IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.07.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8794 of 2004 and M.P.No.14293 of 2003 1.Sarojini Devi 2.Sivabooshanam 3.P.K.Saraswathi 4.T.S.Tamilarasi ..Petitioners (Petitioners are represented by their Power Agent R.Thyagasundaram) Vs. The Assistant Commissioner of Urban Land Tax, Kunrathur at Chennai now at Assistant Commissioner (ULT), Kunrathur Zone, Kancheepuram District, Chennai – 116. ..Respondent W.P.No.8794 of 2004 is filed under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari to set aside the order of the respondent in RC.No.974/88A dated 30.04.1990. For Petitioners : Mr.A.Sivaji For Respondent : Mr.M.Dhandapani, Spl.G.P. O R D E R Heard both sides. 2.This writ petition arises out of an unnumbered Special Revision (Diary No.65 of 2001) 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 respondent dated 30.04.1990 in Rc.No.974/88A in that Special Revision Petition. https://hcservices.ecourts.gov.in/hcservices/ 3.In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as CRP No.1985 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. Before the Tribunal, no counter affidavit was filed by the respondent. But the original records were circulated for perusal by this court. An additional affidavit dated Nil (June 2010) was also filed by the petitioners. 5.The contention raised by the counsel for the petitioners was that the lands are classified as agricultural lands and continues to be agricultural land and in terms of Section 3(p) of the Act such lands could not have been covered by the Act and hence the proceedings initiated are void ab initio. There is no material under which the respondent has taken action under the Act. 6. It is the case of the petitioners that they are the legal heirs of the erstwhile owners of the land M/s.P.V.Krishnamoorthy Mudaliar and his wife Roopavathi Ammal @ Rukmani Ammal. The lands which are covered by the proceedings were said to be agricultural lands. The said P.V.Krishnamoorthy Mudaliar died as early as 1973, who was initially residing at No.20, Karaneeswarar Koil Street, Mylapore, Chennai – 600 004. When the coverage under the Act was made in respect of the lands situated in Kunrathur Village, the lands in question were used only for agricultural purposes. However, contrary to the provisions of the Act, Section 7(2) was invoked by the respondent on 27.10.1986. On the said date, the said P.V.Krishnamoorthy Mudaliar is no longer alive. By sending notice to the dead person, subsequent proceedings were followed and completed without due process. Even the wife of P.V.Krishnamoorthy Mudaliar viz., Rukmani Ammal passed away on 27.02.1999. The petitioners having come to know about the various proceedings challenged the same. 7. From the original file circulated, it is seen that notice under Section 7(1) of the Act was sent to P.V.Krishnamoorthy Mudaliar and was received by one V.Ramakrishnan said to be his grandson. Similarly, the notice to appear for an enquiry dated 29.04.1987 was sent by registered post in the name of P.V.Krishnamoorthy Mudaliar to the Chennai address. However, the Tapal cover came back with an endorsement 'deceased- returned to sender'. Similarly, notice sent on 05.05.1987 had also come back with an endorsement 'deceased – returned to sender'. However, the statement of P.K.Sivakumar s/o Late P.V.Krishnamoorthy Mudaliar was recorded by the authorities on 27.07.1987. In that statement, he had given the list of all the legal heirs including the names of the petitioners. He also stated that the lands are agricultural lands exempted by the provisions of the Act. The statement obtained showed https://hcservices.ecourts.gov.in/hcservices/ that the lands are punja lands and the chitta also showed that they were assessed for land tax as agricultural lands. But the field inspection report sent by the Assistant Commissioner, Kunrathur showed that the lands were situated 3 kms from the Kunrathur – Pallavaram Road and there were no tracks reaching the land. As per the village records, it is shown as Punja lands and having irrigational facilities but kept as a vacant land, but no building and trees were found except Velikathan trees. 8. The arguments largely turned around the fact as to whether the lands were exempted from the application of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. The term "urban land" is defined under Section 3(o) which reads as follows:- "3(o) "urban land" means- (i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or (ii)in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration but does not include any such land which is mainly used for the purpose of agriculture. Explanation.- For the purpose of this clause and clause (p),- (A)"agriculture" includes horticulture, but does not include- (i) raising of grass, (ii)dairy farming, (iii)poultry farming, (iv)breeding of livestock, and (v)such cultivation, or the growing of such plant, as may be prescribed; (B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the commencement of this Act as for the purpose of agriculture." https://hcservices.ecourts.gov.in/hcservices/ 9. Therefore, in the light of the above definition, Mr.A.Sivaji, learned counsel for the petitioners contended that not field inspection report as well as entries in the chitta and adangal showed that the lands were classified only as agricultural lands. Hence, in the teeth of this definition, the respondent cannot consider their land as a vacant land and declare it as surplus land. 10. In this context, he refers to the judgment of this Court in S.Sarangapani Iyengar v. The Assistant Commissioner, Urban Land Tax, Alandur and Saidapet reported in 1988-1-L.W 152 wherein in considering a similar definition under the Tamil Nadu Urban Land Tax Act, 1966, M.N.Chandurkar,C.J. speaking for this Court in paragraphs 4 and 5 had observed as follows:- "4. At the threshold, it is difficult to uphold the finding given by the Tribunal that the lands in question are not agricultural lands. The Tribunal seems to have taken a view that merely because the lands were kept vacant during the Fasli years 1381 85, they ceased to be agricultural lands. For such a proposition, there does not seem to be any support in any statutory provision. The lands are registered as agricultural lands in the revenue records. There are adangal records which undoubtedly show that the lands were uncultivated. They also show that they are dry lands. Whether it is agricultural land or not will depend on the nature of the lands and the purpose to which the lands are normally put. Merely because an agricultural land is not cultivated for some time, the land does not cease to be agricultural land especially when it is not put to any other use. It is difficult to appreciate the reasoning of the Tribunal that since the petitioner has merely stated that the lands in question are dry lands and that they have been reserved for formation of horticultural garden,the lands could be said to have ceased to be agricultural lands. 