Madras High Court
A.Thiagarajan vs The Competent Authority (Ulc) & on 10 November, 2017
Author: P.Velmurugan
Bench: K.K.Sasidharan, P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON
03/11/2017
PRONOUNCED ON
10/11/2017
Coram
THE HONOURABLE Mr. JUSTICE K.K.SASIDHARAN
AND
THE HONOURABLE Mr. JUSTICE P.VELMURUGAN
W.A.Nos.2394 & 2395 of 2011 &
M.P.Nos.1 & 1 of 2011
1.A.Thiagarajan
2.A.Rajeswari .. Appellants in
W.A.No.2394 of 2011
A.Thiagarajan .. Appellant in
W.A.No.2395 of 2011
Vs.
The Competent Authority (ULC) &
Assistant Commissioner (ULC),
Kunrathur Zone. .. Respondents in
both Writ Appeals
Prayer in both Appeals : Writ Appeals filed under Clause 15 of Letters Patent to set-aside the order dated 07.06.211 made in W.P.Nos.8150 & 8151 of 20004, on the file of this Court.
For Appellants in
both Writ Appeals : Mr.H.Nazirudeen
Senior Counsel
For Mr.P.Haribabu
For Respondent in
both Writ appeals : Mrs.A.Srijayanthi
Special Government Pleader
C O M M O N J U D G M E N T
P.VELMURUGAN, J.
These writ appeals are arising out of the judgment dated 07.06.211 made in W.P.Nos.8150 & 8151 of 20004.
2. It would be appropriate to notice that the aforementioned Writ Petitions have been preferred by the writ petitioners for issuance of a Writ of Declarations that the orders passed by the respondent in Na.Ka.442/98A, dated 10.07.1998 & Na.Ka.No.2683/96A, dated 13.11.1997 under Section 9(4) and in R.C.No.442/98A dated 19.04.1999 & R.C.No.2683/96A, dated 26.02.1999 under Section 11(5) as illegal, void and beyond powers and jurisdiction and to set-aside the same.
3. The case of the writ petitioners, before the writ Court, is as follows:-
The respondent authority was originally constituted as a competent authority under the T.N.Act 34 of 1976 in respect of City Belt Area. By the subsequent T.N.Act 24 of 1978, the respondent assumed jurisdiction in respect of Sirukalathur Village No.87 in Sriperumbudur Taluk. But under the T.N.Act 24 of 1978, Schedule I, Category I, the Sirukalathur Village has been specifically omitted coming within the Sriperumbudur Taluk and only under Serial No.13, Kunrathur Town Panchayat alone had been included. In view of the specific omission of Village No.87, the respondents cannot assume the land belonging to the petitioners as urban vacant land coming within the purview of the Act. It was further stated that at the time of commencement of the Act, the land has been assessed to land revenue as per chitta for Fasli 1391 and continued to be treated as agricultural land. It was also stated that no proper notice was given in terms of the provisions of the Act. The petitioners came to know about the impugned proceedings only when they went to pay the land tax and on coming to know about the proceedings, they had applied for certified copies of the relevant documents and chosen to challenge it before the Tribunal.
4. After considering the rival submission made by the counsel on either side, the learned Single Judge has dismissed the Writ Petitions on the ground of delay and laches.
5. Aggrieved against the order of the learned Single Judge, the appellants / petitioners have filed these Writ Appeals.
6. The learned Senior Counsel for the appellants would submit that the learned Single Judge has failed to take into consideration that on account of delay and laches no rights have accrued to the third parties and entertaining the Writ Petitions on merits would result in hardship to others. The learned Senior Counsel for the appellants would further submit that the learned Single Judge failed to take into consideration that the respondent assumed jurisdiction in respect of the Village Sirukalathur Village No.87 in Sriperumbudur Taluk, since under Schedule - I, Category - I, the above said Village No.87, had been specifically omitted coming within the Sriperumbudur Taluk under S.No.13, Kunrathur Town Panchayat alone had been included and the one and only Village, viz., Village No.66, Manapakkam alone had been included in the Revenue Village in Sriperumbudur Taluk in the said Schedule. The respondent Authority had usurped the jurisdiction and had consequently passed illegal order under Section 9(4) and passed further illegal order under Section 11(5) of the said Act. Hence, the learned Senior Counsel prays for allowing these appeals.
