Mr.Aalim Muhammed Salegh Trust v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 30-04-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.17445 of 2004Mr.Aalim Muhammed Salegh Trustrep. by its Managing TrusteeMr.Shaik Athaullah813, Anna Salai,Chennai-2... Petitioner.Versus1.The Government of Tamil Nadu rep. byits Secretary to Government,Revenue Department,Fort St. George, Chennai-9.2.The Principal Commissioner and Commissioner of Land Reforms,Chepauk, Chennai-5.3.The Asst. Commissioner/CompetentAuthority, Urban Land CeilingNo.5, Sannadhi Street, Poonamallee,Chennai... Respondents.Prayer: This petition has been filed seeking for a writ ofCertiorarified Mandamus, calling for the records of the respondentsespecially the order of the 3rd respondent under Sections 9(5), dated30.3.90, 10(1), dated 23.5.90 and 11(5), dated 28.12.92, vide rep.5321/86/A, in respect of lands in S.Nos.5/4 and 5/7, MuthapudupetVillage, Ambattur Taluk, measuring an extent of 5000 Sq.Mts and quashthe same and further direct the third respondents to treat theproceedings referred to above as abated under Tamil Nadu Urban LandCeiling and Regulation Act. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.RameshFor Respondents : Mr.V.Sivashanmugam Government Advocate O R D E RHeard the learned counsel appearing for the petitioner and thelearned Government Advocate appearing for the respondents.2. It has been stated that the petitioner is a registeredMinority Trust, registered under the Societies Registration Act,having been established, on 17.1.1990. The object of the Trust is topromote and to develop education in the field of Engineering. Assuch, the petitioner Trust had purchased lands in MuthapudupetVillage, in Ambattur Taluk. The petitioner Trust has establishedcertain institutions of learning in the said lands in S.Nos.5/4 and5/7, in Muthapudupet Village. While so, the petitioner had applied tothe first respondent for exemption of the agricultural landsbelonging to the petitioner Trust, under Section 37-B of theTamilnadu Land Reforms (Fixation on Ceiling) Act. The relevant formshad been submitted to the first respondent, as required under theAct. Thereafter, an enquiry had been held, based on which a reporthad been sent to the Government for granting the exemption. Thus, itis clear that the petitioner Trust had purchased agricultural landsin Muthapudupet Village and it cannot be said to be urban lands. 3. In the recitals contained in the sale deeds and in therelevant entries in the revenue records, the lands in question havebeen described as agricultural lands. However, the VillageAdministrative Officer concerned had informed the petitioner that thelands, in S.Nos.5/4 and 5/7 of Muthapudupet Village, had beenacquired by the respondents, under the Tamilnadu Urban Land (Ceilingand Regulation) Act, 1978, by initiating the proceedings in the nameof Bhaskaran Pillai and therefore, the adangal extracts for the saidlands cannot be issued to the petitioner. Thereafter, the petitionerhad obtained the certified copies of the orders passed by the thirdrespondent and it was found that the lands had been acquired, underthe Act 24/1978, in the name of Bhaskaran Pillai. In suchcircumstances, the order of the respondent, under Section 9(5) of theAct and the notice, under Section 11(3) of the Act, have beenchallenged by the petitioner Trust before this Court, under Article226 of the Constitution of India.4. From a reading of the order, dated 30.3.1990, passed underSection 9(5) of the Act, it is clear that the erstwhile owner hadstated in his reply to the notice, under Section 9(4) of the Act,that the lands in question were agricultural in character and that heis carrying on agricultural activities in the said lands. This fact https://hcservices.ecourts.gov.in/hcservices/ had not been verified by the third respondent before acquiring theland, under the Tamilnadu Urban Land (Ceiling and Regulation) Act,1978. The only reason for rejecting the claim of the erstwhile ownerof the land is that he had not produced any record to substantiatehis claim that he was cultivating the said lands. In fact, the thirdrespondent ought to have held an enquiry, with regard to the claimthat the lands were agricultural in character, before acquiring thesaid lands. Further, the third respondent ought to have verified therevenue records to find out the nature of the land. Further, thelands held by educational institutions could be exempted, underSection 20 of the Tamilnadu Urban Land (Ceiling and Regulation) Act,1978. Before the establishment of the educational institutions thelands were agricultural in character and they