Madras High Court
R. Srinivasan vs The Special Commissioner And ... on 2 March, 2011
Author: B.Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2011
C O R A M
THE HONOURABLE MR. JUSTICE B.RAJENDRAN
WP No. 10471 and 10472 of 2009
and
M.P. No. 1 and 1 of 2009
M.P. No. 1 and 1 of 2010
1. R. Srinivasan
2. R. Rajendran
3. Sridhar
rep. by his registered power of
attorney Mr. J.C.D. Prabhakar .. Petitioners in WP 10471
N. Ramachandran .. Petitioner in WP 10472
Versus
1. The Special Commissioner and Commissioner
for Land Reforms
Chepauk, Chennai 600 005
2. The Assistant Commissioner for Urban Land
Tax cum Competent Authority for Urban
Land Ceiling .. Respondents in both the
Poonamallee, Chennai 600 056 Writ Petitions
WP No. 10471 of 2009:- Writ Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the Assistant Commissioner for Urban Land Tax cum Competent Authority for Urban Land Ceiling, Poonamallee, Chennai 600 056 and issued in S.R. 956/96/D, dated 10.04.1997 under Section 9 (5) of the Tamil Nadu Act, 24 of 1978 and the Final Settlement dated 30.09.1997 issued in Form III under Section 10 (1) of the said Act in SR 956/96/D and culminating in the issue of notice dated 11.09.1998 in Form VII under Section 11 (5) of the said Act, and quash the same and consequently forbearing the respondents their subordinates or any body acting or claiming through them from in any manner proceeding with or interfering with the peaceful possession and enjoyment of the lands by the petitioners herein and comprised inS.No.8/2A, in an extent of 2.13 acres (Hec.0.86.3 ares) and S.No.8/2B in an extent of 0.58 acres (Hect. 0.24.0 ares) and situated at Voyalanallur Village, Poonamallee Taluk, Tiruvallur District in an extent of 2.71 acres as per the proceedings initiated by the second respondent has abated in view of the Repealing Act 20/1999.
WP No. 10472 of 2009:- Writ Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the Assistant Commissioner for Urban Land Tax cum Competent Authority for Urban Land Ceiling, Poonamallee, Chennai 600 056 and issued in S.R. 947/96/D, dated 10.04.1997 under Section 9 (5) of the Tamil Nadu Act, 24 of 1978 and the Final Settlement dated 30.09.1997 issued in Form III under Section 10 (1) of the said Act in SR 947/96/D and culminating in the issue of notice dated 30.04.1999 in Form VII under Section 11 (5) of the said Act, and quash the same and consequently forbearing the respondents their subordinates or any body acting or claiming through them from in any manner proceeding with or interfering with the peaceful possession and enjoyment of the lands by the petitioners herein and comprised inS.No.2/3B, Voyalanallur Village, Poonamallee Taluk, Tiruvallur District in an total extent of 5400 square meter (in this subject matter of acquisition if 4900 square meter) as the proceedings initiated by the second respondent has abated in view of the Repealing Act 20 of 1999.
For Petitioner : Mr. R. Muthukumarasamy, Senior Counsel
for Mr. N. Damodaran
in both the writ petitions
For Respondents : Mr. V. Arun
Additional Government Pleader
assisted by Mr. R. Murali
Government Advocate
COMMON ORDER
By consent of counsel for both sides, both the writ petitions are taken up together and are disposed of by this common order.
2. In so far as WP No. 10471 of 2009 is concerned, the learned senior counsel appearing for the petitioners would contend that the property comprised in SF No.8/2A in an extent of 2.13 acres (Hect.0.86.3 ares) and 8/2B in an extent of 0.58 acres (Hec.0.24.0 ares) totally in an extent of 2.71 acres, Voyanallur Village, Poonamallee Taluk, Tiruvallur District originally belonged to one Devaraj. During his life time, the said Devaraj had executed a Registered Will dated 03.03.1997 registered as document No. 24 of 1997 on the file of the Sub-Registrar, Avadi in favour of his four sons namely D. Jayabalan, D.Panchanathan, D. Aruldoss and D.Karunanidhi. The said Devaraj thereafter died on 06.06.1997. As per the Will dated 03.03.1997, his four sons inherited the said property and one of the sons namely D. Karunanidhi died leaving behind him his wife Annammal and two sons K. Hari and K. Alexander. While so, the legal heirs of the deceased Karunanidhi namely Jayabalan and others have executed a sale deed dated 23.06.1995, registered as document No. 1394 of 1995 on the file of the Sub-Registrar, Poonamallee, conveying the said property in favour of the petitioners herein and from then on, the petitioners have been in possession of the said property and prior to that, their predecessors were in possession of the said property.
