Tmt.K.C.Ananthammal v. The Principal Commissioner and Commissioner of Land Reforms & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.11.2009CORAMTHE HON'BLE MR. JUSTICE N.KIRUBAKARANW.P.No.19799 of 2003 Tmt.K.C.Ananthammal ..Petitionervs1. The Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-600 005.

The Assistant Commissioner of Urban Land Tax and Competent Authority of Urban Land Ceiling, Alandur Area, Sannadhi Street, Adambakkam, Chennai-600 088.

The Tahsildar, Tambaram Taluk, Tambaram, Chennai-600 045. ..RespondentsThis petition is filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the connected records of the second respondent issued in his proceedings R.C.179/98 dated 27.2.1998 under Section 9(5) of the Principal Act declaring the petitioner's land in S.No.14/1B of Perumbakkam Village, measuring to an extent of 3050 sq. Mts. as excess vacant land and the notice issued by him under Section 11(5)of the said Act requiring to surrender possession of the said land with the Tahsildar in his proceedings R.C.179/98-B. dated 10.2.1999(certified copies issued on 14.11.2000) and the order of the first respondent in his R.C.No.1275/2001-2002 dated 20.2.2003 and quash the same so far as the petitioner is concerned and direct the second respondent to declare that all proceedings taken by the second respondent to acquire the land as excess vacant land shall abateU/s.4 of the Tamil Nadu Urban Land (Ceiling and Regulation) RepealAct 20 of 1999. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.M.MuthappanFor Respondents : Mr.Thandapani Special Govt.

As far as the case in hand is concerned, admittedly the village was brought within the purview of the Act on 17.7.1995, and the Original Act came into force on 3.8.1976. Even before that the petitioner obtained sanction for lay out on 17.12.1990. Mr.Muthappamlearned counsel of the petitioner contended that as the petitioner obtained sanctioned plan for plotting out the property on 17.12.1990, https://hcservices.ecourts.gov.in/hcservices/ by virtue of Section 5(3) of the Act, the petitioner is entitled toright of protection of the land. Section 5(3) reads as follows: "(3) Notwithstanding anything contained in sub-section (1), where any person with the object of development of vacant land for sale by allotment of plots of land to others, has by himself, or through any other person, obtained before the commencement of this Act, the sanction of the appropriate authority for the lay-out of such vacant land held by such person, then the person so holding the land shall be entitled to continue to hold such vacant land. "

By relying upon the said provision, learned counsel vehemently argued that the petitioner continues to be in possession of the property. He also submitted that patta was also granted in her favour on 4.3.1997. Learned counsel also pressed into service the provisions of the Repealed Act under which the petitioner is entitled to the benefits. As per Act 20 of 1999 (Repealing Act), learned counsel submits that by virtue of Section 3(1)(a), the petitioner is entitled to the benefit under the Act. Section 3(2)(a) speaks about reduction of possession. If the possession of the vacant land has not been taken by the authority, learned counsel for the petitioner submitted that since as per Section 5(3) of the Act, the petitioner was allowed to retain the possession of the property, the petitioner is entitled to the benefit under Section 3(1)(a) of the Act. Secondlythe petitioner convincingly submitted that if the person holding the lands, does not submit any statement under Section 7(1) of the Act, the competent authority under Section 7(2) of the Act shall call upon the person to file the statement and that no such notice was issued to the owner; No statement under Section 9(1) of the Act was served as per Section 9(4) of the Act. No notice as per Section 11(5) of the Act was served. For service, the authorities have to follow rule (8)of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules 1978. Thelearned counsel for the petitioner submitted that no notice as contemplated under Rule (8) was served on the owner or the person in possession of the property. In view of non-compliance of the provisions of the Act, the learned counsel for the petitioner submitted that the entire proceeding is vitiated.

