Hanumanmal Naresh Kumar @ N.K.Surana & Ors. v. The Special Commissioner & Commissioner (Land Administration), Government of Tamil Nadu

W.P.No.21032 of 2014No.738/1A and 745/2 measuring an extent of 59 cents and 1 acre respectively of Kundrathur Village, Sriperumbudur Taluk, Chingleput District, and quash the same and direct the 2nd respondent to treat the proceedings of Act 24/78 as abated under Section 4 of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act, (Act 20 of 1999) so as to enable the 3rd respondent to incorporate the names of the petitioners, as owners of lands in Survey No.738/1A and 745/2 measuring an extent of 59 cents and 1 acre respectively of Kundrathur Village, Sriperumbudur Taluk, Kancheepuram District in all revenue records like patta, chitta and adangal.For Petitioners : Mr.V.Ramesh for Mr.T.ThiyagarajanFor Respondents : Mr.R.P.Murugan Raja, GAO R D E RThe petitioners have filed this Writ petition seeking issuance of a Writ of Certiorarified Mandamus to call for the records of the respondents, particularly the order of the 2nd respondent dated 13/03/1997 in ref.Na.Ka.2397/96A, quash the same in respect of subject lands, and to consequently direct the 2nd respondent to treat the said proceedings as abated, so as to enable the 3rd respondent to incorporate the names of the petitioners, as owners of the above said lands in the revenue records.2. The petitioners herein are husband and wife and the case of the petitioners is that the agricultural lands comprised in S.Nos.745/2 and 2/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014738/1A, measuring an extent of about 1 acre and 59 cents respectively, were purchased by the respective petitioners from one Elumalai Chettiar and Valliammal in the year 1996 and pursuant to the said purchase, the revenue records in respect of the subject property was also mutated in favour of the petitioners. While so, the petitioners came to know about the land ceiling proceedings initiated as against the subject lands and after obtaining the certified copies of the orders of the 2nd respondent dated 13.03.1997 issued under Section 9(5) of the the Tamil Nadu Urban Land (Ceiling & Regulation) Act (in short 'Ceiling Act'), vide, ref.No.Na.Ka.2158/96A, in the name of the said Elumalai Chettiar in respect of the lands comprised in S.Nos.738/1B, 737 & 740 and another vide, ref.No.Na.Ka.2397/96A issued in the name of the said Elumalai Chettiar and Valliammal in respect of the lands comprised in S.Nos.738/1A & 745/2, the petitioners preferred appeals before the 1st respondent under Section 33 in ref.J1/25756/98 and 25757/98, both dated 20.11.1998, however, the same were returned. Thereafter, the 2nd petitioner filed a Writ petition in W.P.No.6259 of 2008, challenging only one of the proceedings of the 2nd respondent in ref.No.Na.Ka.2158/96A in respect of the lands comprised in S.Nos.738/1B, 737 & 740 alone and the same was allowed, vide order dated 20.06.2013. 3/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014While so, when the petitioners' son approached the Village Administrative Officer to obtain adangal extract, the petitioners came to know that the 2nd respondent continued the acquisition proceedings and notice under section 11(5) was also issued. Hence, the petitioners have come up with this Writ petition, challenging the other order of the 2nd respondent dated 13.03.1997 in ref.No.Na.Ka.2397/96A issued under Section 9(5) of the Ceiling Act.3. Learned counsel for the petitioners submitted that, though the subject lands were acquired under the premise that the lands are coming under the urban land category, however, it is pertinent to note that, even at the time of issuance of 9(5) final statement, urban land ceiling authorities have referred that the land is not cultivated, however, it may be converted into urban land in future. It is therefore the submission of the learned counsel that the said endorsement itself is sufficient to hold that petitioners' lands are agricultural lands and merely because the petitioners are not cultivating the land, it does not mean that the lands may be classified as urban lands. Further, the revenue officials issued several orders stating that it is agricultural lands and even till date, it is cultivable agricultural lands. Though the respondent claim that they have issued notice under Section 4/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 201411(5) for surrendering of the possession of the subject lands, however, the same was served by way of affixture and not on the petitioners and prior to that, the petitioners filed appeal as against the order passed under Section 9(5), in which petitioners details were informed to the official respondents. Inspite of the same, notice, as contemplated u/s 11 (5) has not been served, but has been served only by way of affixture, which is wholly unsustainable. He further more submitted that, initially the petitioners filed an appeal before the Principle Commissioner, Land Reforms on 25.09.1998 and the same was entertained by the Principle Commissioner and an interim order was granted which order subsists till date, which clearly shows that possession of the lands are with the petitioners. In the meantime, repeal Act having come into force on 16.6.1999, entire land ceiling proceedings stands abated in terms of Section 4 of the Repeal Act. Accordingly, he prayed for allowing the writ petition.4. Per contra, learned Additional Government Pleader appearing for the respondents, relying on the counter, submitted that as per the revenue records, the subject lands were owned by one Elumalai Chettiar and Valliammal and as they have not filed the return under Section 7(1) of the 5/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014Act, notice under section 7(2) of the Act was issued on 15.05.1996 and the same was served by way of affixture and the subsequent notice under section 9(1) with draft statement under section 9(4) were issued on 13.01.1997 and the same was sent by RPAD and was received by one Vimala on behalf of the land owners. Since, no objection was filed by