7. The learned Special Government Pleader appearing for the respondent would submit that the appellants were the owners of the lands in S.No.348/2A and S.Nos.346/1, 346/2, 348/1, 349, 350/2, respectively, of Sirukalathur Village. Since the appellants failed to file return under Section 7(1) of the Act, notice under Section 7(2) of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 was issued. Further, Draft Statement under Section 9(1) with notice under Section 9(4) were issued and served by affixture, since the appellants refused to receive the same. Thereafter, orders under Section 9(5) of the Act were issued on 10.07.1998 & 13.11.1997 respectively. The learned Special Government Pleader contended that final statement under Section 10(1) of the Act were served by affixture on 10.10.1998 & 04.09.1998 respectively. The learned Special Government Pleader would further submit that notices under Section 11(5) of the Act were issued on 19.04.1999 & 26.02.1999 respectively and were served by affixture and the possession of the lands were handed over to the Revenue Department on 21.05.1999 & 05.05.1999 respectively. She would further submit that the Competent Authority, viz., The (ULC) & Assistant Commissioner (ULC), Kunrathur Zone, after adhering to all the procedures contemplated under the Act declared that the lands belonged to the appellants / petitioners as urban land and the learned Single Judge rightly dismissed the Writ Petitions on the ground of delay and laches. Hence, the learned Special Government Pleader prayed for dismissal of the Writ Appeals.
8. Heard Mr.H.Nazirudeen, learned Senior Counsel, representing Mr.P.Haribabu, learned counsel for the appellants and Mrs.A.Srijayanthi, learned Special Government Pleader appearing for the respondents and perused the original files produced by the learned Special Government Pleader.
9. According to the learned Senior Counsel for the appellants, no notice was issued to the appellants before passing orders and they came to know about the impugned orders only when they called at the Village Office for remitting the land tax. According to the learned Special Government Pleader, The Competent Authority (ULC) & Assistant Commissioner (ULC), Kunrathur Zone, after adhering to all the procedures contemplated under the Act, declared that the lands belonged to the appellants / petitioners as urban land.
10. While issuing notice, the following procedures have to be followed:-
(i) Notice has to be sent to the urban landowner;
(ii) If the urban landowner refused to receive the notice, affixture has to be done by way of muchalika;
(iii) Notice has to be sent by Registered Post with Acknowledgement Due
11. As far as W.A.No.2395 of 2011 (W.P.No.8151 of 2004) is concerned, on a perusal of the records, it is seen that the notice, under Section 7(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, has been received by the father of the appellant viz., T.Annamalai. The Competent Authority in the subsequent notification in Na.Ka.No.2683/96a, dated 13.11.1997 held that Notice under Section 7(2) of Tamil Nadu Urban Land Ceiling Act, 1978 was issued to the appellants calling upon to submit his objection under Section 7(1) of the Act, in respect of City belt area property situated in Sirukalathur Village bearing Survey Nos.346, 348/1, 349, 350/2, measuring 10150 sq mt. Even after service of the notice, the owner of the property did not appear before the enquiry officer and also failed to produce necessary document pertaining to the aforesaid property and further notices 9(1) and 9(4) of the Act were issued and since the landowner refused to receive the same, the notices were served as affixture, on which the landowner neither appeared before the enquiry officer nor produced any document and hence classified the land as "Urban Land". Admittedly, 7(2) notice was served only to the father of the appellant. Further, in this case, affixtures has not been effected in the manner known to law, except in page No.151 of the record shows that RC.No.2683/96A, dated 26.02.1999 notice under Section 11(5) of the Act, that too, only name of the witnesses and no other details has been mentioned viz., father of the witness and address. Further, Page Nos.113 and 114 of the record shows postal cover and acknowledgement due with regard to the notice to the appellant and in that cover there is no endorsement stating that the appellant has refused to receive the notice, however, the respondents, issued notice under Section 11(5), dated 13.11.1997, (Page No.101 of the original file) stating that the appellant has refused to receive the notice and affixed the notice and the relevant portion is extracted hereunder:-
