WP/25351/2003 of MR.ELUMALAI NAIDU. Vs THE GOVT OF TAMIL NADU, REP BY on 23 December 2008

O R D E R

Heard the learned counsels appearing for the partiesconcerned.

2. It has been stated that the property measuring about 66cents comprised in S.Nos.18/1A, 2B1, 18/1A 2B2 of AmudurmeduVillage, Poonamallee Taluk, was purchased by the petitioner and hiswife by way of two sale deeds, dated 11.7.1973 and 14.9.1981. Thepetitioner has been in possession and enjoyment of the land fromthe date of its purchase and it has been maintained as anagricultural land. The petitioner has put up a small houseabutting the road in front of the land and the rear portion hasbeen used for agricultural purposes.

3. It has been further stated that the land in question wasacquired under the Tamil Nadu Urban Land (Ceiling and Regulation)Act, 1978, (hereinafter referred to as "the Act") and a notice,under Section 9(4) of the Act, together with a draft statement,under Section 9(1) of the Act had been issued. However, withoutaffording a personal hearing, the competent authority had passed anorder, dated 19.8.1996, under Section 9(5) of the Act, followed bya final statement, dated 10.2.1997 and a notice, under Section 11(5) of the Act, dated 25.9.1998. The order passed under Section 9(5) of the Act and the subsequent proceedings were not served onthe petitioner. Only when the revenue officials had inspected theland, it was disclosed that the land had been acquired by invokingthe provisions of the Act. Immediately, thereafter, the petitionerhad applied for certified copies of the order and it was obtainedby the petitioner during the month of April, 2003. Since the acthad been repealed, the petitioner could not prefer an appeal. Insuch circumstances, he has preferred the present writ petitionbefore this Court, under Article 226 of the Constitution of India.

4. It has been stated that since the land in question isagricultural in character, it cannot be acquired under the Act. Thefact that it is an agricultural land is seen from the sale deeds,through which the petitioner had purchased the land. Eventhereafter, the land had been maintained as an agricultural landand a number of fruit bearing trees are present in the said land.Further, even though a notice, under Section 9(4) of the Act,together with the draft statement, under Section 9(1) of the Act,were served on the petitioner, the order under Section 9(5) of theAct had not been furnished to him and no personal hearing wasgiven. Even if no objection had been filed to the notice underSection 9(4) of the Act, it is the duty of the competent authorityto verify the character of the land and its usage before acquiringthe same.

5. It has been further stated that even though the family ofthe petitioner consists of several members, the respondents hadheld that he is entitled to the exemption of only 500 sq. mts.Further, a notice, under Section 11(5) of the Act, dated 25.9.1998, calling upon the petitioner to hand over the possession has notbeen served on the petitioner. If the respondents had, in fact,taken possession of the land, pursuant to the notice, issued underSection 11(5) of the Act, they should have taken possession of theland, under Section 11(6) of the Act by demolishing the existingstructures. In fact, the petitioner is residing in the house saidto have been acquired by the respondents by paying the property taxand having obtained the electricity connection. In view of the factthat actual physical possession of the land in question had notbeen taken by the respondents, the land acquisition proceedingsinitiated by them have abated, in view of the coming into force ofthe Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act,1999, (Act 20 of 1999), (hereinafter referred to as the "RepealAct").

