IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 29-01-2010 Coram TTHE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.19218 of 2003 1. R.Munian 2.R.Sankaran 3.R.velu 4.R.Mallika 5.Rukmani Ammal .. Petitioners vs. The Assistant Commissioner for Urban Land(Ceiling and Regulations) Alandur Zone, Chennai .. Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari as stated therein. For petitioners : M/s Dr.G.Krishnamurthy For Respondent : Mr.N.Senthilkumar,AGP O R D E R The petitioner has filed this writ petition praying for issuance of a writ of certiorari,in calling for the records of the respondent in his proceedings ref.No.Na.Ka.1806/97/A dated 22.9.1997 by declaring the petitioners lands in S.No.24/3 and 24/4 measuring 14 cents and 27 cents as surplus lands under the provisions of Tamil Nadu Urban Land(Ceiling and Regulations) Act 1978 as amended and to quash the same. 2.The petitioners are the legal heirs of deceased I.Ramachandra Naicker of Okkiam-Thuraipakkam Village in Saidapet Taluk, Chengalpattu District. The said Ramachandra Naicker expired in the yeyayr 1975. According to the petitioners, their maternal great grand mother Muniammal in the year 1941 purchased an agricultural land of an extent of 14 cents in Survey No.24/3A situated in Okkiam- Thuraipakkam Village from one N.L.Chinnakkannu Naicker of Okkiam- Thuraipakkam Village as per sale deed dated 22.4.1941 bearing Document No.662/1941 registered in the office of the Sub Registrar, Saidapet Taluk Chengleput District. Subsequently, after the demise of https://hcservices.ecourts.gov.in/hcservices/ said Dhanammal, the property was owned, possessed and enjoyed by her daughter one Dhanammal and later after demise, the son of Dhanammal, viz., I.Ramachandra Naicker, the father of the petitioners 1 to 4 and the husband of the 5th petitioner were in exclusive ownership and possession of the aforesaid property. 3. Added further, petitioners 1 to 3 ,are the owners of agricultural land of an extent of 27 cents in survey No.24/4 situated at Okkiam Thuraippakkam Village and they obtained the same by means of a settlement deed dated 27.3.1967 executed by Dhanammal, grand mother of the petitioners 1 to 3, since the petitioners 1 to 3 minors at the time of execution of the settlement deed dated 27.3.1967, their father Ramachandra Naicker,looked after the properties, cultivated the land, paid kists , enjoyed the propertes as joint family property. 4. After the demise of the said Ramachandra Naicker, the petitioners got the land in Survey No.24/3 and 24/4 of the extent of 14 cents and 27 cents respectively with their ownership, possession and enjoyment and also they got joint patta in the name of petitioners 1 to 3 since they are enjoying the above lands by cultivating them for many years. The lands as per the revenue records are wet lands till the date of filing of the execution proceedings initiated by the respondent on 22.9.1997. 5. The petitioners came to know in the year 2003 from the revenue records that the lands in Survey No.24/3, 24/4 were made the subject matter of acquisition under Tamil Nadu Urban Land(Ceiling and Regulation) Act 1978 and according to the petitioners, they were not aware of any such proceedings till they approached the respondent for a certified copies of the proceedings against them and they approached the respondent and got a certified copy of the order of the notice. More over, the petitioners have obtained the certified copy of the order of the respondent dated 22.9.1997 only on 16.9.2002 and the said order speaks of the land of an extent of 550 sq.mts in S.No.24/3 and 600 sq.mts in S.No.24/4 were taken over by the Government as excess vacant land thus leaving only 500 sq.mts of area for the petitioners entitlement for their ownership. 6. On the side of the petitioners, the learned counsel for the petitioners submits that for the land in S.Nos.23/4 and 24/4 in question, the petitioners are the owners under the joint patta dated 10.4.1989 stands in the name of the petitioners 1 to 3. The impugned order of the respondent dated 22.9.1997 refers to the first petitioner alone and in the said order, there is no reference to other petitioners in regard to their ownership and since the impugned order refers to only the first petitioner and since the same does not explicitly or implicitly makes any reference to other three petitioners name have been omitted as conspicuously then the said order is bad in the eye of law because of the simple fact that the https://hcservices.ecourts.gov.in/hcservices/ respondent who being the competent and appropriate authority has not applied its mind to the great realities of the situation in the matter in issue. 