3. According to the learned senior counsel for the petitioners, when the petitioners attempted to change the patta in their favour, they were informed by the Village Administrative Officer that the property was subjected to Land Ceiling Proceedings and they were acquired under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as Act). Immediately, the petitioners have contacted their vendors and they have categorically stated that they have not received any notice from the authorities regarding invocation of the Ceiling Proceedings at any point of time. According to the vendors, they have been in possession of the property during the life time of his father Devaraj and even his father did not receive any notice from the respondents. Therefore, the petitioners applied for copies of the orders passed under Sections 9 (5), 10 (1) and 11 (5) of the Act. According to the learned senior counsel for the petitioners, the copies of the orders obtained by the petitioners revealed that even the notice under Section 7 (2) of the Act, though addressed to Late. Devaraj, was not served on him and it was only served by means of affixture in the subject matter of the land on 01.03.1996 in the presence of the Village Assistant. As there was no objection from the land owners, a notice under Section 9 (1) and 9 (4) of the Act seems to have been sent to the owner of the land namely Devaraj and an endorsement was made as if the said notice was refused. Thereafter, the final order was passed by the second respondent under Section 9 (5) of the Act. Further, the final statement under Section 10 (1) of the Act was issued on 30.09.1997 and in the column "name of the person" it was stated as V. Devarajulu. The said notice was followed by Form VII notice under sub-section 5 of Section 11 and the said notice was issued to V. Devaraju, Voyanallur, Opposite to Gandhi Nagar Bus Stop, Pattabiram, Chennai. By the said notice, the owner was informed that the excess land, as mentioned in the schedule therein, was vested with the Government under Sub-Section 3 of Section 11 of the Act with effect from 15.08.1998 and the owner was directed to deliver vacant possession of the said excess land to the Tahsildar, Poonamallee. It was also inferred that symbolic possession of the property was taken by the respondents on 03.05.1999. The notices under Section 7 (2), 9 (1) and 11 (5) of the Act were addressed to the said Devaraj even as per the records of the Government, but as per the death certificate, Devaraj died on 06.06.1997 and none of the legal representatives were served any notice and therefore, the notice sent to a dead person is invalid. The respondents could not have taken possession of the lands from a dead person and the possession continued with the vendors and thereafter with the petitioners, who have purchased the lands for a valid sale consideration. Therefore, according to the learned senior counsel for the petitioners, the petitioners have purchased the property for a valuable sale consideration and they are in possession and that the symbolic possession said to have been taken by the respondents will not enure to their benefit. According to the learned Senior Counsel for the petitioners, by advent of the Act being repealed, as the possession was never taken from the petitioners or their predecessors in title at any point of time by the respondents, the petitioners are entitled to the benefits of the Repealing Act. The learned senior counsel would further contend that even as per the copies of documents supplied to the petitioners, no notice was ever served on any one of the persons in possession of the lands. There is a clear violation of Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 which is a mandatory requirement and such notice must have been sent to the owner of the property by registered post with acknowledgment due and only if the notice could not be served for any reason by registered post with acknowledgment due, then the other modes of service of notice could be followed. Therefore, according to the learned senior counsel for the petitioners, the entire proceedings stood abated and he prayed for allowing the writ petition.
