Tessy John v. The Principal Commissioner and Commissioner of Land ReformsChepaukChennai –

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 10..12..2007Coram:The Honourable Mr. Justice K.CHANDRUW.P. No. 9332 of 2006andW.P.M.P.No.10331 of 2006Tessy John .. Petitionervs.1. The Principal Commissioner and Commissioner of Land ReformsChepaukChennai – 52.The Assistant Commissioner /Competent Authority Urban Land Ceiling (Alandur)Chennai - 883.The TahsildarTambaram Taluk TambaramChennai .. RespondentsPetition under Art.226 of the Constitution of India, praying for aWrit of Certiorarified Manadamus by calling for the records of therespondents especially the order of the second respondent dated 01.6.1993Na. Ka. 1248/92A under Section 9(5) and Notice dated 30.6.1994 vide Rc.1245/92A under Section 11(5) of the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978 relating to the land in Survey No. 56/16C ofPerungudi Village measuring 1800 Sq. metres and quash the same and furtherdirect the respondents to treat the proceedings referred to above asabated under Section 4 of the Tamil Nadu Urban Land (Ceiling andRegulation) Repeal Act, Act 20 of 1999 so as to enable the thirdrespondent to correct the entry in the revenue records incorporating thename of the petitioner as owner of the above land.For Petitioner : Mr. V. RameshFor Respondents : Mrs. V. Bhavani Subbaroyan, AGP https://hcservices.ecourts.gov.in/hcservices/ ORDERI have heard the arguments of Mr. V. Ramesh, learned counselappearing for the petitioner and Mrs. V. Bhavani Subbaroyan, learnedAssistant Government Pleader, representing the respondents, and haveperused the records.2.The petitioner is the owner of the property in Survey No. 56/1Apart of Perungudi Village measuring an extent of 44 cents. She hadpurchased the same as agricultural land by means of a registered sale deeddated 06.5.1981 from one Smt. U. Lakshmi. The petitioner was inpossession and enjoyment of the said property. She also obtained pattain her name for the land in question and the Survey Number was re-numberedas 56/16C. Out of the total extent purchased by her, she sold an extentof 4 grounds to a third party and the remaining lands were in herpossession. When she applied for a computerised copy of the patta, shewas informed by the Village Administrative Officer that the land in SurveyNo. 56/1A Part had been acquired by the second respondent under the TamilNadu Act 24 of 1978. Thereafter, she approached the second respondentfor certified copy of the order and accordingly, she got the same. Shefound that the entire extent of land in Survey Nos. 56/16B and 16Cmeasuring an extent of 3350 Sq. Metres was acquired by the secondrespondent from one Mammen Varghese of Kottayam in Kerala. It is thisorder that is challenged in this writ petition.3.The petitioner also asserts that in the four grounds, which wassold to a third party, a house construction has been put up and people areresiding in the said land. She also states that possession was nevertaken from her and she continues to be in possession and enjoyment of theproperty. Further, she states that in the light of the Tamil NaduRepeal Act 20 of 1999 and by virtue of Section 4 of the Repeal Act, she isentitled to continue in possession of the said land.4.On direction from this Court, original file was produced beforethis Court and a written instructions dated 25.7.2006 received from thesecond respondent, was also produced. Nowhere in the instructions, it isstated that notice was given to the petitioner even though the proceedingswere initiated subsequent to the purchase by the petitioner and thevillage records have also been reflecting her ownership. It is seenfrom the written instructions that notice of proceedings right fromSection 7 to 11 were given to one Mammen Varghese, a resident of Kottayamin Kerala State and the petitioner was nowhere given any such notice.Even in the chitta and village adangal, which is found in pages 49 and 51of the original file produced, the name of the petitioner is clearlymentioned as the owner of the said land. Thereafter, they have notverified from the petitioner or issued any such notice to her. It isnot made clear either in the original file or in the written instructionsgiven by the second respondent as to why no notice was given to thepetitioner. https://hcservices.ecourts.gov.in/hcservices/

5.Apart from attacking the original acquisition proceedings, itwas also argued that by virtue of the Act 20 of 1999 repealing the Act 24of 1978, insofar as the possession had not been taken over by the StateGovernment or by any person duly authorised by the State Government, itcontinues to vest with the land owner. Therefore, it is necessary torefer to Sections 3 and 4 of the Repeal Act (Tamil Nadu Act 20 of 1999).“3. Savings:- (1) The repeal of the principal Act shall noteffect--(a)the vesting of any vacant land under sub-section(3) of section 11, possession of which has been taken overby the State Government and any person duly authorised bythe State Government in this behalf or by the competentauthority;(b)The validity of any order granting exemption undersub-section 1 of section 21 or any action taken thereunder.