Madras High Court
R. Saraswathi vs The Special Commissioner & on 15 March, 2012
Bench: Elipe Dharma Rao, M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-03-2012 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE M. VENUGOPAL Writ Appeal No. 2275 of 2011 and M.P. No. 1 of 2011 1. R. Saraswathi 2. Gowriamma 3. R. Selvaraj 4. Smt. S. Parvathi .. Appellants Vs. 1. The Special Commissioner & Commissioner Land Reforms Chepauk Chennai 2. The Assistant Commissioner Urban Land Ceiling Coimbatore 3. The Tahsildar Coimbatore South Coimbatore .. Respondents Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge in W.P. No. 34476 of 2005, dated 07.6.2011. For Appellant : Mr. R. Ramesh For Respondents : Mrs. M.E. Rani Selvam Addl. Govt. Pleader - - - JUDGMENT
(Delivered by ELIPE DHARMA RAO, J.) Undaunted by the order of dismissal passed by the learned single Judge in W.P. No. 34476 of 2005, dated 07.6.2011, the writ petitioners have preferred the present Writ Appeal.
2. From the materials, it is seen that the second respondent, viz., Assistant Commissioner, Urban land Ceiling, Coimbatore initiated proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 [For short, 'the Act'] in respect of the property held by Ramasamy Gounder in Survey No. 164/1C of Saravanampatti Village, Coimbatore Taluk measuring an extent of 2426 Sq.mts. Proceedings under Section 9(5) of the Act dated 18.12.1992 and notice under Section 11(5) of the Act dated 30.01.1999 were issued. Challenging the same, the writ petitioners, legal heirs of the original owner, filed the Writ Petition and also for a direction to the respondents to treat the proceedings as abated so as to enable them to get their names incorporated in the revenue records as owners before the third respondent.
3. The learned single Judge, on consideration of the entire materials as well as the relevant files, arrived at a factual finding that the petitioners' father Ramasamy Gounder was served with notices and if personal notice is served, the petitioners who are legal heirs of erstwhile owner cannot have any complaint. Accordingly, the writ petition was dismissed. The said order is impugned in this writ appeal.
4. Heard the learned counsel appearing for the appellants and the learned Additional Government Pleader representing the respondents and perused the materials on record.
5. Learned counsel appearing for the appellants, reiterating the very same contentions raised before the learned single Judge, submitted that as per Rule 8 of the Urban Land (Ceiling and Regulation) Rules, notice under Section 9(4) together with a draft statement under Section 9(1) of the Act has to be served by Registered Post with Acknowledgment Due, but no material has been produced by authorities to show that such procedure has been followed. His specific contention is that service of notice in person is not contemplated under the Act and Rules. According to the learned counsel, the appellants have constructed a building in a portion of the land and the same is assessed to Property Tax and that they have service connection and factory licence, which would show their continuous possession in the property. Therefore, he submitted that the impugned orders passed in gross violation of the principles of natural justice have to be set aside.
6. Resisting the contentions raised by the learned counsel for the appellants, the learned Additional Government Pleader representing the respondents would submit that since the appellants' father Ramasamy Gounder had not filed any objection to the notice, further proceedings were continued and subsequent to the passing of the order under Section 11(5) of the Act, the lands were taken over and possession was handed over to the Tahsildar prior to the Repeal Act 20/99 came into force, i.e., on 04.6.1999 and, therefore, according to her, the appellants have no right to challenge the proceedings and the proceedings should be treated as abated. She submitted that there is no scope for interference with the impugned orders and, therefore, sought for dismissal of the appeal.
7. From the materials on record, it is seen that notice under Section 7(2) was issued to the land owner Ramasamy Gounder on 26.8.1992 and as there was no reply from him, notice under Section 9(4) with statement under Section 9(1), dated 24.9.1992 to acquire the vacant land measuring 2426 Sq.mts. after allowing entitled of 1500 sq.mts. out of 3927 Sq.mts., was served on the owner on 04.10.1992. Since no objections were filed by the land owner, the Assistant Commissioner, who inspected the land on 03.12.1992, having found that the lands are of urban nature and were laid out, issued the impugned proceedings dated 18.12.1992 under Section 9(5) of the Act. Subsequently, Notifications under Section 11(1) and 18(3) of the Act were published in Tamil Nadu Government Gazette on 14.10.1998 and 23.12.1998 respectively. It is also seen that following Notice under Section 11(3) of the Act issued on 30.01.1999, possession of the land was taken on 04.6.1999 and handed over to the third respondent.
