Madras High Court
C.Govindaraj vs The Govt. Of Tamilnadu on 20 July, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 20.07.2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.4102 of 2003 1.C.Govindaraj 2.Mrs.Govindammal 3.E.Perama Gounder ... Petitioners ..Vs.. 1.The Govt. of Tamilnadu, Rep. by the Secretary to Government, Revenue Department, Secretariat, Fort St.George, Chennai 9. 2.The Special Commissioner & The Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Ezhilagam, Chennai 5. 3.The Asst. Commissioner of Urban Land Ceiling (Salem), O/o. The Asst. Commissioner of Urban Land Ceiling, Erode. 4.The General Manager, B.S.N.L., Department of Telecommunications, Chennai. 5.Mrs.Sambuvalli ... Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Mandamus, forbearing the respondents 1 to 4 from proceeding further regarding the acquisition of petitioners' lands under the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978 and to drop all further proceedings if any initiated under the said Act in respect of the petitioners' properties in Survey No.135/11 and its Sub-Divisions of No.54, Alagapuram Pudhur Village in Salem Taluk and District and thereby restore the petitioners ownership in respect of their respective lands, by necessary mutation in the concerned village revenue records enabling the petitioners to get individual patta for their respective lands. (Prayer amended as per order dated 04.06.2012 by SMKJ in WPMP.No.1605 of 2007 in W.P.No.4102 of 2003) For Petitioners : Mr.R.Neelakandan For Respondents : Mr.K.V.Dhanapalan (for R1 to R3) Additional Government Pleader Mr.S.Nethaji, ACGSC (for R4) O R D E R
Initially, the petitioners have sought for a mandamus, forbearing the respondents 1 to 4 from proceeding further regarding the acquisition of petitioners' lands under the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, (hereinafter referred to as 'Act') and to drop all further proceedings if any initiated under the said Act in respect of the petitioners' properties in Survey No.135/11 and its Sub-Divisions of No.54, Alagapuram Pudhur Village in Salem Taluk and District. Later, by way of an amendment in WPMP No.1602 of 2007, in W.P.No.4102 of 2003, the prayer in the writ petition has been amended as follows:
"forbearing the respondents 1 to 4 from proceeding further regarding the acquisition of petitioners' lands under the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978 and to drop all further proceedings if any initiated under the said Act in respect of the petitioners' properties in Survey No.135/11 and its Sub-Divisions of No.54, Alagapuram Pudhur Village in Salem Taluk and District and thereby restore the petitioners ownership in respect of their respective lands, by necessary mutation in the concerned village revenue records enabling the petitioners to get individual patta for their respective lands."
2. It is the case of the petitioners that the property comprised in S.No.135/11 (now Sub-divided as 135/11C and 135/11F) of No.54, Alagapuram Pudhur Village, within the Sub Registration District of Suramangalam and within the Taluk and Registration District of Salem, to an extent of 7035 sq.ft., is owned by the 1st petitioner and his two sons. According to the deponent of the supporting affidavit, land was purchased from the 5th respondent and her sons by way of a registered Sale Deed on 26.02.2001, registered as Document No.713 of 2001 on the file of S.R.O., Suramangalam, for valuable consideration.
3. The deponent of the supporting affidavit has further stated that the 2nd petitioner is the owner of the land measuring 41.5 cents in Survey No.135/11 (now sub-divided as 135/11C, 135/11E and 135/11G) in the above said village and that the same has been purchased by the 2nd petitioner from M/s.Seerangan, K.Muniappan and Vaiyapuri for valuable sale consideration vide valid registered sale deeds dated 25.05.1979 and that the same has been registered as Document Nos.2651 and 2653 respectively on the file of S.R.O. Salem.
4. According to the deponent, the 3rd petitioner is the original owner of the land, measuring an extent of 1860 sq.ft comprised in Survey No.135/11 (now sub-divided as 135/11D) in the above said village. The same has been purchased vide sale deed dated 21.01.1996, registered as Document No.196 on the file of S.R.O., Suramangalam from one Mrs.Selvi for valuable sale consideration. According to the petitioners from the date of purchase, they have been in continuous possession and enjoyment of the property without any hindrance. When the 1st petitioner obtained encumbrance certificate from the Sub Registration Office, Suramangalam in respect of the above said properties for the period from 01.01.1984 to 31.10.2000 (17 years), vide Certificate No.5109 of 2000 dated 01.11.2000, there was no encumbrance at all to the said properties.
5. The 1st petitioner has further submitted that two houses have been constructed in the above said property, for which land, revenue taxes and Corporation tax, are being paid regularly. The 2nd and 3rd petitioners have put up small huts in the said lands for their residence and they are cultivating the remaining small portion of the land. Family cards have been issued by Civil Supplies Corporation. Electricity and telephone connection have been obtained for the property owned by the 1st petitioner.
