R.Elumalai v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23-01-2009Coram:The Honourable Mr.Justice M.JAICHANDRENW.P.No.27689 of 2003R.Elumalai.. Petitioner.Versus1.The Government of Tamil Nadu,rep.by its Secretary, RevenueDepartment, Fort St. George, Chennai-600 009.2.The Principal Commissioner &Commissioner of Land Reforms,Chepauk, Chennai-600 005.3.The Assistant Commissioner/Competent Authority, UrbanLand Ceiling, No.3, Pakkam Street,Ambattur, Chennai-53... Respondents. Prayer: Petition filed seeking for a writ of Certiorarified Mandamus,calling for the records of the third respondent pertaining to orders,dated 15.3.92, vide S.R.No.311/91, under Section 9(5), dated 23.4.96,vide Rc.4978/93 under Section 10(1) and 20.1.98 under Section 11(5)in respect of land in Survey No.34/1 of Menambedu Village, AmbatturTaluk and quash the same and further direct the respondents to treatthe proceedings of acquisition as abated under Section 4 of theTamilnadu Urban Land (Ceiling & Regulation) Repeal Act 20/99. For Petitioner : Mr.T.Thiagarajan For Respondents : Mr.P.Muthukumar Government Advocate O R D E RHeard the learned counsel appearing for the petitioner and thelearned Government Advocate appearing for the respondents.2. The petitioner has stated that an extent of about 12 cents ofagricultural land, in Survey No.34/1 of Menambedu Village, Ambattur https://hcservices.ecourts.gov.in/hcservices/ Taluk, had been purchased by him by means of a sale deed, dated10.11.1959, vide Document No.3193/59, on the file of the Sub-Registrar, Sembium. The said property had been sold to the petitionerby one Murugappa Reddiar and his son, Munuswamy. From the date of itspurchase, the land in question had been in the possession andenjoyment of the petitioner. However, it was learnt that the land inSurvey No.34/1 of Menambedu Village , had been acquired by the thirdrespondent, without issuing any notice to the petitioner. Thepetitioner had come to know about the acquisition only when therevenue officials inspected the land in the month of September, 2002.Thereafter, the petitioner had contacted the office of the thirdrespondent to apply for the certified copies of the orders passed,under the provisions of the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978, (Act 24 of 1978). After the receipt of theorders the petitioner has preferred the present writ petition beforethis Court, invoking Article 226 of the Constitution of India. 3. No counter affidavit has been filed on behalf of therespondents.4. The learned counsel appearing on behalf of the petitioner hadsubmitted that the land acquisition proceedings had been initiatedand continued against the person who is not the owner of the landsought to be acquired. Thus, it is seen that the third respondent hadnot made any enquiry, as contemplated under Section 9(3) of the TamilNadu Urban Land (Ceiling and Regulation) Act, 1978. Therefore, theacquisition proceedings are vitiated on the ground of non-applicationof mind. 5. It has also been stated that the land, which has been usedfor agricultural purposes, cannot be acquired. The land was used onlyfor agricultural purposes till fasli 1411. On the date of theacquisition, the land was agricultural in character and therefore,the order of acquisition is bad in law. From the certified copy ofthe order of acquisition furnished by the third respondent, it isseen that notices, under the various provisions of the Act, wereserved by affixture. Service of notice by `affixture' is not theproper mode of service, as Rule 8 of the Tamil Nadu Urban Land(Ceiling and Regulation) Rules, 1978, stipulates that all noticesshall be served by registered post, with acknowledgment due, by theoffice of the third respondent. Entrustment of the notices, to theVillage Administrative Officer concerned, for effecting service ofnotices, is against the provisions of the Act and the Rules framedthereunder. 6. It has been further contended that the constitutional rightof the petitioner, enshrined in Article 300-A of the Constitution ofIndia, had been infringed, as the said Article mandates that noperson shall be deprived of his property without following the dueprocess of law. The acquisition proceedings initiated and continued https://hcservices.ecourts.gov.in/hcservices/ against C.Murugappa Reddiar, who is not the owner of the land inquestion, from the year, 1959, when it had been sold to thepetitioner, cannot be sustained in the eye of law. Even though thepetitioner is in possession and enjoyment of the land, the notice,under Section 11(5) of the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978, had not been served on him. Even before suchnotice could be served on the petitioner the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978, had been repealed by the TamilNadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, witheffect from 16.6.99. The possession of the land is still with thepetitioner, as seen from the entries contained in the adangalextract. Therefore, the land acquisition proceedings initiated by therespondents shall stand abated, in accordance with Section 4 of Act20 of 1999. 