.

        Thus, it is evident that once statutory vesting is completed, as per Sub-Section 11(3) of the Principal Act, the necessity to take possession arises and if the possession is taken over, either by voluntary surrender or any other recognised mode under law, then the acquisition is completed, except to the extent of payment of compensation, if not fully made prior to taking over. Once possession is taken over, then it cannot be contended that restoration of the land is permissible on payment of compensation already received by the land owner, whether partly or in full. Para 165

        (I)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N.Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N.Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting-Repeal-Abatement-Restoration- Usage-Owner-Mere non use of the acquired excess urban land for the purposes mentioned in the Tamil Nadu Urban Land (Ceiling and Regulation) Act would not be a ground to invalidate the acquisition and claim back the land by the previous land owner.

        Neither the Principal Act nor the Repealing Act contemplate that the land declared as excess land and acquired by the government should immediately be put to use for, which it was acquired or the allottee should immediately utilise the land for the purpose for which it was allotted.

        Para 227

        Even if the lands remain vacant, after the Repeal Act, it is for the Government or the allottee to use the land, for the purpose, for which, the lands are allotted, the Principal Act contemplates possession of vacant land and merely because, it was kept vacant for sometime, till the allottee utilises the land, that will not confer any right to seek for re-conveyance. It is for the concern of the Government and not the concern of the land owner, as to how and when the acquired land has to be used. Para 228

        (J)Tamil Nadu Urban Land (Ceiling and Regulation) Act (T.N.Act 24/78)-Sec.11- Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (T.N.Act 20 of 1999)-Sec.3-Land ceiling-Urban land-Vesting- Possession-Repeal-Abatement- Restoration-Revenue records-Mutation-Failure of the State Government to effect mutation of its name in the Registration Department in respect of the acquired excess urban land is not a ground to invalidate the acquisition and claim back the property by its previous owner.

        Merely because in the registration department, mutation has not been effected before the Repeal Act, that would not clothe any right to the petitioners to seek for any relief under the Repeal Act, as mutation in the registration department, is only a consequential Act. On that score, it cannot be contended that physical possession has not been taken over.

        Para 242