V. Elumalai Naicker vs The Government of Tamil Nadu

M. Jaichandren, J.—Heard the learned counsels appearing for the parties concerned.

It has been stated that the property measuring about 66 cents comprised in S. Nos. 18/1A, 2B1, 18/1A 2B2 of Amudurmedu Village,

Poonamallee Taluk, was purchased by the petitioner and his wife by way of two sale deeds, dated 11.7.1973 and 14.9.1981. The petitioner has

been in possession and enjoyment of the land from the date of its purchase and it has been maintained as an agricultural land. The petitioner has put

up a small house abutting the road in front of the land and the rear portion has been used for agricultural purposes.

It has been further stated that the land in question was acquired under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978,

(hereinafter referred to as ""the Act"") and a notice, u/s 9(4) of the Act, together with a draft statement, u/s 9(1) of the Act had been issued.

However, without affording a personal hearing, the competent authority had passed an order, dated 19.8.1996, u/s 9(5) of the Act, followed by a

final statement, dated 10.2.1997 and a notice, u/s 11(5) of the Act, dated 25.9.1998. The order passed u/s 9(5) of the Act and the subsequent

proceedings were not served on the petitioner. Only when the revenue officials had inspected the land, it was disclosed that the land had been

acquired by invoking the provisions of the Act. Immediately, thereafter, the petitioner had applied for certified copies of the order and it was

obtained by the petitioner during the month of April, 2003. Since the act had been repealed, the petitioner could not prefer an appeal. In such

circumstances, he has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.

It has been stated that since the land in question is agricultural in character, it cannot be acquired under the Act. The fact that it is an agricultural

land is seen from the sale deeds, through which the petitioner had purchased the land. Even thereafter, the land had been maintained as an

agricultural land and a number of fruit bearing trees are present in the said land. Further, even though a notice, u/s 9(4) of the Act, together with the

draft statement, u/s 9(1) of the Act, were served on the petitioner, the order u/s 9(5) of the Act had not been furnished to him and no personal

hearing was given. Even if no objection had been filed to the notice u/s 9(4) of the Act, it is the duty of the competent authority to verify the

character of the land and its usage before acquiring the same.

It has been further stated that even though the family of the petitioner consists of several members, the respondents had held that he is entitled to

the exemption of only 500 sq. mts. Further, a notice, u/s 11(5) of the Act, dated 25.9.1998, calling upon the petitioner to hand over the possession

has not been served on the petitioner. If the respondents had, in fact, taken possession of the land, pursuant to the notice, issued u/s 11(5) of the

Act, they should have taken possession of the land, u/s 11(6) of the Act by demolishing the existing structures. In fact, the petitioner is residing in

the house said to have been acquired by the respondents by paying the property tax and having obtained the electricity connection. In view of the

fact that actual physical possession of the land in question had not been taken by the respondents, the land acquisition proceedings initiated by

them have abated, in view of the coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999, (Act 20 of 1999),

(hereinafter referred to as the ""Repeal Act"").

In the counter affidavit filed on behalf of the respondents, the averments made on behalf of the petitioner have been denied. It has been stated

that the petitioner Elumalai Naicker was the owner of the urban land measuring an extent of 2650 sq.mts. in S. Nos. 18/1A2B1 and 18/1A2B2 of

Amudurmedu Village, as per the revenue records. He did not file the return, u/s 7(1) of the Act. Hence, a notice, u/s 7(2) of the Act, was issued in

SR. No. 1179/95, dated 29.12.1995. The notice was served 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, u/s 9(4) of the Act, along with the draft statement, u/s 9(1) of the Act, was issued in

SR.No.877/96/D, dated 26.2.1996, calling for his objection, if any, for the proposed acquisition of excess vacant land measuring an extent of 21.0

sq.mts., in S. Nos. 18/1A2B1 and 18/1A2B2 of Amudurmedu Village, after allowing 500 sq.mts. towards family entitlement. It was served on the

urban land owner''s daughter E. Ramani, on 20.3.1996. The land owner did not file any objection. Thereafter, the land was inspected by the

Deputy Tahsildar, on 25.6.1996 and it was found to be converted into urban land and there was no cultivation. Hence, an order, u/s 9(5) of the

Act was passed, in Rc.2328/96/D, dated 19.8.1996, to acquire the excess vacant land, measuring an extent of 2.150 sq.mts., in S. Nos.

18/1A2B1 and 18/1A2B2 of Amudurmedu Village. It was served on the urban land owner''s daughter E. Ramani, on 6.1.1997.