7. It has been further stated that the respondents had not takenactual physical possession of the land sought to be acquired by therespondents, as it is still with the petitioner. There is no recordavailable for the respondents to prove that the possession of theland had been taken after preparing a panchanama or a memorandum,signed by the witnesses. The petitioner had not surrendered the land,under Section 11(5) of the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978, nor was it taken by the use of force, underSection 11(6) of the Act. In such circumstances, the land acquisitionproceedings would stand abated, as held by the various decisions ofthe Courts of law. 8. The learned counsel for the respondents had stated that sincethe name of C.Murugappa Reddiar was found in the revenue records asthe owner of the urban land sought to be acquired, the noticescontemplated, under the provisions of the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978, had been issued in his name, asthe owner of the property in question. Since the said C.MurugappaReddiar had refused to receive the notices, the notices had beenserved by affixture. The possession of the land had been taken and ithas been recorded. However, there is nothing on record to show thatthe compensation had been paid to the urban land owner.9. The learned counsel appearing for the petitioners had reliedon the decisions of this Court in V.Somasundaram and others Vs. TheSecretary to Government, Revenue Department and Others (2007(2)L.W.109) and the decision of this Court in Om Prakash and others Vs.The Government of Tamil Nadu and others (MANU/TN/9871/2007), whereinit has been held that the land acquisition proceedings would standabated, since the notice, under Section 11(5) of the Act, had beenissued to the erstwhile owner of the property and not to those whowere the real owners at the time of the taking over of thepossession. 10. The learned counsel had also relied on the decision of this https://hcservices.ecourts.gov.in/hcservices/ Court, reported in Saraswathi and another V. The PrincipalCommissioner and Commissioner of Land Reforms (2007(4) CTC 714),wherein it had been held that the land acquisition proceedings wouldstand abated, if the respondents are not in a position to show thatactual physical possession of the land in question had been takenover by the respondents and due compensation had been paid to theurban land owner concerned. 11. In view of the contentions raised by the learned counselappearing on behalf of the petitioner, as well as the respondents andon a perusal of the records available, it is clear that therespondents had initiated the land acquisition proceedings againstthe erstwhile owner of the land in question, which is said to havebeen purchased by the petitioner in the year, 1959, by way of aregistered sale deed. It is also clear that the petitioner has notbeen issued with the notices, as required under the provisions of theTamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. 12. The learned counsel appearing on behalf of the respondentshas not been in a position to show that actual physical possession ofthe land had been taken by the respondents, pursuant to the landacquisition proceedings initiated by them. Further, it has not beenshown that the compensation for the land in question had been paid tothe petitioner. In such circumstances, in view of the reasons statedabove and in view of the decided cases cited before this Court, theland acquisition proceedings, in respect of the land in question,said to be belonging to the petitioner, cannot be sustained in theeye of law. Even otherwise, in view of the coming into force of theTamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, theproceedings would stand abated. Hence, the writ petition standsallowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1. The Secretary, Government of Tamil Nadu,Revenue Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Principal Commissioner &Commissioner of Land Reforms,Chepauk, Chennai-600 005.3.The Assistant Commissioner/Competent Authority, UrbanLand Ceiling, No.3, Pakkam Street,Ambattur, Chennai-53.+1cc to Govt.Pleader Sr 3576+1cc to Mr.V.Ramesh, Advocate Sr 3038RSI(CO)km/13.2.W.P.No.27689 of 2003