Madras High Court
M.Sampath vs The Secretary on 25 April, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.04.2013 CORAM THE HONOURABLE MR. JUSTICE K. VENKATARAMAN Writ Petition No.28930 of 2012 and M.P.Nos.1 of 2012 and 1 of 2013 M.Sampath .. Petitioner Vs. 1. The Secretary, Department of Revenue, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-9. 2. The Principal Commissioner and Commissioner of Land Reforms, Ezhilagam, Kamarajar Salai, Chepauk, Chennai-5. 3. The Commissioner (ULC) and Director (ULT), Ezhilagam, Chennai-5. 4. The Competent Authority (Urban Land Ceiling) cum Assistant Commissioner (Urban Land Ceiling), Alandur, Chennai. .. Respondents Writ petition has been filed under Article 226 of the Constitution of India, praying for a Writ of declaration declaring that the petitioner is entitled to the benefit of Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 Act No.20 of 1999 insofar as the land measuring 14,600 sq.meter situated in Survey No.514, Perumbakkam Village, Sholinganallur, Kancheepuram District. For Petitioner : Mr.K.M.Vijayan, SC for M/s.K.M.Associates. For Respondent : Mr.D.Raja, Addl. Govt. Pleader. O R D E R
The present writ petition has been laid for declaration that the petitioner is entitled to the benefit of Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 Act No.20 of 1999 insofar as the land measuring 14,600 sq.meter situated in Survey No.514, Perumbakkam Village, Sholinganallur, Kancheepuram District.
2. The case of the petitioner is that one Lakshmi Ammal was the owner of the property in Survey No.514 consisting of 3.85 acres. She sold 3 acres of land to one Kallian on 29.9.1937 and the said Kallian sold the property to the petitioner by way of sale deed dated 11.7.1983. Rectification in relation to the survey number which was wrongly entered as Survey No.516 was rectified as 514 by Deed dated 4.11.2011. Though only 3 acres was purchased by the petitioner in 1983, the entire property of 3.85 acres was in the custody of the petitioner as the owner of the property. The legal heirs of Lakshmi Ammal executed a sale deed on 4.11.2011 for the remaining 85 cents also. While so, without taking proceedings properly under the Tamil Nadu Urban land (Ceiling and Regulation) Act, 1999, the respondents are trying to interfere with the petitioner's possession. Hence, the petitioner has come up with the present writ petition.
3. It is contended by the learned counsel appearing for the petitioner that the petitioner had purchased the property way back in 1983. No proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1999 was served on the petitioner. He further submitted that notice under Section 11 of the Act was not served on the petitioner. As per Section 11(5) of the Act, notice has to be caused not only on the owner of the property but also on the person in possession of the property. Further, he has contended that the possession has not been taken from the petitioner and the petitioner continues to be in possession of the property. Therefore, according to him, the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 will come to the rescue of the petitioner and no possession can be taken from the petitioner.
4. Counter affidavit was filed on behalf of the respondents wherein it is stated that proceedings right from Section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was taken and one of the owners received the notice. Thereafter, proceedings under Section 9(4) of the Act was taken. Since there was no objection, the Assistant Commissioner (ULT), Alandur inspected the property and found that the land is without any trees, Well and buildings. Hence, orders under Section 9(5) of the Act were passed on 31.10.1997 determining the excess vacant land as 14,600 sq.mts. and the same was served by affixure as the land owners were not residing in the Perumbakkam Village. Final statement under Section 10(1) of the Act was issued on 23.1.1998. It was also served by affixure in the presence of Village Administrative Officer, Perumbakkam Village. Further, a notification under Section 11(1) of the Act was issued on 28.7.1998 and published in Tamil Nadu Government Gazette No.35 dated 9.9.1998. Later, notification under Section 11(3) of the Act was issued on 12.10.1998. Finally, a notice under Section 11(5) of the Act was issued to the owners to surrender and deliver possession. The said notice was issued on 18.1.1999. As the address was not in the village, it was served by affixure on the land in question. After following due process of law, possession of excess vacant land was taken over and handed over to the revenue authorities well before Repeal Act came into force. Thus alleging, the counter affidavit sought for the dismissal of the writ petition.
