Madras High Court
The Competent Authority vs B.Sathiyavathy on 15 April, 2021
W.A.No.299 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.04.2021
CORAM :
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MS. JUSTICE R.N.MANJULA
W.A.No.299 of 2021
1.The Competent Authority,
Urban Land Ceiling & the Assistant Commissioner
of Urban Land Tax & Urban Land Ceiling
Kundrathur Zone at Alandur,
Chennai - 88.
2.The Commissioner of Land Reforms
Urban Land Tax and Urban Land Ceiling,
Ezhilagam, Chepauk,
Chennai - 5.
3.The Secretary to Government,
Government of Tamil Nadu,
Revenue Department, Chennai - 9. ..Appellants
Vs
B.Sathiyavathy ..Respondent
Prayer: Appeal filed under Clause 15 of the Letters Patent against
the order dated 22.09.2010 made in W.P.No.5940 of 2006.
For Appellants : Mr.Pothiraj
Special Government Pleader
For Respondent : Mr.Ramesh
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W.A.No.299 of 2021
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
This appeal is preferred by the appellants aggrieved over
the order of the learned Single Judge, who after perusing the
records and taking note of specific stand taken in the counter
affidavit held that the proceedings initiated suffer from want of
notice of hearing.
2. The respondent being the owner of the land was issued
with the notice to hand over the excess vacant land within 30
days. Contending that no prior notice was issued under the Act,
which admittedly stood repealed, a writ petition was filed before
the learned Single Judge. The learned Single Judge allowed the
writ petition giving the following reasons:
"4. On notice, counter has been filed by the
respondents. Learned Additional Government
Pleader produced the records before this Court. A
perusal of the same show that except for the
affixture of the notice, no steps were taken in
accordance with the Rules of the Urban Land
Ceiling Rules. Quite apart from that, even in the
notice sent, except the name of the petitioner,
Sathyavathu, W/o.S.Balasubramanian,
Kodambakkam, there are absolutely no details as
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W.A.No.299 of 2021
to her address on which the said notice was
caused to be made. Quite apart from that, the
files produced do not disclose whether any steps
were taken by the respondents to send notice
through registered post with acknowledgement
due. There is hardly any material to show that the
notices were refused or returned unanswered that
the respondents had to go for service through
affixture.
5.A perusal of Rule 8 of the Tamil Nadu Urban
Land (Ceiling Regulation) Rules, 1978 show that
every draft statement prepared under sub section
(1) of Section 9 has to be served by sending the
same by registered post addressed to the person
concerned, in case of the holder of the vacant
lands, to his address as given in the statement
filed in pursuance to sub-section (1) of section 7
and in the case of other persons, at their last
known addresses. Rule 9(2)(b) read as follows:-
"Where the draft statement and the notice are
returned as refused by the addresses, the same
shall be deemed to have been duly served on
such person."
Clause (c) of Rule 8(2) reads thus,
"Where the affords to serve the draft statement
and the notice on the holder of the vacant
lands or, as the case may be, on any other
person referred to in clause (a), in the manner
specified in the clause are not successfully for
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W.A.No.299 of 2021
reasons other than the reason referred to in
clause(b) the draft statement and the notice
shall be served by affixing copies of the same
in a conspicuous place in the office of the
competent authority and also upon same
conspicuous part of the house (if any) in which
the holder of the vacant lands or, as the case
may be, the other business or personally
worked for gain."
6. Before resorting to the procedure under Rule
8(2)(c) of the Rules, it is imperative that the
respondents should have subjectively satisfied
themselves that notice was returned as refused,
necessitating service by affixture as contemplated
under Rule 8(2)(b) of the Rules. On a perusal of
the files, it is seen that there is no material as
regards the compliance of Rule 8(2)(b) of the
Rules to note that reasons were returned as
refused to attract Rule 8(2)(c) of the Rules. In
this case, there being no reasons recorded for
resorting to the extreme step of affixture mode of
service, apart from the fact that the notice
contained no details at all as to the address of the
petitioner viz., place of residence of
Gerugambakkam Village, I have no hesitation to
hold that there is no compliance of the provisions
of the Rules. The counter affidavit also does not
disclose the facts of compliance of Rule 8 of the
Rules."
