Madras High Court
V.Elumalai Naicker vs The Government Of Tamil Nadu on 23 December, 2008
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.12.2008
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
W.P.No.25351 of 2003
V.Elumalai Naicker .. Petitioner
vs.
1. The Government of Tamil Nadu
rep. by its Secretary
Revenue Department
Fort St. George, Chennai-600 009
2. The Principal Commissioner &
Commissioner Land Reforms
Chepauk, Chennai-600 005
3. The Asst. Commissioner/Competent Authority
Urban Land Ceiling
No.5, Sannadhi Street,
Poonamallee, Chennai-600 056 .. Respondents
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the third respondent relating to the orders, dated 19.8.1996, 10.2.1997 & 25.9.1998, under Section 9(5), 10(1) & 11(5) respectively vide ref.Na.Ka.2328/96D respectively in respect of land in S.Nos.18/1A 2B1 & 18/1A 2 B2 of Amudurmedu Village, Poonamallee Taluk, and quash the same and further direct the respondents to treat the proceedings as abated under Section 4 of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act 20/99.
For petitioner : Mr.V.Ramesh
For Respondents : Mr.P.Muthukumar
Government Advocate
O R D E R
Heard the learned counsels appearing for the parties concerned.
2. It has been stated that the property measuring about 66 cents comprised in S.Nos.18/1A, 2B1, 18/1A 2B2 of Amudurmedu Village, Poonamallee Taluk, was purchased by the petitioner and his wife by way of two sale deeds, dated 11.7.1973 and 14.9.1981. The petitioner has been in possession and enjoyment of the land from the date of its purchase and it has been maintained as an agricultural land. The petitioner has put up a small house abutting the road in front of the land and the rear portion has been used for agricultural purposes.
3. It has been further stated that the land in question was acquired under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, (hereinafter referred to as "the Act") and a notice, under Section 9(4) of the Act, together with a draft statement, under Section 9(1) of the Act had been issued. However, without affording a personal hearing, the competent authority had passed an order, dated 19.8.1996, under Section 9(5) of the Act, followed by a final statement, dated 10.2.1997 and a notice, under Section 11(5) of the Act, dated 25.9.1998. The order passed under Section 9(5) of the Act and the subsequent proceedings were not served on the petitioner. Only when the revenue officials had inspected the land, it was disclosed that the land had been acquired by invoking the provisions of the Act. Immediately, thereafter, the petitioner had applied for certified copies of the order and it was obtained by the petitioner during the month of April, 2003. Since the act had been repealed, the petitioner could not prefer an appeal. In such circumstances, he has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
4. It has been stated that since the land in question is agricultural in character, it cannot be acquired under the Act. The fact that it is an agricultural land is seen from the sale deeds, through which the petitioner had purchased the land. Even thereafter, the land had been maintained as an agricultural land and a number of fruit bearing trees are present in the said land. Further, even though a notice, under Section 9(4) of the Act, together with the draft statement, under Section 9(1) of the Act, were served on the petitioner, the order under Section 9(5) of the Act had not been furnished to him and no personal hearing was given. Even if no objection had been filed to the notice under Section 9(4) of the Act, it is the duty of the competent authority to verify the character of the land and its usage before acquiring the same.
5. It has been further stated that even though the family of the petitioner consists of several members, the respondents had held that he is entitled to the exemption of only 500 sq. mts. Further, a notice, under Section 11(5) of the Act, dated 25.9.1998, calling upon the petitioner to hand over the possession has not been served on the petitioner. If the respondents had, in fact, taken possession of the land, pursuant to the notice, issued under Section 11(5) of the Act, they should have taken possession of the land, under Section 11(6) of the Act by demolishing the existing structures. In fact, the petitioner is residing in the house said to have been acquired by the respondents by paying the property tax and having obtained the electricity connection. In view of the fact that actual physical possession of the land in question had not been taken by the respondents, the land acquisition proceedings initiated by them have abated, in view of the coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, (Act 20 of 1999), (hereinafter referred to as the "Repeal Act").
6. In the counter affidavit filed on behalf of the respondents, the averments made on behalf of the petitioner have been denied. It has been stated that the petitioner Elumalai Naicker was the owner of the urban land measuring an extent of 2650 sq.mts. in S.Nos.18/1A2B1 and 18/1A2B2 of Amudurmedu Village, as per the revenue records. He did not file the return, under Section 7(1) of the Act. Hence, a notice, under Section 7(2) of the Act, was issued in SR.No.1179/95, dated 29.12.1995. The notice was served on the urban land owner's wife lakshmi Kantha, on 3.1.1996. The urban land owner did not send any reply to the said notice. Therefore, a notice, under Section 9(4) of the Act, along with the draft statement, under Section 9(1) of the Act, was issued in SR.No.877/96/D, dated 26.2.1996, calling for his objection, if any, for the proposed acquisition of excess vacant land measuring an extent of 21.0 sq.mts., in S.Nos.18/1A2B1 and 18/1A2B2 of Amudurmedu Village, after allowing 500 sq.mts. towards family entitlement. It was served on the urban land owner's daughter E.Ramani, on 20.3.1996. The land owner did not file any objection. Thereafter, the land was inspected by the Deputy Tahsildar, on 25.6.1996 and it was found to be converted into urban land and there was no cultivation. Hence, an order, under Section 9(5) of the Act was passed, in Rc.2328/96/D, dated 19.8.1996, to acquire the excess vacant land, measuring an extent of 2.150 sq.mts., in S.Nos.18/1A2B1 and 18/1A2B2 of Amudurmedu Village. It was served on the urban land owner's daughter E.Ramani, on 6.1.1997.