6. While that be so, on 30.08.2002, the Special Tahsildar attached to the office of the Assistant Commissioner of Urban Land Ceiling (Salem), along with Surveyor and staff inspected the properties and measured the same. When their action was questioned, no proper reply was given. Therefore, the petitioners approached the Asst. Commissioner of Urban Land Ceiling (Salem), the 3rd respondent on 02.09.2002 and only then, they came to know that some proceedings have been initiated under the Urban Land Ceiling Act. In these circumstances, though the petitioners' lawyers' notice dated 27.09.2002 to the Special Commissioner and Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Chennai, and the Assistant Commissioner of Urban Land Ceiling (Salem), O/o the Assistant Commissioner of Urban Land Ceiling, Erode, respondents 2 and 3 respectively, to drop any further action with regard to acquisition proceedings under the provisions of the Urban Land Ceiling Act, has been acknowledged by the respondents 2 and 3 on 30.09.2002 and 28.09.2002, respectively, there was no reply. In the above said circumstances, the petitioners have come forward to file the present writ petition for a mandamus as stated supra.
7. In support of the relief sought for Mr.Neelakandan, learned counsel for the petitioners submitted that no notice was served by the respondents 1 to 3, on the writ petitioners or the vendors regarding the proceedings taken under the Act and he therefore submitted that there is violation of principles of natural justice. He further submitted that right to property under Article 300(A) of the Constitution of India is a constitutional right and therefore, the acquisition under the Act, should be in conformity with the statutory provisions and the procedure set out in the Act and rules cannot be to said to be directory.
8. In this context, he relied on a decision of this Court in T.Audikesavan and Others Vs. Government of Tamilnadu, rep. by its Secretary, Revenue Department, Chennai and Others, reported in 2008 (3) MLJ 252 and an unreported decision of this Court in Sudandarakkani Vs. The Government of Tamilnadu, rep. by its Secretary, Revenue Department, Fort St.George, Chennai and three others in W.P.No.29081 of 2003 dated 19.10.2006.
9. Placing reliance on a decision of this Court in A.Kaliammal & Others Vs. The Tahsildar and another, reported in 2010 Writ L.R.147, learned counsel for the petitioners further submitted that the service of notice in writing on the persons who are in possession is a mandatory requirement and since possession continues with the petitioners, if any symbolic possession said to have been taken by the respondents, does not mean that the proceedings under the Land Ceiling Act, have come to an end. He also drew the attention of this Court to the relevant paragraphs in A.Kaliammal's case.
10. In support of his contention that the petitioners are still in possession, learned counsel for the petitioners invited the attention of this Court to the Tax Receipts dated 19.01.1996, Family cards issued separately to each of the petitioners for the years 1998-2003, Notice and receipt for Corporation Tax dated 05.11.2001, Electricity Card and Receipt dated 12.02.2002, Corporation Tax receipt dated 16.11.2002 and Telephone bill 22.01.2003. He further submitted that possession is still retained with the petitioners and therefore, the whole proceedings are abated. In the above said circumstances, he prayed for a mandamus.
11. Though, the writ petition is pending for nearly nine years, no counter has been filed. However, on the basis of the files, Mr.K.V.Dhanapalan, learned Additional Government Pleader submitted that notice dated 24.02.1992 under Section 9(4) of the Act was sent to the original land owner. However, as the owner of the said lands, Seeranga Gounder had sold away the properties, despite several attempts, the notice could not be served for want of correct address. Therefore, the Village Administrative Officer, in the presence of two witnesses affixed the notice under Section 9(4) of the Act in the last known residence of the above said person. Thereafter, an order under Section 9(5) was passed on 21.04.1992. Again as the noticee was not available, therefore, affixture was made on 06.05.1992.
12. Finding that the mode of service was not proper, the competent authorities by a note dated 09.02.1993, advised the Village Administrative Officer to make an enquiry with the neighbours to find out the whereabouts of the noticee and serve the same. As the vendor was no more, notice was sent to the legal heirs of the deceased and that they refused to receive the same. Again, when the order passed under Section 9(5) of the Act was sent by RPAD to the legal heirs of the owner, the same was returned with the postal endorsement 'refused'. In the above said circumstances, he submitted that when the legal heirs of the deceased have refused to receive the notice and also the order passed under Section 9(5) of the Act, it is not open to the petitioners, the subsequent purchasers to contend that there is a violation of principles of natural justice in not giving adequate opportunity to the original owners to oppose the acquisition proceedings under the Act.
13. He submitted that consequently, a gazette notification was published on 01.04.1998 under Section 11(3) of the Act. Notice under Section 11(5) of the Act was also issued on 12.03.1999 in the name of the owner of the property. Thereafter, possession was taken on 10.05.1999. Learned counsel for the State also submitted that subsequently, on 26.06.1999, mutation in the revenue records has also been effected. A report dated 09.07.1999, was also sent by the Asst. Commissioner of Urban Land Ceiling, Erode to the Special Commissioner & the Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Chennai stating that possession has been handed over along with a terrace and tiled house. A proforma report on the application of allotment of excess vacant land under Section 24 of the Act, has also been sent on 09.07.1999, by the competent authority viz., Assistant Commissioner (Urban Land Tax), Salem-7.