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W.A.No.299 of 2021
3. Learned Special Government Pleader appearing for the
appellants submitted that there is procedural compliance. The
provision says that there is no mandatory of service of notice
under Rule 2(b). Inasmuch as affixture has been effected, the
order of the learned Single Judge requires interference.
4. Learned counsel appearing for the respondent
submitted that even in the counter affidavit, it is an admitted case
of the appellants that only affixture has been made and no attempt
has been made to serve the respondent. The Division Bench of this
Court in The Government of Tamil Nadu and others v Nandagopal
and others reported in 2011 (3) CTC 843 has held that the service
of notice is mandatory. The Apex Court in State of Uttar Pradesh
vs Hari Ram reported in (2013) 4 SCC 280 was pleased to hold
that even when the statute says 'may', it should be construed as
'shall' while dealing with the service of notice when an action
involves a civil consequences. Thus, the order requires no
interference.
5. In the counter affidavit filed, the appellants have taken
the following stand:-
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W.A.No.299 of 2021
"9. With regard to the averments made in
paragraph 9 of the affidavit, it is submitted that
the address of the urban land owner was not
known, all the notices and orders under the Act
were issued to the urban land owner and were
served by the affixture on the land and finally
after the issue of Notice u/s.11(5) of the Act, the
possessions of the land was handed over to the
Revenue Department on 3.6.99 prior to the
introduction of the Repeal Act, 20/99 i.e., on
16.6.99. The contention of the petitioner in this
paragraph is incorrect."
6. The learned Single Judge has also verified the records
and satisfied that what is done is only the affixture. Therefore,
there is no dispute on facts. Now, we are dealing with the statute,
which stood repealed. Section 9(2)(b) of the Tamil Nadu Urban
Land (Ceiling Regulation) Rules, 1978 makes the service as
mandatory. It states that the deemed service would arise when
notices are returned as refused by the addressees. Thus, it
presupposes service of notice on the addressees. Affixture would
arise only when it is preceded by refusal and therefore, it is not a
substitute. Any enactment involving taking over the land is
expropriatory in nature and, therefore, will have to be followed
strictly. This is in tune with Article 300A of the Constitution of
India as there is no fundamental right after the amendment to the
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W.A.No.299 of 2021
Constitution. Therefore, when a law prescribes a certain procedure
to be followed, it shall be followed with precision and without any
room for non-compliance.
7. Considering the very same issue, the Division Bench in
The Government of Tamil Nadu and others (supra) was pleased to
hold as follows:-
"7. In order to find out as to whether the notice
as required under Section 11(5) of the Act read
with Rule 8 of the Rules was served on the
respondents or not, we called for the records and
perused. Admittedly, there is no such notice sent
through registered post, except the competent
authority affixing the said notice on the vacant
site, which should be only a last resort after
making an attempt to send the notice by
registered post and in spite of the same, they
could not be served with the notice. In that view
of the matter, even assuming that the possession
is said to have been taken as contended by the
learned Special Government Pleader, such taking
over of possession cannot be considered to be
valid in the eye of law so long as the provisions of
Section 11(5) of the Act read with Rule 8 of the
Rules was not complied with. On this ground
alone, the contention of the respondents that in
the event of physical possession not being taken
in the prescribed manner, the provisions of the
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W.A.No.299 of 2021
Repealing Act would come to the benefit of the
respondents must be accepted."
8. In such view of the matter, we do not find any reason
to interfere with the order of the learned Single Judge and the writ
appeal stands dismissed. No costs. Consequently, connected
C.M.P.No.1363 of 2021 is closed.
(M.M.S., J.) (R.N.M., J.)
15.04.2021
Internet : Yes/No
ssm
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W.A.No.299 of 2021
M.M.SUNDRESH,J.
and
R.N.MANJULA,J.
(ssm)
W.A.No.299 of 2021
15.04.2021
http://www.judis.nic.in