7. It is further contention of the learned counsel for the petitioners that the possession of the land in issue is with the petitioners and according to the learned counsel for the petitioners notice in the instant case has been affixed in the land which is not a proper service as per Rule 8 of the Tamil Nadu Urban Land(Ceiling and Regulations) Act 1978 and to lend support to his contention, he seeks in aid of the decision in Saraswathi-v-The Principal Commissioner & Commissioner of Land Reforms (2007(4) CTC 714)wherein among other things observed that' Statement under Section 9(4) and Notice under Section 11(5) of the Act is to be only in accordance with Rule 8 and service by affixture is invalid and service of notice to be in accordance with mandatory provisions and also that the alleged take over of possession by Urban Ceiling authorities also not proved by valid evidence and with repeal of Principal Act and the petitioners being in possession in the writ petition stands allowed as prayed for. 8. He also cites the decision of this Court in M/s Sree Jayalakshmi Brick Industries -v- The Special Commissioner and Secretary to Government(2009(4) L.W.819) wherein it is held thus: "We are of the view that the notice under Section 11(5) should be served on the petitioner. Though, his purchase by a sale deed is made invalid by Section 6 of the Act, in view of the word 'any person who may be in possession' used in Section 11(5) of the Act, notice ought to have been served on the petitioner to surrender or deliver possession to the Government". 9. Also, in the said decision, it is inter alia observed that 'Once the possession is not taken over by the Government, all the proceedings under the Act must be held to have abated under Section 4 of the Repealing Act. 10. In response, the learned Additional Government Pleader submits that the lands in question were found vacant and the owner had not filed the return under Section 7(1) of the Tamil Nadu Urban Land(Ceiling and Regulations) Act 1978 and therefore, notice under Section 7(2) of the said Act was issued on 20.1.1997 to the first petitioner to file return as per Section 7(1) of the Act and since no reply was received, after obtaining the report of the Deputy Tahsildar, notice under Section 9(4) statement and under 9(1) of the Act were issued to the urban land owner on 18.6.1997 and served by affixture in the land in question and since no objections were raised the then competent authority has inspected the lands on 19.8.1997 https://hcservices.ecourts.gov.in/hcservices/ and passed order as per Section 9(5) of the Act on 22.9.1997 to acquire the excess vacant land of 550 sq.mts in S.No.24/3A and an extent of 600 sq.mts. In S.No.24/4 of Okkiam-Thuraipakkam Village and orders were served by affixture on 25.10.1997. 11. Besides above, a final statement as per Section 10(1) of the Act was issued on 31.12.1997 and it was also served by affixture. The notification under Sections 11(1) and 11(3) of the Act were issued on 27.3.1998 and 1.9.1998 respectively for the publication in the Tamil Nadu Government Gazette and notice as per Section 11(5) of the Act was issued on 20.11.1998 and served by affixture by the Field Assistant of the respondent's office and the excess vacant land in S.No.24/3, 550 sq.mts, 24/4A 600 sq.mts. were acquired and the possession handed over to the Revenue Inspector , Pallikkaranai on 15.3.1999 and further when the notice under Section 12(7) of the Act was issued on 22.12.2000 and served by affixture, at this stage, the writ petition was filed by the petitioners. 12. The respondent takes a plea in the counter that the competent authority before passing orders,has inspected the land on 19.8.1997 and found that the lands were without any cultivation and notices were issued in the name of Munian viz., the first petitioner, (registered holder of the land) and they were served by means of affixture since the urban land owner's addresses were not known and that the present address of the first petitioner could not be located and hence it was served by affixture. 13. The pith and substance of the contentions put forward on the side of the respondent is that since the address of the urban land owner was not known, the notice and orders were served by affixture and inasmuch as , no representation and no objection were received by the competent or appropriate authority action was initiated to acquire the excess vacant land as per the provision of the Act and therefore, the writ petition lacks of bonafides. 14. The learned Additional Government Pleader cites the decision of the Honourable Supreme Court in Ajay Krishan Shinghal-v- Union of India(AIR 1996 Supreme Court, 2677)whereby and whereunder it is held that 'endorsement by peon that he affixed copy of notification at conspicuous place in locality, presumption under Section 114 (e) of Indian Evidence Act. Further on behalf of the respondent, it is submitted that the respondent has followed the due procedure in the manner known to law and therefore, presumption is that the official acts of the respondent in the matter in issue has been done correctly and validly in the eye of law. 15. However, the learned Additional Government Pleader brings it to the notice of this Court to the decision of this Court in R.R.Nadhan-v-State of Tamil Nadu(2009(8)MLJ 1335) wherein it is held that 'the Authorities had followed every procedure before taking https://hcservices.ecourts.gov.in/hcservices/ possession of the land, which cannot, at any stage be found fault with. In the given situation , the possession of the petitioner, if any has to be treated only as an encroachment on the Government land'. Further the learned Additional Government Pleader in the aforesaid decision, places a reliance on the observation made in paragraph 10 which runs as follows: " The notice under Section 11(5) was issued