6. In the counter affidavit filed on behalf of therespondents, the averments made on behalf of the petitioner havebeen denied. It has been stated that the petitioner ElumalaiNaicker was the owner of the urban land measuring an extent of 2650sq.mts. in S.Nos.18/1A2B1 and 18/1A2B2 of Amudurmedu Village, asper the revenue records. He did not file the return, under Section7(1) of the Act. Hence, a notice, under Section 7(2) of the Act,was issued in SR.No.1179/95, dated 29.12.1995. The notice wasserved on the urban land owner's wife lakshmi Kantha, on 3.1.1996.The urban land owner did not send any reply to the said notice.Therefore, a notice, under Section 9(4) of the Act, along with thedraft statement, under Section 9(1) of the Act, was issued inSR.No.877/96/D, dated 26.2.1996, calling for his objection, if any,for the proposed acquisition of excess vacant land measuring anextent of 21.0 sq.mts., in S.Nos.18/1A2B1 and 18/1A2B2 ofAmudurmedu Village, after allowing 500 sq.mts. towards familyentitlement. It was served on the urban land owner's daughterE.Ramani, on 20.3.1996. The land owner did not file any objection.Thereafter, the land was inspected by the Deputy Tahsildar, on25.6.1996 and it was found to be converted into urban land andthere was no cultivation. Hence, an order, under Section 9(5) ofthe Act was passed, in Rc.2328/96/D, dated 19.8.1996, to acquirethe excess vacant land, measuring an extent of 2.150 sq.mts., inS.Nos.18/1A2B1 and 18/1A2B2 of Amudurmedu Village. It was served onthe urban land owner's daughter E.Ramani, on 6.1.1997.

7. It has been further stated that the final statement, underSection 10(1) of the Act, had been issued in Rc.2328/96/D, dated10.2.1997 and it was served on the urban land owner, on 27.4.1997.The notification, under Section 11(1) of the Act, was published inthe Tamil Nadu Government Gazette, dated 2.7.1997, and thenotification, under Section 11(3) of the Act, vesting the excessvacant land with the first respondent, with effect from 1.10.1997,was published in the Tamil Nadu Government Gazette, dated 3.9.1997.

The notice, under Section 11(5) of the Act, was issued inRc.No.2328/96, dated 25.9.1998, to hand over the possession of theexcess vacant land acquired and the same was served on thepetitioner. Finally, the possession of the excess vacant land washanded over to the Revenue Authorities, on 3.5.1999 and thenecessary changes had been made in the revenue records.

8. It has been further stated that contrary to the claims madeby the petitioner, a notice, under Section 9(4) of the Act, alongwith the draft statement, under Section 9(1) of the Act, have beenserved on the petitioner's daughter E.Ramani, on 20.3.1996. Hence,the contention of the petitioner that a personal hearing was notafforded to him is incorrect. The petitioner could have sent hisobjections to the third respondent. However, he had not done so.Hence, an order, under Section 9(5) of the Act had been passed, on19.8.1996 and it was served on the petitioner's daughter, on6.1.1997. Thereafter, the final statement, under Section 10(1) ofthe Act, had been issued, on 10.2.1997, and it was served on thepetitioner, on 27.4.1997. Therefore, the contention of thepetitioner that subsequent proceedings were not served on him andthat he was not aware of the acquisition proceedings is incorrectand baseless. The urban land owner being fully aware of theacquisition proceedings had not chosen to raise any objection tothe proceedings. In fact, the urban land owner could have exhaustedthe appeal remedy provided under Section 33 of the Act on receiptof the orders passed, under Section 9(5) of the Act, which wereissued, on 19.8.1996.

9. It has been further stated that the notice, under Section11(5) of the Act, issued on 25.9.1998, had been served on thepetitioner. As per section 11(6) of the Act, if any person refusesor fails to comply with an order made under Section 11(5) of theAct, the competent authority may take possession of the vacant landor cause it to be given to the State Government or to any personduly authorised by the state Government and may for that purposeuse such force, as it may be necessary to take possession of thesaid vacant land. Hence, the possession of the excess vacant landhad been handed over to the Revenue Department before the RepealAct had come into force. Since the land acquisition proceedingshave been initiated and completed by the respondents, it is savedunder Section 3(1)(a) of the Repeal Act, and therefore, suchproceedings of the respondents shall not abate in terms of Section4 of the Repeal Act. The petitioner has not maintained the land asagricultural land. In fact, there are shops and structures forwhich he had obtained electricity connection. The petitioner is inillegal possession of the Government land and he is liable to beevicted. Therefore, the writ petition is devoid of merits and it isliable to be dismissed.

