Madras High Court
The Special Commissioner And ... vs G.Selvaraj on 25 April, 2023
W.A.No.704 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 25.04.2023
CORAM
THE HONOURABLE Ms. JUSTICE V.M.VELUMANI
AND
THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN
W.A.No.704 of 2016
AND
C.M.P.No.9251 of 2016
1.The Special Commissioner and Commissioner
for Urban Land Ceiling and Urban Land Tax
Chepauk, Chennai 600 005
2.The Assistant Commissioner
for Urban Land Tax-cum-Competent Authority
Alandur, No.169, Sannathi Street
Chennai 600 088 .. Appellants
Vs.
G.Selvaraj .. Respondent
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order dated 15.04.2013 passed by this Court in W.P.No.10311 of 2005.
1/12
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W.A.No.704 of 2016
For Appellants : Mr.A.Silambanan
Additional Advocate General
Assisted by
Mr.Vadivelu Deenadayalan
Additional Government Pleader
For Respondent : No appearance
JUDGMENT
(Delivered by V.LAKSHMINARAYANAN, J.)
This appeal arises against the order dated 15.04.2013 passed by the
learned Single Judge in W.P.No.10311 of 2005.
2. Brief facts of the case are as under :
2.1. The writ petitioner is the son of one Ganesa Mudaliar. The said
Ganesa Mudaliar had settled the property in writ petitioner's favour on
22.12.1986. The settlement was by way of a registered document bearing
No.3907/1986. After the writ petitioner had been benefited with the
settlement, he had been favoured with a patta by the Revenue Department in
patta No.308.
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W.A.No.704 of 2016
2.2. It is case of the writ petitioner that the 2nd appellant viz., The
Assistant Commissioner for Urban Land Tax-cum-Competent Authority,
Kundrathur had passed an order on 14.07.1998. In and by way of this order
in Na.Ka.No.768/98-B, the said authority, had determined that an extent of
about 3150 sq. mtrs. is excess holding and that the petitioner is entitled only
to an extent of 500 sq. mtrs. Prior to the passing of the order, he was not
served with any notice and since no objection has been received from any
quarters, the impugned order came to be passed.
2.3. The writ petitioner further alleged that prior to passing the
impugned order, no efforts were taken to ascertain the correct address and
since the lands are agricultural in nature, it will not attract the provisions of
the Urban Land Ceiling Act.
2.4. The writ petitioner would further allege that prior to passing the
impugned order, no verification of the owner's address was done. He would
state that the order passed under Section 9(5) of the Tamil Nadu Urban land
(Ceiling & Regulation) Act, 1978, was done without verification of the
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W.A.No.704 of 2016
address or details of the present owner or after verification of the revenue
records. He would state that the extent of 0.91 acres of Gerugambakkam
Village, Sriperumbudur Taluk, comprised in S.No.370, continues to be in his
exclusive possession and enjoyment.
2.5. The writ petitioner would rely upon Tamil Nadu Urban land
(Ceiling & Regulation) Act, 1999 (Act 20 of 1999), on the ground that the
said Act had repealed the Tamil Nadu Urban Land (Ceiling & Regulation)
Act, 1978 (in short “the 1978 Act”) and since the physical possession
continued to be with the petitioner, the proceedings had abated. Being left
with no other option, he came forward with the writ petition challenging the
proceedings under Section 9(5) of the 1978 Act dated 14.07.1998.
2.6. To this writ petition, a counter affidavit was filed on behalf of the
respondents. The respondents conceded that the revenue records show that
the writ petitioner is the owner of the land situated in S.No.370/1 of
Gerugambakkam Village. It would state that as the required return was not
filed, in terms of Section 7 of the 1978 Act, a notice dated 27.02.1998 was
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W.A.No.704 of 2016
issued by the 2nd respondent to the writ petitioner. It is alleged that the
notice was served on 11.03.1998. The Deputy Tahsildar, in charge of the
office of the 2nd respondent, had inspected the land on 01.04.1998 and had
reported that the land was no longer an agricultural land, but had been
converted into an urban land. Therefore, on the basis of the revenue records
and the inspection report of the Deputy Tahsildar, the respondent issued a
notice under Section 9(4) of the 1978 Act, together with a draft statement
under Section 9(1) of the 1978 Act, was issued on 07.04.1998.
2.7. The respondent would further state that the said notice was
served on the mother of the writ petitioner on 20.05.1998. Despite the
service of notice, there was no counter or objection filed to the draft
statement under Section 9(1) of the 1978 Act. Consequently, the
2nd respondent inspected the land on 09.07.1998 and confirmed that it was
no longer an agricultural land and had been converted into house plots.
Consequently, he determined the entitlement at 500 sq. mtrs. and passed an
order on 14.07.1998, determining the vacant land as 3150 sq. mtrs.
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W.A.No.704 of 2016
2.8. On the basis of this order dated 14.07.1998, the respondent
alleged that a final statement under Section 10(1) of the 1978 Act was
issued on 28.08.1998 and it was served by affixture on the land. This
affixture is said to have taken place on 03.09.1998, in the presence of the
Revenue Inspector, in charge of the Village and two witnesses. This
procedure had been adopted, since the writ petitioner was not available for
service. Thereafter, a notification was issued under Section 11(1) of the
1978 Act on 05.10.1998 and the said notification was published in the Tamil
Nadu Government Gazette on 11.11.1998.