5. ....When we deal with agricultural land, it must be taken into account that the presumption would be that it is going to be used for the purpose of agriculture. An agricultural land is not normally used for a building site and in any case it is not capable of being used as a building site in the normal course unless of course the owner sets a part of it apart by way of a lay out or intends to construct a building in some part of the property. Normally agricultural lands must be construed as agricultural lands and since agricultural lands are not normally used for building sites, it must be https://hcservices.ecourts.gov.in/hcservices/ assumed that they are not capable of being used as building sites unless steps have been taken to have it used as building site. Agricultural lands will, therefore, stand excluded from the definition of 'urban land' unless they are intended to be converted for building purposes or house sites. In this view of the matter, the orders of assessment in respect of the agricultural lands in question will have to be set aside." 11. Following the said judgment, the same views were adopted in respect of the definition found in Section 3(o) of the present Act in a subsequent Judgment in A.Kasi and another v. Special Commissioner and Commissioner of Land Reforms and another reported in AIR 1999 Mad 23. After referring to S.Sarangapani Iyengar's case (cited supra) in paragraph 5 it was observed as follows:- "5. In view of the above decision, merely because the lands were kept uncultivated for some time cannot be characterised the said lands as Urban Land. The authorities below have not given any other reason to come to the conclusion that the lands are urban lands. The only reason given is that the petitioners have not cultivated the lands during the relevant period. Such a reasoning cannot be sustained." 12. It must also be noted that after the death of the original owner P.V.Krishnamoorthy Mudaliar, there were several legal heirs who became owners of the land. Though the authorities are initially entitled to proceed as per the revenue records, the subsequent notices sent to the said P.V.Krishnamoorthy Mudaliar by RPAD came back undelivered with an endorsement 'deceased -returned to sender'. Hence, that cannot be said to be a valid notice. The authorities should have found out the legal heirs of the original owner and served the subsequent notices on them. That was not done in this case. In the meanwhile P.K.Sivakumar s/o Late P.V.Krishnamoorthy Mudaliar had appeared and gave the list of all the legal heirs. Even then, no attempt was made to serve those persons in the subsequent proceedings. When once the names of persons are disclosed as legal heirs of the deceased land owner (who died as early as in the year 1973) it is obligatory on the part of the respondent to have issued notice to the legal heirs on the subsequent proceedings. 13. In this context, in respect of want of notice on the remainderman by the Collector concerned under the Tamil Nadu Act 31 of 1978 came up for consideration by the Supreme Court in S. Palani Velayutham and others v. District Collector, Tirunelvei, Tamilnadu and others reported in (2009) 10 SCC 664. In paragraphs 8 to 11 it was observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "8. There is no obligation on the part of the Collector to hold an enquiry to find out whether there are any other persons interested in the land or whether there are any vested remaindermen, in addition to those whose names are entered as the owners/holders/occupiers of the acquired land. Nor does the Collector have any obligation to issue notices to persons whose names are not entered in the revenue records. This does not mean that the persons whose names are not entered in the revenue records do not have any right in the acquired land or that they lose their claim to compensation. Their interests and rights in regard to compensation are protected by the provision relating to apportionment of compensation and provision for referring the disputes to a civil court for apportionment of compensation. 9. Persons are “believed” to be interested in the acquired land, if their names are disclosed to the Collector as persons having an interest in the acquired land (though their names are not entered in the revenue records) either in correspondence or otherwise and whom the Collector believes as having an interest in the acquired lands. The question whether a person is believed to be interested in the acquired land, would depend upon the subjective satisfaction of the Collector. 10. The Collector is not expected to hold mini enquiries to find out whether the persons whose names are disclosed, (other than those whose names are entered in the revenue records) are persons interested in the acquired land or not. Therefore no person has any right to assert that the Collector should recognise him to be a person interested in the acquired land, and issue notice to him, merely because someone informs the Collector that such person is also having an interest, if his name is not entered in the revenue records. 11. Of course, if the Collector is prima facie satisfied from his records that someone other than those whose names are entered in the revenue records, are also interested in the land, he may at his discretion, issue notice to them. If he is not satisfied, he need not issue notice to them. Who is to be “believed to have an interest” is a purely subjective administrative decision. Such persons have no right to claim that notice of acquisition should be issued to them." (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ In the present case, the petitioners are not remaindermen, but lawful owners of the property. Hence, as a matter of course they ought to have been given notice. 14. In the light of the above, this Court is of the view that not only the petitioners did not have any notice but the land is also held to be an agricultural land exempted in terms of Section 3(o) of the Act. Therefore, if any proceedings are initiated and action taken, such proceedings are void ab initio. Thence, the petitioners are entitled to succeed. 15. The writ petition stands allowed. No costs. The impugned proceedings will stand set aside. Connected MP will stand closed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar svki To The Assistant Commissioner of Urban Land Tax, Kunrathur at Chennai now at Assistant Commissioner (ULT), Kunrathur Zone, Kancheepuram District, Chennai – 116. + 1 c.c. to Mr. A. Sivaji, Advocate. S.R.No.53406. W.P.No.8794 of 2004 MRD (CO) GSK 03.08.2010. https://hcservices.ecourts.gov.in/hcservices/