(2)Where--(a)any land is deemed to have vested in the StateGovernment under section (3) of section 11 of the PrincipalAct but possession of which has not been taken over by theState Government or any person duly authorised by the StateGovernment in this behalf or by competent authority; and(b) any amount has been paid by the State Governmentwith respect to such land, then, such land shall not be restored unless the amountpaid, if any, has been refunded to the State Government.4.Abatement of legal proceedings:- All proceedingsrelating to any order made or purported to be made under theprincipal Act pending immediately before the commencement ofthis Act, before any court, tribunal or any authority shallabate:Provided that this section shall not apply to theproceedings relating to sections 12, 13, 14, 15, 15-B and 16of the principal Act in so far as such proceedings arerelatable to the land, possession of which has been takenover by the State Government or any person duly authorisedby the State Government in this behalf or by the competentauthority.”6.Mr. V. Ramesh, learned counsel appearing for the petitioner,contended that the entire exercise done by the respondents in declaringthe land as surplus urban land and also the so-called take over ofpossession was a fraud on the safeguards provided under the Act. Hesubmitted that no notice was served on the petitioner or on the vendor ofthe petitioner's property, viz., Tmt. U. Lakshmi. https://hcservices.ecourts.gov.in/hcservices/

7.The records produced by the learned Assistant Government Pleaderwas perused. It is seen from the records that the notice under Section7(2) of the Act 24 of 1978 was sent to one Mammen Varghese at Kottayam on14.01.1992. When the patta was procured by the respondents, it clearlyshows that the land in Survey No. 56/16B is shown to be owned by one SusanVarghese. Even the village adangal only showed the name of MammyVarghese having a house in that property. With regard to the extent ofthe land on the survey number, a statement was prepared under Section 9(1)showing the land's total measurement as 3350 Sq. Metres and the excess ofland was identified as 1850 Sq. Metres and this was sent again to MammenVarghese at Kottayam. The chitta extract recorded by the respondents,which is found at page 49 of the file, clearly shows that the owners ofthe land were M/s Mammy Varghese and Susan Varghese. It is alsoreflected in the adangal extract found at page 51 of the original file.Even thereafter, the petitioner sent the notice under Section 9 of the Actonly to Mammen Varghese, who is not the owner of the land. 8.In the final statement prepared in Form III under Rule 8,curiously, it is seen that the names of Mammy Varghese and Susan Vargheseoriginally written as Serial Numbers 2 and 3, were struck off and therespondents themselves declared that excepting 500 Sq. Metres, the balanceof 2850 Sq. Metres were surplus land in Survey No. 56/16B-2. Afterstriking out the names of the real land owners, viz., M/s Mammy Vargheseand Susan Varghese, notice was issued only to Mammen Varghese. Thereasons are not explained for the same. The original file sending thenotice along with the final statement was returned with an endorsementrefused. But it was addressed to Mammen Varghese at Kottayam. Butthe said postal cover does not contain the signature of the postman. Itwas thereafter, Notification under Section 11(1) of Act 24 of 1978 waspublished once again showing the name of Mammen Varghese and not the realowners. 9.Thereafter, page 79 of the file shows a letter requestinghanding over of the excess land. When that was not forthcoming, onceagain, a reminder letter was sent not to the real owner seeking forhanding over the properties. Even the notice under Section 11(5) of theAct was sent to the name of Mammen Varghese, which has come back with theendorsement 'refused' and the endorsement of the postman is not found inthe returned postal cover. Thereafter, at page 109 of the file, anendorsement is found that the so-called surplus land was taken over by theRevenue Inspector, Alandur and handed over to the Firka RevenueInspector. This was intimated by a covering letter dated 11.01.1995 andeven in that letter, the name of the owner is shown as Mammen Varghese.10.The original file produced by the learned Government Pleadercompletely justifies the allegations made in paragraphs 6, 7 and 9 of theaffidavit filed in support of the writ petition. If only therespondents had taken care to serve the real owners of the property, theentire issue would not have come before this Court with these allegations. https://hcservices.ecourts.gov.in/hcservices/ In a way, the petitioner is right in saying that the attempt of therespondents was just to take over the property in the name of some personand make it a fait accompli against the real owner and it is a clear caseof deprivation of the property in violation of Article 300-A of theConstitution of India. 11.Further, it is also averred in the affidavit that in view ofpossession not having been taken over in the manner known to law and thefact that the physical possession and enjoyment is in the hands of thepetitioner, she is entitled to get the benefit of Section 4 of the RepealAct 20 of 1999.12.In this connection, the learned counsel appearing for thepetitioner relied on a judgment of a Division Bench (Presided over by P.Sathasivam, J. as he then was) reported in 2007 (1) MLJ 750 [V.Somasundaram and others v. Secretary to Government, Revenue Departmentand others]. He particularly relied on paragraph 9 of the judgment, whichreads as follows:Para 9:“From the perusal of the file, it is clear that proceedingswere initiated against the third respondent, who is theerstwhile owner of the lands in question, in respect oftransfer of his land to the appellants herein. Section 11(5) notice was also issued to the third respondent, who wasnot the real owner. As per Section 11(5) of the Act, thecompetent authority is bound to issue notice in writing toany person, who may be in possession of the land, tosurrender and deliver possession thereof, to the StateGovernment or to any person duly authorised by the StateGovernment, within thirty days' time. No notice havingbeen issued against the appellants, who are in possession ofthe lands as stated supra, taking possession of lands on30.4.1999 by the second respondent is non-est. It is tobe noted that due to the repealing of the Tamil Nadu UrbanLand (Ceiling and Regulation) Act, 1978, with effect from16.9.1999, it is not open to the authorities to proceedagainst the appellants at this stage to rectify the non-compliance of Section 11(5) of the Act.”