Madras High Court
A.R.Munuswamy vs The State Of Tamil Nadu on 27 June, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.6154 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2022
CORAM :
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.6154 of 2018
A.R.Munuswamy ...Petitioner
Vs.
1. The State of Tamil Nadu,
Rep. by its Secretary to Government,
Revenue Department,
Government of Tamil Nadu,
Fort St.George, Chennai- 600 009.
2. The Commissioner of Land Reforms,
Chepauk, Chennai- 600 005.
3. The Authorised Officer (Land Ceiling)
- The Assistant Commissioner (Urban Land),
Poonamallee, Chennai- 600 056.
4. The Tahsildar,
Avadi Taluk, Tiruvallur District.
5. The Sub Registrar,
Avadi. ...Respondents
Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records on the file
of the impugned order dated 31.08.1995 bearing Ref.No.Na.Ka.No.2009/
1/17
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W.P.No.6154 of 2018
95-T on the file of the 3rd Respondent and quash the same and consequently
direct the Respondents 1 to 3 to release the Petitioner’s property bearing an
extent of 31.5 cents in Survey No.199/2D and 57.5 cents in Survey
No.199/2B of No.5, Vilinjiambakkam Village, Avadi Taluk, Tiruvallur
District and permit the Petitioner to deal with the same as absolute property.
For Petitioner : Mr.T.Sai Krishnan
For Respondents : Mr.R.P.Murugan Raja, GA.
ORDER
The petitioner has filed this Writ petition seeking for issuance of a Writ of Certiorarified Mandamus to call for the records of the 3rd respondent in respect of the order dated 31.08.1995 in Ref.No.Na.Ka.No.2009/95-T, quash the same and to consequently direct the Respondents 1 to 3 to release the Petitioner’s property from the list of surplus lands declared under the Tamil Nadu Urban Land (Ceiling) Act, 1978.
2. The case of the petitioner is that the properties comprised in S.Nos.199/2D & 199/2B, measuring an extent of 0.61 cents & 1 acre 15 cents respectively situated at No.5, Vilinjiambakkam village, Avadi Taluk, Tiruvallur District originally belonged to the petitioner's father namely, Rangaiah Naidu. For non payment of the money borrowed by the 2/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 petitioner's father from one Manicka Naicker, a suit for recovery came to be filed and the same was decreed in favour of said Manicka Naicker and subsequently, the petitioner and his brother purchased the subject property from said Manicka Naicker for valid sale consideration, vide Registered Sale deed Document No.4586 of 1979 dated 11.08.1977. Thereafter, the petitioner and his brother namely Janakiraman entered into partition in respect of the subject property. While so, when the petitioner applied for Encumbrance Certificate, he came to know about the Urban land Ceiling proceedings initiated as against the subject property, vide, order dated 31.08.1995 passed by the 3rd respondent and the same was passed by mentioning the name of the petitioner's father as died and the name of the petitioner's brother alone. Hence, challenging the same, the present Writ petition is filed.
3. Learned counsel for the petitioner submitted that the land ceiling proceedings in respect of the subject property were initiated as against the petitioner's father under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (in short 'Act') and also the notice dated 10.01.1994 issued under section 7(2) of the said Act was also issued in the 3/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 name of the petitioner's father. He further submitted that, even after the officials came to know that the petitioner’s father had passed away, they have initiated the subsequent proceedings only as against one of the legal heirs of the said Rangaiah Naidu namely Janakiraman, brother of the petitioner and not on either the petitioner or the other legal heirs of the said Rangaiah Naidu. He furthermore submitted that, even the said notice was served by way of affixture, which is a clear violation of rule 8. Further, it is claimed by the respondents that, the Writ petition in W.P.No.11782 of 2019 filed by the petitioner's brother challenging the order dated 31.08.1995 passed by the Assistant Commissioner, Urban Land Tax, Poonamallee was dismissed for non prosecution on 18.12.2009, however, it has to be noted that the petitioner is not a signatory and he has not signed any Vakalath in the said petition and the petitioner's brother has impleaded the petitioner as a party without the petitioner's knowledge, hence, the order passed by this Court is an ex-parte order and the same will not bind the petitioner. It is the major grievance of the petitioner that, though the above said petition was dismissed, however, initially, this Court, vide order dated 29.07.2009 granted stay of dispossession, which clearly shows that the petitioner is in possession of the subject property. While such being the case, not serving 4/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 notice to the petitioner is a clear violation of Section 11(5) of the said Act. Further, as per Sections 11(5) & (6) and rule 8, the competent authority should issue notice to the owners / person in possession of the property, that too personally, to surrender and deliver possession to the State Government within a period of thirty days of the service of the notice, however, it is not followed in the case of the petitioner, which clearly shows that the procedure contemplated in the above said sections and rules were not followed by the authority. He further relied upon the Section 4 of the Repeal Act 20/1999 and same is extracted hereunder :
The Urban Land (Ceiling and Regulation) Repeal Act, 1999 All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or other authority shall abate: Provided that this section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.