14. He further submitted that subsequently, when a request was made by BSNL for allotment of land, a recommendation letter dated 01.10.2002 was sent to the Special Commissioner & The Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Chennai to remove the encroachments and thereafter allot to BSNL. In the above said circumstances, learned Additional Government Pleader submitted that no serious irregularities have been committed by the official respondents in causing notice to the original land owner and when the statutory notices contemplated under the Act, were sought to be served, the same were refused and as per the legal pronouncement, refusal on the part of the legal representatives to receive the notice under Section 9(4) and the consequential order under Section 9(5) of the Act, amounts to waiver of their rights to make any objection and consequently, to challenge the order and in the above said circumstances, once the order under Section 9(5) of the Act has reached the finality, then no notice is required under Section 11(5) of the Act. He therefore submitted that the acquisition proceedings are not vitiated and consequently, the petitioners are not entitled to the relief sought for.
Heard the learned counsel for the parties and perused the materials available on record.
15. Perusal of the record shows that the Village Administrative Officer, Alagapuram Pudur, Salem has found that the addressee viz., Seeranga Gounder had sold away the property and settled in some other place and therefore, finding it difficult to serve the notice on the said person, due to non availability of the correct address, has affixed the notice under Section 9(4) of the Act dated 24.02.1992 in the last known residential address on 28.02.1992, in the presence of two witnesses. On 28.02.1992, it was also noticed by the Village Administrative Officer, Alagapuram Pudur, Salem Taluk that after the sale of the properties, S.No.135/7 and 135/11, mutation has been effected in the revenue records and Mr.Seeranga Gounder, no longer continued to be pattadar. There is also a note in the file that the above said property has been sub divided and mutation has been effected in the name of many individuals. Thus, it could be seen that even at the threshold, when the properties in S.No.135/7 & 135/11, both measuring 0.82.12 h.a.sq.mts, land to an extent of 0.67.12 h.a.sq.mts., was found to be in excess by the competent authorities, a notice was sought to be served on the original owner of the property, who had already sold away the properties and that mutation had also been made in the revenue records. As per the determination made by the competent authority, the eligibility was 0.15.00 h.a.sq.mts and the excess vacant land was 0.67.12 h.a.sq.mts. When the property had already been sold out and sub divided with necessary mutation in the revenue records in the name of several persons, Mr.Seeranga Gounder had no longer owned any excess land, on the date of initiation of the proceedings under the Act.
16. Files further disclose that the service of notice by affixure in the manner stated supra had not been accepted by the competent authority and therefore, the Village Administrative Officer has been directed to find out the correct address of the land owner by enquiring the neighbours of the place, where he had lastly resided and thereafter, to serve on the landowner. The competent authority has further directed that if the land owner refuses to receive the order, then a report be submitted to the office with correct address for further instructions. The Village Administrative Officer, has also been warned that if affixture had been done without proper address or returned, action would be taken against him.
17. Files further disclose that though, the lands in S.No.135/7 and 135/11 have been sold to third parties and mutation had also been effected, even prior to 28.02.1992, as per the version of the Village Administrative Officer, Algapuram Pudur, Salem and service by affixture dated 28.02.1992 was made on the erstwhile land owner as per the provisions of the Act and Rules, on the premise that the affixture stated supra had been done properly, and that no objections have been raised by the erstwhile owner Sreeranga Gounder vide Proceedings in SR.No.7/92 dated 24.02.1992, an extent of 6712 sq.mts have been determined as excess land and an order under Section 9(5) has been passed. The above said order has been once again served by affixture on 06.05.1992 by the Village Administrative Officer in the last known residence of Seeranga Gounder.
18. The service of the order in the above manner done by the Kattalai Sevagar has not been accepted. Therefore, the Assistant Commissioner of Urban Land Ceiling, Salem by a memo No.R.6/92(A1) dated 07.06.1993, has directed a Kattalai Sevagar to serve the order dated 21.04.1992 passed under Section 9(5) of the Act with proper address and then submit the acknowledgment with proper address before 14.06.1993, failing which appropriate action would be taken against him. Thereafter, the Kattalai Sevagar Mr.Mohan has submitted a report to the Assistant Commissioner of Urban Land Ceiling, Salem on 05.03.1993, stating that as Thiru.Seeranga Gounder had already expired, notice was attempted to be served on his legal representatives, for which, steps were also taken, but they refused to receive the notice. Along with his report, he had furnished the addresses of the legal representatives of the deceased Seeranga Gounder, the erstwhile owner of the property.
