IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.03.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN WP No. 10471 and 10472 of 2009 and M.P. No. 1 and 1 of 2009 M.P. No. 1 and 1 of 2010 1. R. Srinivasan 2. R. Rajendran 3. Sridhar rep. by his registered power of attorney Mr. J.C.D. Prabhakar .. Petitioners in WP 10471 N. Ramachandran rep.by his registered power of Attorney Mr. J.c.P. Prabhakar .. Petitioner in WP 10472 Versus 1. The Special Commissioner and Commissioner for Land Reforms Chepauk, Chennai – 600 005 2. The Assistant Commissioner for Urban Land Tax cum Competent Authority for Urban Land Ceiling .. Respondents in both the Poonamallee, Chennai – 600 056 Writ Petitions WP No. 10471 of 2009:- Writ Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the Assistant Commissioner for Urban Land Tax cum Competent Authority for Urban Land Ceiling, Poonamallee, Chennai – 600 056 and issued in S.R. 956/96/D, dated 10.04.1997 under Section 9 (5) of the Tamil Nadu Act, 24 of 1978 and the Final Statement dated 30.09.1997 issued in Form III under Section 10 (1) of the said Act in SR 956/96/D and culminating in the issue of notice dated 11.09.1998 in Form VII under Section 11 (5) of the said Act, and quash the same and consequently forbearing the respondents their subordinates or any body acting or claiming through them from in any manner proceeding with or interfering with the peaceful possession and enjoyment of the lands by the petitioners herein and comprised inS.No.8/2A, in an extent of 2.13 acres (Hec.0.86.3 ares) and S.No.8/2B in an extent of 0.58 acres (Hect. 0.24.0 ares) and situated at Voyalanallur Village, Poonamallee Taluk, Tiruvallur District in an extent of 2.71 acres as per the proceedings initiated by the second respondent has abated in view of the Repealing Act 20/1999. https://hcservices.ecourts.gov.in/hcservices/ WP No. 10472 of 2009:- Writ Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the Assistant Commissioner for Urban Land Tax cum Competent Authority for Urban Land Ceiling, Poonamallee, Chennai – 600 056 and issued in S.R. 947/96/D, dated 10.04.1997 under Section 9 (5) of the Tamil Nadu Act, 24 of 1978 and the Final Statement dated 30.09.1997 issued in Form III under Section 10 (1) of the said Act in SR 947/96/D and culminating in the issue of notice dated 30.04.1999 in Form VII under Section 11 (5) of the said Act, and quash the same and consequently forbearing the respondents their subordinates or any body acting or claiming through them from in any manner proceeding with or interfering with the peaceful possession and enjoyment of the lands by the petitioners herein and comprised inS.No.2/3B, Voyalanallur Village, Poonamallee Taluk, Tiruvallur District in an total extent of 5400 square meter (in this subject matter of acquisition if 4900 square meter) as the proceedings initiated by the second respondent has abated in view of the Repealing Act 20 of 1999. For Petitioner :Mr. R. Muthukumarasamy, Senior Counsel for Mr. N. Damodaran in both the writ petitions For Respondents :Mr. V. Arun Additional Government Pleader assisted by Mr. R. Murali Government Advocate COMMON ORDER By consent of counsel for both sides, both the writ petitions are taken up together and are disposed of by this common order. 2. In so far as WP No. 10471 of 2009 is concerned, the learned senior counsel appearing for the petitioners would contend that the property comprised in SF No.8/2A in an extent of 2.13 acres (Hect.0.86.3 ares) and 8/2B in an extent of 0.58 acres (Hec.0.24.0 ares) totally in an extent of 2.71 acres, Voyanallur Village, Poonamallee Taluk, Tiruvallur District originally belonged to one Devaraj. During his life time, the said Devaraj had executed a Registered Will dated 03.03.1997 registered as document No. 24 of 1997 on the file of the Sub-Registrar, Avadi in favour of his four sons namely D. Jayabalan, D.Panchanathan, D. Aruldoss and D.Karunanidhi. The said Devaraj thereafter died on 06.06.1997. As per the Will dated 03.03.1997, his four sons inherited the said property and one of the sons namely D. Karunanidhi died leaving behind him his wife Annammal and two sons K. Hari and K. Alexander. While so, the legal heirs of the deceased Karunanidhi namely Jayabalan and others have executed a sale deed dated 23.06.1995, registered as document No. 1394 of 1995 on the file of the Sub- Registrar, Poonamallee, conveying the said property in favour of the petitioners herein and from then on, the petitioners have been in possession of the said property and prior to that, their predecessors were in possession of the said property. