High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.8.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.15699 of 2007Mrs.Mary Magdaline Roy.. Petitioner vs. 1. The Special Commissioner & Commissioner of Land Reforms, Chepauk, Chennai – 600 005.2. The Competent Authority, Urban Land Ceiling and Assistant Commissioner, Urban Land Tax (Alandur Zone), 153, Karneegar Street, Adambakkam, Chennai – 88.3. The Tahsildhar, Tambaram, Chennai .. RespondentsThis writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Certiorarified Mandamusto call for the records of the respondents, especially, the order ofthe second respondent, dated 14.12.1989, in ref. SR.1199/87A, inrespect of land in Survey No.34/2, measuring an extent of 6500 sq.mts.of Neelangarai Village, Tambaram Taluk, and quash the same includingany consequent proceedings, and further to direct the respondents totreat all proceedings relating to land referred to above as abated,under Section 4 of The Tamil Nadu Urban Land (Ceiling & Regulation)Repeal Act, 20/99, so as to enable the third respondent to incorporatethe name of the petitioner as owner in all revenue records. For petitioner : Mr.V.Ramesh For respondents : Mr.A.Arumugam Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R With the consent of the learned counsels appearing on eitherside, the writ petition is taken up for final disposal. 2. Heard Mr.V.Ramesh, the learned counsel appearing for thepetitioner as well as Mr.A.Arumugam, the learned AdditionalGovernment Pleader, for the respondents. 3. The brief facts of the case, as stated by the petitioner, areas follows:The petitioner is the owner of the land comprised in SurveyNo.34/2, measuring 1 acre and 60 cents in Neelangarai Village. She hadpurchased the said land from one Velu by means of two sale deeds,dated 9.7.1962, bearing document No.1774/62 and 14.11.1962, bearingdocument No.2981/1962, respectively. The said sale deeds had been dulyregistered at the Sub-Registrar's Office at Neelangarai. After thesaid purchase, the petitioner's name was duly incorporated in therevenue records and a patta bearing No.159 was issued in favour of thepetitioner, with regard to the land in Survey No.34/2, by theproceedings of the Tahsildar, dated 20.4.1968. The Patta Pass Book hadalso been issued incorporating the name of the petitioner as the ownerin respect of the land in Survey Nos.34/2 and 34/9. 4. The land in Survey Nos.34/1 and 34/2 had also been assessed toUrban Land Tax by the second respondent and when a demand had beenraised, a sum of Rs.29,504/- was paid by the petitioner, on13.11.1998. Thus, the petitioner's right, title, possession andenjoyment of the land in question has been proved beyond doubt.However, when the land was inspected by certain Government Officialsthey had informed the petitioner that the said land has been acquiredby the second respondent, under The Tamil Nadu Urban Land (Ceiling &Regulation) Act, 24/78. While the petitioner had approached the officeof the second respondent with a request to get a certified copy of theorder passed under Section 9(5) and the other provisions of The TamilNadu Urban Land (Ceiling & Regulation) Act, 1978, (hereinafterreferred to as the Act), the second respondent had furnished an order,dated 14.12.1989, issued under Section 9(5) of the Act in the name ofVelu showing acquisition of the land in question to an extent of about6500 sq.mts in Survey No.34/2 of Neelangarai Village. The petitionerhad also been informed by the Officials concerned that there wereother proceedings under Sections 10(1), 11(1), 11(3) and 11(5) of theAct, pursuant to the order passed under Section 9(5) of the Act. Insuch circumstances, the petitioner had preferred the present writpetition challenging the proceedings issued under Section 9(5) of theAct and the consequent proceedings issued thereon. https://hcservices.ecourts.gov.in/hcservices/

