Ms.Prathiba Venkataraman v. The Assistant Commissioner, (Land Reforms) Alandur Municipality, Alandur, Chennai – 600 016 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.01.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.6931 of 2000Ms.Prathiba Venkataraman ... Petitioner Vs1.The Assistant Commissioner, (Land Reforms) Alandur Municipality, Alandur, Chennai – 600 016.2.The Assistant Commissioner/ Competent Authority (Urban Land Ceiling) Alandur, No.163, Karuneegar Street, Adambakkam, Chennai – 600 088. ... Respondents (2nd respondent impleaded by order dated 12.01.2009 in WPMP No.14 of 2009 in WP No.6931 of 2000 by KCJ)PRAYER :- Petition filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Certiorarifiedmandamus, calling for the records pertaining to S.R.119/85 Bdated 12.01.1990 on the files of the respondent and quash thesame and consequently direct the respondent to put thepetitioner back in possession in respect of the propertysituated at Madipakkam Mathura Puzhudivakkam village at No.154,Saidapet Taluk, comprised in S.No.56/8 1 A 1 in plot No.139 and140 measuring an extent of 4800 Sq.ft.For petitioner : Mr.V.Ramesh for M/s.Aiyar and DoliaFor Respondents : Mrs.Sneha, G.A.O R D E RHeard both sides.2. The petitioner seeks for setting aside an order dated12.01.1990 issued by the first respondent and for restorationof possession of the petitioner's property in S.No.56/8 1 A1in plot Nos.139 and 140 measuring an extent of 4800 Sq.ft.situated at Madipakkam Mathura Puzhudivakkam village. https://hcservices.ecourts.gov.in/hcservices/

3. The writ petition was admitted on 19.04.2000. Evenafter eight years since the respondents have not filed anycounter, the first respondent was summoned to produce theoriginal records relating to the impugned order. Mrs.Sneha, thelearned Government Advocate had circulated the original file. 4. The case of the petitioner was that she purchased thedisputed land from one Lakshmana Naicker under a registeredSale Deed on 21.09.1965 with Document No.2120/65 in the Sub-Registrar Office, Pallavaram. The vendor of the petitionerpurchased the said land from one Janakiammal with a registeredsale deed dated 18.04.1995 bearing Document No.580/55. Thepetitioner also was in possession and enjoyment of the saidproperty and she was given an intimation letter for grant ofpatta by the District Revenue Officer on 26.11.1987. 5. But subsequently when she went to ask for the originalpatta she was orally informed that her lands were taken overunder the provisions of Tamil Nadu Urban Land Ceiling Act 1978(for short Ceiling Act). The petitioner's enquiry revealedthat notices for acquisition of the land was given to oneMunusamy Chettiar under Section 9(5) of the Ceiling Act. Thepetitioner, as she was not aware of these proceedings issued anotice through her counsel on 14.09.1999 asking them to dropthe proceedings. However, the respondent by a reply dated27.03.2000 stated that appropriate proceedings have been takenunder the Ceiling Act and the land had been acquired on1.12.1992. Because of these developments, the petitioner hasfiled the present writ petition. 6. In the original file circulated, a draft counterstatement has been made ready by the first respondent and ithas been stated in paragraphs 3 and 4, which is as follows:"3. It is submitted that the averments in paras 2to 6 are incorrect. Mr.Munusamy Chetty was theowner of an extent of 4425 sq.mts of urban vacantland in S.No.56/8A 1 A of Madipakkam Village as pervillage accounts. As the urban land owner has notfiled returns u/s 7(1) of the Act notice u/s 7(2)of the T.N.U.C.(Ceiling and regulation) Act 1978was issued in this office ref. S.R.No.1117/85 dated31.08.85 requesting him to file the returns u/s 7(1) of the Act. It was served on him on 14.10.86.He did not file the return u/s7(2) of the Act.Notice u/s 9(4) along with Statement u/s 9(1) ofthe Act was issued on 30.10.87. As the whereaboutsof the Urban land owner was not known, they wereserved by affixure on 10.06.89. The competentauthority inspected the lands on 29.4.89 and foundthat the land was urban in nature. So, order u/s 9(5) of the Act was issued in this office in https://hcservices.ecourts.gov.in/hcservices/ Ref.S.R.1119/85. Dated 12.01.90 determining thefamily entitlement of 500 sq.mts. The above orderwas sent by RPAD and it was returned. As thewhereabouts of the urban land owner was notknown,it was served by affixture on 2.9.91. As persub-division records prepared, action was taken toacquire 3750 sq.mts in S.No.56/8A1A1A1A and 150sq.mts in S.No.56/8A1A1A2. 