Madras High Court
Tmt.M.Nailini vs State Of Tamilnadu Rep on 28 April, 2009
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28-04-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.7539 of 2004 Tmt.M.Nailini .. Petitioner. Versus 1.State of Tamilnadu rep. Secretary to Government, Revenue Department,' Fort St. George, Chennai-9. 2.The Principal Commissioner, Urban Land Ceiling and Commissioner for Land Reforms, Chepauk, Chennai-5. 3.The Competent authority, Urban Land Ceiling, Tambaram at Sannathi Street, Chennai-88. 4.Tamil Nadu Slum Clearance Board, rep. by its Chairman, Kamarajar Salai, Chennai-5. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the entier records culminating in issue of the impugned order in N.K.C.P.No.276/96 D dt.7.10.1997 obtained by the petitioner, on 13.2.2004 and quash the same, as illegal, without jurisdiction and consequently direct the respondents to hand over the land 1750 Sq.M comprised in S.No.12/3, Peerkankaranai Village to the petitioner. For Petitioner : Mr.V.Ramesh For Respondents : Mr.S.Sivashanmugam (R1 to R3) Government Advocate Mr.P.S.Raman (R4) Additional Advocate General for Mr.Y.Bhuvanesh Kumar O R D E R
Heard Mr.V.Ramesh, the learned counsel appearing for the petitioner, Mr.S.Sivashanmugam, the learned Government Advocate appearing for the respondents 1 to 3 and Mr.P.S.Raman, the learned Additional Advocate General, appearing on behalf of the fourth respondent.
2. This writ petition has been filed, praying for a writ of Certiorarified Mandamus, to call for the records relating to the impugned order, dated 7.10.1997, and to quash the same and to further direct the respondents to hand over the land, comprised in S.No.12/3, Peerkankaranai Village, having an extent of 1750 Sq.Mts, to the petitioner.
3. The petitioner has stated that the agricultural lands comprised in S.No.12/3, in Peerkankaranai Village, having an extent of 2250 Sq.Mts. had been acquired by the petitioner's late mother Savitri, through a settlement deed, executed by her father, in Document No.175 of 1958. The petitioner's mother had been cultivating the lands and had also been paying the agricultural taxes for the said land, in her name. The petitioner's mother had died, on 11.3.2004, leaving behind the petitioner, her four brothers and three sisters to succeed the estate, as successors of the property. It has been stated that on the date of the proceedings initiated by the third respondent there were 10 members in the family, including, Savithri, the mother of the petitioner.
4. It has been further stated that in spite of the fact that the agricultural lands belonging to the petitioner and the other members of her family were exempted from the purview of the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, the third respondent had invited a statement, under Section 7(1) of the said Act. The petitioner's mother, Savitri, had furnished a statement to the third respondent, on 24.10.1978, and the same had been acknowledged by the third respondent. Thereafter, by a letter, dated 9.8.1991, the third respondent had called for the payment of Urban Land Tax, pursuant to which the petitioner's mother had agreed to pay the Urban Land Tax.
5. Again, a letter, dated 17.10.1996, had been sent by the third respondent, without proper verification of the records. Even though the address at Peerkankaranai had been mentioned, it was served on the petitioner's mother at her residential address at No.182, North Usman road, Chennai. On the furnishing of a copy of the statement, under Section 7(1) of the Act, to the third respondent, it had been informed that the case was closed in K.Dis, dated 27.2.1982. Thereafter, when it was found, in the month of February, 2004, that some of the officials of the fourth respondent Board were attempting to carry on developmental works in the petitioner's land, enquiries had been made and it was found that certain land acquisition proceedings had been initiated in respect of the said land belonging to the petitioner and his family members.
6. It was learnt that the third respondent, without sending any notice to the address of the petitioner's mother furnished in the statement, under Section 7(1) of the Act, had affixed the notice by using a stick in a vacant land. Thereafter, the formalities, for acquiring the said land had been completed by the third respondent. Even though the petitioner's mother had applied for the certified copy of the impugned order, dated 7.10.1997, it had been furnished to her only, on 13.2.2004. Immediately, on receipt of the impugned order, the petitioner's mother had preferred an appeal, provided under the Act, before the second respondent. After filing the appeal the fourth respondent had started developmental works in the land and therefore, another petition had been moved before the second respondent, on 8.3.2004, for staying all further proceedings of the developmental activities. However, the second respondent had refused to grant an order staying the proceedings. While so, the petitioner's mother had died, on 11.3.2004.