"....vdnt. bkhj;j tp!;jPuzk; 10150 r/kP epyj;jpy; jdpegu; jFjjpa[ilikahf 500 r/kP mspj;J kPjpa[s;s 9650 r/kP kpifbtw;W epyj;jpid ifafg;gLj;j ghu;itapuz;oy; fz;l folj;jpy; gpupt[ 9(1) mwptpf;if kw;Wk; 9(4) mwpt[g;g[ tH';fg;gl;L. epycupikahsu; th';f kWj;Js;sjhy; 4/8/1997 md;W xl;L rhu;t[ bra;ag;gl;Ls;sJ/"
12. Insofar as W.A.No.2394 of 2011 (W.P.No.8150 of 2004) is concerned, on a perusal of original file, firstly, there is no proof to show that notice has been sent through Registered Post with acknowledgement due. Secondly, in some of the notices, viz., notice under Section 7(2), dated 13.05.1997 and Na.Ka.No.442/98A, dated 10.07.1998, state that though the urban landowner / appellants refused to receive the notice has been mentioned, but the files do not reveal that the services effected by affixture in the manner known to the law. Further, the respondent issued notices under Section 9(4) on 10.07.1998 and under Section 11(5) on 19.04.1999 to the first appellant viz. A.Thiagarajan and one A.Elango, who died due to heart attack on 01.06.1997 and in his place his mother viz., A.Rajeswari was impleaded as second appellant / second petitioner and from the above, it is clear that the notice has been issued to the dead person is incorrect. Therefore, facts would reveal that notice was not served to the appellants / petitioners in the manner known to law since the competent authority has not proved the fact that during the proceedings, notices were served to them or notices sent to them were refused. The said fact has not been proved by the said Authority in the manner known to law. Therefore, we are of the view that the statutory provisions have not been complied with in the manner known to law.
13. The learned Senior Counsel appearing for the appellants in support of his contentions, while citing the judgments viz., V.Somasundaram v. Secy. to Govt., Revneue Department [(2007) 1 MLJ 750], M/s.Sree Jayalakshmi Brick Industries v. The Special Commissioner and Secretary to Government & 3 others [(2009) 4 LW 819], The Government of Tamil Nadu v. Nandagopal [(2011) 3 CTC 843] states that in similar circumstances, this Court granted relief to the urban landowner by disagreeing the contentions of the respondents stating that the notice has been served to the urban landowners in the manner known to law and possession has been taken under Section 11(6), but however, while perusal of the original files, it reflect that there is no proof to show that notice has been sent with Registered Post and Acknowledgement card and the same were returned with endorsement as refused etc., In the light of the above cited judgment, it is very clear that in these cases also, there is no proof to show that the notice has been sent and possession has been taken in the manner known to law.
14. In view of the above findings and the judgment of this Court, referred above, these Writ Appeals are allowed. The common order of the learned Single Judge dated 07.06.211 made in W.P.Nos.8150 & 8151 of 20004, is set-aside. Consequently, the orders passed by the respondent in Na.Ka.442/98A, dated 10.07.1998 & Na.Ka.No.2683/96A, dated 13.11.1997 under Section 9(4) and in R.C.No.442/98A dated 19.04.1999 & R.C.No.2683/96A, dated 26.02.1999 under Section 11(5) are set-aside. Consequently, connected miscellaneous petitions are closed. There is no order as to costs.
(K.K.S., J.) (P.V., J.)
10/11/2017
Speaking Order / Non-speaking Order
Index : Yes / No.
Internet : Yes / No.
Note : The Registry is directed to return the
original files viz., R.Dis.2683/96 & R.Dis 442/98
to the concerned authority.
r n s
To
The Competent Authority (ULC) &
Assistant Commissioner (ULC),
Kunrathur Zone.
K.K.SASIDHARAN, J.
and
P.VELMURUGAN, J.
r n s
Pre Delivery Order made in
W.A.Nos.2394 & 2395 of 2011 &
M.P.Nos.1 & 1 of 2011
10/11/2017