4. As regards WP No. 10472 of 2009 is concerned, the learned senior counsel for the petitioner would contend that the property in SF No.2/3B, in No.14 Voyanallur Village, Poonamallee Taluk, Tiruvallur District to an extent of 1.33 acres or 0.54.0 Hectares originally belonged to Alamelu Ammal, who executed a registered Will dated 06.03.1993 registered as document No.4 of 1963 on the file of the Sub-Registrar, Poonamallee in favour of V. Balakrishnan and others. After the death of Alamelu Ammal, as per the terms of the Will, V. Balakrishnan, his daughter Vasanthi and his son B. Ramesh succeeded to the property. Thereafter, the said V. Balakrishnan and two others executed a registered sale deed dated 24.04.1995 registered as document No.463 of 1995 on the file of the Sub-Registrar, Poonamallee in favour of one Bharani Ammal and from that date, Bharani Ammal was in possession and enjoyment of the property. Subsequently, Bharani Ammal sold the property in favour of the petitioner herein by means of a registered sale deed dated 02.07.2008 registered as document No. 1435 of 2008 on the file of the Sub-Registrar, Poonamallee. According to the learned senior counsel for the petitioner, the predecessors in title and the petitioner were in continuous, open, absolute and uninterrupted possession of the subject matter of the property without any interference from anybody. While so, when the petitioner applied for change of patta in his name, he was informed about the Land Ceiling proceedings initiated against the subject matter of land. Therefore, the petitioner applied for copies of the orders passed under 9 (5), 10 (1) and 11 (5) of the Act on 20.10.2008. From a perusal of the orders obtained, particularly the proceedings issued under Section 9 (5) of the Act, it was seen that a notice dated 14.02.1996 under Section 7 (2) of the Act was issued calling for particulars regarding the extent of the land under Section 7 (1) of the Act and that notice was allegedly sent to K. Balakrishnan. It was also evident that since the whereabouts of the said K. Balakrishnan is not known, the notice was affixed in the subject matter of the land. As there was no objection from the land owner, an order was passed and final statement under Section 10 (1) of the Act was issued on 30.09.1997 and in the column "name of the person", it was stated as "M/s. Muralikrishna Brick Works/K. Balakrishnan". The said notice was followed by issuing Form VII notice under Section 11 (5) of the Act and it was also issued to "M/s. Muralikrishna Brick Works/K. Balakrishnan". According to the learned senior counsel for the petitioner, the notice itself was wrongly issued to a non-owner namely K. Balakrishnan and therefore the notice is invalid. The real owner of the property is V. Balakrishnan and not K. Balakrishnan. Even otherwise, the property was already sold on 24.04.1975 and therefore, the notice was not addressed to a proper person. Further, the notice was not served and it was only affixed in the land and it was not in compliance with the mandatory Rule 8 of Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978. The possession alleged to have been taken from the petitioner or his vendors is only a sympolic possession and the actual possession was not taken. From 20.04.1995, Bharani Ammal, the vendor of the petitioner, was in possession and enjoyment of the property and she sold the property to the petitioner on 02.07.2008 by means of a registered document, but Bharani Ammal was not served any notice. Even the notice under Section 11 (5) of the Act was issued in the name of Muralikrishna Brick Works and the alleged taking possession of the land from the said person has nothing to do with the subject matter of the property which is in possession of the petitioner. At any point of time, possession of the property was not taken from the petitioner or his predecessors in title and therefore, the entire proceedings are abated and he prayed for allowing this writ petition.