5. On the basis of the pleadings referred to above, the learned Additional Government Pleader submitted that all the formalities have been completed by serving notice to the land owners and thereafter, Section 11(5) notice was served on the owners by affixure and possession was taken. Therefore, according to the learned Additional Government Pleader, the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 will not come to the rescue of the petitioner.
6. I have carefully considered the submissions made by the learned Senior Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.
7. It is not in dispute that the petitioner purchased the property measuring 3 acres of land from one Kallian by way sale deed dated 11.7.1983. The said Kallian purchased the property from one Lakshmi Ammal by sale deed dated 29.9.1937. A rectification deed also seems to have been executed on 4.11.2011 rectifying the survey number. It is stated that though 3 acres have been purchased, the petitioner has been enjoying the property measuring 85 cents also. All the notices seem to have been sought to be served only on the erstwhile owners and not on the petitioner. The petitioner purchased the property way back on 11.7.1983, but, admittedly, even according to the respondents, no notice was served on the petitioner. Even the file discloses that since owners of the land were not available, it was affixed in the property.
8. If the party is not available to serve the notices, a mode has been prescribed. In the case on hand, it is not the case of the respondents that an attempt was made to serve the petitioner by registered post with acknowledgement due. Even files also did not disclose about the same.
9. As far as notice under Section 11(5) of the Act is concerned, it is to be served not only on the owner of the property but also on the person in possession of the property. The petitioner asserts that he being the owner of 3 acres also enjoying 85 cents. When that is the factual position, notice should have been served on the petitioner under Section 11(5) of the Act. It would be useful to extract Section 11(5) of the Act and the same is extracted hereunder:-
11. Acquisition of vacant land in excess of ceiling limit:-
(1)xxxxx (2)xxxxx (3)xxxxx (4)xxxxx (5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duty authorised by the State Government in this behalf within thirty days of the service of the notice.
10. Files produced before me shows that notice under Section 11(5) of the Act was not served on the petitioner. As stated already, there is no independent witness to show that notices were sought to be served on the petitioner by affixure. Hence, in the said circumstances, I am of the considered view that no proper notice was sought to be served on the petitioner or on the erstwhile owners as required under clause (5) of Section 11 of the Act.
11. It is also stated by the respondents that possession has been taken and the authority concerned has handed over possession to the revenue officials. The said proceedings did not indicate that the possession has been taken from the petitioner.
12. In this connection, it would be useful to refer the judgment reported in 2007 (4) CTC 714 Saraswathi v. The Principal Commissioner & Commissioner of Land Refors. Paragraphs 11 to 14 of the said judgment are usefully extracted here under:-
" 11. Taking into consideration of the above said mandatory provisions of the Act, when we look into the case on hand, no valid evidence is produced by the Respondents to show that the draft statement was served on the Petitioners, as regards vacant land held in excess of ceiling limit by them. As per Section 9(4), the draft statement shall be served in such a manner as may be prescribed on the person concerned together with a notice, stating that any objection to the draft statement shall be preferred within 30 days of the service thereof. The said notice shall be served as contemplated under Rule 8. Rule 8 contemplates that notice shall be served by Registered Post with Acknowledgement Due to the last known address and if not delivered a copy should be affixed in the said known residence, but in so far as both the mandatory provisions are concerned, the Respondents have not complied with the same. It is to be remembered that after the disposal of the objection filed under Section 9(5), shall make necessary alterations in the draft statement in accordance with the order based on the objections and shall determine the vacant land held by the persons concerned in excess of ceiling limit and cause a copy of the statement as so altered to be served in the manner referred to in sub section 4 of Section 9 on the persons concerned. It is alleged by the Respondents that final statement was also served on the Petitioners father who died in 1972 by affixture, which is contrary to Rule 8. Without sending it by Registered Post as contemplated under Section 10 read with Rule 8, it was allegedly affixed, hence, it is not a valid service. Moreover, this court also verified the affixture procedures followed by the Respondents, which are also not satisfactory.