would not come underthe purview of the provisions of the Tamilnadu Urban Land (Ceilingand Regulation) Act, 1978, by virtue of Section 20 of the said Act. 5. It has also been stated that after orders had been passed,under Section 9(5) of the Act, the third respondent had proceededfurther and had issued a notice under Section 11(5) of the Act, toBhaskaran Pillai, asking him to hand over possession of the land, inspite of knowing that Bhaskaran Pillai was no longer the owner of theland. Since no other notice had been served on the petitioner, theland acquisition proceedings cannot be held to be valid in the eye oflaw. The actual possession of the lands in question had not beentaken over by the respondents. Mere paper transfer and taking over ofpossession by recording the same in the files would not be sufficientto say that the land acquisition proceedings had been completed.There is no record available with the respondents to show that actualphysical possession had been taken by them, after preparing apanchanama or a memorandum signed by the necessary witnesses. In sucha situation all the proceedings said to have been initiated by therespondents, under the Tamilnadu Urban Land (Ceiling and Regulation)Act, 1978, would stand abated. Section 11(5) of the Act contemplatesthe issuance of the notice to the land owner to voluntarily surrenderpossession of the lands. However, on the failure of the land owner todo so, the powers under Section 11(6) would be invoked. However, inthe present case no such procedure had been followed. In suchcircumstances, the petitioner has preferred the present writ petitionbefore this Court, under Article 226 of the Constitution of India.6. No counter affidavit has been filed on behalf of therespondents. No records have been produced to deny the claims made onbehalf of the petitioner Trust.7. The learned counsel appearing on behalf of the petitioner hadsubmitted that the petitioner Trust had purchased the lands inquestion by way of two sale deeds from two different persons.However, the proceedings had been initiated by the respondents onlyin the name of one person, namely, Bhaskaran Pillai. In fact, for theland acquisition proceedings to be valid, the respondents ought to https://hcservices.ecourts.gov.in/hcservices/ have proceeded independently against both the persons. Even otherwisethe petitioner Trust was entitled to receive the notice issued, underSection 11(5) of the Tamilnadu Urban Land (Ceiling and Regulation)Act, 1978. Even though the original land owner, namely, BhaskaranPillai, had appeared before the authorities concerned and hadsubmitted that the lands in question were agricultural in nature,during the enquiry held, on 14.12.1986, an order had been passed, on30.3.1990, without considering the claims made by the erstwhile landowner. The relevant adangal extracts show that the lands in questionare agricultural in character. The records available, upto the year1990, shows that the lands are agricultural in character, as it stoodin the name of Govindasamy Naidu, who had owned the lands earlier.Since the procedures contemplated under the Tamilnadu Urban Land(Ceiling and Regulation) Act, 1978, and the rules framed thereunder,have not been complied with, the petitioner Trust is entitled torequest this Court to set aside the impugned proceedings, as prayedfor in the present writ petition.8. The learned counsel appearing on behalf of the respondentshad submitted that one Bhaskaran Pillai was the owner of the lands inS.No.5/4, having an extent of 2850 Sq.Mts (71 cents). Another extentof 2150 Sq.Mts (54 cents), in S.No.5/7, had also been acquired by therespondents. Since the said Bhaskaran Pillai had not submitted hisreturn, a notice, under Section 7(2) of the Tamilnadu Urban Land(Ceiling and Regulation) Act, 1978, had been issued, on 9.5.1986 andit had been served on him. He had submitted his reply, on 16.5.1986,stating that it was not covered under the jurisdiction of the MadrasMetropolitan Development Authority and that the lands in questionwere agricultural in character. Thereafter, a notice, under Section 9(4) of the Act, had been issued, on 30.10.1986. On 14.12.1986,Bhaskaran Pillai had submitted his reply stating that the lands inquestion were being used for agricultural purposes and the characterof the land had not been changed and therefore, it cannot be acquiredunder the provisions of the Tamilnadu Urban Land (Ceiling andRegulation) Act, 1978.9. On 28.12.1986, the petitioner had been requested to attendthe enquiry to produce the available documents to prove his claims.However, the petitioner had failed to attend the enquiry. Again