19. The report of Mr.Mohan, Kattalai Sevagar submitted on 05.03.1993 to the competent authority does not indicate as to when Seeranga Gounder died. The registered letter sent to S.Palani, one of the legal representatives of the land owner has been returned. Files further disclose that after the passing of the order under Section 9(5) of the Act, notice of acquisition of the vacant land in excess of the ceiling limit under Section 10(1) of the Act in S.R.No.7/92 Dated 31.10.1994, has been directed to be served on Mr.Seeranga Gounder, Algapuram Pudur Village, Salem. The very same person Mr.Mohan has received a memorandum to serve the notice of acquisition under Section 10(1) of the Act on 09.11.1994.
20. From the above, it is apparent that even though the competent authority was aware of the fact that the lands in S.No.135/7 and 135/11 measuring 6712 sq.mts., sought to be acquired under the Act had already been sold away even before initiation of the proceedings, with consequential mutation effected in the revenue records and having found fault with the manner of service of order under Section 9(5) with a caution that it should be served on the concerned, with proper address and after receipt of a report dated 05.03.1993 from the Kattalai Sevagar that the original owner Mr.Seeranga Gounder had already expired and therefore, notice was sought to be served on his legal representatives, and once again not satisfied with the affixture made in the last known residence, issued a memorandum in S.R.No.7/92 (A1) 07.06.1993, directing the Kattalai Sevagar to submit a report before 14.06.1993, has passed final order dated 31.10.1994 under Section 10(1) of the Act and directed the Kattalai Sevagar to serve on Mr.Seeranga Gounder, who is no longer the owner of the property. The notification under Section 10(1) of the Act said to have been passed by the competent authority against a dead person Seeranga Gounder, is a nullity. Knowing fully well that he had expired even before the passing of this order, the authorities has directed the order to be served on him. Thereafter, a gazette notification has been made under Section 11(3) of the Act in Tamilnadu Government Gazette No.VI(1)452/98 in pages 431 & 432 dated 01.04.1998.
21. Again thereafter, one Mr.S.Krishna Chetty, Assistant Commissioner, Urban Land Tax, Salem vide S.R.No.7/92 (A1) dated 12.03.1999, has sent a notification under Section 11(5) to Seeranga Gounder, Alagapuram Pudur, Salem Taluk, to make necessary arrangements for the delivery of the lands, to the Collector, Salem within 30 days from the date of receipt of notice. Here again, the notice is sought to be served to a dead person.
22. While that be so, a transaction is recorded in the files under the nomenclature 'possession certificate' to the effect that one C.Prakasam, Special Deputy Tahsildar (ULT), Office of the Assistant Commissioner (ULT) had handed over the possession of the land on 10th May 1999, to the Zonal Dy. Thasildar, Salem along with the following occupants viz.,
1.Smt. Easwari, w/o. Palaniappa Gounder
2.Smt. Saroja, w/o. Arumuga Gounder,
3.Thiru.Ramachandran, s/o.Lakshmana Naidu
4.Thiru.UnniKrishnan
5.Smt.Govindammal
6.Thiru. Peramagounder, s/o. Ezhumalai
7.Thiru.Ponnusamy, S/o. Vellaiya Gounder
8.Smt.Palaniammal, s/o. Periyagounder
9.Smt.Chinnapappa, w/o.Vilalingam.
23. The Asst. Commissioner of Urban Land Ceiling, Salem, has also noted down that there were thatched houses, tiled houses and agricultural crops. Thereafter in proceedings No.SR.7/92 (A1) dated 09.07.1999, the Asst. Commissioner, of Urban Land Ceiling, Salem, has sent a report to the Special Commissioner & The Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Chennai stating that property had been taken possession on 10.05.1999, with 14 encroachments. A proforma report had also been sent on 09.07.1999, containing the above said details. Thereafter, one Mr.C.Govinda Rajan, a retired teacher residing in the subject lands, which were sub divided, has submitted a letter to the Assistant Commissioner of Urban Land Ceiling, Salem stating that he and four others had already purchased the land and put up construction and that they came to know about the acquisition only when the Dy. Tahsildar inspected the property. A legal notice has also been sent by him on 29.07.2002.
24. Files disclose that on 01.10.2002, the Assistant Commissioner of Urban Land Ceiling, Salem has submitted a report to the The Special Commissioner & The Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Chennai, reiterating that there are encroachments and recommended for allotment to BSNL.