7. In the counter affidavit filed on behalf of the respondents the allegations contained in the affidavit of the petitioner, filed in support of the writ petition, had been denied. It had been submitted that Savithiri Ammal had owned the land in S.No.12/3, measuring 2250 Sq.Mts., in Peerkankaranai Village, Tambaram Taluk. A notice, under Section 7(2) of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, had been issued, in SR.No.276/96, dated 17.10.1996 and it had been served, on 3.11.1996. The draft statement, under Section 9(1) and the notice, under Section 9(4) of the said Act, had been issued, on 1.9.1997. As the Urban Land owner had refused to receive the notice, it had been served by affixture, in the presence of the Village Administrative Officer of Peerkankaranai Village. The said land owner had not filed any objection to the draft statement. It was found that there was no cultivation in the land sought to be acquired by the respondents and therefore, it was treated as urban land and an order, under Section 9(5) of the Act, had been passed, vide proceedings in S.R.No.276/96(D), dated 7.10.1997, declaring that an extent of 1750 Sq.Mts. was the excess vacant land, after allowing 500 Sq.Mts., towards entitlement.
8. As the Urban Land owner's address was not known, the order, under Section 9(5) of the Act, had been served by affixture in the presence of the Village Administrative Officer. The final statement, under Section 10(1) of the Act, had been issued, on 28.4.1998 and it had been served by affixture. The notification, under Section 11(1) of the Act had been published in the Tamil Nadu Government Gazette, dated 12.8.1998. The notification, under Section 11(3) of the Act, had also been published in the Tamil Nadu Government Gazette, dated 11.11.1998. The notice, under Section 11(5) of the said Act, had been issued, on 17.12.1998 and the possession of the excess vacant land, in S.No.12/3B, measuring 1750 Sq.Mts., had been taken, on 24.5.1999 and had been handed over to the Revenue Department. The land was allotted to the Tamil Nadu Slum Clearance Board, vide G.O.Ms.No.391, Revenue ULC1(2) Department, dated 17.9.2003.
9. One M.Nalini had filed a writ petition before this Court, in W.P.No.7539 of 2004, questioning the acquisition proceedings of the alleged excess vacant land. This Court had dismissed the writ petition miscellaneous petitions in W.P.M.P.Nos.8927 and 8928 of 2004, since possession of the land had been taken prior to the the passing of the Tamilnadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. The petitioner had also filed writ appeals in W.A.Nos.1762 and 1763 of 2004, challenging the order dismissing the writ petition miscellaneous petitions. The writ appeals had been disposed of restraining the respondents from putting up constructions and from altering the nature of the property, in any manner, pending disposal of the writ petition.
10. It has also been submitted that the excess vacant land, which had been acquired, had been allotted to the Tamil Nadu Slum Clearance Board, the fourth respondent herein, vide G.O.Ms.No.391, Revenue ULC1(2) Department, dated 17.9.2003. With regard to the claim of the petitioner that the lands in question was agricultural in character cannot be sustained in view of the fact that no documentary evidence had been placed before the authorities concerned, to prove such a claim.
11. It has also been stated that the notice, under Section 7(2) had been issued, on 17.10.1996 and it was served, on 3.11.1996. Since the urban land owner did not file any objection to such notice, action, under Sections 9 to 11 of the Act, had been taken. The urban land owner had refused to receive the notice, under Section 9(4), along with the statement, under Section 9(1) of the Act. Therefore, the notice had been served by affixture and further proceedings had been continued, in accordance with the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978. Since the urban land owner had failed to avail the opportunity offered by the land acquisition authorities, orders, under Section 9(5) of the Act, had been passed. Further, since the urban land owner had not furnished the details of his family members, only an extent of 500 Sq.Mts had been allowed, as entitlement, as per the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978. Since the acquired land had been handed over to the Revenue authorities and as it had been allotted to the Tamil Nadu Slum Clearance Board, the possession of the land cannot be restored to the petitioner. In such circumstances, the writ petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed.