Learned counsel for the petitioner further submitted that when the service as referred to above was not complied with, the possession of the property cannot be taken and even if they have taken, it is only a paper possession and not actual possession. Learned counsel for the petitioner relied upon the judgement of this court in V.Somasundaram and others vs. Secretary to Government, Revenue Department, Chennai and others reported in (2007) 1 MLJ 750. In which case, notice was issued to the erstwhile owner and no notice was issued to the party in possession and therefore the Division Bench of this court held that as per Section 11(5) of the https://hcservices.ecourts.gov.in/hcservices/ Act, the competent authority is bound to issue notice in writing order any person, who may be in possession of the land and failure todo would make the proceedings nonest.

Similarly in Saraswathi and another versus the PrincipalCommissioner and Commissioner of Land Reforms, Chepauk, Chennai-5 and another reported in 2007-3-L.W.982, Lordship Justice A.Kulasekaranas he was then was pleased to hold that in the absence of notice served upon the owner or the person in possession of the lands the proceedings as abated by virtue of Section 4 of the Repeal Act 20 of1999. In another case Jayaseelan and another versus The Governmentof Tamil Nadu rep. by its Secretary, Revenue Department, FortSt.George, Chennai-600 009 reported in 2006-3- L.W. 440, LordshipJustice M.Jaichandren was pleased to hold that the proceedings initiated under the 1978 Act, for non-service of notice under Section11(5) of the Act stand abated.

On the other hand Mr.M.Dhandapani, learned SpecialGovernment Pleader submitted that the procedures have been followed and the possession was taken and that lands are with the government. He submitted that the property is a vacant land and all theproceedures have been complied with and the possession remains with the government as per Section 11 of the Act.10.A perusal of the Act would show that it is a stringent Act, where right of property is being taken away which is the fundamental rights and subsequently by way of amendment which was deleted from fundamental rights. However right to property is incorporated under Article 300-A of the Constitution of India as constitutional right. In any event recently the Hon'ble Supreme Court has recognised the right to property as human right. When the right to property is affected the provisions stated in the Act, the procedures have to be scrupulously followed. When the act requires acts to be done in aparticular manner, the same have to be followed in the same manner and not otherwise. Any violation or deviation would necessarily vitiate the proceedings. In this case the petitioner obtained approval of the local authority as early as on 17.12.1990 whereas thepetitioner's property was brought under the purview of the Act only on 17.7.1995. As rightly contended by Mr.Muthappan, learned counselfor the petitioner, the petitioner is entitled to retain the possession of the property under Section 5(3) of the Act, of course without encumbering or alienating the property.

The act was repealed and the same came into force on16.6.1999. As per repealed Act, the land owners who retain the possession of their property and the properties in which proceedings were pending were given benefit under the repealing Act. In this case admittedly as per Section 5(3) of the Act, the petitioner retained the possession. In view of that, the rights would accrue on the petitioner in view of the repealed Act. The Honourable Supreme Court https://hcservices.ecourts.gov.in/hcservices/ in Angoori Devi versus The State of Uttrapradesh reported in JT 2000 Supplement (1) SC 295 has held that when the possession of the property remaining with the owner he is entitled to get the benefit under the Act. Apart from that the records produced before this court reveals that no service of proceedings at any stage effected and the owner was not put on notice. Even in the counter affidavit it is stated that since the land owner was not residing in the village and also his address was not known, the service of notice was completed by affixing the notice on pole and on the stick placed in the land.

A perusal of Rule 8 of the Tamil Nadu Urban Land (Ceilingand Regulation) Rule 1978 would make it crystal clear that no such procedure is contemplated for service of notice. Rule 8 is extracted as follows: "8. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same.--(1) Every draft statement prepared under Section (1) of Section 9 shall contain the particulars specified in FormIII.(2) (a) The draft statement together with the notice referred to in sub-section (4) of Section 9 shall be servedon--(i) the holder of the vacant land, and(ii) all other persons, so far as may be known, who have, or are likely to have any clalim to, or interest in, the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned--(i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance tosub-section (1) of section 7, and (ii) in the case of other persons, at their last known address.