25. First of all, on 24.02.1992, when a notice was issued under Section 9(4) of the Act, it was found that the subject lands owned by Thiru.Seeranga Gounder, had already been sold away by him to third parties, which were lateron sub divided and that mutation has also been effected in the revenue records. Despite the note put up by the Village Administrative Officer, Alagapuram Pudur, a final order has been passed under Section 9(5) of the Act, against Thiru.Seeranga Gounder, who by that time was no longer the owner of the property. Further, when the service by affixture of the order under Section 9(5) of the Act had been found to be faulty and when there was also a note by the Kattalai Sevagar to the effect that Thiru.Seeranga Gounder had already died, committing the very same mistake, the competent authority, had passed the final notification under Section 10(1) of the Act against a dead person. After passing this order, it was also intended to be served on the dead person. Thereafter, a notice under Section 11(5) of the Act was also intended to be served on the dead person. Finally, a transaction had been recorded as if possession has been taken and recorded between one C.Prakasam, Special Deputy Tahsildar (ULT), Office of the Assistant Commissioner (ULT) and the Zonal Dy. Thasildar, Salem. At this juncture, this Court is of the view that the order made against, a dead person and the alleged service of notice to the dead person cannot be considered as a valid or service, in the eye of law. On the aspect of notice to a dead person, the following few cases are considered.
(a)In Muthusamy v. The State of Tamil Nadu reported in 1993 (1) MLJ 217, at Paragraph 10, held as follows:
"That apart, it is beyond comprehension as to how the responsible authorities discharging statutory functions under the Act were very much indifferent in making due enquiries to ascertain about the heirs of the deceased owner and were so gullible to readily accept a claim by someone that the lands have been given to him by mutual and oral understanding. The person who made such a claim claimed to be the son-in-law of the erstwhile owner. Such contentions coming from responsible statutory functionaries cannot be either justified or sustained in a Court of Law. The authorities, in my view have miserably failed to verify properly about the heirs of the deceased pattadar and the fact that such heirs have not themselves come on record cannot be a valid plea in a case of the nature involving the death of the only owner of the land or justify the issue of a notification or a declaration in the name of a dead person. The procedure adopted by the respondents cannot be approved by a Court of Law. On account of the irregularities and lapses committed on the part of the respondents in properly verifying about the ownership or the legal heirship in respect of S.F.No.138/12B, the petitioners have been seriously prejudiced. This vitiates the impugned land acquisition proceedings in so far as it relates to S.F.No.l38/12B. The grievance made on the absence of notice as well as the manner of issue of notification and the declaration under Sec.6 of the Act in so far as it relates to the land of the petitioners in W.P.No. 14595 of 1990 deserves to be sustained."
(b) In M.J.Saravanaperumal v. State of Tamil Nadu reported in 1997 (III) CTC 605, this Court, after considering the judgment in Kannammal (deceased) V.N.Devadoss v. State of Tamil Nadu and others reported in 1990 Writ.L.R. 439, held that notification issued in the name of a dead person, is liable to be dismissed.
(c) In Savithiriammal v. State of Tamil Nadu reported in 2006 (3) MLJ 389, at Paragraphs 4 and 5, a Division Bench of this Court, held as follows:
"4. We verified the 4(1) Notification, 5-A enquiry proceedings and Sec.6 Declaration. As rightly pointed out, in the Notification and Declaration, it is stated that Thiruvenkatasamy is the owner of the lands in S. Nos.267/5 and 268/3. We have already referred to the written objection filed by the petitioner, who is none else than the daughter of the said Thiruvenkatasamy, to the effect that her father died on 6.3.1987. In such circumstances, it is but proper on the part of the Land Acquisition Officer to rectify the mistake in all the proceedings including 4(1) Notification. The Notification issued in the name of dead person is a nullity and the proceedings cannot be continued based on the said Notification.
5. This Court, in Muthusamy v. The State of Tamil nadu (1993 (1) M.L.J. 217); Devaraj v. State of Tamil Nadu (2003 (4) CTC 134); Asiya Mariyan v The Secretary to Government of Tamil Nadu (2000 (4) CTC 125); and in series of other decisions, held that Notice/Notification issued in the name of dead person and the proceedings with respect to the said lands cannot be sustained. By applying the said principle, we accept the contention of the learned counsel for the appellant and quash the Notification issued under Section 4(1), dated 14.06.1995. Consequently, Writ Appeal is allowed. No costs. Connected Miscellaneous Petition stands closed. It is made clear that the respondents are free to proceed with the acquisition, if they so desire, by initiating fresh proceedings in accordance with law."
(d) In State of Tamil Nadu v. A.Kandasamy reported in 2007 (2) CTC 225, at Paragraph 10, a Division Bench of this Court, extracted a Government Order which deals with the issuance of notice and it is as follows:
"10. The Government, considering the attitude of the authorities in abusing one or other procedural aspects in acquisition proceedings, issued the G.O.Ms.No.12, Revenue dated 3.3.1985, which reads as follows:
The Special Commissioner and Commissioner of land Reforms has made the following general remarks in his Biennial Inspection of one of the Collectorates in the State:
Another grave fault, which I have noticed in land acquisition proceedings is that there is a tendency to by-pass one of the most important requirements, namely, service of the notices, etc. I found that in some cases, in their hurry, without ascertaining ownership of the land, there has been a tendency for service by affixtures, which normally, should be a last resort. This is highly reprehensible. It does not give the land-owner a chance to make a representation. The District Revenue Officers and the Collectors should look into this and see these are avoided in future.
