Tmt.M.Nailini v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 28-04-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.7539 of 2004Tmt.M.Nailini.. Petitioner.Versus1.State of Tamilnadu rep.Secretary to Government,Revenue Department,'Fort St. George, Chennai-9.2.The Principal Commissioner,Urban Land Ceiling and Commissioner for Land Reforms,Chepauk, Chennai-5.3.The Competent authority,Urban Land Ceiling,Tambaram at Sannathi Street,Chennai-88.4.Tamil Nadu Slum Clearance Board,rep. by its Chairman,Kamarajar Salai, Chennai-5... Respondents.Prayer: This petition has been filed seeking for a writ ofCertiorarified Mandamus, calling for the entier records culminatingin issue of the impugned order in N.K.C.P.No.276/96 D dt.7.10.1997obtained by the petitioner, on 13.2.2004 and quash the same, asillegal, without jurisdiction and consequently direct the respondentsto hand over the land 1750 Sq.M comprised in S.No.12/3,Peerkankaranai Village to the petitioner.For Petitioner : Mr.V.RameshFor Respondents : Mr.S.Sivashanmugam (R1 to R3) Government Advocate Mr.P.S.Raman (R4) Additional Advocate General for Mr.Y.Bhuvanesh Kumar https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard Mr.V.Ramesh, the learned counsel appearing for thepetitioner, Mr.S.Sivashanmugam, the learned Government Advocateappearing for the respondents 1 to 3 and Mr.P.S.Raman, the learnedAdditional Advocate General, appearing on behalf of the fourthrespondent.2. This writ petition has been filed, praying for a writ ofCertiorarified Mandamus, to call for the records relating to theimpugned order, dated 7.10.1997, and to quash the same and to furtherdirect the respondents to hand over the land, comprised in S.No.12/3,Peerkankaranai Village, having an extent of 1750 Sq.Mts, to thepetitioner. 3. The petitioner has stated that the agricultural landscomprised in S.No.12/3, in Peerkankaranai Village, having an extentof 2250 Sq.Mts. had been acquired by the petitioner's late motherSavitri, through a settlement deed, executed by her father, inDocument No.175 of 1958. The petitioner's mother had been cultivatingthe lands and had also been paying the agricultural taxes for thesaid land, in her name. The petitioner's mother had died, on11.3.2004, leaving behind the petitioner, her four brothers and threesisters to succeed the estate, as successors of the property. It hasbeen stated that on the date of the proceedings initiated by thethird respondent there were 10 members in the family, including,Savithri, the mother of the petitioner.4. It has been further stated that in spite of the fact that theagricultural lands belonging to the petitioner and the other membersof her family were exempted from the purview of the provisions of theTamilnadu Urban Land (Ceiling and Regulation) Act, 1978, the thirdrespondent had invited a statement, under Section 7(1) of the saidAct. The petitioner's mother, Savitri, had furnished a statement tothe third respondent, on 24.10.1978, and the same had beenacknowledged by the third respondent. Thereafter, by a letter, dated9.8.1991, the third respondent had called for the payment of UrbanLand Tax, pursuant to which the petitioner's mother had agreed to paythe Urban Land Tax. 5. Again, a letter, dated 17.10.1996, had been sent by the thirdrespondent, without proper verification of the records. Even thoughthe address at Peerkankaranai had been mentioned, it was served onthe petitioner's mother at her residential address at No.182, NorthUsman road, Chennai. On the furnishing of a copy of the statement,under Section 7(1) of the Act, to the third respondent, it had beeninformed that the case was closed in K.Dis, dated 27.2.1982.Thereafter, when it was found, in the month of February, 2004, thatsome of the officials of the fourth respondent Board were attemptingto carry on developmental works in the petitioner's land, enquirieshad been made and it was found that certain land acquisitionproceedings had been initiated in respect of the said land belonging https://hcservices.ecourts.gov.in/hcservices/ to the petitioner and his family members. 6. It was learnt that the third respondent, without sending anynotice to the address of the petitioner's mother furnished in thestatement, under Section 7(1) of the Act, had affixed the notice byusing a stick in a vacant land. Thereafter, the formalities, foracquiring the said land had been completed by the third respondent.Even though the petitioner's mother had applied for the certifiedcopy of the impugned order, dated 7.10.1997, it had been furnished toher only, on 13.2.2004. Immediately, on receipt of the impugnedorder, the petitioner's mother had preferred an appeal, providedunder the Act, before the second respondent. After filing the appealthe fourth respondent had started developmental works in the land andtherefore, another petition had been moved before the secondrespondent, on 8.3.2004, for staying all further proceedings of thedevelopmental activities. However, the second respondent had refusedto grant an order staying the proceedings. While so, the petitioner'smother had died, on 11.3.2004. 