12. It is alleged by the Respondents that 11(5) notice dated 30.4.1999 was served by way of affixture, which is also invalid.
13. It is stated by the Respondents that on 23.10.1992, possession was taken over by them. Even assuming that the possession was taken by the Respondents, it is nothing but only a paper possession. Moreover, this court also protected the possession of the Petitioners by way of interim orders during the pendency of this Writ Petition.
14. In view of the facts that the Respondents have not complied with the mandatory provisions of serving notice, final statement and delivery of possession and failed to give opportunity to the petitioners to file their objections and no where in their order made any discussion about the suitability of the lands for construction of houses as the said lands admittedly used only for agricultural purpose and even the alleged take over of possession is not proved by any valid evidence and that the Petitioners are in continuous possession of the lands in dispute all along even prior to the Repeal Act and after the Repeal Act and the petitioners possession is protected by this Court during the pendency of this writ petition by granting interim order, this court is of the considered view that the prayer as sought for in this Writ Petition is to be granted. "
13. In yet another decision reported in 2007-4-L.W. 361 S.Sivaparamam & 2 others v. The State of Tamil Nadu and four others, this Court has held as follows:-
" 9. On the factual situation, in the present case, as I have enumerated above, even though steps have been taken under Sections 11(4) and 11(5) of the Principal Act, nevertheless it remains the fact that on record there is nothing to show that physical possession has been taken from either of the petitioners or from their vendor in conformity with Section 11(6) of the Principal Act. R.Jayasimha Babu, J in Allind Metal Fabricators Pvt. Ltd., Madras vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Madras reported in 2002 (2) CTC 716, by placing reliance on the judgment of the Supreme Court in Smt. Angoori Devi v. State of U.P. & Ors. (JT 2000 (Suppl.1) SC 295), has also held that if the possession under the Principal Act prior to the repeal was not taken, as per the judgment of the Constitution Bench of the Supreme Court, no proceedings can be subsequently initiated.
10. On the other hand, the petitioners have categorically stated that they are in physical possession of the properties and have also produced various certificates including urband land tax receipts, certificates issued by the village karnam, patta issued by the Tahsildar dated 23.12.1999, etc. to show that the petitioners continue to be in physical possession of the properties in dispute. In view of the same, the writ petition stands allowed. No costs."
14. In yet another decision reported in (2008) I MLJ 838 Tessy John v. Principal Commr. & Commr. of Land Reforms, in paragraphs 13 to 16, this Court has held as follows:-
" 13. The learned counsel also drew the attention of this Court to an un-reported decision of the Division Bench, presided by S.J.Mukhopadhaya, J. in W.P. Nos. 693 to 695 of 2003 [Annie Jacob and others v. State of Tamil Nadu and another] and the relevant passage found paragraphs 8 and 9 is extracted below:
Para 9: There is nothing on the record to suggest that the competent authority issued any notice in writing directing the original land holder or the appellants to surrender or deliver possession of the lands in question. Nothing has been produced to suggest that the original land holder or the appellants refused or failed to comply with such order and on failure the possession of the lands were taken by force. In absence of such notice u/s 11(5) or action taken u/s 11(6), a bald statement as made by the respondents that possession was taken on 10th Feb., 1995, cannot be accepted. On the other hand, the appellants have produced documents, such as panchayat tax receipts, reassessment notice, tax acknowledgment and demand notice, pattas, chittas, house tax receipt, panchayat payment receipts, electricity bills / cards, etc., to suggest that they are still in possession of the lands in question.
