High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.01.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.38507 of 20021. John Thomas2. Mrs.Kunjamma Varghese rep. by their Power Agent Mr.C.S.Ramaswamy.. Petitioners vs. 1. The Government of Tamil Nadu, rep. by Secretary to Government, Revenue Department, Fort St. George, Chennai – 9.2. The Principal Commissioner & Commissioner of Land Reforms Chepauk, Chennai – 5.3. Assistant Commissioner/Competent Authority, Urban Land Ceiling, Coimbatore... RespondentsThis Writ Petition has been filed under Article 226 of theConstitution of India praying for the issuance of a writ ofCertiorarified Mandamus to call for the records of the thirdrespondent, especially, the orders, dated 28.8.1992 videRef.Na.Ka.651/92/A2, 7.12.1992 under Ref.No.651/92/B2 and23.4.1998 vide Ref.651/92/B3, under Sections 9(5), 10 (1) and 11(5) respectively, and quash the same and treat the proceedings inrespect of land in Survey No.259/3B Kuniamuthur Village,Coimbatore, as abated in view of Section 4 of Act 20 of 1999. For petitioner : Mr.V.Ramesh For respondents : Mr.C.Thirumaran Government Advocate O R D E RThis writ petition has been filed praying for the issuance ofa writ of Certiorarified Mandamus to call for the records of thethird respondent, especially, the orders, dated 28.8.1992 videRef.Na.Ka.651/92/A2, 7.12.1992, under Ref.No.651/92/B2 and23.4.1998 vide Ref.651/92/B3, under Section 9(5), 10 (1) and 11(5) respectively, and quash the same and treat the proceedings inrespect of land in Survey No.259/3B Kuniamuthur Village,Coimbatore, as abated in view of Section 4 of Act 20 of 1999. https://hcservices.ecourts.gov.in/hcservices/ The brief facts of the case, as stated in the affidavitfiled on behalf of the petitioners by their power agent, are asfollows:2. The first petitioner and his wife Annie John were theowners of the property comprised in Survey No.259/3B, KuniamuthurVillage, Coimbatore, measuring about 1.35 acres, having purchasedthe same by a registered sale deed, dated 4.4.1983. The propertypurchased was purely an agricultural land at the time of purchaseand even thereafter. The petitioners have been in possession andenjoyment of the above mentioned land and agricultural operationswere being carried on by them. One of the purchasers, namely,Annie John settled her portion of the land in favour of KunjammaVarghese, the second petitioner herein, by a settlement deed,dated 7.8.1985. Thereby, the second petitioner herein had becomethe absolute owner of the agricultural land, as mentioned above,measuring about 67.5 cents. 3.It is further stated that while so, proceedings had beeninitiated, under Act 24 of 1978, and orders under Sections 9(5),10 (1) and 11 (5) were passed by the third respondent. However,none of the notices and orders, as contemplated under theprovisions of the Act, were properly served or communicated to thepetitioners. On coming to learn of such proceedings initiated bythe third respondent, the petitioners had filed an appeal in themonth of August 1998, under Section 33 of Act 24 of 1978. Thesecond respondent had taken the appeal on file and had senthearing notices. One of the hearings had been fixed, on 25.6.1999,but by then Act 24 of 1978 had been repealed, with effect from16.6.1999, by Act 20 of 1999. Since the appeal preferred by thepetitioners was not taken up for hearing, the petitioners wereconstrained to issue a legal notice, dated 10.9.2002, and thepetitioners were informed that the appeal would not be taken upfor further hearing, since Act 24 of 1978 had been repealed. 4.The petitioners have further stated that the appeal filed,under Section 33 of Act 24 of 1978, is in exercise of a vestedright and such right could not be taken away by Act 20 of 1999.Under Section 33 of Act 24 of 1978, the second respondent isvested with the power to dispose of the appeal, notwithstandingthe repeal of the Parent Act. In spite of the petitioners bringingto the notice of the second respondent regarding the pendency ofthe appeal, no steps had been taken by the second respondent todispose of the appeal. Therefore, the petitioners have preferredthe present writ petition.5.It has been further stated by the petitioners that underSection 4 of Act 20 of 1999, all proceedings pending on the fileof the Court, Tribunal, or any authority shall abate. Admittedly,the appeal has been pending before the second respondent, when Act20 of 1999 came into force. Therefore, the second respondent oughtto have declared that the said appeal had abated, by virtue ofSection 4 of Act 20 of 1999. However, no such orders had beenpassed by the second respondent. 