R.Elumalai v. The Government of Tamil Nadu,rep.by its Secretary, RevenueDepartment, Fort St. George, Chennai-600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23-01-2009Coram: The Honourable Mr.Justice M.JAICHANDRENW.P.No.28056 of 2003R.Elumalai.. Petitioner. Versus1.The Government of Tamil Nadu, rep.by its Secretary, RevenueDepartment, Fort St. George, Chennai-600 009.

The Principal Commissioner &Commissioner of Land Reforms, Chepauk, Chennai-600 005.

The Assistant Commissioner/Competent Authority, UrbanLand Ceiling, No.3, Pakkam Street, Ambattur, Chennai-53... Respondents. Prayer: Petition filed seeking for a writ of CertiorarifiedMandamus, calling for the records of the third respondent pertaining to the orders, dated 30.1.1992, vide S.R.No.147/91C1/C2/753/92,under Section 9(5), dated 16.9.93, vide Rc.753/92 C1 under Section10(1) and 26.10.95 under Section 11(5) vide Rc.753/92 C1, in respect of land in Survey No.33 Part of Menambedu Village, Ambattur Taluk, measuring about 4140 mtrs and quash the same and further direct the respondents to treat the proceedings of acquisition as abated under Section 4 of Tamil Nadu Urban Land (Ceiling and Regulation) RepealAct 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 the learned Government Advocate appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner has stated that the land, in Survey No.33 of Menambedu Village had been inherited by him from his father, Rajagopalan, who had purchased the said land measuring about 1.15acres, by a registered sale deed, dated 1.8.1939, vide DocumentNo.1217/1939, on the file of the Sub-Registrar, Sembium. The land in question is agricultural in character. After the death of his fatherin the year, 1956, the petitioner has been in possession and enjoyment of the property. While so, it was learnt that land acquisition proceedings had been initiated, in respect of the said land, in the name of the petitioner's father and various orders had been passed, without giving the petitioner an opportunity of hearing. It was also learnt that the notices were served byaffixture and none of the orders had been communicated to the petitioner. The petitioner had come to know about the acquisition proceedings only in the month of September, 2002, when the revenue officials had inspected the land. The Village Administrative Officerconcerned had informed the petitioner that the land had been acquired, under the Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978. The respondents had passed orders, under Section 9(11) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978,acquiring an extent of 4150 Sq.Mts. belonging to the petitioner, as excess urban land, without following the procedures established bylaw. In such circumstances, the petitioner has preferred the present writ petition, under Article 226 of the Constitution of India. 3. No counter affidavit has been filed on behalf of the respondents.

The learned counsel appearing for the petitioner had submitted that the land acquisition proceedings initiated and continued by the respondents in the name of the petitioner's father, Rajagopalan, who had died in the year, 1956, is illegal and void. The notices required to be issued, under the provisions of the TamilNadu Urban Land (Ceiling and Regulation) Act, 1978, seemed to have been sent to the address in the name of Rajagopalan of MenambeduVillage. No proper address had been used by the respondents to send the required notices. Further, the notices were said to have been served by affixture, even though affixture is not a proper mode of service. The procedures prescribed, under Rule 8 of the Tamil NaduUrban Land (Ceiling and Regulation) Rules, 1978, had not been followed by the respondents before acquiring the land in question. Since the family of the deceased, Rajagopalan, has a number of members, the said aspect had not been considered, with regard to the aspect of conferment of family entitlement, during the acquisition proceedings.

It has been further stated that the land in question is agricultural in character and cannot be subjected to the acquisition proceedings, under the Tamil Nadu Urban Land (Ceiling and https://hcservices.ecourts.gov.in/hcservices/ Regulation) Act, 1978. Without issuing a notice, under Section 11(5)of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, it would not be proper on the part of the respondents to claim that they had taken possession of the lands in question. Actual physical possession of the property had not been taken by the respondents, as the petitioner is in possession and enjoyment of the same.

The proceedings initiated by the respondents are contrary to Article 300-A of the Constitution of India. Even before the notice, under Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, had been served on the petitioner, the saidAct had been repealed by the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal ACt, 1999, with effect from 16.6.1999. Further, no compensation had been paid to the petitioner, with regard to the land acquired by the respondents. There is no record available with the respondents to prove that they had taken physical possession of the land, after preparing a panchanama or a memorandum, signed by the witnesses. Without serving the notice, under Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, the respondents could not have taken possession of the land by use of force, under Section 11(6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. In such circumstances, the land acquisition proceedings would stand abated, in view of the Tamil Nadu Urban Land(Ceiling and Regulation) Repeal Act, 1999.

The learned counsel appearing for the respondents had submitted that the land acquisition proceedings initiated by the respondents are in accordance with the provisions of the Tamil NaduUrban Land (Ceiling and Regulation) Act, 1978, and therefore, they are valid in the eye of law. The notices had been served on Rajagopalan, the owner of the land, as found in the revenue records. All the necessary notices, in accordance with the Tamil Nadu UrbanLand (Ceiling and Regulation) Act, 1978, had been served byaffixture. Thereafter, the possession of the land in question had been taken by the respondents. The writ petition filed by the petitioner, challenging the land acquisition proceedings, is belated in nature and therefore, the reliefs sought for by the petitioner are unsustainable and devoid of merits.

The learned counsel appearing for the petitioners had relied on 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), wherein it has been held that the land acquisition proceedings would stand abated, since the notice, under Section 11(5) of the Act, had been issued to the erstwhile owner of the property and not to those who were the real owners at the time of the taking over of the https://hcservices.ecourts.gov.in/hcservices/ possession.

The learned counsel had also relied on the decision of this 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 would stand abated, if the respondents are not in a position to show that actual physical possession of the land in question had been takenover by the respondents and due compensation had been paid to the urban land owner concerned.

In view of the contentions raised by the counsels appearing on behalf of the petitioner, as well as the respondents and on aperusal of the records available, it is clear that the respondents had initiated the land acquisition proceedings against the erstwhile owner of the land in question, which is said to have been inherited by the petitioner from his father. It is also clear that the petitioner has not been issued with the notices, as required under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978.