7. It has been further stated that the final statement, under Section 10(1) of the Act, had been issued in Rc.2328/96/D, dated 10.2.1997 and it was served on the urban land owner, on 27.4.1997. The notification, under Section 11(1) of the Act, was published in the Tamil Nadu Government Gazette, dated 2.7.1997, and the notification, under Section 11(3) of the Act, vesting the excess vacant land with the first respondent, with effect from 1.10.1997, was published in the Tamil Nadu Government Gazette, dated 3.9.1997. The notice, under Section 11(5) of the Act, was issued in Rc.No.2328/96, dated 25.9.1998, to hand over the possession of the excess vacant land acquired and the same was served on the petitioner. Finally, the possession of the excess vacant land was handed over to the Revenue Authorities, on 3.5.1999 and the necessary changes had been made in the revenue records.
8. It has been further stated that contrary to the claims made by the petitioner, a notice, under Section 9(4) of the Act, along with the draft statement, under Section 9(1) of the Act, have been served on the petitioner's daughter E.Ramani, on 20.3.1996. Hence, the contention of the petitioner that a personal hearing was not afforded to him is incorrect. The petitioner could have sent his objections to the third respondent. However, he had not done so. Hence, an order, under Section 9(5) of the Act had been passed, on 19.8.1996 and it was served on the petitioner's daughter, on 6.1.1997. Thereafter, the final statement, under Section 10(1) of the Act, had been issued, on 10.2.1997, and it was served on the petitioner, on 27.4.1997. Therefore, the contention of the petitioner that subsequent proceedings were not served on him and that he was not aware of the acquisition proceedings is incorrect and baseless. The urban land owner being fully aware of the acquisition proceedings had not chosen to raise any objection to the proceedings. In fact, the urban land owner could have exhausted the appeal remedy provided under Section 33 of the Act on receipt of the orders passed, under Section 9(5) of the Act, which were issued, on 19.8.1996.
9. It has been further stated that the notice, under Section 11(5) of the Act, issued on 25.9.1998, had been served on the petitioner. As per section 11(6) of the Act, if any person refuses or fails to comply with an order made under Section 11(5) of the Act, the competent authority may take possession of the vacant land or cause it to be given to the State Government or to any person duly authorised by the state Government and may for that purpose use such force, as it may be necessary to take possession of the said vacant land. Hence, the possession of the excess vacant land had been handed over to the Revenue Department before the Repeal Act had come into force. Since the land acquisition proceedings have been initiated and completed by the respondents, it is saved under Section 3(1)(a) of the Repeal Act, and therefore, such proceedings of the respondents shall not abate in terms of Section 4 of the Repeal Act. The petitioner has not maintained the land as agricultural land. In fact, there are shops and structures for which he had obtained electricity connection. The petitioner is in illegal possession of the Government land and he is liable to be evicted. Therefore, the writ petition is devoid of merits and it is liable to be dismissed.
10. The main contentions of the learned counsel appearing on behalf of the petitioner are that the respondents have not followed the provisions of the Act by issuing the relevant notices to the petitioner, while acquiring the land in question. No opportunity was given to the petitioner to show that the land was an agricultural land under the cultivation of the petitioner and that it was not an urban land, as claimed by the respondents. Since the petitioner's family consists of several members, the respondents ought to have calculated the family entitlement, accordingly. On the contrary, only an extent of 500 sq.mts. had been allowed towards the family entitlement of the land owner and the balance extent of 2150 sq.mts. had been wrongly acquired by the respondents.
11. The learned counsel appearing for the petitioner had further submitted that, as per the pro forma report of the competent authority, dated 30.8.1999, relating to the land acquired under the Act, the land in question is said to be an agricultural zone. As admitted by the respondents, the necessary notices contemplated under the provisions of the Act had not been served on the petitioner who is the land owner. The respondents had not followed the procedures contemplated, under Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, for the service of the notices. In the counter affidavit filed on behalf of the respondents, they had claimed that the notice, under section 7(2) of the Act, dated 29.12.1995, had been served on the petitioner's wife, Lakshmi Kantha, on 3.1.1996.
12. Further, the notice, under Section 9(4) of the Act, along with the draft statement, under Section 9(1) of the Act, dated 22.2.1996, is said to have been served on the petitioner's daughter E.Ramani, on 20.3.1996. Similarly, the order, under Section 9(5) of the Act, dated 19.8.1996, is said to have been served on the petitioner's daughter, on 6.1.1997. As such, it is clear that the respondents have not followed the necessary procedures for the service of the mandatory notices and the orders contemplated under the provisions of the Act. Further, the respondents have admitted, in paragraph 10 of their counter affidavit, that the petitioner is still in possession of the land said to have been acquired by the respondents. In such circumstances, the land acquisition proceedings would stand abated, in view of Section 4 of the Repeal Act.
13. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available before this Court, it is clear that the petitioner and his wife, who are said to be the purchasers of the land in question, having purchased the land by way of two sale deeds, dated 11.7.1973 and 14.9.1981, for valid consideration, have not been given any opportunity to putforth their case. No notice had been issued to the petitioner, by the respondents, with regard to the acquisition of the land in question, as provided under the Act and the rules framed thereunder.
14. The learned counsel appearing for the respondents has not been in a position to show as to how the land in question could be said to be urban land, which would be governed by the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. On the other hand, when the petitioner had claimed that the land in question continued to be an agricultural land, under the Urban Land Tax Act, in the name of the petitioner, mere taking over of possession of the land, on record, would not be sufficient. It is also obvious, on a perusal of the pro forma report of the competent authority, dated 30.8.1999, that the land acquired under the Act, is in an agricultural zone.
15. In Sosamma Thampy Vs. The Assistant Commissioner (ULT)-CUM-Competent Authority (ULC) and others, (2006 (2) MLJ 664; Anees Leathers Manufacturers, rep.by its proprietor, Mr.Anees Ahamed Vs The Government of Tamil Nadu rep.by its Secretary, Revenue Department, Fort St.George, Chennai and others, 2006(3) LW 437, and Jayaseelan & Ratnaseelan Vs The Government of Tamil Nadu rep.by its Secretary, Revenue Department, Fort St.George, Chennai and others 2006(3) LW 440, this Court while dealing with the effect of the provisions of the Tamil Nadu Urban Land Ceiling Repeal Act (Act 20 of 1999) on the land acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation), Act 1978, has held that all such proceedings initiated under the Act of 1978, would abate on the coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999, if the possession of the land had not been taken by the authorities concerned prior to the repeal and if due compensation has not been paid to the petitioners.
16. Since the State Government had not taken actual physical possession of the land in question, by virtue of Section 4 of Act 20 of 1999, the pending proceedings shall abate and the land in question would continue to vest with the petitioner. To emphasise the above legal position, it is relevant to rely on the decision of this Court in SOSAMMA THAMPY Vs. THE ASSISTANT COMMISSIONER (ULT)-CUM-COMPETENT AUTHORITY (ULC) & ANOTHER (2006-3-L.W.50) wherein this Court has held as follows:
"10. In these circumstances, it is clear that the proceedings initiated by the respondents for acquiring the lands of the petitioner under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, stood abated on the passing of the Repealing Act 20 of 1999 and therefore, the lands in question continues to be vested in the petitioner and neither the State Government nor the land Ceiling Authorities had any lien over the said properties of the petitioner."
17. Actual physical possession should have been taken by the competent authority, as provided under the Act and the rules framed thereunder, for the completion of the acquisition proceedings. If the respondents had not taken physical possession of the land in question and if the full compensation had not been paid, the land acquisition proceedings would stand abated, in view of the coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act (Act 20 of 1999). In this regard, it is relevant to cite the decision of this Court in ALLIND METAL FABRICATORS PVT. LTD., 37 VELLACHERY ROAD, MADRAS-42 REP. BY ITS MANAGING DIRECTOR Vs. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT OF TAMIL NADU, FORT ST. GEORGE, MADRAS (2002(2)CTC 716), wherein it was held as follows:
"1. The Tamil Nadu Urban Land (Ceiling and Regulation) Act has been repealed by the repealing Act (Act 20 of 1999) and all pending proceedings also having been declared to have abated. As held by the Supreme Court in the case of Angoori Devi V. State of U.P., JT 2000 Supp 1(SC) 295, a decision by a Constitution Bench, if the possession of the land had not been taken prior to the repeal, such possession cannot be taken thereafter and no proceedings can be thereafter initiated under the repealed enactment. During the pendency of this writ petition the petitioner had the benefit of an interim order protecting his possession. It is also not the case of the respondents that they have taken possession.
2. The writ petition is therefore allowed. The W.M.P. is closed."
18. The learned counsel appearing for the respondents has not shown, from the records available, that the notice, under Section 11(5) of the Act, calling upon the petitioner to hand over the possession of the land, had been served on him. Further, there is nothing to show that actual physical possession of the land in question had been taken by the respondents or that the compensation had been paid to the petitioner. In such circumstances, this Court is of the considered view that the land acquisition proceedings, which is the subject matter of the present writ petition, would stand abated, in view of the coming into force of the repeal Act, 1999. Hence, the writ petition stands allowed. No costs.
lan To:
1. The Secretary The Government of Tamil Nadu Revenue Department Fort St. George, Chennai-600 009
2. The Principal Commissioner & Commissioner Land Reforms Chepauk, Chennai-600 005
3. The Asst. Commissioner/Competent Authority Urban Land Ceiling No.5, Sannadhi Street, Poonamallee, Chennai 600 056