In the High Court of Judicature at Madras Dated: 02.09.2005 Coram: The Honourable Mr. Justice P.K. MISRA Writ Petition No.26920 of 2004 K.R. Kothandaraman ... Petitioner -vs- 1. The Special Commissioner and Commissioner for Urban Land Ceiling and Urban Land Tax, Chepak, Chennai 600 005. 2. The Assistant Commissioner for Urban Land Tax-cum- Competent Authority, T. Nagar, No.84, Arcot Road, Kodambakkam, Chennai 600 024. ... Respondents Writ Petition filed under Article 226 of the Consituttion of India to issue a Writ of Mandamus, directing the respondents to declare the particulars of lands in Survey No.529/2 to an extent of 0.93 acres stand in petitioner's name in patta No.393, the land in survey No.530/1 to an extent of 1.01 acres, ½ acres land in survey No.529/1 to an extent of 1.13 acres stand in the petitioner's father's name situated at Velacherry Village, Guindy Mambalam Taluk, Chennai District is the absolute land of the petitioner by effecting a Gazette publication in view of the repealed Act 20 of 1999 as abated. For Petitioner : Mr. A. Ramu For Respondents: Mr. S. Gomathynayagam Spl. Govt. Pleader O R D E R Heard the learned counsel appearing for the parties. 2. The prayer in this writ petition is for issuing a https://hcservices.ecourts.gov.in/hcservices/ writ of mandamus coupled with declaration to the effect that the disputed land which was standing in the name of the petitioner's father is the property of the petitioner. 3. The facts leading to the present writ petition are as follows: The disputed property purchased by the father of the petitioner was partitioned among the family members as per the Registered deed of partition dated 31.7.1981. The 'A' schedule property in such partition deed was allotted to the parents of the petitioner; 'B' schedule was allotted to the petitioner and 'C' schedule was allotted to the younger brother of the petitioner. The father of the petitioner expired on 17.2.1982, leaving behind his widow and the two sons as the only legal heirs. Without taking into account the factum of death of the father of the petitioner, the second respondent (Competent Authority under the Urban Land Ceiling Act) passed an order dated 10.1.1992 as per proceedings No.C-2/5800/90. Such proceedings was in the name of the dead person namely Ramakrishnan, the deceased father of the petitioner. While passing such an order under section 9(5) of the Act, the authority had not taken into account the Registered Deed of Partition. The petitioner claims that he continues to be in physical possession of the land in Survey No.529/2 to an extent of 0.93 acres which stands in the name of the petitioner in patta No.393, the land in Survey No.530/1 to an extent of 1.01 acres ½ acres and Survey No.529/1 to an extent of 1.13 acres are standing in the name of the petitioner's father in Patta No.559. The petitioner's father claims that he has paid Urban Land Tax in respect of the aforesaid land as demanded by the Special Tahsildar, Urban Land Tax on 22.11.2003. The contention of the petitioner is that on the repeal of the Urban Land Ceiling Act (Act 24 of 1978), proceedings under such act are deemed to have abated and the petitioner is entitled to continue in possession of such land. It is further contended that the State Government is bound to publish in the official gazette regarding such abatement. The main contention of the petitioner is to the effect that proceedings under the Urban Land Ceiling Act, had been initiated against the dead person and the order passed in such proceedings without serving notice on the legal representative must be taken to be non-est, null and void and therefore, on the repeal of such Act, the petitioner who was in possession of such land by virtue of the deed of partition, must be allowed to continue as such without any hindrance from the State Government. https://hcservices.ecourts.gov.in/hcservices/ 4. A counter affidavit has been filed on behalf of the second respondent. In such counter affidavit, it has been contended that the Tamilnadu Urban Land (Ceiling and Regulation) Act 1978 came into force with effect from 3.8.1976. Ramakrishnan was the owner of the disputed land. Since the land owner had failed to file return under section 7(1) of the Act, competent authority issued notice under section 7(2) of the Act on 20.3.1990. Such Notice was served on R.Manivannan, son of Ramakrishnan on 16.6.1990. However, no return was filed. Subsequently, the Special Tahsildar recorded the statement of Manivannan to the effect that the properties was in the name of several members of the family as per registered documents. Eventhough he had stated that Ramakrishnan had expired in the year 1982, he had not furnished any documentary evidence. The Special Deputy Tahsildar therefore submitted his proposal for acquisition of the excess vacant land from the Urban Land Owners namely the wife and the two sons of Ramakrishnan. On the basis of his proposal, notice under section 9(4) and Statement under section 9(1) of the act were prepared in the name of the three persons and excess vacant land had been acquired from the concerned person. It is further claimed that possession of excess land had been taken over on 14.7.1997. A contention is raised in the counter to the effect that even if constructive possession is taken, on repeal of the Act, such land vested with the Government could not be affected. On the basis of such averments, respondent has prayed for the writ petition to be dismissed. 5. The basic contention of the petitioner is to the effect that the proceedings had been initiated against a dead person and notices were not served on the petitioner, has not been specifically denied in the counter affidavit. Since the father of the petitioner had died in the year 1982 and the proceedings were initiated only in the year 1990 against a dead person, it must be taken that the orders passed in such proceedings are null and void. It is not disputed that when the notice in respect of the proceedings which had been started in the name of Ramakrishnan had been served on one of the sons who had been brought to the notice that such original land holder had died long back and there was a registered deed of partition whereunder the lands had been allotted to the share of different persons, it was the duty of the Urban Land Ceiling authorities to continue/initiate the https://hcservices.ecourts.gov.in/hcservices/ proceedings against the legal heirs by serving a notice on such persons. Any action purported to be taken under the Act without serving notice on the persons likely to be affected, must be taken as null and void particularly when the proceedings had been initiated against a dead person. Eventhough it is claimed by the respondent that possession had been taken, the very fact that the Urban Land Tax Authorities had demanded payment of tax and received such payment from the various occupants, clearly militates against the case of the respondents that possession had been taken in a manner known to law. The fact that the petitioner is continuing in physical possession is also not challenged in any manner in the counter. The contention of the respondent to the effect that even symbolical delivery of possession must be taken as the possession of the respondent, can be of no assistance in the peculiar facts and circumstances of the present case. 6. The proceedings had been initiated against a dead person and the persons in possession of the land are obviously not bound by the so called symbolical delivery of possession, particularly when notice had not been served on them. Nothing has been produced in this Court to indicate that possession had been taken from the present petitioner who apparently was in possession of the disputed land from the date of the registered deed of partition. In such view of the matter, it must be taken that the possession continued with the petitioner and since the urban land ceiling proceedings were void having been initiated and continued against a dead person, the proceedings must be taken to have abated in view of the repeal of the Act. 7. In such view of the matter, the writ petition is allowed and it is declared that the petitioner is the owner in possession of the land and the respondents are not entitled to interfere with his right over the land. There will be no order as to costs. Rpa Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Special Commissioner and Commissioenr for Urban Land Ceiling and Urban Land Tax, Chepauk, Chennai 600 005. 2. The Assistant Commissioner for Urban Land Tax-cum- Competent Authority, T. Nagar, No.84, Arcot Road, Kodambakkam, Chennai 600 024. +one cc to Dr. G. Krihamurthy Advocate SR NO. 37141 VC (CO) NM(26/09/2005) https://hcservices.ecourts.gov.in/hcservices/