5. It has been further stated by the petitioner that all theproceedings initiated by the respondents, under the provisions of theAct, had been done only against Velu, who had sold the land inquestion to the petitioner by registered sale deeds, dated 9.7.1962and 14.11.1962. Even though the petitioner's name had been entered inall the relevant revenue records, it is difficult to comprehend thereasons for the action of the respondents in proceeding against Velu,who is the vendor from whom the petitioner had purchased the land inquestion. 6. The petitioner has further stated that, from the order of thesecond respondent, it is seen that the mandatory provisions of the Acthave been given a go by by the second respondent, while acquiring theland in question. The second respondent had issued a notice, underSection 7(2) of the Act, calling upon the land owner to file astatement regarding the holding of the land and the said notice hasbeen admittedly served by affixture. The draft statement, underSection 9(1) of the Act, together with a notice, under Section 9(4) ofthe Act, dated 15.9.1989, had also been served by affixture, on30.9.1989. Affixture is not a mode of service contemplated under therelevant rules.7. It has been further stated by the petitioner that Rule 8 ofThe Tamil Nadu Urban Land (Ceiling & Regulation) Rules, 1978,(hereinafter referred to as the Rules) mandates that a notice, underSection 9(4) of the Act, together with a draft statement, underSection 9(1) of the Act, shall be served by 'Registered PostAcknowledgment Due' on the last known address of the land owner. Anyother method of service is contrary to the provisions of the Act andthe Rules framed thereunder. Therefore, the proceedings initiated bythe respondents are vitiated and the order passed, under Section 9(5)of the Act, is non-est in the eyes of law and liable to be set aside. 8. It has been further stated by the petitioner that since thenotices, as contemplated under the law, have not been served in aproper manner, in accordance with provisions of the Act, thesubsequent proceedings acquiring the land, declaring the excess vacantland under Section 11(1) of the Act, the vesting under Section 11(3)of the Act and notice calling upon the land owner to surrenderpossession under Section 11(5) of the Act, are also non-est in the eyeof law. 9. It has been further stated that the findings of the secondrespondent that the land in Survey No.34/2 lies on the North of aStreet and that the entire extent of land is vacant cannot be thebasis of acquiring the land. Agricultural lands are excluded underSection 3(p) of the Act as they are not vacant lands. The landcontinued to be an agricultural land long after its purchase and evenafter the coming into force of the Act. Therefore, the acquisition of https://hcservices.ecourts.gov.in/hcservices/ an agricultural land cannot be valid. 10. The petitioner has also stated that the second respondent hadassessed the land to tax by proceedings under The Tamil Nadu UrbanLand Tax, 1966, and a demand had been made by the third respondent andan amount of Rs.29,504/- had been paid by the petitioner as Urban LandTax from fasali 1401. It is clear that the land was not assessed totax prior to fasali 1401 as it was an agricultural land. Thus, theassessment by the second respondent for the payment of the tax provesthat the petitioner is the owner of the land and that she is inpossession and enjoyment of the same. 11. It has also been stated that the second respondent hadallowed only 500 sq. mts. towards family entitlement for the family ofVelu, in whose name the proceedings had been initiated. Therefore, theentitlement has not been assessed taking into consideration the familyof the petitioner. Even though the petitioner is in possession andenjoyment of the land, there has been no notice calling upon her tosurrender possession of the land, under Section 11(5) of the Act. Theentire property lies within the compound wall of the petitioner whichhad been erected even before the Act was repealed with effect from16.6.1999. No proceedings had been initiated by the second respondent,under Section 11(6) of the Act, to dispossess the petitioner, eitherforcibly or otherwise. The petitioner has not surrendered possessionof the land and the petitioner has not been dispossessed from theland. Therefore, any claim by the second respondent that thepossession of the land in question had been taken cannot be accepted,since actual physical possession of the land is still with thepetitioner. Therefore, the proceedings initiated by the secondrespondent, under the Act 24/78, shall abate in view of Section 4 ofAct 20/99, as the petitioner is in continuous possession and enjoymentof the land till date. 12. In the counter-affidavit filed by the respondents, it hasbeen stated that the second respondent had issued a draft statement,under Section 10(1) of the Act, on 31.3.1990, which was also served byaffixture. While preparing the sub-division records, the extent ofland in S.No.34/2 was found to be 5950 sq.mts., instead of 6000sq.mts. The correction was made in the records in SR.1199/87, dated30.3.1991, issued by the second respondent. 