5. The learned Additional Government Pleader, relying on the counter affidavit filed in WP No. 10471 of 2009 would contend that the land in Survey No.8/2A and 8/2B measuring totally 11050 square meters of Voyanallur Village stood registered in the name of V. Devaraj as per patta No.304 on the date of commencement of the Act. The notice under Section 7 (2) of the Act was issued on 14.02.1996 and the notice was served by way of affixture on 01.03.1996 as the whereabouts of the owner of the land was not known. Since no reply was received from the land owner, the notice under Section 9 (4) and the draft statement under Section 9 (1) of the Act were issued on 11.06.1996 calling upon the land owner to submit his objections, if any. These notices were also served by affixture on 01.08.1996 as the land owner refused to receive it. Subsequently, the lands were inspected by the Deputy Tahsildar on 11.12.1996 and the order under Section 9 (5) of the Act was issued by the second respondent on 10.04.1997. The said order was received by one T.Madhavan, son of Devaraj on 30.05.1997, but he did not inform the fact of sale of the lands. According to the learned Additional Government Pleader, the final statement under Section 10 (1) of the Act was issued on 30.09.1997 and the notice under Section 11 (1) of the Act was issued on 27.02.1998 and it was also published in the Government Gazzette on 29.04.1998. Thereafter, the notice under Section 11 (3) was issued on 29.05.1998 and it was also published in the gazzette on 05.09.1998. As there was no response from the alleged buyers, the notice under Section 11 (3) of the Act was issued on 11.09.1998 and this notice was also served by affixture as it was refused by the land owner. Thereafter, possession of the lands were taken by the authorities concerned and handed over to the Revenue Inspector of Tiruvallur on 03.05.1999. Later on, necessary changes were made in the records and only on 20.10.2008, the petitioners obtained certified copies of the above proceedings and filed the present writ petition. The subsequent purchaser has not stated the reason for transferring the patta and even though the land was purchased from the previous owner in the year 2003, till 2008, they have not taken any steps to transfer the patta in his favour at the earliest point of time. According to the learned Additional Government Pleader, the department was never informed about the death of Devaraj, the original owner and he has not filed any statement under Section 7 (1) of the Act nor the alleged Will executed by him in favour of his sons was made known to the department. According to the learned Additional Government Pleader, the alleged sale transaction in the year 2003 or 2008 will not bind the department in any manner as symbolic possession was already taken by the department. Therefore, according to the learned Additional Government Pleader, any sale made by any person during the pendency of the proceedings under the Urban Land Ceiling are invalid. As per G.O. Ms. No.565, Revenue Department dated 26.09.2008, the petitioners can, at best, apply to the government and get their purchase regularised. Even though the notice under Section 7 (2) of the Act was addressed in the name of Devaraj and served by affixture, the subsequent notices were served on them but no action was taken and therefore, questioning the proceedings initiated by the respondents in this writ petition is not maintainable. The affixture mode was resorted to because the whereabouts of the land owner was not known and thereafter, after ascertaining the address of the land owner, the other notices were sent to the land owners by Registered Post with acknowledgment due, but the same were refused by him. Regarding the plea of taking possession from the dead person, the learned Additional Government Pleader would contend that they were not informed about the death of the Devaraj. Further, action was taken in the name of Devaraju in whose name the land was registered in the revenue records on the date of commencement of the Act. Therefore, the subsequent purchase made by the petitioner or his predecessors in title are null and void as it were made after the year 2005 much after taking symbolic possession of the property. Under those circumstances, he prayed for dismissal of WP No. 10471 of 2009.
6. The learned Additional Government Pleader would contend, placing reliance on the counter filed in WP No. 10472 of 2009, that the notice under Section 9 (4) and 9 (1) of the Act calling for objections from the land owner, were served on the land owner on 03.08.1996, but he did not choose to file his objections to the proposed acquisition. Therefore, the department proceeded with the determination of the land as required under Section 9 (5) of the Act. It is further stated that the final statement under Section 10 (1) and notice under Section 11 (5) of the Act were served by affixture since the land owner refused to receive it. The possession was taken over by the authorites concerned and handed over to the Firka Revenue Inspector on 14.06.1999. According to the learned Additional Government Pleader, the name of Balakrishnan was available in the revenue record and he received the notice under Section 9 (1) of the Act, but he did not file any objection. As per Section 6 of the Act, any transaction made after the commencement of the Act is invalid and therefore, the Department had taken symbolic possession. Similarly, the purchase made by Barani Ammal on 24.05.1995 cannot be taken into consideration as the details regarding the same were not furnished to the department. Therefore, the notice issued in the name of Balakrishnan was correct. The notice under Section 10 (1) was issued in the name of Muralakrishnan Brick Works (K. Balakrishnan) and notice under Section 11 (5) was issued to M/s. Muralikrishna Brick Works since the land was under the possession of M/s. Murali Krishna Brick Works and therefore, the order under Section 9 (5) and notices under Sections 10 (1) and 11 (5) were issued in the name of "K. Balakrishnan/Murali Krishna Brick Works". According to the learned Additional Government Pleader in the notice issued under Section 7 (2) of the Act the name was wrongly mentioned as K. Balakrishnan instead of V. Balakrishnan as the land owner namely Bhavani Ammal or her predecessors have failed to file the statement under Section 7 (1) of the Act. Though K. Balakrishnan was the owner of the property, the name of M/s. Murali Krishna Brick Works was included since they were also in possession of portion of the property. As far as violation of Rule 8 of Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, the learned Additional Government Pleader would contend that the notice under Section 7 (2) of the Act was sent, however, as the address of the urban land owner was not known, it was served by affixture. However, the subsequent notices under Section 9 (1) and 9 (4) of the Act were sent to the land owner by registered post with acknowledgment due after ascertaining his address. Again, the notices under Section 10 (1) and 11 (5) of the Act were served by affixture as it was refused. In any event, as contemplated under Section 11 (6) of the Act, symbolic possession was taken by the department and automatically, as per the provisions of the Act, the land vested with the Government and the petitioner has no right to file this writ petition.