8. It is not in dispute that the proceedings were initiated under the Tamil Nadu Act 24 of 1978. The said Act was repealed by the Repeal Act 20 of 1999 with effect from 16.6.1999. Admittedly, at the time when the impugned order was passed, the Act itself is not in operation. In view of the repeal of the Act, which came into force on 16.6.1999, all proceedings relating to any order made under the Principal Act pending immediately before the commencement of this Act, before any Court or Tribunal or any authority shall be taken to be abated.
9. From the above, it is found that possession was taken as early as on 04.6.1999 itself and, therefore, the contention of the learned counsel for the appellants that the appellants are in possession is liable to be rejected.
10. To satisfy ourselves, we directed the learned Additional Government Pleader to get the records and accordingly, records were made available and we have gone through the same.
11. We find that on 14.10.1998, the surplus lands were declared as excess land under Rule 10 Form V of the Act and it was gazzetted as per Rule 10(2) Form VI of the Act and after taking possession, the property vested with the Government and subsequently, handed over to the Tahsildar on 04.6.1999 whereas the Act was repealed on 16.6.1999. Now, we are informed that the father of the appellants died in September 2000. Therefore, it is clear that even before the death of the original owner, viz., father of the appellants, the land acquisition proceedings have attained its finality.
12. Secondly, from a perusal of the records, it is seen that notices were served in person on 04.9.1992, 04.10.1992, 02.5.1993 and 22.4.1999 to the urban land owner, ie., father of the appellants. Therefore, it is clear that action were taken under Sections 9 to 11 of the Act after serving the notices in person to the land owner as per the provisions laid down in the Act. It is further seen that the appellants have not availed the opportunity of filing appeal under Section 33 of the Act, 1978 as against the orders under Section 9(5) of the Act.
13. With regard to the contention of the learned counsel for the appellants that service of notice in person is not contemplated under the Act and Rules, the learned single Judge, relying on the judgment of the Hon'ble Supreme Court in The Special Deputy Collector, Land Acquisition, CMDA v. J.Sivaprakasam and others [(2011) 1 SCC 330] rejected the same holding that all other modes of notice are in substitution of personal notice and if personal notice is served, the appellants, who are legal heirs of erstwhile owner cannot have any complaint. Therefore, we are of the view that the said contention is only to be rejected.
14. At this stage, we want to record one disputed question of fact. On the one hand, learned counsel for the appellants submitted that buildings were constructed in the land in question and the same were assessed to Property Tax and they also got service connection. On the other hand, he would contend that the lands in question are agricultural lands. Therefore, the self-contradictory statement made by the learned counsel for the appellants cannot improve the case of the appellants. Even otherwise, if the contention of the learned counsel for the appellants that the lands are agricultural lands is accepted, it is not known as to how they could have constructed building and run factory without the permission of the Government and the same is contrary to the provisions of the Act and it is in utter disregard to the principles underlying the enactment of the Act. Further, if really the buildings were in existence as submitted by the learned counsel, it is not explained as to why objections were not filed at the time of acquisition proceedings before passing the final order on 18.12.1992. Learned counsel for the appellants would now contend that agricultural operations are going on in the land and, therefore, initiation of urban land ceiling proceedings are illegal. We are of the opinion, after testing the bona fides of the appellants, that in the meanwhile the appellants would have brought the land under cultivation to defeat not only the provisions of the Act but also the urban land ceiling proceedings. Therefore, on this score also, the Appeal has to be allowed.
