Ms.Prathiba Venkataraman vs The Assistant Commissioner on 27 January, 2009

[Cites 10, Cited by 5]

Madras High Court

Ms.Prathiba Venkataraman vs The Assistant Commissioner on 27 January, 2009

2. The petitioner seeks for setting aside an order dated 12.01.1990 issued by the first respondent and for restoration of possession of the petitioner's property in S.No.56/8 1 A1 in plot Nos.139 and 140 measuring an extent of 4800 Sq.ft. situated at Madipakkam Mathura Puzhudivakkam village.

3. The writ petition was admitted on 19.04.2000. Even after eight years since the respondents have not filed any counter, the first respondent was summoned to produce the original records relating to the impugned order. Mrs.Sneha, the learned Government Advocate had circulated the original file.

4. The case of the petitioner was that she purchased the disputed land from one Lakshmana Naicker under a registered Sale Deed on 21.09.1965 with Document No.2120/65 in the Sub-Registrar Office, Pallavaram. The vendor of the petitioner purchased the said land from one Janakiammal with a registered sale deed dated 18.04.1995 bearing Document No.580/55. The petitioner also was in possession and enjoyment of the said property and she was given an intimation letter for grant of patta by the District Revenue Officer on 26.11.1987.

5. But subsequently when she went to ask for the original patta she was orally informed that her lands were taken over under the provisions of Tamil Nadu Urban Land Ceiling Act 1978 (for short Ceiling Act). The petitioner's enquiry revealed that notices for acquisition of the land was given to one Munusamy Chettiar under Section 9(5) of the Ceiling Act. The petitioner, as she was not aware of these proceedings issued a notice through her counsel on 14.09.1999 asking them to drop the proceedings. However, the respondent by a reply dated 27.03.2000 stated that appropriate proceedings have been taken under the Ceiling Act and the land had been acquired on 1.12.1992. Because of these developments, the petitioner has filed the present writ petition.

6. In the original file circulated, a draft counter statement has been made ready by the first respondent and it has been stated in paragraphs 3 and 4, which is as follows:

"3. It is submitted that the averments in paras 2 to 6 are incorrect. Mr.Munusamy Chetty was the owner of an extent of 4425 sq.mts of urban vacant land in S.No.56/8A 1 A of Madipakkam Village as per village accounts. As the urban land owner has not filed returns u/s 7(1) of the Act notice u/s 7(2) of the T.N.U.C.(Ceiling and regulation) Act 1978 was issued in this office ref. S.R.No.1117/85 dated 31.08.85 requesting him to file the returns u/s 7(1) of the Act. It was served on him on 14.10.86. He did not file the return u/s7(2) of the Act. Notice u/s 9(4) along with Statement u/s 9(1) of the Act was issued on 30.10.87. As the whereabouts of the Urban land owner was not known, they were served by affixure on 10.06.89. The competent authority inspected the lands on 29.4.89 and found that the land was urban in nature. So, order u/s 9(5) of the Act was issued in this office in Ref.S.R.1119/85. Dated 12.01.90 determining the family entitlement of 500 sq.mts. The above order was sent by RPAD and it was returned. As the whereabouts of the urban land owner was not known,it was served by affixture on 2.9.91. As per sub-division records prepared, action was taken to acquire 3750 sq.mts in S.No.56/8A1A1A1A and 150 sq.mts in S.No.56/8A1A1A2.

4. It is submitted that accordingly final statement u/s 10(1) of the Act was issued on 20.1.92. As the whereabouts of the urban land owner was not known, it was also served by affixture. Notifications under section 11(1) and 11(3) of the Act were published on 30.9.92 and 9.12.92 respectively. Notice u/s 11(5) of the Act was sent to the urban land owner on 15.2.93 requesting him to deliver possession of the excess vacant land. It was sent by RPAD and was returned. The excess vacant land of 3900 sq.mts was taken over and possession handed over to the Revenue Department on 11.8.95 As the purchase made by the Writ petitioner did not reflect in the Village Accounts, Notices were not sent to her. "

7. It was also contended that the petitioner wanted to have regularisation of her purchase on the basis of a Government Order in G.O.Ms.No.649, Revenue, dated 29.7.98 as well as G.O.Ms.No.565, Revenue 26.09.2008 and since the petitioner had given a letter to that effect she cannot argue to the contrary.

8. Merely because the petitioner had already availed a subsequent scheme announced by the Government, that will not defeat her legal claim over her property. Therefore, this contention cannot be accepted by this Court. When the petitioner had purchased the property from her vendor in the year 1965, well before the advent of the Ceiling Act, and she also got a patta for the said property issued by the Revenue Authorities, there is gain saying that the respondent has issued notice to the appropriate persons who are the original owners of the land.

9. It must be stated that right from the initiation of the proceedings, the respondents have not adopted the provisions of the Ceiling Act. The notice under Section 9(4) of the Ceiling Act was issued in the name of one Munusamy Chettiar and others. It is not described as to who are the two others. It is also seen that the said Minusamy Chettiar was never served with any notice and the office endorsement found in the file shows that since his address was not available he could not be served. Thereafter, Section 9(5) notice was got to be served through registered post by indicating the address of Munusamy Chettiar as the resident of Puzhuthivakkam Village. But that registered cover has come back as unserved with an endorsement stating "returned to the sender". The further endorsement dated 12.01.1990 stated that it has been affixed on the last residential address of the said Munusamy Chettiar.

