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MADRAS HIGH COURT
K. Chandru, J.
G.P. Saraswathi & Others —Petitioners
versus
The Assistant Commissioner cum
Competent Authority, (Urban Land
Ceiling) & Another —Respondents
W.P. No. 8613 of 2004
Decided on 23-07-2010
Counsel for the Parties:
For the Petitioners:D. Shivakumaran, Advocate.
For the Respondents: M. Dhandapani, Spl. G.P.
IMPORTANT POINT
Service of notice by affixsation having not been stipulated in rules cannot be construed to be proper service of notice of acquisition.
Headnote:Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, Section 15 - Open land – Purchased by petitioners – Raised construction and made residence there upon – Residing with family – Also obtained patta of the same – Duly entered in record – Proposed acquisition – Notice issued to original owner – Served by affixation – Not notice issued to petitioner who is in possession – Proceeding not competent – Service of notice by affifation not stipulated under rules – Notice required to be issued to person interested or in occupation – Not so issued – Proceedings pertaining to acquisition bad in the eyes of law – Liable to be quashed. (Para 14 and 21)
Facts of the case:
The case of the petitioners was that they are bonafide purchasers of plots in S.No.424/3, Ammapet Village measuring an extent of 3.12 acres coming within the Salem Urban Aglomeration belonging to Veerappa Padaiyachi and his wife Ammuni Ammal. M/s.Kuppusamy Goundar and Alamelu Ammal purchased the lands by virtue of a sale deed dated 05.09.1995 and they were in possession of the same. In 1984, there was a family arrangement between Kuppusamy Goundar and his wife Alameluammal along with their two sons M/s.Perumal and Ramasamy. The said four persons executed a General Power of Attorney in favour of one P.Ramadoss who made layouts out of the said lands into 57 house sites. The petitioners have purchased the house sites between 05.12.1984 and 19.08.1986. They have also obtained patta in respect of the plots on 14.12.1985. In the meanwhile, a notice under Section 7(1) of the Act was served on one Kuppan on 14.08.1987 and further notice under Sections 9(1) and 9(4) of the Act was also served on the said person on 03.10.1991. Subsequently, an order under Section 9(5) of the Act was passed on 15.11.1991. After coming to know about the same, the petitioners challenged the said proceedings.
Finding of the court:
The Rule does not contemplate any service by affixture as found in the original records. Therefore, it cannot be said that there was effective notice in terms of Rule (8) of the Rules. Similarly, no notification under Section 11(1) of the Act was issued to persons who are interested in the vacant land viz., the present petitioners who are owners of the vacant land. Therefore, it cannot be said that due proceedings under the Act has been followed in declaring the land possessed by the petitioners as surplus land to be vested on the State Government. Regarding the question of dispossession , substantial arguments were advanced by the parties. It is the stand of the learned Special Government Pleader that for taking possession under Section 11(6), the delivery receipt of the Special Deputy Tahsildar, Urban Land Tax handing over the property to Zonal Deputy Tahsildar, No.II, Salem found in page 85 of the original filed is itself a sufficient transfer. In the present case, it is unnecessary to decide whether the possession certificate was legally valid or not. It is suffice that if no notice is given to the person who are in possession, then taking over possession under Section 11(6) will be automatically not valid in the eye of law. The contention raised in this regard is valid. The various representations found in the file clearly showed that the petitioners who are in possession of the land though they might not have got an earlier notice, they are certainly entitled for a notice under Section 11(5) of the Act. But in so far as the ingredients of Section 11(5) of the Act was not complied with, the claim that they have taken possession in terms of the possession Certificate under Section 11(6) may not be valid.
K. Chandru, J.—Heard both sides.
2. This writ petition arises out of a Special Revision (SRP.49 of 2000) filed by the petitioners before the Special Appellate Tribunal under Section 15 of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (for short Act). The petitioners challenged the Order passed by the first respondent dated 15.11.1991 in S.R.A.68/91 in that Special Revision Petition.
3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as CRP No.1921 of 2003. However, a learned Judge of this court opined that no Civil Revision Petition will lie as the officers whose orders under challenge were not a Court but only statutory authorities. Therefore, the CRP was converted into a writ petition and notice was ordered.
4. Even before the Tribunal, a counter affidavit dated ‘Nil” was filed by the respondent. The original records were also circulated for perusal by this court. An additional affidavit dated Nil (June 2010) was also filed by the petitioners.
5. The contentions raised by the counsel for the petitioners were as follows:
a) No notice was given to the original owners under Sections 7(2), 9(4) and 11(b) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.
b) The notice claimed to have been sent is not in accordance with law and more particularly prescribed under Rule 8(2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978.
c) In any event, the possession alleged to have been taken was not valid and no notice was ordered as per Section 11(5) of the Act.
d) Without prejudice to these contentions, it was also submitted that inasmuch as the possession of the land continues to be with the petitioner, the benefit of Sections 2 and 4 of the TN Act 20/1999 (w.e.f.16.06.1999) will enure to the benefit of the petitioner(s).
6. The case of the petitioners was that they are bonafide purchasers of plots in S.No.424/3, Ammapet Village measuring an extent of 3.12 acres coming within the Salem Urban Aglomeration belonging to Veerappa Padaiyachi and his wife Ammuni Ammal. M/s.Kuppusamy Goundar and Alamelu Ammal purchased the lands by virtue of a sale deed dated 05.09.1995 and they were in possession of the same. In 1984, there was a family arrangement between Kuppusamy Goundar and his wife Alameluammal along with their two sons M/s.Perumal and Ramasamy. The said four persons executed a General Power of Attorney in favour of one P.Ramadoss who made layouts out of the said lands into 57 house sites. The petitioners have purchased the house sites between 05.12.1984 and 19.08.1986. They have also obtained patta in respect of the plots on 14.12.1985.
7. In the meanwhile, a notice under Section 7(1) of the Act was served on one Kuppan on 14.08.1987 and further notice under Sections 9(1) and 9(4) of the Act was also served on the said person on 03.10.1991. Subsequently, an order under Section 9(5) of the Act was passed on 15.11.1991. After coming to know about the same, the petitioners challenged the said proceedings.
8. In the counter affidavit filed before the Tribunal, it was alleged that there are vacant land in excess of the ceiling limit in S.No.424/3 of Ammapet Village in Salem Taluk. The lands stood in the name of one Kuppan s/o Mannangatti. Therefore, notices were served under Section 7(2) of the Act on the said person. Since no reply was received, notice under Section 9(4) of the Act was issued on 20.08.1991. Since the owner refused to receive the notice, it was served by Affixture on 03.10.1991. Despite notice, no objections were raised before the Authority. Therefore, once again notice under Section 9(5) of the Act was issued and served by Affixture. As there was no objection filed by the land owner, after following the usual procedure, the land to the extent of 1.15.0 hectares were declared as surplus was taken possession and handed over to the Revenue Department. It is further alleged that the petitioners are not the original owner