the land owner, the Deputy Tahsildar inspected the above said land on 14.02.1997 and submitted that the subject lands are vacant without any agricultural operations and accordingly, the notice under section 9(5) of the act was issued on 13.03.1997, declaring an extent of 5950 sq.mts as excess vacant land, after allowing an extent of 500 sq.mts towards entitlement and the same was received by the said Valliammal on 04.04.1997. Thereafter, the final statement under section 10(1) was issued on 27.06.1997 and the same was served in person to the Urban land owner namely Elumalai Chettiar on 08.07.1997 and the subsequent notifications under Section 11(1) and 11(3) were issued on 11.08.1997 and 22.10.1997 respectively and the notice under Section 11(5) was served by way of affixture, as the land owner refused to receive the same and since the land owner did not surrender the possession of the excess vacant land, the same was taken over and handed over to the Revenue Inspector on 06.08.1998 and necessary entries were 6/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014made in the revenue records. He further submitted that the sale said to have been made by the petitioners after initiation of the land ceiling proceedings is null and void as per section 6 of the said Act and further all notices were duly served on the urban land owners and order under section 9(5) of the Act was received by one of the urban land owner, namely Valliammal and final statement under section 11(5) was served in person to the other urban land owner namely Elumalai, as he has refused to receive the same, the same was served by way of affixture and not directly served by way of affixture as claimed by the petitioners and since the notice under Section 11(3) of the Act was published, the lands stand vested with the Government and are free from all encumbrances with effect from 01.12.1997. 5. He furthermore submitted that, the Tamilnadu Urban Land (Ceiling & Regulation) Act, 1978 was repealed vide Repeal Act on 16.06.1999, however, possession of the subject lands were taken over and handed over to the Revenue Authorities, well in advance of the coming into force of the Repeal Act and, therefore, the question of abatement of the proceedings does not arise in view of Section 3 (1) of the Act. For better appreciation, the relevant portion is extracted as follows.7/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014(1) The repeal of the principal Act shall not affect(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;In the light of the above said section the act of the respondents are saved under Section 3(1)(a) of the Repeal Act and the petitioners are not entitled for relief under Repeal Act. Hence, he prayed for dismissal of the present Writ petition.6. Heard learned counsel on either side and perused the materials available on record.7. A perusal of the counter affidavit reveals that, the entire land ceiling proceedings were initiated as against the petitioners' vendors and even on a bare perusal of the counter affidavit filed by the respondents, it is clear that almost all the notices were served by way of affixture. Notices, as contemplated under the various provisions have not been followed. It is to be 8/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014pointed out that service by affixture should be resorted to as a last resort and not at the initial stage. However, there is no material placed before this Court to show that notice was attempted to be served in all the modes and failure of the same led to service by affixture. When the petitioners are in possession of the subject lands, it is incumbent on the respondents to serve notice on the petitioners, yet, there is no material to show that any noticewas served on the petitioners, which is a clear violation of Section 11(5) of the said Act.8. Admittedly, the Repeal Act came into force on 16.06.1999 and the entire proceedings would stand abated if possession has not been taken by then. It is borne out by record and not disputed by the respondents that interim order was granted by the Principal Commissioner by entertaining the appeals preferred by the petitioners, prior to the repeal of the said Act and from the above, the only presumption that could be drawn is that the possession of the subject lands rests with the petitioners. Such being the case, the interim order having not been vacated in a manner known to law, the possession alleged to have been taken by the respondents could be 9/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014termed only to be a paper possession and not actual possession as prescribed under the law. Without substantiating actual taking of possession by following the procedures contemplated under the Act, the claim of the respondents that possession has been taken cannot be taken at its face value to hold that the proceedings has been taken to its logical conclusion. 9. Further, the grievance of the petitioners is that, the petitioners came to know about the entire land ceiling proceedings under Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 in respect of the above said properties, when they applied for issuance of Adangal extract. Though the petitioners were in absolute possession of the above said lands at the time of initiation of land ceiling proceedings, no notice was served on the petitioners. Notice before taking possession of the lands is mandatory as per the provisions of the Act. A perusal of the materials available on record reveals that the respondents initiated proceedings under the said Act against the petitioners' vendors. However, it is pertinent to note that, the petitioners have purchased the subject lands as early as in the year 1996 and without ascertaining the said fact, the land ceiling proceedings were continued only in the name of the petitioners' vendors. In the above backdrop, the 10/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014contention of the respondents that the petitioners is not entitled for the relief under the Repeal Act is not sustainable. 