7. Heard both sides and perused the materials on record. The learned senior counsel for the petitioners would mainly contend that the department had not issued any notice to the actual owners as contemplated under the Act and in the absence of the same, the entire proceedings are vitiated. The learned senior counsel for the petitioners would further contend that the mandatory Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 was violated by the department and therefore both the writ petitions have to be allowed.
8. In the first case, namely WP No. 10471 of 2008, it is clear that Devaraj was the owner of the property, but at no point of time, even as per the admission of the respondents in the counter and as per the various documents produced along with the typed set of papers, it is clear that notice was not served on him. It is seen from the records that as per the proceedings dated 10.04.1997 of the second respondent, the order under Section 9 (5) of the Act was passed symbolically taking possession of the property. In that order, it was stated that the notice under Section 7 (2) was not served on the original owner since his whereabouts were not known and therefore, on 01.03.1996, the notice was served by affixture by putting a stick in the land. According to the second respondent, there was no objection received from the land owner pursuant to the notice served by way of affixture and therefore, the notices under Sections 9 (1) and 9 (4) of the Act were issued. Here again, these notices were alleged to have been refused by the owner and therefore, they were served by means of affixture by putting a stick in the land. Even for this notice the land owner did not respond, therefore, the order under Section 9 (5) of the Act was passed. Even this order was not served or sent by Registered post with acknowledgment, but only served by means of affixture.
9. The original documents were produced and verified by this Court in the open Court. No where, it is mentioned that at that the department had made any attempt to send the notices under Section 7 (2), 9 (1), 9 (3) and 9 (4) of the Act by Registered post with acknowledgment due and thereafter they have resorted to serve the notice by affixture. Similarly, if we take into account the mode of service of the notice under Section 11 (5) in Form III, it was addressed to one Devaraj of Voyanallur, Opposite to Gandhi Nagar Bus Stop, Pattabiram, Chennai calling upon him to surrender the land in his possession. This notice was also not sent by registered post. The original files produced does not disclose any record or proof to show that this notice was sent by registered post or it was refused and thereafter it was served by affixture. As far as possession is concerned, the only entry made was that the possession was taken and handed over. Even as per the counter, possession was taken by the competent authority and it is nothing but a symbolic possession. Even though there is a column in the possession taking form, the signature of the land owner is not found there. In any event, notwithstanding the above defects or non-compliance of procedures contemplated under the Act, the respondents have failed to comply with Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, which is one of the mandatory requirements to be complied with by the respondents before taking possession. Rule 8 of the Rules reads as follows:-
"8. Particulars to be contained in draft statement as regards vacant lands 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 as 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 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 the clause are not successful for reasons other than the reason referred 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 some 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 as business or personally worked for gain.
(3) the notice under sub-section (4) of Section 9 shall be in form IV"
10. As per Rule 8, it is incumbent on the part of the department to issue a notice to the land owner by registered post with acknowledgment due and when such notice was not received or where it was refused, the other modes have to be followed. Even in the counter, the respondents have admitted that all the notices were served only by affixture. Therefore, the possession said to have been taken over by the authorities concerned from the petitioners is invalid. Further, in this case, the land owner Devaraj died on 06.06.1997, but it was not proved that the notice was served on the land owner during his life time.
11. As per the Repealing Act, if the possession is not taken, all the prior proceedings shall stand abated. In this case, as mentioned above, there is no evidence to show that possession of the property was taken from the petitioners and the petitioners are in possession of the property. Even otherwise, the respondents have failed to comply with the mandatory provisions under Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 and therefore also, the entire proceedings initiated by the respondents are vitiated.