2. In this connection, the attention of the Collectors/District Revenue Officers is invited to the following instructions in Chapter-II - Powers and Duties of the Collector under the Land Acquisition Act, in Part-III of the Land Acquisition Manual:
It is a well established principle of law that all statutory provisions must be strictly complied with, and the burden of proof of compliance rests upon those who claim statutory powers or base their title upon the exercise of statutory provisions. The attitude of Civil Courts invariably is that acts of this character are to be liberally expounded in favour of the public and strictly expounded as against the State Government. It is necessary that Land Acquisition Officers should bear these facts in mind at every stage of their proceedings. Thus, for example, if general notices are not published or individual notices served as and when prescribed by the law, or any minimum interval required between two operations is not observed, all subsequent proceedings are thereby rendered invalid. A record of the publication or service of all notices must, therefore, be kept, since the burden of providing the same will be upon State Government in the event of the legality of the proceedings being subsequently contested.
3. The above instructions have become all the more important now that the period from 4(1) notification and declaration has been cut down from three years to one year under the Land Acquisition (Amendment) Act, 1984 (Central Act 68 of 1984) and any procedural infringement at any stage of the land acquisition proceedings should not be tolerated.
4. All the Collectors/District Revenue Officers are requested to look into this personally and see such lapses shall not recur in future and they are also requested to give instructions to all the Land Acquisition Officers to give in to the tendency to by-pass one of the most important requirement of the land acquisition proceedings, namely, the service of the notices, by affixture but to curtail this tendency and to adhere to the laid down procedures to the letter at all stages of land acquisition proceedings.
The reason for issuing the above G.O. is to warn the officers to be cautious and sincere in their approach in acquisition proceedings. Number of cases referred to earlier only shows that the acquisition proceedings are not done in a proper manner, but in an arbitrary and capricious way."
(e) In Leelavathi v. The State of Tamil Nadu reported in 2008 (3) CTC 490, at Paragraph 16, this Court held as follows:
"16. It is true, as laid down by the Supreme Court that when the factum of death of the person was not recorded in the revenue records or the same was not informed to the authorities under the Land Acquisition Act, it cannot be expected to make roving enquiry about the ownership of the property, but on the facts and circumstances of the present case, it is seen that the factum of death of the original owner has been informed by the daughter and in spite of the same the respondents have not taken any steps to rectify the mistake. In those circumstances, the judgement of the Division Bench of this Court in Savithiri Ammal v. State of Tamil Nadu, 2006 (3) MLJ 389, will squarely apply to the facts of the case.
(f) In Municipal Corporation, Ludhiana v. Inderjit Singh reported in 2008(13) SCC 506, demolition order passed by the Municipal Authorities was challenged on the grounds that notices were issued to a dead person and an opportunity of hearing, as contemplated under the provisions of the Act, was denied. In this case also, the Supreme Court held that, "Had a proper show cause notice been served upon the first respondent therein, he could have shown that the alleged violation of the provisions of the Act is of negligible character which did not warrant an order of demolition."
(g) In Ayisha Beevi v. Sheik Mydeen reported in 2012 (2) CTC 509, it has been held that even if an order is passed by a Court, in favour of a dead person, it is a nullity.
26. In T.Audikesavan and Others Vs. Government of Tamilnadu, rep. by its Secretary, Revenue Department, Chennai and Others, reported in 2008 (3) MLJ 252, after considering two unreported decisions in W.P.No.29081 of 2003 dated 19.10.2006, made in Sudandarakkani Vs. Govt. of Tamilnadu and Others and W.P.No.7060 of 2003 dated 25.09.2007, made in Subramaniam Engg. Ltd., Vs. Special Commissioner and Others, at paragraph Nos.10 and 11 of the judgment, held as follows:
" 10. In the order dated 19.10.2006 made in W.P.No.29081 of 2003 (Sudandarakkani Vs. Govt. of Tamilnadu and Others), this Court held that the mode of affixture cannot be resorted as a mater of course and attempt should have been made to send the notice by R.P.A.D., as contemplated under the rules. It was further held by this Court, physical possession is required and the same is mandatory under the provisions of the Act and noting in the file that symbolic possession is taken cannot be accepted as taking of physical possession.
11. In the judgment dated 25.09.2007 made in W.P.No.7060 of 2003 (Subramaniam Engg. Ltd. Vs. Special Commissioner and Others), I have held that taking possession means taking physical possession with the signature of the land owner, evidencing voluntary delivery of the lands and mere recording of possession by the authorities would not amount to actually taking over possession."