6.The petitioners had further stated that even assuming that https://hcservices.ecourts.gov.in/hcservices/ a notice, under Section 11(5), had been served on the petitionersby the third respondent, in accordance with the procedureestablished by law and if possession of the land in question, hadnot been voluntarily handed over by the petitioners, the thirdrespondent ought to have proceeded in accordance with Section 11(6) of the Act, invoking the procedure provided in law. The claimmade by the respondents that they have taken possession of theland in question, from the petitioners, especially, in the absenceof a memorandum of panchnama cannot be validly sustained, in viewof the decisions rendered by this Court as well as the SupremeCourt of India.7.It has been further stated that the land was agriculturalland and the petitioners had filed an application for exemption,for converting the agricultural land into layout, for the approvalof the local Authority. The layout was duly approved, vide L.P/R(CPN) No.116/85. Since the land holding of the petitioners waswithin the limits prescribed, the third respondent had given aclearance for the layout in the year 1984 and the layout had alsobeen approved. It is also to be noted that an approved layout willbe outside the purview of Act 24 of 1978, in accordance withSection 5(3) of the Act. Thereafter, the petitioners had sold thelands by way of sale deeds, dated 9.11.1999 and 29.3.2000. 8.It has been further stated by the petitioners that noticeunder Section 9(4) together with draft statement under Section 9(1) had not been properly served on the petitioners. None of theorders passed by the third respondent have been served on thepetitioners. The petitioners were not aware of the acquisitionproceedings till the notice under Section 11(5) was received bythem. The Non-service of notice under the various provisions ofthe Act and non-service of the orders on the petitioners underSection 9(5), vitiates the acquisition proceedings. Admittedly,the notice under Section 9(4), together with the draft statementunder Section 9(1), had been served only by affixture, andaffixture is not the proper mode of service, as contemplated underthe procedure established by law. Rule 8 of the Tamil Nadu UrbanLand (Ceiling and Regulation) Rules stipulates service of noticeby registered post, with acknowledgement due, on the last knownaddress. This procedure, as contemplated under Rule 8 has not beenfollowed by the third respondent. Further, no personal hearing wasafforded to the petitioners before passing of the order ofacquisition under Section 9(5), even though such personal hearingis of a mandatory character.9. The respondents have filed a counter-affidavit, dated5.4.2005, in which it has been stated that on 30.1.1992, theSpecial Deputy Tahsildar (Urban Land Tax) Coimbatore, had filed areport stating that one John Thomas, son of Thomas and AnnaThomas, W/o. John Thomas were holding an extent of 24 grounds 1206sq. ft. or 5463 sq.mts. of urban land in S.No.259/3 of KuniamuthurVillage, Coimbatore Urban Agglomeration, which was in excess ofthe limit allowable under the Tamil Nadu Urban Land (Ceiling andRegulation) Act, 1978. Since they have failed to file the return,required under Section 7 of the Act, a notice under Section 7(2) https://hcservices.ecourts.gov.in/hcservices/ of the Act was issued, on 7.4.1992 and as the urban land owner hadrefused to receive the notice, it had been served by affixture, on9.5.1992. Since the urban land owner did not respond to the 7(2)notice, draft statement under Section 9(1) with notice underSection 9(4) was issued, on 25.6.1992, determining an extent of2463 sq.mts., as excess vacant land dully allowing 3000 sq.mts. ofvacant land as entitlement out of the total extent of 5463 sq.mts. of the urban land. The urban land owner had refused toreceive the said notice and hence it was served by affixture, on17.7.1992. 10.It has been further stated that as it is mandatory toinspect the land before the issue of order under Section 9(5) ofthe Act, the Assistant Commissioner, Urban Land Tax, Coimbatore,had inspected the land, on 26.8.1992, and during inspection it wasfound that the entire land was well laid out as sites and it wasfound to be a pucca urban land.Thereafter, the order under Section9(5) of the Act was issued, on 28.8.1992, and it was served by wayof affixture, on 16.10.1992, duly witnessed by the villageAdministrative Officer, Kuniamuthur.11.The final statement under Section 10(1) was issued, on7.12.1992, and had been served by way of affixture, on 22.12.1992.The Notification, dated 30.4.1996, under Section 11(1) of the Act,was published in the Tamil Nadu Government Gazette, on 29.5.1996,and a Notification, dated 28.7.1997, under Section 11(3) of theAct was published in the Tamil Nadu Government Gazette, on20.8.1997. The errata was published in the Tamil Nadu GovernmentGazette, on 7.1.1998. 