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HIGH COURT OF JUDICATURE AT MADRAS
B. RAJENDRAN
P. Chandrika – Appellant
Versus
The Commissioner, Commissioner of Urban Land Ceiling & Urban Land Tax, Ezhilagam, Chennai & Another – Respondents
W.P. No. 20125 of 2014 & M.P. No. 1 of 2014
Decided On : 18-02-2015
Tamil Nadu Land Repeal Act 20 of 1999 - Section 4 - Urban Land Ceiling Act - Section 10(5) - Physical possession of property – Dishonor of Cheque - non-service of notice - Counsel for petitioner would submit that first of all impugned order is a non-speaking order - It does not give any reasons at all - Time and again this Honble Court as well as Honble Supreme Court has held that such an order is not in accordance with law – But main contention in writ petition is that Urban Land Ceiling Act itself has been repealed - When Act was repealed and if possession continues with petitioner then all other proceedings lapses - In this case he would contend that original owner was not at all served with any notice of proceedings under Sections 11(1) and 11(5) of Act and therefore entire order is vitiated - Above all when possession has not been taken further course of action will not arise - In this regard petitioner would contend that land in question was originally owned by one and after his death his son succeeded to property - Father in law of petitioner Even during his life time he had executed a Will to his son husband of petitioner - Even during life time of husband of petitioner there was a civil dispute between him and his family members - Pending suit husband of petitioner died - Later on suit was transferred to FTC No.III Coimbatore and renumbered and that suit was disposed of - Another suit was filed against petitioner by one who is a close relative and that suit was also disposed of in favor of petitioner – Held, Therefore principle laid down in above case would also apply to facts of this case as no reason has been given in impugned order - Next question arise in this case is that because of non-issuance of notice whether matter has to be remanded back or not - This question also does not arise because first of all Act has been repealed very long back and it is admitted that possession has not been taken and very original file itself reveals that notice has not been served on parties concerned - Therefore it will be a futile attempt again to remand matter back - Further he relied upon a decision of a Division Bench of this Honble Court which has categorically held that entire proceedings lapses for not following procedures as contemplated under Section 11(5) of Act as there is no need for further enquiry – Hence prayer of petitioner to treat proceedings as abated is only an automatic conclusion as every proceedings have lapsed – Further only document which has been produced is similar to that viz. handing over and taken over - Set of facts in that case would squarely apply to facts of case on hand - In fact petitioner has also produced a receipt for payment of urban land tax showing that entire fails amount has been paid and also report of Assistant Commissioner is in her favor - But on a careful reading of impugned order would show that authority does not even consider anything and he has simply stated only one word possession has been taken – Therefore possession alleged to have taken in this case is not an actual physical possession as contemplated under Act hence entire proceedings lapses – Therefore impugned order is set aside – Accordingly prayer in writ petition to treat property as lapsed and hence removed from clutches of authority is valid and correct as petitioner alone is in possession and enjoyment of property – Hence impugned order is set aside and relief sought for by petitioner in this Writ Petition is granted in toto - Writ Petition is allowed
1. This Writ Petition has been filed challenging the impugned order dated 06.01.2014 passed by the first respondent vide Rc.No.6503/2013/J3 in respect of the petitioner's land in S.No.63/1 of Kavundampalayam Village, Coimbatore District admeasuring about 134.5 Cents and consequential direction to the respondents to treat the proceedings as abated under Section 4 of Tamil Nadu Land (Ceiling & Regulation) Repeal Act 20 of 1999 (hereinafter referred to as 'the Act'.
2. The learned counsel for the petitioner would submit that first of all, the impugned order is a non-speaking order. It does not give any reasons at all. Time and again, this Hon'ble Court as well as the Hon'ble Supreme Court has held that such an order is not in accordance with law. But, the main contention in the writ petition is that the Urban Land Ceiling Act itself has been repealed. When the Act was repealed and if the possession continues with the petitioner, then all other proceedings lapses. In this case, he would contend that the original owner was not at all served with any notice of proceedings under Sections 11(1) and 11(5) of the Act and and therefore, the entire order is vitiated. Above all, when the possession has not been taken, the further course of action will not arise. In this regard, the petitioner would contend that the land in question was originally owned by one Ranga Naicker and after his death, his son Venkitaswamy Naicker succeeded to the property. Venkitasamy Naicker is the father in law of the petitioner. Even during his life time, he had executed a Will to his son V. Gopalakrishnan, the husband of the petitioner. Even during the life time of V. Gopalakrishanan, the husband of the petitioner, there was a civil dispute between him and his family members in O.S.No.1245 of 1998. Pending the suit, the husband of the petitioner died on 12.08.2003. Later on the suit was transferred to FTC No.III, Coimbatore and renumbered as O.S.No.160 of 2002 and that suit was disposed of on 24.09.2010. Another suit was filed against the petitioner by one Meenakshi Ammal who is a close relative of Venkitasamy Naicker and that suit was also disposed of in favour of the petitioner. After the disposal of the above said suit, she applied for grant of patta. She being a widow and retired school teacher, she was driven from pillar to post to get the patta and only then, she came to know that the property was entangled with Urban Land Ceiling proceedings and on verification, she came to know that neither notice under Section 11(1) and 11(5) of the Act was ever served on her nor her father-in-law or her husband or anybody who is concerned with the land and no compensation stipulated under Section 11 and 14 was complied with and there was no ex excess land available. Above all, the physical possession of the property till date is with the petitioner. Subsequently, she has also paid the entire urban land tax which was due. Therefore, she applied before the competent authority to release the land, as the land is still in her possession, as the entire proceedings had lapsed. But that petition was dismissed or rejected without giving any further reasons but only on the sole ground that the alleged possession has been taken. According to the petitioner, the authority concerned has not considered all these factors especially regarding the possession whether notice was served or not. The non-service of notice under Sections 11(1) and 11(5) is against the principles of natural justice. The authority has not taken into consideration the report of the Commissioner who has recommended for suitable orders and refused to recognize the physical possession as the transfer has never taken place. As per the Division Bench judgment of this Hon'ble Court, the possession is sine qua non, all the entire proceedings are vitiated without notice under Section 11(5) of the Act. When notice under Section 11(5) is not served, automatically, the whole thing lapses. A catena of decision
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