27. The aspect as to how a notice has to be effected, whether possession said to have been taken without service on the occupants of the land can be construed as possession taken under Section 11(6) and Whether, a notice served on a dead person is valid and whether proceedings, said to have been concluded on the basis of a notice of declaration or declaration against the dead person has been dealt with by this Court in A.Kaliammal and others Vs. The Tahsildar, Salem and another, reported in 2010 Writ L.R.147, at paragraph Nos.27, 29, 30, 39, 40, 42, 43, 45, 49 & 50.
"27. The competent authority ought to have issued the statutory notice under sub Section 2 of Section 7 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, to the actual owners, but the statutory notice had been issued in the name of R.Ponna Gounder, a dead person on 02.11.1987 in S.R.A.Roc.7719/87-A2. As there was no response, the competent authority had proceeded to issue the draft statement under Section 9(1) of the Act holding that the land owner was in possession of excess land to an extent of 4045 sq.mts. On that basis, a further notice had been issued under Section 9(4) of the Act on 14.08.1991, calling upon a dead man to submit his objections to the draft statement and on his failure, a final statement under Section 10(1) of the Act had been issued to the Urban Land owner R.Ponna Goundar on 13.05.1992. The notification under Section 11(3) of the Act has been published on 01.04.1998 in the Tamil Nadu Government Gazette. In S.Subramaniam Vs. State of Tamilnadu, represented by the Secretary to Government, Revenue Department, Chennai and others reported in 2006 3 MLJ 509 and Saraswathi and another Vs. Principal Commissioner and Commissioner of Land Reforms, Chennai and others reported in 2007(5) MLJ 1240, this Court has held that notice issued to a dead person is a nullity.
29. The manner for taking delivery of possession of the lands declared as surplus from the owner / any person in possession, is provided for in Sub-Sections 5 and 6 of Section 11 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. The question to be considered is whether the competent authority, has issued any notice to the person / persons in possession of the property before taking actual possession of vacant land and, in case of refusal, whether the procedure contemplated under Section 11(6) of the Act has been followed. To address the said contention, this Court deems it fit to extract the "Possession Certificate" as recorded by the Special Deputy Tahsildhar, Urban Land Tax, Salem, which is found at page No.69 of the files.
"Possession Certificate I, Thiru. C. Prakasam, Special Deputy Tahsildar (ULT), Salem, Office of the Assistant Commissioner (ULT), Salem, on this 19th day of May 99 handed over the Land described below a per Salem (ULT) Assistant Commissioner's Roc.S.R.66/91 and I Thiru A.Muthuchidambaram, Zonal Deputy Tahsildar, Salem has this 19th day of May 99 taken over the the said land with encroachments as per sketch enclosed.
Name of the Village : Annathanapatty S.No. : 203/9B2A, 9B2B, 203/11 Extent : 0.38.0 Ownership Classification :Excess vacant land poramboke. Wells : Nil Signature : List enclosed Trees : Nil"
The possession certificate reads that the subject matter of property in S.No.203/9B2A, 9B2B, 203/11 to an extent of 0.38 acres, was in possession and occupation of 17 persons including the writ petitioners 2 and 3. The details of the persons stated to have encroached the above lands, as per the Special Deputy Thasildhar, Urban Land Tax, Salem is extracted hereunder.
District : Salem Village : Annathanapatty Sl.No. S.No. Door No. Description Name of the encroacher 1 203/9B1 4/717 Thatched House Manivasagam, S/o. Chinnu Gounder 2 4/718 " Murugesan, Parvathy Raman Chettiyar 3 4/719 " Easwaran S/o.Angamuthu 4 4/720 " Subramani 5 4/720 A " Muthusamy 6 4/720 A " Krishnamoorthy S/o. Rathinavel 7 4/720 A " R.Jeyaraman, S/o. Rajupillai 8 4/721 " Ellappan S/o. Parasurama Chettiyar 9 4/720 Thatched Godown Natesan 10 4/728 Thatched House Arumugam S/o. Subramaniya Achari 11 4/724 " Mahalakshmi, S/o.Venugopal 12 4/723 " R.Selvam (1) R. Balaji, C/o. Sarojini Devi 13 4/723 " Subramaniam, S/o. Gopal 14 4/722 " Chellammal, W/o. Late Chempan 15 203/11 4/730 B Asbestos Roof House Murugesan, S/o. Kandasamy 16 - Roofed House Nallammal 17 4/729 A Thatched House Savithiri, W/o. Kandasamy
30. The Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 was enacted to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good.
39. Reading of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, in entirety makes it abundantly clear that what is contemplated under Section 11 is taking over possession of vacant land and not transfer of land with possession.
40. The intention of the legislature thus assimilates two aspects. In one aspect, it carries the concept of "meaning", i.e., what the words mean and in another aspect, it conveys the concept of "purpose and object" or the "reason and spirit' pervading through the Statute. The process of construction, therefore, combines both literal and purposive approaches. In other words, the legislative intention, i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.