Para 9: In the aforesaid circumstances, the respondents cannot take advantage of Section 3 of the Repealing Act 20 of 1999 and nor deny the advantage u/s 4 to the appellants. Such provisions being in favour of the appellants, we hold that the total proceeding shall stand abated. [Emphasis added]
14. The learned counsel further brought to the notice of this Court the judgment in W.P. No. 29081 of 2003 [Sudandarakkani v. Government of Tamil Nadu and others] (rendered by me) and referred to paragraphs 9 and 10, which read as follows:
Para 9: These records can never be believed as neither the petitioner nor the predecessor-in-title have been served with proper notices in terms of the Act and the Rules made thereunder. When valuable lands are sought to be taken over by a statutory enactment, it is incumbent on the part of the authorities to scrupulously follow the rules prescribed thereunder. The mode of affixture cannot be resorted to as a matter of course and attempt should have been made to send the notice by Registered Post as contemplated under the Rules. If this process is resorted to by the respondents, any land can be taken over without even notice to the land owners by not complying with the mandatory provisions of the Rules. There are also no records to show that physical possession has been taken over from the petitioner, who is the purchaser of the land even as early from 29.8.1986. In any event, there are no records to indicate that physical possession has been taken over from the petitioner and in the absence of the same, the petitioner is entitled to have the benefit of Section 4 of the Repeal Act 20 of 1999.
Para 10: This Court in its judgment reported in (2006) 2 M.L.J. 664 [SOSOMMA THAMPY vs. THE ASSISTANT COMMISSIONER (ULT) CUM COMPETENT AUTHORITY (ULC)], has analysed all the previous case laws and categorically held that physical possession is required and mandatory under the ULC Act and noting in the file that symbolic possession is taken cannot be accepted as taking of physical possession. This Court is in complete agreement with the ratio laid down in the aforesaid decision which also squarely applies to the facts and circumstances of the case.
15. Therefore, insofar as the proceedings were not initiated against the real land owner as found in the original file, the entire exercise by the respondents is an exercise in futility and it would also amount to depriving the property of the petitioner by misusing the power vested under the Tamil Nadu Act 24 of 1978.
16. In view of the above, the writ petition stands allowed and impugned order dated 01.6.1993 passed by the second respondent and the notice under Section 9(5) of Act 24 of 1978 dated 30.6.1994 will stand set aside. The petitioner is entitled to have the benefit of Section 4 of the Tamil Nadu Act 20 of 1999 and be in absolute enjoyment and possession of the property measuring 44 cents. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. "
15. In the decisions reported in AIR 1975 SC 1767 B.N.Bhagte v. M.D.Bhagvt and AIR 1996 SC 3377 Tamil Nadu Housing Board vs. A.Viswam, the Hon'ble Apex Court has held that a person shall be deprived of possession only after preparation of a Memorandum or Panchanama signed by witnesses. In the given case on hand, there is nothing in the file to show that the possession has been taken over by the ULT officials in the presence of the witness. Therefore, in my considered view, the claim made by the respondents that possession has been taken over from the petitioners and the possession vests with the respondents cannot be accepted.
16. In view of the above said position, I am of the considered view that the possession said to have been taken from the petitioner can only be on paper but the actual possession would not have been taken from the petitioner. Therefore, I am of the considered view that the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 will come to the rescue of the petitioner.
17. In fine, the writ petition stands allowed. The connected miscellaneous petitions are closed. No costs.
asvm/sbi To
1. The Secretary, Department of Revenue, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-9.
2. The Principal Commissioner and Commissioner of Land Reforms, Ezhilagam, Kamarajar Salai, Chepauk, Chennai-5.
3. The Commissioner (ULC) and Director (ULT), Ezhilagam, Chennai-5.
4. The Competent Authority (Urban Land Ceiling) cum Assistant Commissioner (Urban Land Ceiling), Alandur Chennai