7. In the counter affidavit filed on behalf of the respondentsthe allegations contained in the affidavit of the petitioner, filedin support of the writ petition, had been denied. It had beensubmitted that Savithiri Ammal had owned the land in S.No.12/3,measuring 2250 Sq.Mts., in Peerkankaranai Village, Tambaram Taluk. Anotice, under Section 7(2) of the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1978, had been issued, in SR.No.276/96, dated17.10.1996 and it had been served, on 3.11.1996. The draft statement,under Section 9(1) and the notice, under Section 9(4) of the saidAct, had been issued, on 1.9.1997. As the Urban Land owner hadrefused to receive the notice, it had been served by affixture, inthe presence of the Village Administrative Officer of PeerkankaranaiVillage. The said land owner had not filed any objection to the draftstatement. It was found that there was no cultivation in the landsought to be acquired by the respondents and therefore, it wastreated as urban land and an order, under Section 9(5) of the Act,had been passed, vide proceedings in S.R.No.276/96(D), dated7.10.1997, declaring that an extent of 1750 Sq.Mts. was the excessvacant land, after allowing 500 Sq.Mts., towards entitlement. 8. As the Urban Land owner's address was not known, the order,under Section 9(5) of the Act, had been served by affixture in thepresence of the Village Administrative Officer. The final statement,under Section 10(1) of the Act, had been issued, on 28.4.1998 and ithad been served by affixture. The notification, under Section 11(1)of the Act had been published in the Tamil Nadu Government Gazette,dated 12.8.1998. The notification, under Section 11(3) of the Act,had also been published in the Tamil Nadu Government Gazette, dated11.11.1998. The notice, under Section 11(5) of the said Act, had beenissued, on 17.12.1998 and the possession of the excess vacant land,in S.No.12/3B, measuring 1750 Sq.Mts., had been taken, on 24.5.1999and had been handed over to the Revenue Department. The land wasallotted to the Tamil Nadu Slum Clearance Board, vide G.O.Ms.No.391,Revenue ULC1(2) Department, dated 17.9.2003. https://hcservices.ecourts.gov.in/hcservices/

9. One M.Nalini had filed a writ petition before this Court, inW.P.No.7539 of 2004, questioning the acquisition proceedings of thealleged excess vacant land. This Court had dismissed the writpetition miscellaneous petitions in W.P.M.P.Nos.8927 and 8928 of2004, since possession of the land had been taken prior to the thepassing of the Tamilnadu Urban Land (Ceiling and Regulation) RepealAct, 1999. The petitioner had also filed writ appeals in W.A.Nos.1762and 1763 of 2004, challenging the order dismissing the writ petitionmiscellaneous petitions. The writ appeals had been disposed ofrestraining the respondents from putting up constructions and fromaltering the nature of the property, in any manner, pending disposalof the writ petition. 10. It has also been submitted that the excess vacant land, whichhad been acquired, had been allotted to the Tamil Nadu Slum ClearanceBoard, the fourth respondent herein, vide G.O.Ms.No.391, Revenue ULC1(2) Department, dated 17.9.2003. With regard to the claim of thepetitioner that the lands in question was agricultural in charactercannot be sustained in view of the fact that no documentary evidencehad been placed before the authorities concerned, to prove such aclaim. 11. It has also been stated that the notice, under Section 7(2)had been issued, on 17.10.1996 and it was served, on 3.11.1996. Sincethe urban land owner did not file any objection to such notice,action, under Sections 9 to 11 of the Act, had been taken. The urbanland owner had refused to receive the notice, under Section 9(4),along with the statement, under Section 9(1) of the Act. Therefore,the notice had been served by affixture and further proceedings hadbeen continued, in accordance with the provisions of the TamilnaduUrban Land (Ceiling and Regulation) Act, 1978. Since the urban landowner had failed to avail the opportunity offered by the landacquisition authorities, orders, under Section 9(5) of the Act, hadbeen passed. Further, since the urban land owner had not furnishedthe details of his family members, only an extent of 500 Sq.Mts hadbeen allowed, as entitlement, as per the provisions of the TamilnaduUrban Land (Ceiling and Regulation) Act, 1978. Since the acquiredland had been handed over to the Revenue authorities and as it hadbeen allotted to the Tamil Nadu Slum Clearance Board, the possessionof the land cannot be restored to the petitioner. In suchcircumstances, the writ petition filed by the petitioner is devoid ofmerits and therefore, it is liable to be dismissed.12. The learned counsel appearing on behalf of the petitioner hadsubmitted that the impugned order of the third respondent is patentlyillegal and therefore, it is unsustainable in the eye of law. Thethird respondent, having accepted the statement, under Section 7(1)of the Act and having acknowledged the same, on 24.10.1978, had notissued the notice to the proper address, before passing the order.13. The notice had been affixed by using a stick in the vacantland, as if the notice had been refused by the petitioner's mother. https://hcservices.ecourts.gov.in/hcservices/ Such service of notice is not contemplated, under Rule-8 of TamilnaduUrban Land (Ceiling and Regulation) Rules, 1978. Hence, it is clearthat proper service of notice had not taken place. The impugned orderhad been passed in gross violation of the principles of naturaljustice and the procedures contemplated under the Act. Further, therelevant rules applicable to the acquisition proceedings have notbeen followed in the service of notice on the petitioner's mother,who was the owner of the land at the relevant point of time. 14. As per the statement filed by the petitioner's mother, thethird respondent ought to have dropped the land acquisitionproceedings, as the land in question is of an extent of 2250 Sq.Mts.and therefore, exempted by the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1978, as the family of the petitioner consists of 11members. When the impugned proceedings are void abinitio, theconsequent transfer of the land to the fourth respondent cannot besustained in the eye of law. The petitioner's mother had paid the taxfor the agricultural land, till the year 2001. She had also beencarrying on agricultural operations in the land in question, wheneverwater was available for the agricultural activities. Since therespondents had not followed the procedures contemplated, underSection 9(5) and 10 of the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1978, all further proceedings thereafter, arevitiated and therefore, the proceedings are liable to be quashed. Thekist for the land in question had been paid by the petitioner evenafter the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978,had been repealed in the year 1999. In fact, the petitioner had notbeen aware of the acquisition proceedings and no prior notice hadbeen served, either on the mother of the petitioner or on thepetitioner and her family members. 15. The counter affidavit filed on behalf of the respondents doesnot state the actual date of service of the Section 11(5) notice.Even though it has been stated that possession of the land inquestion had been taken, on 24.5.1999, it has not been made clear asto how it had been actually taken by the respondents. In suchcircumstances, the impugned proceedings of the third respondent,dated 7.10.1997, is arbitrary, illegal and void.16. The learned counsel appearing on behalf of the petitioner hadplaced before this Court an order of the Supreme Court, dated10.12.2004, in S.L.P.Nos.11247 to 11248 of 2004, wherein, it had beenstated that the Tamil Nadu Slum Clearance Board, the fourthrespondent herein, would be at liberty to proceed with theconstruction in the disputed land, but they shall not claim anyequity on that ground.17. The learned counsel appearing on behalf of the respondents 1to 3 had submitted that the petitioner has no locus standi to filethe present writ petition, as she has not been in a position to showthat she is the legal heir of Savitri, the urban land owner, againstwhom the land acquisition proceedings had been initiated. Further,the land acquisition proceedings had been initiated against the urban https://hcservices.ecourts.gov.in/hcservices/ land owner only in accordance with the procedures contemplated by theprovisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act,1978, and in accordance with the Rules framed thereunder. 18. As stated in the counter affidavit filed on behalf of therespondents, the relevant notices had been issued in the name ofSavitri. Since she had not filed any objection the proceedings hadbeen completed, in accordance with law. Further, after the possessionof the land had been taken over from the urban land owner, the landwas handed over to the fourth respondent, on 24.5.1999. Thereafter,the fourth respondent had built residential blocks and the allotmentshave also been made to the deserving persons. In such circumstances,the writ petition deserves to be dismissed. 19. Mr.P.S.Raman, the learned Additional Advocate General,appearing on behalf of the fourth respondent had submitted thatSection 7(2) notice had been served on Savitri, said to be thepetitioner's mother. After having followed the procedurescontemplated under the Tamilnadu Urban Land (Ceiling and Regulation)Act, 1978, and the Rules framed thereunder, the possession of theland in question had been taken, on 24.5.1999, even before theTamilnadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, hadcome into force, with effect from 16.6.1999. Even if the landacquisition proceedings are held to be wrong on the basis that theprocedures contemplated under the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1978, have not been properly followed, the land inquestion, having been acquired and handed over to the fourthrespondent, it cannot be restored to its original owner, as claimedby the petitioner. Further, five blocks of residential accommodationhave been built and 198 families have been given the allotment with atotal expenditure of 2.26 crores. Therefore, the larger publicinterest is to be kept in mind, while deciding the issues involved inthe present case. 20. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondents andon a perusal of the records available before this Court, it is clearthat the necessary procedures contemplated under the provisions ofthe Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, had notbeen properly followed during the acquisition proceedings pertainingto the land in question. 21. From the records available, it is found that the necessarynotices had not been sent to Savitri, the erstwhile owner of theurban land, in accordance with Rule-8 of the Tamilnadu Urban Land(Ceiling and Regulation) Rules, 1978. There is nothing on record toshow that the authorities concerned had followed the properprocedures contemplated under law to assess the nature and characterof the land in question before initiating the procedure for acquiringthe land. Even though it has been claimed by the petitioner that theland in question was agricultural in character, it has not beenclearly shown as to how it was treated as urban land, in spite of thepetitioner paying the agricultural tax, even for the years subsequent https://hcservices.ecourts.gov.in/hcservices/ to the passing of the Tamilnadu Urban Land (Ceiling and Regulation)Repeal Act, 1999. Further, there is no explanation with regard to thetotal extent of the land entitled to be held by the members of thepetitioner's family, said to be consisting of a number of members. Incase the exemption had been granted, as claimed by the petitioner,based on the entitlement allowed, taking into consideration thenumber of family members, the question of excess vacant land couldnot have arisen as the total extent of the land in question was only2250 Sq.Mts. 22. In the counter affidavit filed on behalf of the respondentsit has been stated that since the address of the urban land owner wasnot known, the order, under Section 9(5) of the Act, had been servedby affixture and the final statement, under Section 10(1) of the Act,had also been served by affixture. Such a contention cannot becountenanced in view of the fact that the address of the petitioner'smother had been available in the records of the respondents. Further,serving of notice by using a peg or a stick placed in the vacant landcannot be taken as a proper mode of service, since such a procedurehas not been contemplated, under Rule-8 of the Tamilnadu Urban Land(Ceiling and Regulation) Rules, 1978. Therefore, in view of thefailure of the respondents in following the proper proceduresestablished by the Tamilnadu Urban Land (Ceiling and Regulation) Act,1978, and the Rules framed thereunder, in acquiring the land inquestion, the entire acquisition proceedings would stand vitiated. 23. Further, the learned counsel appearing on behalf of therespondents 1 to 3 has not been in a position to show as to how andwhen the actual physical possession of the land, said to have beenacquired by the respondents, had been taken. While so, the claim ofthe respondents 1 to 3 that the land was allotted to the Tamil NaduSlum Clearance Board, the fourth respondent herein, videG.O.Ms.No.391 Revenue ULC1(2) Department, dated 17.9.2003, cannot beheld to be valid. Therefore, the impugned proceedings of the thirdrespondent, dated 7.10.1997, is set aside, as it is unsustainable inthe eye of law. 24. However, in view of the order of the Supreme Court, dated10.12.2004, in S.L.P.Nos.11247 to 11248 of 2004, stating that thefourth respondent cannot claim any right on the basis of equity forhaving put up the constructions in the land in dispute and in view ofthe fact that the larger public interest has to be kept in mind, itwould be in the interest of justice for this Court to direct theGovernment of Tamilnadu, represented by its Secretary to Government,Revenue Department, the first respondent herein and the Tamil NaduSlum Clearance Board, the fourth respondent herein, to arrive at asettlement with the petitioner and her other family membersconcerned, to fix the amount of compensation that may be payable tothem, in the event of the State Government deciding against thehanding over of the possession of the land to the petitioner. Thecompensation amount that may be payable to the petitioner and herother family members may be fixed taking into consideration all therelevant factors, including the value of the land, as it existed at https://hcservices.ecourts.gov.in/hcservices/ the time of its acquisition, as well as its present market value. Thesaid process shall be completed, within a period of three months fromthe date of receipt of a copy of this order. Accordingly, the writ petition stands allowed, with theabove directions, to the extent noted supra. However, there shall beno order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.cshTo1. The Secretary to Government,State of Tamilnadu Revenue Department,'Fort St. George, Chennai-9.2.The Principal Commissioner,Urban Land Ceiling and Commissioner for Land Reforms,Chepauk, Chennai-5.3.The Competent authority,Urban Land Ceiling,Tambaram at Sannathi Street,Chennai-88.4.Tamil Nadu Slum Clearance Board,rep. by its Chairman,Kamarajar Salai, Chennai-5.+ 1 CC To M/s.Y.Bhuvanesh Kumar, Advocate SR NO.18766+ 1 CC To Mr.V.Ramesh, Advocate SR NO.18984+ 1 CC to the Government Pleader SR NO.19130Writ Petition No.7539 of 2004RL {CO}TP/14.5.2009.