It has been further stated that the final statement, u/s 10(1) of the Act, had been issued in Rc.2328/96/D, dated 10.2.1997 and it was served on

the urban land owner, on 27.4.1997. The notification, u/s 11(1) of the Act, was published in the Tamil Nadu Government Gazette, dated

2.7.1997, and the notification, u/s 11(3) of the Act, vesting the excess vacant 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, u/s 11(5) of the Act, was issued in Rc.No.2328/96, dated

25.9.1998, to hand over the possession of the excess vacant land acquired and the same was served on the petitioner. Finally, the possession of

the excess vacant land was handed over to the Revenue Authorities, on 3.5.1999 and the necessary changes had been made in the revenue

records.

It has been further stated that contrary to the claims made by the petitioner, a notice, u/s 9(4) of the Act, along with the draft statement, u/s 9(1)

of the Act, have been served on the petitioner''s daughter E.Ramani, on 20.3.1996. Hence, the contention of the petitioner that a personal hearing

was not afforded to him is incorrect. The petitioner could have sent his objections to the third respondent. However, he had not done so. Hence,

an order, u/s 9(5) of the Act had been passed, on 19.8.1996 and it was served on the petitioner''s daughter, on 6.1.1997. Thereafter, the final

statement, u/s 10(1) of the Act, had been issued, on 10.2.1997, and it was served on the petitioner, on 27.4.1997. Therefore, the contention of

the petitioner that subsequent proceedings were not served on him and that he was not aware of the acquisition proceedings is incorrect and

baseless. The urban land owner being fully aware of the acquisition proceedings had not chosen to raise any objection to the proceedings. In fact,

the urban land owner could have exhausted the appeal remedy provided u/s 33 of the Act on receipt of the orders passed, u/s 9(5) of the Act,

which were issued, on 19.8.1996.

It has been further stated that the notice, u/s 11(5) of the Act, issued on 25.9.1998, had been served on the petitioner. As per Section 11(6) of

the Act, if any person refuses or fails to comply with an order made u/s 11(5) of the Act, the competent authority may take possession of the

vacant land or cause it to be given to the State Government or to any person duly authorised by the state Government and may for that purpose

use such force, as it may be necessary to take possession of the said vacant land. Hence, the possession of the excess vacant land had been

handed over to the Revenue Department before the Repeal Act had come into force. Since the land acquisition proceedings have been initiated

and completed by the respondents, it is saved u/s 3(1)(a) of the Repeal Act, and therefore, such proceedings of the respondents shall not abate in

terms of Section 4 of the Repeal Act. The petitioner has not maintained the land as agricultural land. In fact, there are shops and structures for

which he had obtained electricity connection. The petitioner is in illegal possession of the Government land and he is liable to be evicted. Therefore,

the writ petition is devoid of merits and it is liable to be dismissed.

The main contentions of the learned Counsel appearing on behalf of the petitioner are that the respondents have not followed the provisions of

the Act by issuing the relevant notices to the petitioner, while acquiring the land in question. No opportunity was given to the petitioner to show that

the land was an agricultural land under the cultivation of the petitioner and that it was not an urban land, as claimed by the respondents. Since the

petitioner''s family consists of several members, the respondents ought to have calculated the family entitlement, accordingly. On the contrary, only

an extent of 500 sq.mts. had been allowed towards the family entitlement of the land owner and the balance extent of 2150 sq.mts. had been

wrongly acquired by the respondents.

The learned Counsel appearing for the petitioner had further submitted that, as per the pro forma report of the competent authority, dated

30.8.1999, relating to the land acquired under the Act, the land in question is said to be an agricultural zone. As admitted by the respondents, the

necessary notices contemplated under the provisions of the Act had not been served on the petitioner who is the land owner. The respondents had

not followed the procedures contemplated, under Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, for the service of the

notices. In the counter affidavit filed on behalf of the respondents, they had claimed that the notice, u/s 7(2) of the Act, dated 29.12.1995, had

been served on the petitioner''s wife, Lakshmi Kantha, on 3.1.1996.

Further, the notice, u/s 9(4) of the Act, along with the draft statement, u/s 9(1) of the Act, dated 22.2.1996, is said to have been served on the

petitioner''s daughter E. Ramani, on 20.3.1996. Similarly, the order, u/s 9(5) of the Act, dated 19.8.1996, is said to have been served on the

petitioner''s daughter, on 6.1.1997. As such, it is clear that the respondents have not followed the necessary procedures for the service of the

mandatory notices and the orders contemplated under the provisions of the Act. Further, the respondents have admitted, in paragraph 10 of their

counter affidavit, that the petitioner is still in possession of the land said to have been acquired by the respondents. In such circumstances, the land

acquisition proceedings would stand abated, in view of Section 4 of the Repeal Act.