13. It has been further stated that the action had been initiatedby the second respondent under Sections 11(1) and 11(3) of the TamilNadu Urban Land (Ceiling & Regulation) Act, 1978, to publish thenotification, under Sections 11(1) and 11(3) of the Act stating thatthe excess vacant land measuring an extent of 5950 sq.mts. atNeelangarai Village is being acquired from Velu. The notifications,under Sections 11(1) and 11(3) of the Act, were published in TamilNadu Government Gazette Nos.24 and 37, dated 26.6.1991 and 25.9.1991 https://hcservices.ecourts.gov.in/hcservices/ and the notice under Section 11(5) of the Act was issued to the urbanland owner, on 24.10.1991, and the possession of excess vacant wastaken over by the Revenue Inspector of Pallikaranai Village, SaidapetTaluk, on 27.1.1992. Since the urban land owner's address was notknown, the payment of the compensation amount, payable under Section12(6) of the Act has been withheld by the second respondent. 14. It has been further stated that though the petitioner hasclaimed that she is the owner of the land S.No.34/2 at NeelangaraiVillage, measuring an extent of 1.60 acres by virtue of the purchasemade by her from Velu by way of two sale deeds, dated 9.7.1962 and14.11.1962, she had not filed the relevant records before therespondents to prove her claims. Based on the records available, thesecond respondent had found that the land stood registered in the nameof Velu and therefore, the necessary action had been initiated in thename of Velu, as per the provisions of the Act. 15. It has been further stated that even though further actionhad been taken, with regard to the land in question, including thetaking of possession of the land, by the Revenue Department, on27.1.1992, the petitioner had not challenged the same. The petitionerhad not informed the second respondent about the purchase effected byher in the year 1962. The adangal extract of fasli 1391 shows that theland in question stood registered in the name of Velu. Since thecorrect address and the whereabouts of the urban land owner was notknown, all the notices and orders passed by the second respondent wereserved by affixture, as per the due procedure established by law.Therefore, the proceedings of the second respondent are valid and inaccordance with law. 16. It has been contended by the learned counsel appearing onbehalf of the petitioner that the proceedings were initiated by therespondents, under The Tamil Nadu Urban Land (Ceiling & Regulation)Act, 1978, only against one Velu, the vendor of the petitioner, whohad sold the properties in question to the petitioner by a sale deed,dated 9.7.1962, and therefore, they are invalid in the eye of law. Ithas also been contended that the respondents had attempted to servethe notice only by affixture, as admitted in the counter-affidavitfiled on behalf of the respondents. Even though it is stated in thesaid counter-affidavit that the notice, under Section 11(5) of theAct, was issued to the urban land owner, on 24.10.1991, and thepossession of the excess vacant land was taken over by the RevenueInspector of Pallikaranai Village, Saidapet Taluk, on 27.1.1992,nothing has been shown on behalf of the respondents that actualpossession of the land in question had been taken. Further, nocompensation has been paid to the petitioner as provided under law. Insuch circumstances, the impugned proceedings of the respondents cannotbe held to be valid in the eye of law. https://hcservices.ecourts.gov.in/hcservices/

17. Mr.V.Ramesh, the learned counsel appearing for thepetitioner, has relied on the various decisions of this Court insupport of his contentions. They are as follows:17.1. In JAYASEELAN AND ANOTHER Vs. THE GOVERNMENT OF TAMIL NADUAND OTHERS (2006-3-L.W.440), this Court has held that following theearlier decisions of this Court it can be reasonably concluded thatthe proceedings initiated under the Tamil Nadu Urban Land Ceiling Act,1978, were not proceeded against the petitioners who were shown to bein actual possession of the lands in question, and the repeal Act 20of 1999, on coming into force, the acquisition proceedings standabated in accordance with Section 4 of Act, Act 20 of 1999. 