4. It is submitted that accordingly finalstatement u/s 10(1) of the Act was issued on20.1.92. As the whereabouts of the urban landowner was not known, it was also served byaffixture. Notifications under section 11(1) and11(3) of the Act were published on 30.9.92 and9.12.92 respectively. Notice u/s 11(5) of the Actwas sent to the urban land owner on 15.2.93requesting him to deliver possession of the excessvacant land. It was sent by RPAD and was returned.The excess vacant land of 3900 sq.mts was takenover and possession handed over to the RevenueDepartment on 11.8.95 As the purchase made by theWrit petitioner did not reflect in the VillageAccounts, Notices were not sent to her. "7. It was also contended that the petitioner wanted tohave regularisation of her purchase on the basis of aGovernment Order in G.O.Ms.No.649, Revenue, dated 29.7.98 aswell as G.O.Ms.No.565, Revenue 26.09.2008 and since thepetitioner had given a letter to that effect she cannot argueto the contrary. 8. Merely because the petitioner had already availed asubsequent scheme announced by the Government, that will notdefeat her legal claim over her property. Therefore, thiscontention cannot be accepted by this Court. When thepetitioner had purchased the property from her vendor in theyear 1965, well before the advent of the Ceiling Act, and shealso got a patta for the said property issued by the RevenueAuthorities, there is gain saying that the respondent hasissued notice to the appropriate persons who are the originalowners of the land. 9. It must be stated that right from the initiation of theproceedings, the respondents have not adopted the provisions ofthe Ceiling Act. The notice under Section 9(4) of the CeilingAct was issued in the name of one Munusamy Chettiar and others.It is not described as to who are the two others. It is alsoseen that the said Minusamy Chettiar was never served with anynotice and the office endorsement found in the file shows thatsince his address was not available he could not be served.Thereafter, Section 9(5) notice was got to be served through https://hcservices.ecourts.gov.in/hcservices/ registered post by indicating the address of Munusamy Chettiaras the resident of Puzhuthivakkam Village. But that registeredcover has come back as unserved with an endorsement stating"returned to the sender". The further endorsement dated12.01.1990 stated that it has been affixed on the lastresidential address of the said Munusamy Chettiar. 10. It is shocking to know that when the respondents arenot aware of the address of the said Munusamy Chettiar how theycould have affixed the notice. While acknowledgment containsthe date of 12.01.1990, one person by name Kanniappan hassigned on 02.09.91. Further, there was also discrepancies inthe extent of land alleged to be owned by Munusamy Chettiar.Thereafter in the Section 9(5) notice an endorsement shows thatthe said notice was affixed on a pole erected in the land inquestion. Similarly, there is no proof of serving of Section 10(1) statement. Even Section 11(1) notification was not servedon the so called land owner. The notification under Section 11(5) was sent by service post in the name of Munusamy Chettiarand it has come back with an endorsement stating "insufficientaddress". Only under these circumstances, it is now claimedthat the lands were taken over with a land delivery receiptgiven by the Revenue Inspector, Alandur Taluk on 11.08.1995. 11. If this is claimed as a lawful acquisition made by theauthorities then it is only a mockery of the implementation ofthe law. The respondents have not explained the registered saledeed produced by the petitioner in support of her ownership ofthe property as well as the patta produced by her. Therespondent could also not justified as to how they arrived atthe name of Munusamy Chettiar as the owner of the land inquestion. 12. The original file produced by the learned governmentAdvocate completely justifies the allegations made in theaffidavit filed by the petitioner. If only the respondents hadtaken care to serve the real owners of the property, theentire issue would not have come before this Court with theseallegations. In a way, the petitioner is right in saying thatthe attempt of the respondents was just to take over theproperty in the name of some person and make it a fait accompliagainst the real owner and it is a clear case of deprivation ofthe property in violation of Article 300-A of the Constitutionof India.13. In this connection, the learned counsel appearing forthe petitioner relied on a judgment of a Division Bench(Presided over by P.Sathasivam,J. as he then was) inV.Somasundaram and Others v. Secretary to Government, RevenueDepartment and Others (2007) 1 MLJ 750. He particularly reliedon paragraph 9 of the judgment, which reads as follows:9: "From the perusal of the file, it is clear that https://hcservices.ecourts.gov.in/hcservices/ proceedings were initiated against the thirdrespondent, who is the erstwhile owner of the landsin question, in respect of transfer of his land tothe appellants herein. Section 11(5) notice wasalso issued to the third respondent, who was notthe real owner. As per Section 11(5) of the Act,the competent Authority is bound to issue notice inwriting to any person, who may be in possession ofthe land,to surrender and deliver possessionthereof, to the state Government or to any personduly authorised by the State Government, withinthirty days' time. No notice having been issuedagainst the appellants,who are in possession of thelands on 30.04.1999 by the second respondent isnon-est. It is to be noted that due to therepealing of the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978, with effect from 16.09.1999,it is not open to the authorities to proceedagainst the appellants at this stage to rectify thenon-compliance of Section 11(5) of the Act."