42. The words "any person" used in sub-Section 5 of Section 11 of the Act are of wide import and includes a bonafide transfer of the property. It cannot be restricted only to the holder of an excess land. Reading of Section 11(5) makes it clear that the legislature has conceived resistance or obstruction for taking possession of immovable property by an holder of such vacant land, or a lessee, or a mortgagee or a hire-purchase agreement holder or an irrevocable power-of-attorney holder or any body resisting delivery of possession or claiming independent right of his own, not withstanding the declaration of the competent authority under Sections 9 and 10 of the Act.
43. The language employed in Section 11(5) and (6) with Form-VII, would make it clear that if any person in possession refuses to surrender or deliver possession of the land / lands within 30 days of service of notice, the land / lands shall be taken possession of by the authority after using such force as may be necessary. The purpose of use of such force permissible under Section 11(5) is only to evict any person in possession, in whatever capacity he is. If there are constructions, they should be removed before the date fixed for removal. If they are not removed by the land owner or any other person in possession, such constructions should be removed by the Officer authorised in this behalf to take possession of the said land, who shall sell them and keep the proceeds thereof in deposit in the name of the person after deducting the cost of removal and other incidental charges.
45. In the case on hand, the lands along with the encroachers have been simply handed over by a Certificate of Transfer on "Possession Certificate" issued by the Special Tahsildar, and that does not amount to taking actual physical possession of vacant lands, as per the procedure contemplated in the Act, rules and the Form, prescribed under the Act. It is well settled in State of Kerala Vs Mathai Varghese and others reported in 1986 (4) SCC 746, the Court should make a purposeful interpretation so as to "effectuate" the intention of the legislature and not a purposeless one in order to "defeat" the intention of the legislators wholly or in part. The Act contemplates taking possession of vacant land and not lands with encroachers, along with constructions or dwelling houses. It could be seen from the possession certificate, the alleged encroachers are living in Thatched houses, Asbestos Roof house etc.
49. When the learned Additional Government Pleader was confronted with a query as to whether notice was issued to the persons in possession of the property as per Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, on perusal of the files, the learned Government Counsel submitted that no notice was issued to any one of the persons in possession of the property, directing them to surrender or deliver possession as per Section 11(5) of the Act, within thirty days of service of notice. He also submitted that record shows that notice was served only to R.Ponna Goundar, the erstwhile owner of the land. This Court is unable to subscribe to his contention as to how a statutory notice dated 02.11.1987 could have been served to a person, who died on 06.12.1986.
50. Reading of Sections 11(5) and 11(6) of the Act and the decisions stated supra makes it abundantly clear that service of notice in writing to the person / persons in possession of the lands declared as surplus under the Land Ceiling Act is a mandatory requirement and it has to be necessarily followed by the competent authority, in the manner provided under the Act. To take possession of vacant land, Section 11(6) of the Act permits use of such force as may be necessary, so that the competent authority or the State Government may take possession of land. Materials on record, till 2000, enclosed in the typed set of papers filed along with the writ petition shows that the lands were in occupation and possession of the vendors of the 1st petitioner and electricity service charges were also paid. Besides, as stated supra, possession and occupation over the said lands have been recognised by a certificate issued by the Municipal Authorities by levying property tax."
28. Even as per the reports of the Competent authority there were about 14 occupants on the date when possession is alleged to have been taken. There were trees, huts, tiled houses and many persons stated supra, were admittedly residing. Therefore, it is an undisputable fact that possession of vacant land as contemplated under the Act has not been taken. Notice had not been issued to the occupants. The proceedings after notice under Section 9(4) of the Act have been continued knowing fully well that the lands have been sold out and that the owner had also expired. Even then, notices have been sent to a dead man. The tax receipts, family cards issued by the Civil Supplies Department and telephone bill, Corporation tax receipt etc., enclosed in the typed set of papers, substantiate the contention of the petitioners that they are in possession of the property. Mutation is said to have been effected by the respondents. Therefore, the proceedings and the orders passed by the S.MANIKUMAR.J, ars Asst. Commissioner of Urban Land Ceiling, Salem, are to be declared as null and void and that they would not confer any right or interest to transfer or convey or assign the lands. The petitioners have made out a case for mandamus and hence the mandamus is issued. The petitioners are at liberty to seek for mutation of revenue records, if necessary. The writ petition is allowed. No costs.
20.07.2012 Index: Yes Internet: Yes ars To
1. The Secretary to Government, Revenue Department, Secretariat, Fort St.George, Chennai 9.
2. The Special Commissioner & The Commissioner of Land Reforms (Urban Land Ceiling and Urban Land Tax), Ezhilagam, Chennai 5.
3. The Asst. Commissioner of Urban Land Ceiling (Salem), O/o. The Asst. Commissioner of Urban Land Ceiling, Erode.
4. The General Manager, B.S.N.L., Department of Telecommunications, Chennai.
W.P.No.4102 of 2003