on24.10.1989 and 2.11.1989, notices had been sent requesting thepetitioner to take part in the enquiry and to file his documents.Only thereafter, the orders had been issued, under Section 9(5) ofthe Act, on 30.3.1990, declaring 4500 Sq.Mts. as an excess vacantland and it was ordered to be acquired. On 5.4.1990, the order hadbeen communicated to the land owner. The final statement, underSection 10(1) of the Act had been issued, on 15.5.1990 and it hadbeen received by the urban land owner, on 29.5.90. Section 11(1)notification, dated 30.11.1990, had been published in the TamilnaduGovernment Gazette, on 23.1.1991. A notification, under Section 11(3), had been issued, on 27.2.1991, stating that the vesting of the https://hcservices.ecourts.gov.in/hcservices/ lands would be from 25.3.1991. The notice, dated 28.12.1992, issuedunder Section 11(5) of the Act, had been received by the land owner,on 2.2.1993 and the possession of the lands had been handed over tothe revenue authorities, on 24.2.1994. Thereafter, the notice, underSection 12(7) of the Act, had been issued, on 5.5.1994 and it wasserved on the land owner, on 21.7.1994. The fixing of the land value,under Section 12(6) of the Act, was on 19.12.1994 and it had beenserved on the land owner, on 4.3.1995. The compensation amount hadbeen deposited in the revenue deposit, on 11.5.2001.10. It has been further stated that the petitioner should haveverified the relevant records before he had purchased the land inquestion. Therefore, it is not open to the petitioner to claim thathe is the rightful owner of the land in question after it had beenacquired, in accordance with the provisions of the Tamilnadu UrbanLand (Ceiling and Regulation) Act, 1978. Since all the proceduresnecessary for the acquisition of the land in S.No.5/4 had been dulycomplied with the claim of the petitioner cannot be sustained in theeye of law. Further, from the adangal extracts of the years 1983,1985 and 1988, it could be seen that the lands in question were notagricultural lands since no agricultural activity had taken placeduring those years.11. In view of the submissions made by the learned counselsappearing for the petitioner, as well as the respondents and on aperusal of the records available, this Court is the view that theimpugned proceedings in respect of the lands in S.Nos.5/4 and 5/7,Muthapudupet Village, Ambattur Taluk, measuring an extent of 5000Sq.Mts. cannot be sustained in the eye of law. 12. It is clear that the respondents had initiated the landacquisition proceedings in respect of the lands in question and hadissued notice to Bhaskaran Pillai, by clubbing both the surveynumbers 5/4 and 5/7 of Muthapudupet Village. Even though thepetitioner Trust had purchased the lands from different persons byway of two separate sale deeds, dated 19.8.91 and 23.3.92, the saledeed, dated 19.8.91, is with regard to S.No.5/4, having an extent of71 cents, purchased from Bhaskaran Pillai and the sale deed, dated23.3.92, is with regard to S.No.5/7, having an extent of 20 cents,from Venkatapathy. However, both the survey numbers had been clubbedtogether for the purpose of the land acquisition proceedings. Infact, the land acquisition proceedings had been proceeded with in thename of Bhaskaran Pillai alone. Even though Bhaskaran Pillai hadappeared during the enquiry held, on 14.12.1986, and had claimed thatthe lands in question were agricultural in character, the thirdrespondent had passed the order, under Section 9(5) of the Act, on30.3.1990, without considering the claim made by Bhaskaran Pillai. Itis seen from the relevant records available, including the adangalextracts, that the lands in question are agricultural lands. Further,it is also seen that the notice, under Section 11(5) of the Act, had https://hcservices.ecourts.gov.in/hcservices/ not been served on the petitioner Trust. The impugned order had beenpassed without application of mind and without giving sufficientopportunity to the petitioner Trust to put forth its case. In suchcircumstances, the land acquisition proceedings cannot be held to bevalid in the eye of law. Hence, the writ petition stands allowed. Nocosts. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar cshTo1. Secretary to Government,Government of Tamil Nadu rep. byRevenue Department,Fort St. George, Chennai-9.2.The Principal Commissioner and Commissioner of Land Reforms,Chepauk, Chennai-5.3.The Asst. Commissioner/CompetentAuthority, Urban Land CeilingNo.5, Sannadhi Street, Poonamallee,Chennai.+ 1 cc to Mr.V.Ramesh,Advocate,SR.20312+ 1 cc to the Government Pleader,SR.20253Writ Petition No.17445 of 2004GR(CO)EM/4.6.09