(emphasis added)14. The learned counsel also drew the attention of thisCourt to an un-reported decision of the Division Bench,presided by S.J.Mukhopadhaya,J. In W.P.Nos.693 to 695 of 2003Annie Jacob and others v. State of Tamil Nadu and Another andthe relevant passage found in paragaphs 8 and 9 is extractedbelow:Para 8 : "There is nothing on the records to suggestthat the competent authority issued any notice inwriting directing the original land holder or theappellants to surrender or deliver possession of thelands in question. Nothing has been produced tosuggest that the original land holder or theappellants refused or failed to comply with suchorder were taken by force. In absence of suchnotice under Section 11(5) or action taken underSection 11(6), a bald statement as made by therespondents that possessions was taken on10.02.1995, cannot be accepted. On the other hand,the appellants have produced documents, such aspanchayat tax receipts, reassessment notice, taxacknowledgment and demand notice, pattas chittas,house tax receipt, panchayat payment receipts,electricity bills/cards, etc., to suggest that theyare still in possession of the lands in question.Para 9: In the aforesaid circumstances, therespondents cannot take advantage of Section 3 ofthe Repealing Act 20 of 1999 and nor deny theadvantage under Section 4 to the appellants. Suchprovisions being in favour of the appellants, wehold that the total proceedings shall stand abated."(emphasis added) https://hcservices.ecourts.gov.in/hcservices/

15. The learned counsel further brought to the notice ofthis Court the judgment in W.P.No.29081 of 2003 Sudandarakkaniv. Government of Tamil Nadu and others (rendered by me) andreferred to paragraphs 9 and 10, which read as follows:Para 9 : "These records can never be believed asneither the petitioner nor the predecessor-in-tilehave been served with proper notices in terms ofthe Act and the Rules made thereunder. Whenvaluable lands are sought to be taken over by astatutory enactment, it is incumbent on the part ofthe authorities to scrupulously follow the rulesprescribed thereunder. The mode of affixturecannot be resorted to as a matter of course andattempt should have been made to send the notice byRegistered Post as contemplated under the Rules.If this process is resorted to by the respondents,any land can be taken over without even notice tothe land owners by not complying with the mandatoryprovisions of the Rules. There are also no recordsto show that physical possession has been takenover from the petitioner, who is the purchaser ofthe land even as early from 29.8.1986. In anyevent, there are no records to indicate thatphysical possession has been taken over from thepetitioner and in the absence of the same, thepetitioner is entitled to have the benefit ofSection 4 of the Repeal Act 20 of 1999.Para 10: This Court in its judgment reported inSosomma Thampy v. Assistant Commissioner (ULT)-cum-Competent Authority (ULC), has analysed all theprevious case laws and categorically held thatphysical possession is required and mandatory underthe ULC Act and noting in the file that symbolicpossession is taken cannot be accepted as taking ofphysical possession. This Court is in completeagreement with the ratio laid down in the aforesaiddecision which also squarely applies to the factsand circumstances of the case."16. Therefore, insofar as the proceedings were notinitiated against the real land owner as found in the originalfile, the entire exercise by the respondents is an exercise infutility and it would also amount to depriving the property ofthe petitioner by misusing the power vested under the TamilNadu Act 24 of 1978.17. In the light of the above, the impugned order of therespondents stands quashed. The respondents are directed toreturn the land of the petitioner in Survey No.S.No.56/8 1 A1in Plot Nos.139 and 140 measuring an extent of 4800 Sq.ft. https://hcservices.ecourts.gov.in/hcservices/ situated at Madipakkam Mathura Puzhudivakkam village, within aperiod of eight weeks form the date of receipt of a copy ofthis order. However, there will be no order as to costs. SvkiSd/Deputy Registrar/true copy/Sub Asst.RegistrarTo1.The Assistant Commissioner, (Land Reforms) Alandur Municipality, Alandur, Chennai – 600 016.2.The Assistant Commissioner/ Competent Authority (Urban Land Ceiling) Alandur, No.163, Karuneegar Street, Adambakkam, Chennai – 600 088. + 1 cc to M/s. Aiyar and Dolia, Advocate SR No.3507+ 1 cc to the Government Pleader, SR No.3923order in W.P.No.6931 of2000VSV(CO)SR/4.2.2009