In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available before

this Court, it is clear that the petitioner and his wife, who are said to be the purchasers of the land in question, having purchased the land by way of

two sale deeds, dated 11.7.1973 and 14.9.1981, for valid consideration, have not been given any opportunity to putforth their case. No notice

had been issued to the petitioner, by the respondents, with regard to the acquisition of the land in question, as provided under the Act and the rules

framed thereunder.

The learned Counsel appearing for the respondents has not been in a position to show as to how the land in question could be said to be urban

land, which would be governed by the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. On the other hand, when the

petitioner had claimed that the land in question continued to be an agricultural land, under the Urban Land Tax Act, in the name of the petitioner,

mere taking over of possession of the land, on record, would not be sufficient. It is also obvious, on a perusal of the pro forma report of the

competent authority, dated 30.8.1999, that the land acquired under the Act, is in an agricultural zone.

In Sosamma Thampy Vs. The Assistant Commissioner (ULT)-cum-Competent Authority (ULC) and The Special Commissioner and

Commissioner of Land Reforms, Government of Tamilnadu, ; Anees Leathers Manufacturers, rep. by its proprietor, Mr. Anees Ahamed v. The

Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St. George, Chennai and Ors. 2006(3) LW 437, and Jayaseelan &

Ratnaseelan v. The Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St. George, Chennai and Ors. 2006(3) LW 440,

this Court while dealing with the effect of the provisions of the Tamil Nadu Urban Land Ceiling Repeal Act (Act 20 of 1999) on the land

acquisition proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation), Act 1978, has held that all such proceedings initiated

under the Act of 1978, would abate on the coming into force of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999, if the

possession of the land had not been taken by the authorities concerned prior to the repeal and if due compensation has not been paid to the

petitioners.

Since the State Government had not taken actual physical possession of the land in question, by virtue of Section 4 of Act 20 of 1999, the

pending proceedings shall abate and the land in question would continue to vest with the petitioner. To emphasise the above legal position, it is

relevant to rely on the decision of this Court in Sosamma Thampy v. The Assistant Commissioner (ULT)-cum-Competent Authority (ULC) and

Anr. 2006 3 L.W.50 wherein this Court has held as follows:

In these circumstances, it is clear that the proceedings initiated by the respondents for acquiring the lands of the petitioner under the Tamil

Nadu Urban Land (Ceiling and Regulation) Act, 1978, stood abated on the passing of the Repealing Act 20 of 1999 and therefore, the lands in

question continues to be vested in the petitioner and neither the State Government nor the land Ceiling Authorities had any lien over the said

properties of the petitioner.

Actual physical possession should have been taken by the competent authority, as provided under the Act and the rules framed thereunder, for

the completion of the acquisition proceedings. If the respondents had not taken physical possession of the land in question and if the full

compensation had not been paid, the land acquisition proceedings would stand abated, in view of the coming into force of the Tamil Nadu Urban

Land (Ceiling and Regulation) Repeal Act (Act 20 of 1999). In this regard, it is relevant to cite the decision of this Court in Allind Metal

Fabricators Pvt. Ltd., 37 Vellachery Road, Madras-42 Rep. by its Managing Director v. the secretary to Government, Revenue Department,

Government of Tamil Nadu, Fort St. George, Madras 2002(2) CTC 716, wherein it was held as follows:

The Tamil Nadu Urban Land (Ceiling and Regulation) Act has been repealed by the repealing Act (Act 20 of 1999) and all pending

proceedings also having been declared to have abated. As held by the Supreme Court in the case of Angoori Devi v. State of U.P. JT 2000 Supp

1 (SC) 295, a decision by a Constitution Bench, if the possession of the land had not been taken prior to the repeal, such possession cannot be

taken thereafter and no proceedings can be thereafter initiated under the repealed enactment. During the pendency of this writ petition the

petitioner had the benefit of an interim order protecting his possession. It is also not the case of the respondents that they have taken possession.

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

The learned Counsel appearing for the respondents has not shown, from the records available, that the notice, u/s 11(5) of the Act, calling

upon the petitioner to hand over the possession of the land, had been served on him. Further, there is nothing to show that actual physical

possession of the land in question had been taken by the respondents or that the compensation had been paid to the petitioner. In such

circumstances, this Court is of the considered view that the land acquisition proceedings, which is the subject matter of the present writ petition,

would stand abated, in view of the coming into force of the repeal Act, 1999. Hence, the writ petition stands allowed. No costs.