17.2. This Court by an unreported decision in W.P.No.29081 of2003, dated 19.10.2006, has held as follows:"9. These records can never be believed asneither the petitioner nor the predecessor-in-titlehave 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 affixture cannotbe resorted to as a matter of course and attemptshould have been made to send the notice byRegistered Post as contemplated under the Rules. Ifthis process is resorted to by the respondents, anyland can be taken over without even notice to theland 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 1999.10. This Court in its judgment reported in(2006) 2 M.L.J. 664 (SOSAMMA THAMPY Vs. THEASSISTANT COMMISSIONER (ULT) – CUM – COMPETENTAUTHORITY (ULC), has analysed all the previouscase laws and categorically held that physicalpossession is required and mandatory under the ULC https://hcservices.ecourts.gov.in/hcservices/ Act and noting in the file that symbolic possessionis taken cannot be accepted as taking of physicalpossession. This Court is in complete agreementwith the ratio laid down in the aforesaid decisionwhich also squarely applies to the facts andcircumstances of the case." 17.3. In ALAGU Vs. DISTRICT COLLECTOR, ((2007) 2 MLJ 1168), thisCourt has held as follows:"10. In W.P.No.4920 of 1999, one other factor,which has to be borne in mind is that the person onwhom the Notice in Form No.I was issued was notalive and therefore, there was no question ofservice. Since the person on whose name, the noticewas issued was not alive, there is no question ofrefusal of notice. The statement of the Departmentthat notice was refused, only affirms the view ofthe Government with regard to the attitude of theOfficers in the matter of service of notice. Inthis background, the affixture of the notice on aplacard which is said to have been embedded to theland, cannot be said to be a proper service ofnotice. In view of the above, it is clear thatthere is no service of notice in Form No.I in termsof Rule 3(1) of the Rules and there is a clearviolation of Section 4(2) of the Act. For the saidviolation, the Notification under challengedeserves to be set aside.12. The violation of the statutory provisionis a good ground to interfere with the acquisitionproceedings and accordingly, the Notificationissued under Section 4(1) of the Land AcquisitionAct in so far as the petitioners' land areconcerned, is set aside. The respondents are atliberty to proceed with the matters afresh, if soadvised. All the three writ petitions are orderedaccordingly. No costs." 17.4. In RAMIAH MOOPANAR Vs. STATE OF TAMIL NADU (2000T.L.N.J.8), this Court has held that "it is clear that as per sub-section (2) of Section 45 of the Act, all notices shall be served onthe person concerned. When such person cannot be found, it is open tothe authorities to effect service on any adult male member of hisfamily residing with him and if such adult male member is not found,the notice may be served by fixing a copy of the outer door of thehouse in which the person ordinarily dwells or carries on business, orby fixing a copy thereof in some conspicuous place in the office ofthe Land Acquisition Officer or of the Collector or in the Court https://hcservices.ecourts.gov.in/hcservices/ house. In addition to the above mode of service, the Officer isexpected to affix a copy in some conspicuous part of the land to beacquired. There is no explanation either in the counter affidavit orin the records regarding compliance of such course as mentioned insub-section (3) of Section 45 of the Act. After holding that the landowner/petitioner herein was not in the village, no effort has beentaken by the Officer to serve a copy on the adult male member oraffixed a copy on the outer door of the house in which the petitionerresides in the village. Affixing a copy in some conspicuous part ofthe land to be acquired is in addition to the affixture in thedwelling house or serving on the adult male member. Even otherwise,as per proviso to sub-section (3) of Section 45, the Officer couldhave sent the notice by post in a letter addressed to the petitionerat his last known residence, address or place of business andregistered under Sections 28 and 29 of the Indian Post Office Act,1898. Such recourse has not been followed by the respondents. In sucha circumstances, I accept the first contention raised by the learnedcounsel for the petitioner and I hold that there was no proper serviceof notice in Form 3-A on the petitioner. Accordingly, he had lost theopportunity of filing his valid objections during enquiry underSection 5-A. As already discussed though it is stated by the firstrespondent in para 3 of the counter