12. As far as the second case is concerned, in WP No. 10472 of 2009, when we analyse the records produced before this Court, from the proceedings under Section 9 (5) of the Act dated 10.04.1997, it is evident that the notices under Sections 7 (1)( and 7 (2) of the Act were served by affixture. Here again, it was alleged that the whereabouts of the land owner could not be ascertained and therefore, the notices were served by affixture on 01.03.1996. When we analyse the form III notice under Section 10 (1) of the Act, it is evident that the said notice was issued to M/s. Balakrishna Brick Works and to Balakrishna. Here again, it was not sent by Registered post with Acknowledgment due but served by way of affixture, even as per the counter affidavit. The notice under Section 10 (3) of the Act in Form VII was addressed to Yelagiri Muralikrishna Brick Works, Voyanallur without even the name of Balakrishna. Even this notice was not sent by registered post. Therefore it is evident that the notices were not properly sent by Registered Post and consequently, Rule 8 has been violated by the respondents in this case as well. It is also not explained by the respondents as to why the notices were issued in the name of Muralikrishna Brick Works and such notices were served by affixture. The original file produced before this Court also does not disclose the details regarding the same. Therefore, it is clear that there is violation of the procedures contemplated under the Act and consequently the symbolic possession alleged to have been taken by the respondents will not bind the petitioner. The department also has not stated the details as to how the possession was taken, by whom, when and to whom it was handed over.
13. In both the cases, there are serious lapses on the part of the respondents in complying with the mandatory provisions of the Act, especially Section 11 (5) and 9 (5) of the Act. In this background, if we analyse the legal position, the Division Bench of this Court, in the decision reported in (V. Somasundaram and others vs Secretary to Government, Revenue Department, Chennai and others) 2007 1 MLJ 750 held that the action taken against the erstwhile owners under Section 11 (5) of the Act and the proceedings issued against those persons who were not in possession of the property is non-est in the eye of law. Therefore, in view of the repealing of the Act, since the petitioners are in possession of the property, no further action could be taken. In Para Nos. 9 of this decision, it was held as follows:-
9. From the perusal of the file it is clear that the proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in question, in respect of transfer of his land to the appellants herein. Section 11 (5) notice was also issued to the third respondent, who was not the real owner. As per Section 11 (5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and deliver possession thereof, to the State Government or to any person duly authorised by the State Government, within thirty days' time. No notice having been issued against the appellants who are in possession of the lands as stated supra, taking possession of the lands on 30.04.1999 by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 with effect from 16.09.1999, it is not open to the authorities to proceed against the appellants at this stage to rectify the non-compliance of Section 11 (5) of the Act.
14. In the judgment rendered in WA No. 693 to 695 of 2003 dated 18.06.2007, the Division Bench of this Court considered similar question and held in para-8 and 9 as follows:-
"8. There is nothing on the record to suggest that the competent authority issued any notice in writing directing the original land holder or the appellants to surrender or deliver possession of the lands in question. Nothing has been produced to suggest that the original land holder or the appellants refused or failed to comply with such order and on failure the possession of the lands were taken by force. In absence of such notice under Section 11 (5) or actiont aken under Section 11 (6), a bald statement as made by the respondents that possession was taken on 10th Feb,1995, cannot be accepted. On the other hand, the appellants have produced documents, such as panchayat tax receipts, reassessment notice, tax acknowledgment and demand notice, pattas, chittas, house tax receipt, panchayat payment receipts, electricity bills/cards etc., to suggest that they are still in possession of the lands in question.
9. In the aforesaid circumstances, the respondents cannot take advantage of Section 3 of the Repealing Act 20 of 1999 and nor deny the advantage under Section 4 to the appellants. Such provisions being in favour of the appellants, we hold that the total proceeding shall stand abated."
15. Similarly, yet another division Bench of this Court in the decision reported in (Sree Jayalakshmi Brick Industries represented by its Proprietor, Rama Bhagavad Dasa Alias G. Ramamoorthy, Chennai vs. Special Commissioner and Secretary to Government and others) 2009 8 MLJ 522, held in para Nos. 12, 13 and 14 as follows:-
"12. In view of such categorical pronouncements of this Court, we are of the view that the notice under Section 11 (5) should be served on the petitioner. Though his purchase by a sale deed is made invalid by Section 6 of the Act, in view of the word "any person who may be in possession" used in Section 11 (5) of the Act, notice ought to have been served on the petitioner to surrender or deliver possession to the Government.