10. Further, it is pertinent to note that, no notice was served on the petitioners and physical possession of the above said lands were also not taken by the respondents. Though the respondents claim that they have taken possession of the property, however, the materials available on record do not reveal such to be the case and there is no material to substantiate the said stand.11. Further Rule 8 of the Act prescribes the manner in which notice has to be prepared. For better appreciation, rule 8 is quoted hereunder:-8. Particulars to be contained in draft statement as regards vacant land and manner of service of the same.-(1) Every draft statement prepared under sub-section (1) of section 9 shall contain the particulars specified in Form III.(2)(a) The draft statement together with the notice referred to in sub-section (4) of section 9 shall be served on-(i) the holder of the vacant lands, and(ii) all other persons, so far may be known, who have, or are likely to have any claim to, or interest in, the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned-(i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance to 11/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014sub-section (1) of section 7, and(ii) in the case of other persons, at their last known addresses.(b) Where the draft statement and the notice are returned as refused, by the addressee, the same shall be deemed to have been duly served on such person.(c) Where the efforts to serve the draft statement and the notice, on the holder of the vacant lands or, as the case may be, on any other person referred to in clause (a), in the manner specified in that clause are not successful for reasons other than the reason referred to in clause (b), the draft statement and the notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon conspicuous part of the house (if any) in which the holder of the vacant lands or, as the case may be, the other person is known to have last resided or carried on business or personally worked for gain.(3) The notice under sub-section (4) of section 9 shall be in Form IV]For taking over of the possession, the notice in the prescribed format should be served on the land owners, as provided under rule 8 as aforesaid. In the present case notice was served only on the petitioners' vendors, that too only by affixture and not sent by registered post with acknowledgement due and the above said notice was also not served on the persons in possession of the property. Therefore, the mandate under rule 8 has not been complied with.12. Further Section 11(5) of the Act, refers to the procedure in which 12/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014the acquisition of vacant land in excess of ceiling limit shall be proceeded, which heavily presses upon serving of notice to the person in possession and failure to comply with the notice u/s 11 (5) would necessitate invocation of Section 11 (6), which is as under :-11. Acquisition of vacant land in excess of ceiling limit. ********(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorised by the State Government in this behalf and may for that purpose use such force as may be necessary. 13. In the case on hand, no materials have been placed to show that the authorities have followed the procedures contemplated under Section 11(5) of the Act by issuing proper notice and, thereafter, taking possession of the subject lands or in the alternative, the failure of the petitioners to part 13/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014with the lands necessitated the authorities to invoke Section 11 (6) of the Act, the Repeal Act has set at naught the proceedings taken up by the respondents and necessarily, the take over of the lands under the Urban Land Ceiling proceedings stood abated.14. In such circumstance, the land ceiling proceedings having not been taken up in the manner as prescribed under the provisions of the Act and the mandatory provisions having not been followed and physical possession having not been taken, as the petitioners are in possession of the lands, it would clearly show that pursuant to the repeal Act, no proceedingsfor taking over the lands could be initiated against the petitioners and, therefore, the entire land ceiling proceedings deserves to be quashed.15. It is to be pointed out that the Repeal Act 20 of 1999 is a welfare legislation, which was enacted to safeguard the interests of the land owners. Consciously, the Government has taken a decision to repeal the Urban Land Ceiling Act for reasons, which finds place in the repeal Act. That being the 14/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014case, it is the bounden duty of the respondents to adhere to the reasons given in the said enactment. However, it is often seen that giving a go-by to the reasons for the welfare enactment, the land owners are made to run from pillar to post to get their grievances redressed. When the interests of the land owners is sought to be safeguarded by the said enactment, it cannot be infracted by the respondents by restoring to subterfuge. Time and again, this Court has come across instances of the authorities not adhering to the provisions of the Repeal Act, which is grossly illegal. It is the duty of the authorities to strictly adhere to the provisions of the enactment so that the intent with which the legislation was put in place, the fruits of the same reach to the land holders.16. For the reasons aforesaid, the land ceiling proceedings are quashed and the Writ petition is allowed and the order impugned herein is set aside. No costs. Consequently, connected Miscellaneous petition is closed. 11.07.202215/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014sktSpeaking Order: Yes/ NoIndex: Yes/ No To1.The Special Commissioner & Commissioner (Land Administration), Government of Tamil Nadu, Chepauk, Chennai - 600 005.2. The Assistant Commissioner/ Competent Authority, Urban land Ceiling, Kundrathur, Chennai.3. The Tahsildhar Sriperumbudur Taluk, SriperumbudurM.DHANDAPANI, J.skt16/17 https://www.mhc.tn.gov.in/judis W.P.No.21032 of 2014W.P.No.21032 of 2014andM.P.No.1 of 2014 11.07.202217/17