10. The main contentions of the learned counsel appearing onbehalf of the petitioner are that the respondents have not followedthe provisions of the Act by issuing the relevant notices to thepetitioner, while acquiring the land in question. No opportunitywas given to the petitioner to show that the land was anagricultural land under the cultivation of the petitioner and thatit was not an urban land, as claimed by the respondents. Since thepetitioner's family consists of several members, the respondentsought to have calculated the family entitlement, accordingly. Onthe contrary, only an extent of 500 sq.mts. had been allowedtowards the family entitlement of the land owner and the balanceextent of 2150 sq.mts. had been wrongly acquired by therespondents.

11. The learned counsel appearing for the petitioner hadfurther submitted that, as per the pro forma report of thecompetent authority, dated 30.8.1999, relating to the land acquiredunder the Act, the land in question is said to be an agriculturalzone. As admitted by the respondents, the necessary noticescontemplated under the provisions of the Act had not been served onthe petitioner who is the land owner. The respondents had notfollowed the procedures contemplated, under Rule 8 of the TamilNadu Urban Land (Ceiling and Regulation) Rules, for the service ofthe notices. In the counter affidavit filed on behalf of therespondents, they had claimed that the notice, under section 7(2)of the Act, dated 29.12.1995, had been served on the petitioner'swife, Lakshmi Kantha, on 3.1.1996.

12. Further, the notice, under Section 9(4) of the Act, alongwith the draft statement, under Section 9(1) of the Act, dated22.2.1996, is said to have been served on the petitioner's daughterE.Ramani, on 20.3.1996. Similarly, the order, under Section 9(5) ofthe Act, dated 19.8.1996, is said to have been served on thepetitioner's daughter, on 6.1.1997. As such, it is clear that therespondents have not followed the necessary procedures for theservice of the mandatory notices and the orders contemplated underthe provisions of the Act. Further, the respondents have admitted,in paragraph 10 of their counter affidavit, that the petitioner isstill in possession of the land said to have been acquired by therespondents. In such circumstances, the land acquisitionproceedings would stand abated, in view of Section 4 of the RepealAct.

13. In view of the submissions made by the learned counselsappearing for the parties concerned and on a perusal of the recordsavailable before this Court, it is clear that the petitioner andhis wife, who are said to be the purchasers of the land inquestion, having purchased the land by way of two sale deeds, dated11.7.1973 and 14.9.1981, for valid consideration, have not been given any opportunity to putforth their case. No notice had beenissued to the petitioner, by the respondents, with regard to theacquisition of the land in question, as provided under the Act andthe rules framed thereunder.

14. The learned counsel appearing for the respondents has notbeen in a position to show as to how the land in question could besaid to be urban land, which would be governed by the provisions ofthe Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. Onthe other hand, when the petitioner had claimed that the land inquestion continued to be an agricultural land, under the Urban LandTax Act, in the name of the petitioner, mere taking over ofpossession of the land, on record, would not be sufficient. It isalso obvious, on a perusal of the pro forma report of the competentauthority, dated 30.8.1999, that the land acquired under the Act,is in an agricultural zone.

15. In Sosamma Thampy Vs. The Assistant Commissioner (ULT)-CUM-Competent Authority (ULC) and others, (2006 (2) MLJ 664; AneesLeathers Manufacturers, rep.by its proprietor, Mr.Anees Ahamed VsThe Government of Tamil Nadu rep.by its Secretary, RevenueDepartment, Fort St.George, Chennai and others, 2006(3) LW 437, andJayaseelan & Ratnaseelan Vs The Government of Tamil Nadu rep.by itsSecretary, Revenue Department, Fort St.George, Chennai and others2006(3) LW 440, this Court while dealing with the effect of theprovisions of the Tamil Nadu Urban Land Ceiling Repeal Act (Act 20of 1999) on the land acquisition proceedings initiated under theTamil Nadu Urban Land (Ceiling and Regulation), Act 1978, has heldthat all such proceedings initiated under the Act of 1978, wouldabate on the coming into force of the Tamil Nadu Urban Land(Ceiling and Regulation) Repeal Act 1999, if the possession of theland had not been taken by the authorities concerned prior to therepeal and if due compensation has not been paid to thepetitioners.