13, Further, the learned counsel for the petitioner argued from the records produced that even the vendor of the land was also not served with the notice under Section 11 (5) of the Act read with Rule 10 (3). According to him, the notice under Section 11 (5) should be sent by RPAD. In this case, admittedly, the records do not indicate that notice was sent through RPAD to the erstwhile owner. The learned counsel also pointed out that there was no endorsement from the erstwhile owner for the receipt of the notice. On the other hand, the records reveal that an endorsement was made by the official at page No.937 of the record file that notice was served on the erstwhile owners. According to the learned counsel for the petitioner, this does not amount to service of notice under Section 11 (5) of the Act. The learned counsel for the petitioner strenuously contended that if such a method is approved, then the officials would cook up the records by simply making an endorsement in the notice without getting endorsement from the concerned persons for proof of service or by sending through RPAD. We find force in the submission of the petitioner.
14. We therefore, hold that there was no notice served under Section 11 (5) of the Act either on the petitioner or on the erstwhile owner viz., the Vendor of the land.
16. In similar circumstances, a learned single of this Court rendered a decision which was reported in (S. Nasira Anjum and others vs. State of Tamil Nadu, rep. by its Secretary to Government, Revenue Department, Fort St. George, Chennai 9 and others) (2009) 6 MLJ 1102. In that judgment it was held that the transfer charge certificate is only an exchange of letter between the officials to the effect that symbolic possession of the land in dispute was taken, other than this, there is nothing on record to show that any compensation has been paid for having acquired the lands in question. It was therefore held that the possession which was allegedly taken by the respondents is incorrect. In para Nos. 10, 11, 12 and 13, it was held as follows:-
"10. It is not the case of the respondents that the petitioners or Late. M. Ahmed Basha had surrendered the possession. Under similar circumstances, in series of orders passed by this Court, while dealing with the effect of provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1978, it was held that all proceedings under the Act, 1978 would stand abated on the advent of Repeal Act, 1999, if possession has not been taken by the authorities prior to the Repeal Act and due compensation has not been paid.....
11. Even under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 when excess lands are acquired, it was held that unless the procedures under Sections 7 to 12 are followed, it cannot be presumed that possession of lands have been taken and even if possession has been taken without following the procedures, the proceedings would stand abated. That was the view in Vijay Foundation (p) Ltd., by its Director R. Thiagarajan vs. Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai (surpa).
12. The Supreme Court in similar circumstances in Angroori Devi smt. Vs. State of U.P. And others JT 2000 Supp.1 SC 295 held that when it is proved that possession under the principal Act was not taken in accordance with law, the subsequent repealing Act would abate all proceedings under the old Act. I have held in S. Sivaparamam vs. State of Tamil Nadu rep. by its Secretary, Revenue Department, Chennai (2007) 6 MLJ 1279 that in the absence of anything on record to show that physical possession of lands has been taken over by the Government, it is not possible to hold that the vesting has taken place even before the repeal Act coming into effect. That is also the view taken subsequently in V. Gurunathan vs. Assistant Commissioner of Urban Land Tax and Ceiling, Tambaram Area, Sannadhi Street, Adambakkam, Chennai 88 and others (supra) and T. Audikesavan andothers vs. Government of Tamil Nadu, rep. by its Secretary, Revenue Department, Chennai and others (2008) 3 MLJ 252.
13. Applying the said established judicial precedents to the facts of the present case which have been narrated above, on reference to the original file produced by the learned Additional Government Pleader, which shows that there is nothing on record that respondents 1 to 3 have taken physical possession of the property in dispute from its owners viz., the petitioners or late.M. Ahmed Basha. Further, pending writ petition, injunction was granted and the same continues till date. In such circumstances, it has to be held that there is no vesting of alleged surplus land in favour of the Government under the Tamil Nadu Urban Land (Ceiling and Regulation) Act,1978 and therefore, there is no question of continuance of vesting under Section 11 (3) of the Act, even after the Repeal Act, 1999, came into existence. In such circumstances, the writ petition stands allowed."