2.9. According to the respondent, since notification under Section
11(3) of the 1978 Act had been issued, the land vests with the Government.
He would state that the final notice under Section 11(5) of the 1978 Act was
issued by the 2nd respondent on 12.03.1999, directing the petitioner to
handover the excess vacant land. As the land owner did not handover the
possession, the possession of the vacant land viz., 3150 sq. mtrs. was taken
over and handed to the Firka Revenue Inspector, Mangadu Village on
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W.A.No.704 of 2016
06.05.1999. On the basis of this taking over, the revenue records were
mutated and on 29.04.1999, it was recorded as “Government ULC Land”.
2.10. The 2nd respondent further alleged that since the acquisition
proceedings had been completed and possession had been taken over, prior
to the introduction of the repeal Act No.20 of 1999, the repeal act is
inapplicable. He would state that the writ petition had been filed six years
after the vesting of the land with the Government and therefore, the writ
petition must be dismissed.
2.11. On the basis of the affidavit, counter affidavit and records
produced before the Court, the learned Single Judge took up the matter for
hearing on 15.04.2013. The learned Single Judge found that under Section
16 of the 1978 Act, compensation would have to be paid and since in this
case, compensation has not been paid at all, the proceedings would have to
fail. Crucially, he found that notice under Section 7(1) of the 1978 Act had
not been issued to the petitioner and that the mandatory provisions
contemplated under Sections 9(4), 10(1), 11(3) and 11(5) of the 1978 Act
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W.A.No.704 of 2016
had not been followed at all. He had also recorded that the notice under
Section 7(2) of the 1978 Act alone was issued on 27.02.1998 and none of
the mandatory provisions contemplated under the aforesaid sections had
been followed. Hence, he came to the conclusion that that entire
proceedings was vitiated and therefore, the writ petition was allowed.
Aggrieved over this order, the present writ appeal had been preferred before
us.
3. The learned Additional Advocate General who appeared on behalf
of the appellant was requested to produce the records relating to the urban
land ceiling proceedings. We have gone through the records and find that
apart from Section 7(2) of the 1978 Act notice dated 27.02.1998, none of
the other proceedings have been followed at all.
4. It has been consistently held by this Court that if the mandatory
provisions are not followed and possession has been taken, then, the
proceedings will have to fail. The manner of taking possession has been
settled by two judgments of the Supreme Court in B.N.Bhagde Vs.
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W.A.No.704 of 2016
M.D.Bhagwat and Others (AIR 1975 SC 1767) and Tamil Nadu Housing
Board Vs. A.Viswam (AIR 1996 SC 3377). In both these cases, the Supreme
Court had held that a person can be held to have been deprived of his
possession of the property only after preparation of a memorandum or a
panchanama signed by witnesses.
5. As pointed above, there is nothing in the files to show that
possession had been taken over by the Revenue Inspector, in the presence of
witnesses. Apart from that, the files do not disclose about following the
mandatory procedures required under law. It is an admitted fact that the
2nd respondent had initiated proceedings under Section 9(5) of the 1978 Act.
It is also admitted that a demand was made on the writ petitioner to
surrender the excess land. Further, the writ petitioner did not surrender the
lands. Therefore, the only option open to the respondent was to follow the
mandatory provisions of Section 11(6) of the 1978 Act.
6. By merely stating that the Revenue Inspector took possession, does
not satisfy the requirements of law. In this case, the 2nd respondent has not
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W.A.No.704 of 2016
followed any of the procedures contemplated under the Act and therefore,
we are constrained to hold that the 2nd respondent has not fulfilled the
mandate of law and consequently, the proceedings initiated under the Urban
Land Ceiling Act have to go.
7. When the mandatory provisions of the Act have not been followed,
when compensation has not been paid under Section 16 and when
possession has not been taken in accordance with law, then, the provisions
relating to the repealed act, will directly apply. Once the provisions of the
repealed act applies, all the proceedings of the provisions abate. This in
terms of Section 4 of the Tamil Nadu Urban Land (Ceiling & Regulation)
Repeal Act, 1999 (Act 20 of 1999). Section 4 of the Repeal Act mandates
that if possession had not been taken as contemplated under the parent act,
the proceedings stand abated. At best, the records produced show paper
delivery from one department to another. This does not comply with the
requirements of law. Therefore, we are constrained to hold that the order of
the learned Single Judge was correct and this writ appeal has to fail.
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W.A.No.704 of 2016
8. We may also add that under same circumstances, this Court had
dismissed the appeal preferred by the Special Commissioner and
Commissioner for Land Reforms, holding to the aforesaid effect in
W.A.No.3621 of 2019 dated 12.01.2023 (The Special Commissioner and
Commissioner of Land Reforms, Chepauk and Others Vs. Lakshmi Devi,
represented by her legal heirs).
In fine, the Writ Appeal is dismissed. The order of the learned Single
Judge dated 15.04.2013 passed in W.P.No.10311 of 2005 stands confirmed.
No costs. Connected miscellaneous petition is closed.
(V.M.V.,J.) (V.L.N.,J.)
25.04.2023
Internet : Yes / No (1/2)
Neutral citation : Yes/No
gya
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W.A.No.704 of 2016
V.M.VELUMANI, J.
AND
V.LAKSHMINARAYANAN, J.
gya
W.A.No.704 of 2016
25.04.2023
(1/2)
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