It is therefore contended by the learned counsel that physical possession of the above said property having not taken by the authority, 5/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 after the repeal of the parent Act, no proceedings can be undertaken and, therefore, the impugned order deserves to be set aside.
4. Learned Government Advocate appearing on behalf of the respondents submitted that, on the date of initiation of the land ceiling proceedings under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978, the subject property stood in the name of said Rangaiah Naidu, as the petitioner as well as his brother have not taken steps to carry out the necessary changes in the revenue records in respect of the subject property. Further, as no statement under Section 7(1) was filed by the petitioners father, a notice under section 7(2) of the Act was issued in his name. As no return was filed by the Urban land owner or by his son, a notice under Section 9(4) of the Act dated 27.03.1995 was issued in the name of said Rangaiah Naidu and the same was served on said Janakiraman.
Since, no claim was received, another enquiry notice dated 16.06.1995 was issued and it was ascertained that the said Rangaiah Naidu passed away. Accordingly, the notice was served on said Janakiraman, son of Rangaiah Naidu, however, no one appeared for the enquiry. As no objection was received, the subject lands were inspected and since the lands were lying 6/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 vacant, the competent authority / 3rd respondent passed an order dated 31.08.1995 under section 9(5) of the Act, declaring the subject property as excess vacant land and the same was served on one Nalini, wife of Janakiraman and the final statement under Section 10 (1) of the Act was issued in the name of Janakiraman and the same was served on the said Nalini. Further, the notice under Sections 11(1) & (3) were also published and the notice under Section 11(5) of the Act, for surrender or deliver possession of excess vacant land was issued on 10.09.1996 and the same was served on Janakiraman and as the Urban land owner failed to surrender the possession, the Competent Authority took possession of the vacant land under Section 11(6) of the Act and caused it to be given to the Revenue Authorities on 28.08.1997 and notice under Section 12(7) was issued in the name of Janakiraman and the same was served by affixture on 09.07.2002. The orders under Section 12(6) dated 03.10.2003 determining the amount payable was issued in the name of Janakiraman and the same was served by way of affixture on 22.12.2003 as he did not reside in the village at the time of service of the order. Later on 30.09.2008, the said Janakiraman applied for certified copy of orders / notices issued and and after receiving the same, the petitioner and said Janakiraman filed a Writ petition in W.P.No.11782 of 7/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 2009, to quash the order dated 31.08.1995 and the same was dismissed for want of prosecution on 18.12.2009. While such being the case, the claim of the petitioner that, he is unaware of the land ceiling proceedings is not sustainable. He further more submitted that possession of the land was taken over and handed over to the Revenue Authorities on 128.08.1997, well in advance to the implementation of the repeal Act. For better appreciation, the relevant portion is extracted as follows.
(1) The repeal of the principal Act shall not affect
(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;
In the light of the above said section the respondents are saved under clause 3(1)(a) of the Repeal Act and the petitioner is not entitled for relief under Repeal Act. Hence, he prayed for dismissal of the present Writ petition.
5. Heard learned counsel appearing on either side and perused the materials available on record.
6. Admittedly, the subject property was originally owned by 8/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 petitioner's father, against whom the Urban land ceiling proceeding has been initiated and subsequently, the same was continued as against said Janakiraman, after the revenue officials came to know about the death of the petitioner's father. However, the grievance of the petitioner is that, though the petitioner, his sisters and his mother were also the legal heirs of said Rangaiah Naidu, the land ceiling proceedings were continued only against one legal heir, the said Janakiraman. Further it is not in dispute that, the petitioner's brother filed a Writ petition in W.P.No.11782 of 2009, challenging the order dated 31.08.1995 and the same was dismissed for non prosecution on 18.12.2009. However, it is the claim of the petitioner that, though the petitioner is a party in the said petition, he has been arrayed as a party without his knowledge and he is not a signatory in the said petition and mere filing of Writ petition is not a bar for filing of subsequent petition challenging the said land ceiling proceedings. Though the petitioner is in possession of the subject property, no notice was served on the petitioner, which is a clear violation of Section 11(5) of the said Act. Hence, in order to avail the benefit as per Rule 8, rule 4(4)and Section 11(5) & (6) of the Act, the petitioner has filed this Writ petition.
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7. Admittedly, the repeal act came into force on 16.06.1999 and the entire proceedings stands abated, if possession was not taken. It is borne out by record that in view of the stay of dispossession granted in the above said Writ petition till the disposal of the same, the petitioner is in possession of the property, which means that possession still remains with the petitioner and it could not have been taken over by the respondents. Such being the case, the authorities should have followed the procedures contemplated under Section 11(5) of the Act and the authorities should have issues notice to the person in possession of the property and if they fail to surrender the possession of the property, they have to follow the procedures prescribed under Section 11(6). Further, the notice was also served by way of affixture, that too not issued in the name of the petitioner, which clearly shows the violation of the procedures and it is contrary to the provisions.