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the learned senior counsel for the petitioners, when the petitioners attempted to change the patta in their favour, they were informed by the Village Administrative Officer that the property was subjected to Land Ceiling Proceedings and they were acquired under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as Act). Immediately, the petitioners have contacted their vendors and they have categorically stated that they have not received any notice from the authorities regarding invocation of the Ceiling Proceedings at any point of time. According to the vendors, they have been in possession of the property during the life time of his father Devaraj and even his father did not receive any notice from the respondents. Therefore, the petitioners applied for copies of the orders passed under Sections 9 (5), 10 (1) and 11 (5) of the Act. According to the learned senior counsel for the petitioners, the copies of the orders obtained by the petitioners revealed that even the notice under Section 7 (2) of the Act, though addressed to Late. Devaraj, was not served on him and it was only served by means of affixture in the subject matter of the land on 01.03.1996 in the presence of the Village Assistant. As there was no objection from the land owners, a notice under Section 9 (1) and 9 (4) of the Act seems to have been sent to the owner of the land namely Devaraj and an endorsement was made as if the said notice was refused. Thereafter, the final order was passed by the second respondent under Section 9 (5) of the Act. Further, the final statement under Section 10 (1) of the Act was issued on 30.09.1997 and in the column "name of the person" it was stated as V. Devarajulu. The said notice was followed by Form VII notice under sub-section 5 of Section 11 and the said notice was issued to V. Devaraju, Voyanallur, Opposite to Gandhi Nagar Bus Stop, Pattabiram, Chennai. By the said notice, the owner was informed that the excess land, as mentioned in the schedule therein, was vested with the Government under Sub-Section 3 of Section 11 of the Act with effect from 15.08.1998 and the owner was directed to deliver vacant possession of the said excess land to the Tahsildar, Poonamallee. It was also inferred that symbolic possession of the property was taken by the respondents on 03.05.1999. The notices under Section 7 (2), 9 (1) and 11 (5) of the Act were addressed to the said Devaraj even as per the records of the Government, but as per the death certificate, Devaraj died on 06.06.1997 and none of the legal representatives were served any notice and therefore, the notice sent to a dead person is invalid. The respondents could not have taken possession of the lands from a dead person and the possession continued with the vendors and thereafter with the petitioners, who have purchased the lands for a valid sale consideration. Therefore, according to the learned senior counsel for the petitioners, the petitioners have purchased the property for a valuable sale consideration and they are in possession and that the symbolic possession said to have been taken by the respondents will not enure to their benefit. According to the learned Senior Counsel for the petitioners, by advent of the Act being repealed, as the possession was never taken from the petitioners or their predecessors in title at any point of time by the respondents, the petitioners are entitled to the benefits of the Repealing Act. The learned senior counsel would further contend that even as per the copies of documents supplied to the petitioners, no notice was ever served on any one of the persons in possession of the lands. There is a clear violation of Rule 8 of the Tamil Nadu Urban https://hcservices.ecourts.gov.in/hcservices/ Land (Ceiling and Regulation) Rules, 1978 which is a mandatory requirement and such notice must have been sent to the owner of the property by registered post with acknowledgment due and only if the notice could not be served for any reason by registered post with acknowledgment due, then the other modes of service of notice could be followed. Therefore, according to the learned senior counsel for the petitioners, the entire proceedings stood abated and he prayed for allowing the writ petition. 4. As regards WP No. 10472 of 2009 is concerned, the learned senior counsel for the petitioner would contend that the property in SF No.2/3B, in No.14 Voyanallur Village, Poonamallee Taluk, Tiruvallur District to an extent of 1.33 acres or 0.54.0 Hectares originally belonged to Alamelu Ammal, who executed a registered Will dated 06.03.1993 registered as document No.4 of 1963 on the file of the Sub-Registrar, Poonamallee in favour of V. Balakrishnan and others. After the death of Alamelu Ammal, as per the terms of the Will, V. Balakrishnan, his daughter Vasanthi and his son B. Ramesh succeeded to the property. Thereafter, the said V. Balakrishnan and two others executed a registered sale deed dated 24.04.1995 registered as document No.463 of 1995 on the file of the Sub- Registrar, Poonamallee in favour of one Bharani Ammal and from that date, Bharani Ammal was in possession and enjoyment of the property. Subsequently, Bharani Ammal sold the property in favour of the petitioner herein by means of a registered sale deed dated 02.07.2008 registered as document No. 1435 of 2008 on the file of the Sub- Registrar, Poonamallee. According to the learned senior counsel for the petitioner, the predecessors in title and the petitioner were in continuous, open, absolute and uninterrupted possession of the subject matter of the property without any interference from anybody. While so, when the petitioner applied for change of patta in his name, he was informed about the Land Ceiling proceedings initiated against the subject matter of land. Therefore, the petitioner applied for copies of the orders passed under 9 (5), 10 (1) and 11 (5) of the Act on 20.10.2008. From a perusal