affidavit that they receivedobjections from the land owners, no details have been furnished, hencethe statement is not helpful to their own defence."18. Per contra, the learned counsel appearing on behalf of therespondents, had submitted that from the records of the secondrespondent it was seen that an extent of 1.60 acres in S.No.34/2 inNeelankarai Village is in the possession of one Velu. Since the urbanland owner had not filed any return, under Section 7(1) of the TamilNadu Urban Land (Ceiling & Regulation) Act, 1978, a notice underSection 7(2) of the Act had been issued by the second respondent, (theCompetent Authority/Assistant Commissioner (ULT) Alandur) in SR1199/87, dated 20.3.1989. 19. It has been further submitted that since the urban landowner's correct address was not known, the notices contemplated underthe provisions of the Tamil Nadu urban Land (Ceiling & Regulation)Act, 1978, had been served by affixture. Since there were noobjections received from the urban land owner, further action wasinitiated under the provisions of the Act and the second respondenthad concluded that out of the total land of 6,500 sq. mts., 6000 sq.mts. had been determined as excess vacant land. allowing 500 sq. mts.towards entitlement. Section 9(1) notice, along with the draftstatement, under Section 9(4) of the Act had been issued, on15.9.1989, and they were was also served by affixture, on 30.9.1989.Thereafter, orders were passed, under Section 9(5) of the Act in SR1193/87/A, dated 14.12.1989. The said order was also served byaffixture at the last known address of the urban land owner. The https://hcservices.ecourts.gov.in/hcservices/ second respondent had issued a draft statement, under Section 10(1),on 31.3.1990, which was also served by affixture. 20. On hearing the contentions of the learned counsels appearingon behalf of the petitioner as well as the respondents and on aperusal of the records available before this Court and on analysingthe decided cases cited for consideration, it is clear that theimpugned proceedings have been passed without following the procedureestablished by law. It is not in dispute that the second respondenthad sought to serve the statutory notices contemplated under the TamilNadu Urban Land (Ceiling & Regulation) Act, 1978, by affixture,contrary to Rule 8 of the Tamil Nadu Urban Land (Ceiling & Regulation)Rules, 1978. 21. It is seen that the mandatory notices have been issued in thename of one Velu from whom the petitioner is said to have purchasedthe land in question by way of registered sale deeds in the year 1962.Even though the name of the petitioner had been entered in therelevant revenue records, the respondents have not chosen to initiatethe necessary proceedings against the petitioner. Instead, the entireproceedings, under the Tamil Nadu Urban Land (Ceiling & Regulation)Act, 1978, have been directed against Velu, the vendor of the land. 22. Further, the respondents have not been in a position to showthat actual possession of the land in question had been taken and thedue compensation paid. In fact, from the counter-affidavit filed onbehalf of the respondents it is seen that all the proceedings havebeen taken against Velu and not against the petitioner in the presentwrit petition. 23. It has also been admitted by the respondents that since thelast known address of the urban land owner was not available, nocompensation could be paid. Therefore, in view of the earlierdecisions of this Court, cited supra, the claims made by thepetitioner are valid and sustainable. On the contrary, the contentionsraised by the respondents cannot be accepted. 24. In such circumstances, the impugned proceedings of the secondrespondent, dated 14.12.1989, in ref. SR.1199/87A, is quashed and allthe consequential proceedings of the respondents shall stand abated, https://hcservices.ecourts.gov.in/hcservices/ in view of Section 4 of the Repeal Act, 20 of 1999. Accordingly, thewrit petition is partly allowed to the extent stated above. No costs.Consequently, connected M.P.Nos.1 and 2 of 2007 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Special Commissioner and Commissioner of Land Reforms, Chepauk, Chennai – 600 005.2. The Competent Authority, Urban Land Ceiling and Assistant Commissioner, Urban Land Tax (Alandur Zone) 153, Karneegar Street, Adambakkam, Chennai – 88.3. The Tahsildhar, Tambaram, Chennai+1cc to Mr.B.Natarajan, Advocate Sr 53238+1cc to Govt. Pleader Sr 53021TEJ (CO)km/20.9.W.P.No.15699 of 2007