[Emphasis added]13.The learned counsel also drew the attention of this Court to anun-reported decision of the Division Bench, presided by S.J.Mukhopadhaya,J. in W.P. Nos. 693 to 695 of 2003 [Annie Jacob and others v. Stateof Tamil Nadu and another] and the relevant passage found paragraphs 8 and9 is extracted below:Para 9:“There is nothing on the record to suggest that thecompetent authority issued any notice in writing directingthe original land holder or the appellants to surrender ordeliver possession of the lands in question. Nothing hasbeen produced to suggest that the original land holder orthe appellants refused or failed to comply with such order https://hcservices.ecourts.gov.in/hcservices/ and on failure the possession of the lands were taken byforce. In absence of such notice u/s 11(5) or actiontaken u/s 11(6), a bald statement as made by the respondentsthat possession was taken on 10th Feb., 1995, cannot beaccepted. On the other hand, the appellants have produceddocuments, such as panchayat tax receipts, reassessmentnotice, tax acknowledgment and demand notice, pattas,chittas, house tax receipt, panchayat payment receipts,electricity bills / cards, etc., to suggest that they arestill in possession of the lands in question.Para 9:In the aforesaid circumstances, the respondents cannot takeadvantage of Section 3 of the Repealing Act 20 of 1999 andnor deny the advantage u/s 4 to the appellants. Suchprovisions being in favour of the appellants, we hold thatthe total proceeding shall stand abated.”[Emphasis added]14.The learned counsel further brought to the notice of this Courtthe judgment in W.P. No. 29081 of 2003 [Sudandarakkani v. Governmentof Tamil Nadu and others] (rendered by me) and referred to paragraphs 9and 10, which read as follows:Para 9:“These records can never be believed as neither thepetitioner nor the predecessor-in-title have been servedwith proper notices in terms of the Act and the Rules madethereunder. When valuable lands are sought to be takenover by a statutory enactment, it is incumbent on the partof the authorities to scrupulously follow the rulesprescribed thereunder. The mode of affixture cannot beresorted to as a matter of course and attempt should havebeen made to send the notice by Registered Post ascontemplated under the Rules. If this process is resortedto by the respondents, any land can be taken over withouteven notice to the land owners by not complying with themandatory provisions of the Rules. There are also norecords to show that physical possession has been taken overfrom the petitioner, who is the purchaser of the land evenas early from 29.8.1986. In any event, there are norecords to indicate that physical possession has been takenover from the petitioner and in the absence of the same, thepetitioner is entitled to have the benefit of Section 4 ofthe Repeal Act 20 of 1999.Para 10:This Court in its judgment reported in (2006) 2 M.L.J. 664[SOSOMMA THAMPY vs. THE ASSISTANT COMMISSIONER (ULT) – CUM –COMPETENT AUTHORITY (ULC)], has analysed all the previouscase laws and categorically held that physical possession isrequired and mandatory under the ULC Act and noting in thefile that symbolic possession is taken cannot be accepted astaking of physical possession. This Court is in complete https://hcservices.ecourts.gov.in/hcservices/ agreement with the ratio laid down in the aforesaid decisionwhich also squarely applies to the facts and circumstancesof the case.”15.Therefore, insofar as the proceedings were not initiated againstthe real land owner as found in the original file, the entire exercise bythe respondents is an exercise in futility and it would also amount todepriving the property of the petitioner by misusing the power vestedunder the Tamil Nadu Act 24 of 1978. 16.In view of the above, the writ petition stands allowed andimpugned order dated 01.6.1993 passed by the second respondent and thenotice under Section 9(5) of Act 24 of 1978 dated 30.6.1994 will stand setaside. The petitioner is entitled to have the benefit of Section 4 ofthe Tamil Nadu Act 20 of 1999 and be in absolute enjoyment and possessionof the property measuring 44 cents. However, there will be no orderas to costs. Connected Miscellaneous Petition is closed. 17.The third respondent Tahsildar, Tambaram and the Sub-Registrar,Adyar are directed to make appropriate notings in the connected records.GriSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Principal Commissioner and Commissioner of Land ReformsChepauk, Chennai – 52.The Assistant Commissioner Urban Land CeilingAlandur, Chennai-600 0883.The TahsildarTambaram Taluk Tambaram, Chennai 4.The Sub-RegistrarAdyar, Chennai+1 cc to Mr.V.Ramesh, Advocate Sr.No.72915.KS(CO)DCP/12.12 W.P. No. 9332 of 2006