of the orders obtained, particularly the proceedings issued under Section 9 (5) of the Act, it was seen that a notice dated 14.02.1996 under Section 7 (2) of the Act was issued calling for particulars regarding the extent of the land under Section 7 (1) of the Act and that notice was allegedly sent to K. Balakrishnan. It was also evident that since the whereabouts of the said K. Balakrishnan is not known, the notice was affixed in the subject matter of the land. As there was no objection from the land owner, an order was passed and final statement under Section 10 (1) of the Act was issued on 30.09.1997 and in the column "name of the person", it was stated as "M/s. Muralikrishna Brick Works/K. Balakrishnan". The said notice was followed by issuing Form VII notice under Section 11 (5) of the Act and it was also issued to "M/s. Muralikrishna Brick Works/K. Balakrishnan". According to the learned senior counsel for the petitioner, the notice itself was wrongly issued to a non-owner namely K. Balakrishnan and therefore the notice is invalid. The real owner of the property is V. Balakrishnan and not K. Balakrishnan. Even otherwise, the property was already sold on 24.04.1975 and therefore, the notice was not addressed to a proper person. Further, the notice was not served and it was only affixed in the land and it was not in compliance with the mandatory Rule 8 of Tamil Nadu Urban Land (Ceiling and Regulation) https://hcservices.ecourts.gov.in/hcservices/ Rules, 1978. The possession alleged to have been taken from the petitioner or his vendors is only a sympolic possession and the actual possession was not taken. From 20.04.1995, Bharani Ammal, the vendor of the petitioner, was in possession and enjoyment of the property and she sold the property to the petitioner on 02.07.2008 by means of a registered document, but Bharani Ammal was not served any notice. Even the notice under Section 11 (5) of the Act was issued in the name of Muralikrishna Brick Works and the alleged taking possession of the land from the said person has nothing to do with the subject matter of the property which is in possession of the petitioner. At any point of time, possession of the property was not taken from the petitioner or his predecessors in title and therefore, the entire proceedings are abated and he prayed for allowing this writ petition. 5. The learned Additional Government Pleader, relying on the counter affidavit filed in WP No. 10471 of 2009 would contend that the land in Survey No.8/2A and 8/2B measuring totally 11050 square meters of Voyanallur Village stood registered in the name of V. Devaraj as per patta No.304 on the date of commencement of the Act. The notice under Section 7 (2) of the Act was issued on 14.02.1996 and the notice was served by way of affixture on 01.03.1996 as the whereabouts of the owner of the land was not known. Since no reply was received from the land owner, the notice under Section 9 (4) and the draft statement under Section 9 (1) of the Act were issued on 11.06.1996 calling upon the land owner to submit his objections, if any. These notices were also served by affixture on 01.08.1996 as the land owner refused to receive it. Subsequently, the lands were inspected by the Deputy Tahsildar on 11.12.1996 and the order under Section 9 (5) of the Act was issued by the second respondent on 10.04.1997. The said order was received by one T.Madhavan, son of Devaraj on 30.05.1997, but he did not inform the fact of sale of the lands. According to the learned Additional Government Pleader, the final statement under Section 10 (1) of the Act was issued on 30.09.1997 and the notice under Section 11 (1) of the Act was issued on 27.02.1998 and it was also published in the Government Gazzette on 29.04.1998. Thereafter, the notice under Section 11 (3) was issued on 29.05.1998 and it was also published in the gazzette on 05.09.1998. As there was no response from the alleged buyers, the notice under Section 11 (3) of the Act was issued on 11.09.1998 and this notice was also served by affixture as it was refused by the land owner. Thereafter, possession of the lands were taken by the authorities concerned and handed over to the Revenue Inspector of Tiruvallur on 03.05.1999. Later on, necessary changes were made in the records and only on 20.10.2008, the petitioners obtained certified copies of the above proceedings and filed the present writ petition. The subsequent purchaser has not stated the reason for transferring the patta and even though the land was purchased from the previous owner in the year 2003, till 2008, they have not taken any steps to transfer the patta in his favour at the earliest point of time. According to the learned Additional Government Pleader, the department was never informed about the death of Devaraj, the original owner and he has not filed any statement under Section 7 (1) of the Act nor the alleged Will executed by him in favour of his sons was made known to the department. According to the learned Additional Government Pleader, the alleged sale transaction in the https://hcservices.ecourts.gov.in/hcservices/ year 2003 or 2008 will not bind the department in any manner as symbolic possession was already taken by the department. Therefore, according to the learned Additional Government