10. It is shocking to know that when the respondents are not aware of the address of the said Munusamy Chettiar how they could have affixed the notice. While acknowledgment contains the date of 12.01.1990, one person by name Kanniappan has signed on 02.09.91. Further, there was also discrepancies in the extent of land alleged to be owned by Munusamy Chettiar. Thereafter in the Section 9(5) notice an endorsement shows that the said notice was affixed on a pole erected in the land in question. Similarly, there is no proof of serving of Section 10(1) statement. Even Section 11(1) notification was not served on the so called land owner. The notification under Section 11(5) was sent by service post in the name of Munusamy Chettiar and it has come back with an endorsement stating "insufficient address". Only under these circumstances, it is now claimed that the lands were taken over with a land delivery receipt given by the Revenue Inspector, Alandur Taluk on 11.08.1995.

11. If this is claimed as a lawful acquisition made by the authorities then it is only a mockery of the implementation of the law. The respondents have not explained the registered sale deed produced by the petitioner in support of her ownership of the property as well as the patta produced by her. The respondent could also not justified as to how they arrived at the name of Munusamy Chettiar as the owner of the land in question.

12. The original file produced by the learned government Advocate completely justifies the allegations made in the affidavit filed by the petitioner. If only the respondents had taken care to serve the real owners of the property, the entire issue would not have come before this Court with these allegations. In a way, the petitioner is right in saying that the attempt of the respondents was just to take over the property in the name of some person and make it a fait accompli against the real owner and it is a clear case of deprivation of the property in violation of Article 300-A of the Constitution of India.

13. In this connection, the learned counsel appearing for the petitioner relied on a judgment of a Division Bench (Presided over by P.Sathasivam,J. as he then was) in V.Somasundaram and Others v. Secretary to Government, Revenue Department and Others (2007) 1 MLJ 750. He particularly relied on paragraph 9 of the judgment, which reads as follows:

9: "From the perusal of the file, it is clear that 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 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."

(emphasis added)

14. The learned counsel also drew the attention of this Court to an un-reported decision of the Division Bench, presided by S.J.Mukhopadhaya,J. In W.P.Nos.693 to 695 of 2003 Annie Jacob and others v. State of Tamil Nadu and Another and the relevant passage found in paragaphs 8 and 9 is extracted below:

Para 8 : "There is nothing on the records 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 were taken by force. In absence of such notice under Section 11(5) or action taken under Section 11(6), a bald statement as made by the respondents that possessions was taken on 10.02.1995, 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.

Para 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 proceedings shall stand abated."

(emphasis added)

15. The learned counsel further brought to the notice of this Court the judgment in W.P.No.29081 of 2003 Sudandarakkani v. Government of Tamil Nadu and others (rendered by me) and referred to paragraphs 9 and 10, which read as follows:

Para 9 : "These records can never be believed as neither the petitioner nor the predecessor-in-tile have been served with proper notices in terms of the Act and the Rules made thereunder. When valuable lands are sought to be taken over by a statutory enactment, it is incumbent on the part of the authorities to scrupulously follow the rules prescribed thereunder. The mode of affixture cannot be resorted to as a matter of course and attempt should have been made to send the notice by Registered Post as contemplated under the Rules. If this process is resorted to by the respondents, any land can be taken over without even notice to the land owners by not complying with the mandatory provisions of the Rules. There are also no records to show that physical possession has been taken over from the petitioner, who is the purchaser of the land even as early from 29.8.1986. In any event, there are no records to indicate that physical possession has been taken over from the petitioner and in the absence of the same, the petitioner is entitled to have the benefit of Section 4 of the Repeal Act 20 of 1999.

Para 10: This Court in its judgment reported in Sosomma Thampy v. Assistant Commissioner (ULT)-cum-Competent Authority (ULC), has analysed all the previous case laws and categorically held that physical possession is required and mandatory under the ULC Act and noting in the file that symbolic possession is taken cannot be accepted as taking of physical possession. This Court is in complete agreement with the ratio laid down in the aforesaid decision which also squarely applies to the facts and circumstances of the case."

16. Therefore, insofar as the proceedings were not initiated against the real land owner as found in the original file, the entire exercise by the respondents is an exercise in futility and it would also amount to depriving the property of the petitioner by misusing the power vested under the Tamil Nadu Act 24 of 1978.

17. In the light of the above, the impugned order of the respondents stands quashed. The respondents are directed to return the land of the petitioner in Survey No.S.No.56/8 1 A1 in Plot Nos.139 and 140 measuring an extent of 4800 Sq.ft. situated at Madipakkam Mathura Puzhudivakkam village, within a period of eight weeks form the date of receipt of a copy of this order. However, there will be no order as to costs.

svki To

1.The Assistant Commissioner, (Land Reforms) Alandur Municipality, Alandur, Chennai 600 016.

2.The Assistant Commissioner/ Competent Authority (Urban Land Ceiling) Alandur, No.163, Karuneegar Street, Adambakkam, Chennai 600 088

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