8. The grievance of the petitioner is that, the petitioner came to know about the entire land ceiling proceedings under Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 in respect of the above said properties, when he applied for Encumbrance Certificate. Though the petitioner was in absolute possession of the above said property at the time of initiation of 10/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 land ceiling proceedings, no notice was served on the petitioner.
9. Notice before taking possession of the property is mandatory as per the provisions of the Act. A perusal of the materials available on record reveals that the 3rd respondent initiated proceedings under the said Act against the petitioner's father. However, it is pertinent to note that, the petitioner's father passed away as early as in the year 1980 and even after ascertaining the said fact, the land ceiling proceedings were continued only in the name of one of the legal heir of the said Rangaiah Naidu and though the petitioner is in possession of the subject property, no notice was served on him. In the above backdrop, the contention of the respondents that the petitioner is not entitled for the relief under the Repeal Act is not sustainable. Further, it is pertinent to note that, no notice was served on the petitioner and physical possession of the above said property was also not taken by the respondents. Though the respondents claim that they have taken possession of the property, however, the materials available on record do not reveal such to be the case and there is no material to substantiate the said stand.
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10. For taking over of the possession, the notice under prescribed format should be served on the land owners. Further, in the present case, the notice was served only by affixture, that too only on one of the legal heir of the said Rangaiah Naidu and not sent by registered post with acknowledgement due and the notice under the said Act was not served on land owners in accordance with law and failure of the said provision vitiates the land ceiling proceedings. Further Rule 8 of the Act prescribes the manner in which notice has to be prepared. For better appreciation, rule 8 is quoted hereunder :-
8. Particulars to be contained in draft statement as regards vacant land and manner of service of the same.-
(1) Every draft statement prepared under sub-section (1) of section 9 shall contain the particulars specified in Form III.
(2)(a) The draft statement together with the notice referred to in sub-section (4) of section 9 shall be served on-
(i) the holder of the vacant lands, and
(ii) all other persons, so far may be known, who have, or are likely to have any claim 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 to sub-section (1) of section 7, and
(ii) in the case of other persons, at their last known addresses.
(b) Where the draft statement and the notice are returned as refused, by the addressee, the same shall be deemed to have been 12/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 duly served on such person.
(c) Where the efforts to serve the draft statement and the notice, on the holder of the vacant lands or, as the case may be, on any other person referred to in clause (a), in the manner specified in that clause are not successful for reasons other than the reason referred to in clause (b), the draft statement and the notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon conspicuous part of the house (if any) in which the holder of the vacant lands or, as the case may be, the other person is known to have last resided or carried on business or personally worked for gain.
(3) The notice under sub-section (4) of section 9 shall be in Form IV]
11. Further Section 11(5) of the Act, refers to the procedure in which the acquisition of vacant land in excess of ceiling limit shall be proceeded, which heavily presses upon serving of notice to the person in possession, which is as under :-
11. Acquisition of vacant land in excess of ceiling limit.
* * * * * * * * (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 duly authorised by the State Government in this behalf within thirty days of the service of the notice.
12. Section 4 of the Repeal Act makes it clear that, if the physical possession is not taken, the entire land ceiling proceedings would stand abated, which is as under :-13/17
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4. Abatement of legal proceedings. - All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any court, tribunal or any authority shall abate:
Provided that this section shall not apply to the proceedings relating to sections 12, 13, 14, 15, 15-B and 16 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.
13. In such circumstance, the land ceiling proceedings having not been taken up in the manner as prescribed under the provisions of the Act and the mandatory provisions having not been followed and physical possession having not been taken, as the petitioner is in possession of the lands, it would clearly show that pursuant to the repeal Act no proceedings for taking over the lands could be initiated against the petitioner and, therefore, the entire land ceiling proceedings deserves to be quashed.
14. For the reasons aforesaid, the land ceiling proceedings are quashed and the Writ petition is allowed and the order impugned herein is set aside. No costs.
27.06.2022 14/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 (1/2) skt Speaking Order : Yes/ No Index : Yes/ No To
1. The State of Tamil Nadu, Rep. by its Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St.George, Chennai- 600 009.
2. The Commissioner of Land Reforms, Chepauk, Chennai- 600 005.
3. The Authorised Officer (Land Ceiling)
- The Assistant Commissioner (Urban Land), Poonamallee, Chennai- 600 056.15/17
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4. The Tahsildar, Avadi Taluk, Tiruvallur District.
5. The Sub Registrar, Avadi.
M.DHANDAPANI, J.
skt 16/17 https://www.mhc.tn.gov.in/judis W.P.No.6154 of 2018 W.P.No.6154 of 2018 (1/2) 27.06.2022 17/17 https://www.mhc.tn.gov.in/judis