16. Since the State Government had not taken actual physicalpossession of the land in question, by virtue of Section 4 of Act20 of 1999, the pending proceedings shall abate and the land inquestion would continue to vest with the petitioner. To emphasisethe above legal position, it is relevant to rely on the decision ofthis Court in SOSAMMA THAMPY Vs. THE ASSISTANT COMMISSIONER (ULT)-CUM-COMPETENT AUTHORITY (ULC) & ANOTHER (2006-3-L.W.50) whereinthis Court has held as follows:

"10. In these circumstances, it is clearthat the proceedings initiated by therespondents for acquiring the lands of thepetitioner under the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978, stood abated on the passing of the Repealing Act 20of 1999 and therefore, the lands in questioncontinues to be vested in the petitioner andneither the State Government nor the landCeiling Authorities had any lien over the saidproperties of the petitioner."

17. Actual physical possession should have been taken by thecompetent authority, as provided under the Act and the rules framedthereunder, for the completion of the acquisition proceedings. Ifthe respondents had not taken physical possession of the land inquestion and if the full compensation had not been paid, the landacquisition proceedings would stand abated, in view of the cominginto force of the Tamil Nadu Urban Land (Ceiling and Regulation)Repeal Act (Act 20 of 1999). In this regard, it is relevant to citethe decision of this Court in ALLIND METAL FABRICATORS PVT. LTD.,37 VELLACHERY ROAD, MADRAS-42 REP. BY ITS MANAGING DIRECTOR Vs. THESECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT OF TAMILNADU, FORT ST. GEORGE, MADRAS (2002(2)CTC 716), wherein it was heldas follows:

"1. The Tamil Nadu Urban Land (Ceiling andRegulation) Act has been repealed by therepealing Act (Act 20 of 1999) and all pendingproceedings also having been declared to haveabated. As held by the Supreme Court in the caseof Angoori Devi V. State of U.P., JT 2000 Supp 1(SC) 295, a decision by a Constitution Bench, ifthe possession of the land had not been takenprior to the repeal, such possession cannot betaken thereafter and no proceedings can bethereafter initiated under the repealedenactment. During the pendency of this writpetition the petitioner had the benefit of aninterim order protecting his possession. It isalso not the case of the respondents that theyhave taken possession.

2. The writ petition is therefore allowed.The W.M.P. is closed."

18. The learned counsel appearing for the respondents has notshown, from the records available, that the notice, under Section11(5) of the Act, calling upon the petitioner to hand over thepossession of the land, had been served on him. Further, there isnothing to show that actual physical possession of the land inquestion had been taken by the respondents or that the compensationhad been paid to the petitioner. In such circumstances, this Courtis of the considered view that the land acquisition proceedings, which is the subject matter of the present writ petition, wouldstand abated, in view of the coming into force of the repeal Act,1999. Hence, the writ petition stands allowed. No costs.

lan

Sd/- Assistant Registrar

/ True Copy / Sub. Assistant Registrar To:1. The Secretary The Government of Tamil Nadu Revenue Department Fort St. George, Chennai-600 0092. The Principal Commissioner & Commissioner Land Reforms Chepauk, Chennai-600 0053. The Asst. Commissioner/Competent Authority Urban Land Ceiling No.5, Sannadhi Street, Poonamallee, Chennai-600 0561 cc to M/s.V.Ramesh, Advocate, SR.719201 cc to the Government Pleader, SR.72243mg (co)dv/5.1.

W.P.No.25351 of 2003