12.It is further stated that the notice under Section 11(5)of the Act had been issued, on 23.4.1998 and sent to the urbanland owner, by registered post with acknowledgement due, and thesame was returned with postal remarks as "not claimed". Hence, thenotice was sent for service through the Field Assistant in thethird respondent's Office and the said notice was received by theperson available in the house, on 28.7.1998. On expiry of thestatutory period, the excess vacant land measuring 2450 sq.mts.,in S.F.No.259/3B of Kuniamuthur Village, was acquired from theurban land owner and the acquired land was handed over to theRevenue Inspector, Perur Firka, who was representing theTahsildar, on 14.9.1998.13.It has been further submitted that after receipt of thenotice under Section 11(5) of the Act, the urban land owner hadfiled an appeal, under Section 33 of the Act, before the SpecialCommissioner and Commissioner of Urban Land Celling and Urban LandTax, Chennai, on 5.11.1998 and the remarks on the petition wassubmitted, on 3.12.1998, vide RC.No.651/92/A3, dated 3.12.1998.Pending decision on the appeal, the Tamil Nadu Urban Land (Ceilingand Regulation) Repeal Act, 1999, (Tamil Nadu Act 20 of 1999) cameinto force with effect from 16.6.1999. 14.The learned counsel for the petitioner Mr.V.Ramesh, relied https://hcservices.ecourts.gov.in/hcservices/ on an earlier decision of this Court in SOSAMMA THAMPY Vs. THEASSISTANT COMMISSIONER (ULT)-CUM-COMPETENT AUTHORITY (ULC) &ANOTHER, (2006-3-L.W.50), to support his contentions. He had alsocited a recent decision of a learned single Judge of this Court,dated 19.8.2006, made in W.P.No.21141 of 2004, wherein, it hasbeen held as follows:"The writ petitioners are the landowners. Proceedings under the Tamil NaduUrban Land Ceilings Act were initiateddeclaring the holdings of the petitioners assurplus. Their challenge to those proceedingshad come to an end against them. But however,the said Act came to be repealed by Act 20 of1999, which came into force with effect from16.6.1999. There is a saving clause in theRepealing Act, namely, Section 4. Under thatSection, if, prior to the passing of theRepealing Act, possession of the landdeclared to be surplus in the hands of theowner had been taken, then, such possessionwould not revert back to the land owner.There is a long line of decisions to say thatunless, pursuant to the earlier declaration,physical possession of land had been taken,the proceeding initiated under the old Actwould come to an end. Therefore, the questionin this case is whether the competentauthority under the Tamil Nadu Urban LandCeiling Act had taken physical possession ofthe property in question. Learned GovernmentAdvocate relies upon a communication statedto have been written by the RevenueInspector, Ambattur to the Revenue Inspector,Poonamallee stating that the land owners hadalready handed over possession. Admittedly,the land owners had not signed in that letterevidencing transfer of possession of land tothe Government. Except this letter, learnedGovernment Advocate is not in a position tobring to the notice of this court any otherlegal material, which would show thatGovernment had taken physical possession ofthe lands in question. Therefore, followingthe long line of decisions and holding thatphysical possession of lands had not beentaken pursuant to the earlier declaration,this writ petition stands allowed as prayedfor." 15. Further, the learned counsel appearing on behalf of thepetitioners has relied on the following decisions :-15.1. In M/s.Vijay Foundation (P) Ltd. Rep. by its Director,R.Thiagarajan Vs The Principal Commissioner and Commissioner ofLand Reforms, Chepauk, Chennai, reported in 2006-4-L.W,159, alearned Judge of this Court, while dealing with the action https://hcservices.ecourts.gov.in/hcservices/ initiated by the respondents under the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978, in view of the Tamil NaduUrban Land (Ceiling and Regulation) Repeal Act (Act 20 of 1999),has held that the respondents had initiated acquisitionproceedings against the person who was not the owner of the lands.As the mandatory conditions mentioned in Sections 7 to 12 of theTamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, were