on 9.12.1983 and the same was sent to the petitioner,who refused to receive it. Thereafter, the respondents took possession of the excess vacant land on 19.1.1984. Further, the third respondent issued the notice under Section 12(7) on 12.1.1984 and served it by registered post with acknowledgement due on 27.1.1984. Another notice was also issued on 28.1.1984, which was served on the petitioner on 1.2.1984. Only thereafter, the third respondent passed orders under Section 12 (6) in Rc.No.1963/81,dated 23.2.1984, and determined the amount payable for the excess vacant land as Rs.8,165/-. Out of the total sum, Rs.2,041.25 being 25% of land value, was drawn and kept in revenue deposit on 21.7.1984, as the land owner did not turn up in spite of receipt of proceedings on 8.3.1984. Also, the first instalment of land value of a sum of Rs.408.25 and interest of Rs.468.05 totalling to Rs.876.30 was sanctioned by the respondents in proceedings 1963/81, dated 8.3.1985. The said proceedings were sent by registered post and the same were acknowledged on 29.3.1985. Thereafter, the amounts were kept under Revenue Deposit, as the petitioner did not receive the award amount and as he did not appear for enquiry before the authorities periodically. Ultimately, in G.O.Ms.No.1485, Revenue, dated 11.11.1986, the Government passed orders under Section 21(i)(a) , dismissing the petitioner's application for exemption on the ground that the petitioner had not turned up for the enquiry and was not interested in establishing an industry in the land in question'. 16. At this stage, it is not out of place for this Court to point out that Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulations) Repeal Act 1999 enjoins as follows: "Abatement of legal proceedings: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before https://hcservices.ecourts.gov.in/hcservices/ the commencement of this Act, before any Court, Tribunal, or any authority shall abate: Provided that this section shall not apply to the proceedings relating to Sections 2,13,14,15,15-B and 16 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority'. 17. A perusal of the file produced in this case on behalf of the respondent indicates in the letter of the respondent addressed to the Tahsildar ,Tambaram Taluk, Chennai -45 in Rc.No.1806/97C dated 8.1.1999, it is mentioned that notice under 11(5) of the Act was served by affixture and the Sub Division records in triplicate were sent through one Jeevanandam, S.I.S. Of office and therefore as requested to assign 8-A number and return the records through him and also request was made to suitably instruct the firka Revenue Inspector and Village Administrative Officer to take possession of excess vacant land immediately and also since the address of the person was not known, it was affixed on the spot by the concerned Field Assistant. 18. Also in Rc.No.1806/97C dated 8.1.1999, a careful scrutiny of the Delivery Receipt shows that in respect of the land survey No.24/3A and 24/4A was taken possession by the Revenue Inspector of Pallikkarunai Sub Division Tambaram Circle, Kancheepuram District. 19. It is significant for this Court to quote the observations made by a Division Bench of this Court in the order dated 1.9.2009 in W.P.No.19315 of 2000, which runs as follows: "When the matter came up for hearing, the learned Special Government Pleader representing the respondents brought to the notice of this Court that the Tamil Nadu Urban Land(Ceiling and Regulations) Act, 1978 was repealed by Act 20 of 1999 on 16.6.1999 and also produced a copy of the Tamil Nadu Government Gazette Extraordinary. She also relied on the Constitution Bench decision of the Supreme Court in Smt.Angoori Devi -v- State of U.P.and others (JT 2000 (Suppl.1)SC 295). Heard the learned counsel appearing for the parties and perused the records including that of the Government Gazette Extraordinary. A perusal of the Tamil Nadu Government Gazette Extraordinary would make it clear that the Tamil Nadu Urban Land (Ceiling and Regulations) Act, 1978 was repealed by Act 20 of 1999 even as early https://hcservices.ecourts.gov.in/hcservices/ as on 16.6.1999. If that is so, it is not known as to how the tribunal passed the order on 17.8.2000 as against which the present writ petition has been filed." 20. As far as the present case is concerned, since the Repealing Act came into force on 16.6.1999 and taking note of the Honourable Supreme Court's Judgment in Smt.Angoori Devi-v- State of U.P.(JT 2000 (suppl.1)SC 295) and in view of the fact that all proceedings pertaining to any order before any authority got abated by virtue of Act 20/99, the writ petition filed by the petitioners praying this Court to quash the respondent's proceedings in Na.Ka.No.1806/97/A dated 22.9.1997 also stands abated and view in that perspective, this Court is not inclined to deal with the merits of the matter and accordingly the writ petition is disposed of without costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sg To The Assistant Commissioner for Urban Land(Ceiling and Regulations) Alandur Zone, Chennai 2 cc to M/s.Dr.G.Krishnamurthy, Advocate, Sr.No.5058 1 cc to Government Pleader, Sr.No.5472 W.P.NO.19218 OF 2003 MSM {CO} TP/11.2.2010. https://hcservices.ecourts.gov.in/hcservices/