12. The learned counsel appearing on behalf of the petitioner had submitted that the impugned order of the third respondent is patently illegal and therefore, it is unsustainable in the eye of law. The third respondent, having accepted the statement, under Section 7(1) of the Act and having acknowledged the same, on 24.10.1978, had not issued the notice to the proper address, before passing the order.
13. The notice had been affixed by using a stick in the vacant land, as if the notice had been refused by the petitioner's mother. Such service of notice is not contemplated, under Rule-8 of Tamilnadu Urban Land (Ceiling and Regulation) Rules, 1978. Hence, it is clear that proper service of notice had not taken place. The impugned order had been passed in gross violation of the principles of natural justice and the procedures contemplated under the Act. Further, the relevant rules applicable to the acquisition proceedings have not been followed in the service of notice on the petitioner's mother, who was the owner of the land at the relevant point of time.
14. As per the statement filed by the petitioner's mother, the third respondent ought to have dropped the land acquisition proceedings, as the land in question is of an extent of 2250 Sq.Mts. and therefore, exempted by the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, as the family of the petitioner consists of 11 members. When the impugned proceedings are void abinitio, the consequent transfer of the land to the fourth respondent cannot be sustained in the eye of law. The petitioner's mother had paid the tax for the agricultural land, till the year 2001. She had also been carrying on agricultural operations in the land in question, whenever water was available for the agricultural activities. Since the respondents had not followed the procedures contemplated, under Section 9(5) and 10 of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, all further proceedings thereafter, are vitiated and therefore, the proceedings are liable to be quashed. The kist for the land in question had been paid by the petitioner even after the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, had been repealed in the year 1999. In fact, the petitioner had not been aware of the acquisition proceedings and no prior notice had been served, either on the mother of the petitioner or on the petitioner and her family members.
15. The counter affidavit filed on behalf of the respondents does not state the actual date of service of the Section 11(5) notice. Even though it has been stated that possession of the land in question had been taken, on 24.5.1999, it has not been made clear as to how it had been actually taken by the respondents. In such circumstances, the impugned proceedings of the third respondent, dated 7.10.1997, is arbitrary, illegal and void.
16. The learned counsel appearing on behalf of the petitioner had placed before this Court an order of the Supreme Court, dated 10.12.2004, in S.L.P.Nos.11247 to 11248 of 2004, wherein, it had been stated that the Tamil Nadu Slum Clearance Board, the fourth respondent herein, would be at liberty to proceed with the construction in the disputed land, but they shall not claim any equity on that ground.
17. The learned counsel appearing on behalf of the respondents 1 to 3 had submitted that the petitioner has no locus standi to file the present writ petition, as she has not been in a position to show that she is the legal heir of Savitri, the urban land owner, against whom the land acquisition proceedings had been initiated. Further, the land acquisition proceedings had been initiated against the urban land owner only in accordance with the procedures contemplated by the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, and in accordance with the Rules framed thereunder.
18. As stated in the counter affidavit filed on behalf of the respondents, the relevant notices had been issued in the name of Savitri. Since she had not filed any objection the proceedings had been completed, in accordance with law. Further, after the possession of the land had been taken over from the urban land owner, the land was handed over to the fourth respondent, on 24.5.1999. Thereafter, the fourth respondent had built residential blocks and the allotments have also been made to the deserving persons. In such circumstances, the writ petition deserves to be dismissed.
19. Mr.P.S.Raman, the learned Additional Advocate General, appearing on behalf of the fourth respondent had submitted that Section 7(2) notice had been served on Savitri, said to be the petitioner's mother. After having followed the procedures contemplated under the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, and the Rules framed thereunder, the possession of the land in question had been taken, on 24.5.1999, even before the Tamilnadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, had come into force, with effect from 16.6.1999. Even if the land acquisition proceedings are held to be wrong on the basis that the procedures contemplated under the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, have not been properly followed, the land in question, having been acquired and handed over to the fourth respondent, it cannot be restored to its original owner, as claimed by the petitioner. Further, five blocks of residential accommodation have been built and 198 families have been given the allotment with a total expenditure of 2.26 crores. Therefore, the larger public interest is to be kept in mind, while deciding the issues involved in the present case.
20. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available before this Court, it is clear that the necessary procedures contemplated under the provisions of the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, had not been properly followed during the acquisition proceedings pertaining to the land in question.
21. From the records available, it is found that the necessary notices had not been sent to Savitri, the erstwhile owner of the urban land, in accordance with Rule-8 of the Tamilnadu Urban Land (Ceiling and Regulation) Rules, 1978. There is nothing on record to show that the authorities concerned had followed the proper procedures contemplated under law to assess the nature and character of the land in question before initiating the procedure for acquiring the land. Even though it has been claimed by the petitioner that the land in question was agricultural in character, it has not been clearly shown as to how it was treated as urban land, in spite of the petitioner paying the agricultural tax, even for the years subsequent to the passing of the Tamilnadu Urban Land (Ceiling and Regulation) Repeal Act, 1999. Further, there is no explanation with regard to the total extent of the land entitled to be held by the members of the petitioner's family, said to be consisting of a number of members. In case the exemption had been granted, as claimed by the petitioner, based on the entitlement allowed, taking into consideration the number of family members, the question of excess vacant land could not have arisen as the total extent of the land in question was only 2250 Sq.Mts.
22. In the counter affidavit filed on behalf of the respondents it has been stated that since the address of the urban land owner was not known, the order, under Section 9(5) of the Act, had been served by affixture and the final statement, under Section 10(1) of the Act, had also been served by affixture. Such a contention cannot be countenanced in view of the fact that the address of the petitioner's mother had been available in the records of the respondents. Further, serving of notice by using a peg or a stick placed in the vacant land cannot be taken as a proper mode of service, since such a procedure has not been contemplated, under Rule-8 of the Tamilnadu Urban Land (Ceiling and Regulation) Rules, 1978. Therefore, in view of the failure of the respondents in following the proper procedures established by the Tamilnadu Urban Land (Ceiling and Regulation) Act, 1978, and the Rules framed thereunder, in acquiring the land in question, the entire acquisition proceedings would stand vitiated.
23. Further, the learned counsel appearing on behalf of the respondents 1 to 3 has not been in a position to show as to how and when the actual physical possession of the land, said to have been acquired by the respondents, had been taken. While so, the claim of the respondents 1 to 3 that the land was allotted to the Tamil Nadu Slum Clearance Board, the fourth respondent herein, vide G.O.Ms.No.391 Revenue ULC1(2) Department, dated 17.9.2003, cannot be held to be valid. Therefore, the impugned proceedings of the third respondent, dated 7.10.1997, is set aside, as it is unsustainable in the eye of law.
24. However, in view of the order of the Supreme Court, dated 10.12.2004, in S.L.P.Nos.11247 to 11248 of 2004, stating that the fourth respondent cannot claim any right on the basis of equity for having put up the constructions in the land in dispute and in view of the fact that the larger public interest has to be kept in mind, it would be in the interest of justice for this Court to direct the Government of Tamilnadu, represented by its Secretary to Government, Revenue Department, the first respondent herein and the Tamil Nadu Slum Clearance Board, the fourth respondent herein, to arrive at a settlement with the petitioner and her other family members concerned, to fix the amount of compensation that may be payable to them, in the event of the State Government deciding against the handing over of the possession of the land to the petitioner. The compensation amount that may be payable to the petitioner and her other family members may be fixed taking into consideration all the relevant factors, including the value of the land, as it existed at the time of its acquisition, as well as its present market value. The said process shall be completed, within a period of three months from the date of receipt of a copy of this order.
Accordingly, the writ petition stands allowed, with the above directions, to the extent noted supra. However, there shall be no order as to costs.
Index:Yes/No 28-04-2009 Internet:Yes/No csh M.JAICHANDREN,J.
csh To
1. The Secretary to Government, State of Tamilnadu Revenue Department,' Fort St. George, Chennai-9.
2.The Principal Commissioner, Urban Land Ceiling and Commissioner for Land Reforms, Chepauk, Chennai-5.
3.The Competent authority, Urban Land Ceiling, Tambaram at Sannathi Street, Chennai-88.
4.Tamil Nadu Slum Clearance Board, rep. by its Chairman, Kamarajar Salai, Chennai-5.
Writ Petition No.7539 of 200428-04-2009