notfollowed by the respondents the alleged possession taken by therespondents was vitiated. Based on the proceedings initiatedagainst the wrong person, the lands of the petitioner cannot beacquired by the respondents. Since the possession of the land iswith the petitioner ever since the date of purchase and as theTamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, wasrepealed on 16.06.1999; it was not open to the respondents toproceed against the petitioner."15.2. In Sosamma Thampy Vs. The Assistant Commissioner (ULT)-CUM-Competent Authority (ULC) & Another (2006-3-L.W.50), M/s.AneesLeathers Manufacturers rep.by its proprietor Mr.Anees Ahamed VsThe Government of Tamil Nadu rep.by its Secretary, RevenueDepartment, Fort St.George, Chennai and others, reported in 2006-3-L.W.437, and Jayaseelan & Ratnaseelan Vs The Government of TamilNadu rep.by its Secretary, Revenue Department, Fort St.George,Chennai and others reported in 2006-3-L.W.440, this Court whiledealing with the effect of the provisions of the Tamil Nadu UrbanLand Ceiling Repeal Act (Act 20 of 1999) on the land acquisitionproceedings initiated under the Tamil Nadu Urban Land (Ceiling andRegulation), Act 1978, has held that all such proceedingsinitiated under the Act of 1978, would abate on the coming intoforce of the Tamil Nadu Urban Land (Ceiling and Regulation) RepealAct 1999, if the possession of the land had not been taken by theauthorities concerned prior to the repeal and if due compensationhas not been paid to the petitioners.16. Per contra, the learned Government AdvocateMr.C.Thirumaran, appearing on behalf of the respondents had reliedon a decision of the Supreme Court in STATE OF TAMIL NADU ANDANOTHER Vs. MAHALAKSHMI AMMAL AND OTHERS, (1996) 7 SCC 269). Inthe said case, the Supreme Court had dealt with the provisions ofthe Land Acquisition Act, 1894, and the procedure followed by theauthorities thereunder and it was not with regard to an actionarising under the Tamilnadu Urban Land (Ceiling and Regulation)Act, 1978, and the Tamil Nadu Urban Land (Ceiling and Regulation)Repeal Act, 1999. 17.Further, the learned Government Advocate had produced theoriginal file (R.Dis.651/92, dated 7.11.2000) before this Court.The possession certificate therein shows that the Special DeputyTahsildar Urban Land Tax, Coimbatore (S), had handed over thelands in SF.No.259/3 B, to an extent of 2450 sq.mts., inKuniyamuthur village, Coimbatore District, to the RevenueInspector, Perur Firka, on 14.9.1998. However, there is nothing onrecord to show that there was actual taking over of the physicalpossession by the concerned authority from the petitioners, inaccordance with the procedure established under Section 11(6) of https://hcservices.ecourts.gov.in/hcservices/ the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978.Further, no records have been made available before this Court toshow that the petitioners had voluntarily surrendered the excessland, under Section 11(5) of the Act, nor is there anything toshow that compensation had been given to the petitioners, in viewof the acquisition proceedings. On the other hand, it has beenadmitted, in paragraph 8 of the counter affidavit, filed on behalfof the respondents, that the appeal preferred by the petitioners,under Section 33 of the Tamil Nadu Act 24 of 1978, had not beendisposed of due to the coming into force of Act 20 of 1999. 18.Based on the above decisions and on the submissions madeby the learned counsels appearing for the petitioners as well asthe respondents and on a perusal of the records available beforethis Court, it is clear that the repeal Act 20 of 1999 had comeinto force, on 16.6.1999. On the said date the appeal has beenpreferred by the petitioners under Section 33 of Act 24 of1978,and it had been pending. The land acquisition proceedingsinitiated by the respondents and challenged before this Courtcannot be sustained in view of the subsequent coming into force ofrepeal Act (Act 20 of 1999). In such circumstances, theproceedings initiated against the lands in question stands abatedin view of Section 4 of Act 20 of 1999 and therefore, the writpetition stands allowed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.lanTo1. The Secretary to Government, Government of Tamil Nadu, Revenue Department, Fort St. George, Chennai – 9.2. The Principal Commissioner & Commissioner of Land Reforms Chepauk, Chennai – 5.3. Assistant Commissioner/Competent Authority, Urban Land Ceiling, Coimbatore.2 ccs to M/s. V. Ramesh, Sr. 5796, 50131 cc to the Government Pleader, Sr. 5512W.P.No.38507 of 2002GK (CO)kk 1/3