15. Another circumstance to be considered is that though the land ceiling proceedings have attained finality even during the lifetime of the father of the appellants, viz., Ramasamy Gounder, in the year 1999 he has not chosen to initiate any proceedings whereas the petitioners have come forward with the contention that no notice was issued during the course of pendency of the land ceiling proceedings between 1992 and 1999.
16. From the records produced by the learned Additional Government Pleader, it is evident that notice was issued on Ramasamy Gounder. Therefore, the main contention of the learned counsel for the appellants with regard to service of notice under the provisions of the Act is liable to be rejected and it is, accordingly, rejected.
17. Further more, waiting from 1999, the appellants have come forward with the above Writ Petition only in the year 2005 with a reason that they wanted to incorporate their names in the Revenue records. It was only when the appellants approached the Village Administrative Officer in March 2005 for getting chitta and adangal extracts for the purpose of sub-dividing the property among themselves, they were informed that the lands were already acquired. Then only they came to know about the initiation of Land Ceiling Act by the Government and accordingly, they approached this Court.
18. All these circumstances would go to show that due to abnormal rise in price of the land nowadays not only in the vicinity of Chennai but throughout the state of Tamil Nadu, the appellants have come forward to file the writ petition assailing the land ceiling proceedings initiated on 18.12.1992 and ended on 04.6.1999 by taking possession and this approach of the appellants is nothing but malafide intention and unclean hands to take a chance to get a favourable order from this Court.
19. Both on the question of facts and the position of law, the writ petition filed by the appellants cannot be maintained. The background of the facts and the circumstances discussed above were gone into in detail by the learned single Judge and, of course, the finding of the learned single Judge is based on facts and the materials on record. The proceedings referred to in the order passed by the learned single Judge and a perusal of the records give a clear indication that the competent authority has conducted proceedings strictly in accordance with the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. The possession of the property was also taken and it was handed over to the Revenue Department as early as on 04.6.1999. The Repeal Act came into force only on 16.06.1999. Therefore, as on the date on which the Repeal Act came into force, there was no proceedings pending before the statutory authorities so as to grant the relief prayed for by the appellants / writ petitioners.
20. Moreover, conspicuously, the age of the appellants is also not mentioned in the affidavit. This is one of the circumstance to explore the bona fide of the appellants to file the writ petition. It is also not stated as to what type of activities were going on in the suit land from 1999 to 2005 and as to who was looking after the land.
21. In view of the above, it is crystal clear that the attempt of the appellants was to give life to a dead proceeding. In case the original land owner was interested, he could have initiated proceedings immediately after the repeal of the Act in the year 1999. However, not even a scrap of paper was produced before this Court to show that the land owner has taken up the matter with the Government even after the Repeal Act. The appellants have filed the writ petition about 6 years after the possession was taken over by the Government. In any case, there was no proceedings pending before the statutory authorities as on the date on which the Repeal Act has come into force.
22. All these would make us to come to the conclusion that the appellants, without any personal knowledge of the facts, wasted the valuable time of the Court and made the learned single Judge to pass a detailed order after verifying the earlier proceedings. However, with a view to arrest this type of litigations, viz., approaching the Court after lapse of time and after the proceedings had attained its finality and get the same set aside at a belated stage, we are of the view that this is a fit case where the appellants should be mulcted with costs.
Accordingly, the writ appeal is dismissed with costs. The appellants are directed to pay a sum of Rs. 1,00,000/- (Rupees One lakh only) to the Tamil Nadu State Legal Services Authority and the said amount shall be deposited within a period of two weeks from the date of receipt of a copy of this order, failing which, it would be open to the Member Secretary of the Tamil Nadu State Legal Services Authority to recover the same through the concerned Collector by invoking the provisions of the Revenue Recovery Act. A copy of the order shall be communicated to the Member Secretary of the Tamil Nadu State Legal Services Authority. Consequently, connected Miscellaneous Petition is closed.
gri To
1. The Special Commissioner & Commissioner Land Reforms Chepauk Chennai
2. The Assistant Commissioner Urban Land Ceiling Coimbatore
3. The Tahsildar Coimbatore South Coimbatore.
4. The Member Secretary, Tamil Nadu Legal Services Authority, Chennai 600 104