17. In (A.Kaliammal and others vs. The Tahsildar, Salem and another) 2010 Writ Law Reporter 147, a learned single of this Court had an occasion to deal with the possession certificate and the effect of Form VII under Rule 10 (3) and held that the service of notice in writing on the person in possession of the land is a mandatory requirement and the notice sent to a dead person is a nullity. It was further held that the word "any possession" under Sub-Section 5 of Section 11 of the Act are of wide import and includes a bonafide transfer of the property and it cannot be restricted only to the holder of excess land. Further, when the records does not disclose compliance of mandatory requirements such as Section 11 (5) of the Act to take actual possession, the writ petition is maintainable. In that decision, the learned single Judge followed the decision of the Honourable Supreme Court reported in (State of Jharkhand vs. Ambay Cements) (2005) (1) CTC 223 (SC) to hold that wherever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. In Para Nos. 42, 43, 44 and 45 of the judgment of the learned single Judge, it was held as follows:-
"42. The words "any person" used in Sub-section 5 of Section 11 of the Act are of wide impact 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, notwithstanding 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 usage of minimum 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, 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.
44. As pointed out in the foregoing paragraphs, the object of the enactment as spelt out in the preamble and various provisions of the statute, in unambiguous terms are intended, to declare the excess vacant land in possession of the land owner and if there are constructions on the lands, they should be removed before taking possession by the competent authority.
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.,
18. Similarly, in the decision reported in (R. Krishnan vs. The Competent Authority (ULC) and the Assistant Commissioner (ULT) Kunrathur) 2010 Writ Law Reporter 890, the learned single Judge of this Court, in a case where notice was served in the name of C.K. and not R.K., the actual owner, held that the statutory procedure has not been followed by the respondents. In Para No.12, it was held as follows:-
"12. Under the circumstances, this Court do not find that the statutory procedure has been followed in taking over the land from the land owner viz., the petitioner. With reference to the law relating to service of notice, this Court in Vasudeva Pillai (Died) and others vs. The Competent Authority and another reported in 2010 (3) TNLJ 337 (Civil) dealt with the procedure. With reference to service of notice under Section 11 (5) and taking possession, this Court has considered the relevant law on the subject and the effect of not taking possession after the TN Act 20/1999 was also considered in the case of G. Saraswathi and others vs. The Assistant Commissioner cum Competent Authority (ULC) and others reported in 2010 (3) TNLJ 283 (Civil). In the absence of material records produced to the satisfaction of the Court, this Court has no hesitation to reject the contentions raised by the learned Special Government Pleader."
19. In the recent decision rendered by a Division Bench of this Court on 22.02.2011 in W.A. No. 495 and 496 of 2010, in which I was also one of the parties, we have categorically held that the respondents have violated Rule 8 and therefore the entire proceedings are vitiated. In para-7, we have held as follows:-
"7. In order to find out as to whether the notice as required under Section 11 (5) of the Act read with Rule 8 of the Rules was served on the respondents or not, we called for the records and perused. Admittedly, there is no such notice sent through registered post, except the competent authority affixing the said notice on the vacant site, which should be only a last resort after making an attempt to send the notice by registered post and inspite of the same, they could not be served with the notice. In that view of the matter, even assuming that the possession is said to have been taken as contended by the learned Special Government Pleader, such taking over of possession cannot be considered to be valid in the eye of law so long as the provisions of Section 11 (5) of the Act read with Rule 8 of the Rules was not complied with. On this ground alone, the contention of the respondents that in the event of physical possession not being taken in the prescribed manner, the provisions of the Repealing Act would come to the benefit of the respondents must be accepted."
20. In both the cases, it is clearly made out that the notices under the Act were not duly served on the land owners in accordance with law, the procedure contemplated under Rule 8 of the Rules were not followed and the possession of the lands were not taken by the respondents from the petitioners. Therefore, the prayer in the writ petitions are maintainable and both the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
rsh To
1. The Special Commissioner and Commissioner for Land Reforms Chepauk, Chennai 600 005
2. The Assistant Commissioner for Urban Land Tax cum Competent Authority for Urban Land Ceiling Poonamallee, Chennai 600 056