Pleader, any sale made by any person during the pendency of the proceedings under the Urban Land Ceiling are invalid. As per G.O. Ms. No.565, Revenue Department dated 26.09.2008, the petitioners can, at best, apply to the government and get their purchase regularised. Even though the notice under Section 7 (2) of the Act was addressed in the name of Devaraj and served by affixture, the subsequent notices were served on them but no action was taken and therefore, questioning the proceedings initiated by the respondents in this writ petition is not maintainable. The affixture mode was resorted to because the whereabouts of the land owner was not known and thereafter, after ascertaining the address of the land owner, the other notices were sent to the land owners by Registered Post with acknowledgment due, but the same were refused by him. Regarding the plea of taking possession from the dead person, the learned Additional Government Pleader would contend that they were not informed about the death of the Devaraj. Further, action was taken in the name of Devaraju in whose name the land was registered in the revenue records on the date of commencement of the Act. Therefore, the subsequent purchase made by the petitioner or his predecessors in title are null and void as it were made after the year 2005 much after taking symbolic possession of the property. Under those circumstances, he prayed for dismissal of WP No. 10471 of 2009. 6. The learned Additional Government Pleader would contend, placing reliance on the counter filed in WP No. 10472 of 2009, that the notice under Section 9 (4) and 9 (1) of the Act calling for objections from the land owner, were served on the land owner on 03.08.1996, but he did not choose to file his objections to the proposed acquisition. Therefore, the department proceeded with the determination of the land as required under Section 9 (5) of the Act. It is further stated that the final statement under Section 10 (1) and notice under Section 11 (5) of the Act were served by affixture since the land owner refused to receive it. The possession was taken over by the authorites concerned and handed over to the Firka Revenue Inspector on 14.06.1999. According to the learned Additional Government Pleader, the name of Balakrishnan was available in the revenue record and he received the notice under Section 9 (1) of the Act, but he did not file any objection. As per Section 6 of the Act, any transaction made after the commencement of the Act is invalid and therefore, the Department had taken symbolic possession. Similarly, the purchase made by Barani Ammal on 24.05.1995 cannot be taken into consideration as the details regarding the same were not furnished to the department. Therefore, the notice issued in the name of Balakrishnan was correct. The notice under Section 10 (1) was issued in the name of Muralakrishnan Brick Works (K. Balakrishnan) and notice under Section 11 (5) was issued to M/s. Muralikrishna Brick Works since the land was under the possession of M/s. Murali Krishna Brick Works and therefore, the order under Section 9 (5) and notices under Sections 10 (1) and 11 (5) were issued in the name of "K. Balakrishnan/Murali Krishna Brick Works". According to the learned Additional Government Pleader in the notice issued under Section 7 (2) of the Act the name was wrongly mentioned as K. Balakrishnan instead of V. Balakrishnan as the land owner namely Bhavani Ammal or https://hcservices.ecourts.gov.in/hcservices/ her predecessors have failed to file the statement under Section 7 (1) of the Act. Though K. Balakrishnan was the owner of the property, the name of M/s. Murali Krishna Brick Works was included since they were also in possession of portion of the property. As far as violation of Rule 8 of Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, the learned Additional Government Pleader would contend that the notice under Section 7 (2) of the Act was sent, however, as the address of the urban land owner was not known, it was served by affixture. However, the subsequent notices under Section 9 (1) and 9 (4) of the Act were sent to the land owner by registered post with acknowledgment due after ascertaining his address. Again, the notices under Section 10 (1) and 11 (5) of the Act were served by affixture as it was refused. In any event, as contemplated under Section 11 (6) of the Act, symbolic possession was taken by the department and automatically, as per the provisions of the Act, the land vested with the Government and the petitioner has no right to file this writ petition. 7. Heard both sides and perused the materials on record. The learned senior counsel for the petitioners would mainly contend that the department had not issued any notice to the actual owners as contemplated under the Act and in the absence of the same, the entire proceedings are vitiated. The learned senior counsel for the petitioners would further contend that the mandatory Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 was violated by the department and therefore both the writ petitions have to be allowed. 8. In the first case, namely WP No. 10471 of 2008, it is clear that Devaraj was the owner of the property, but at no point of time, even as per the admission of the respondents in the counter and as per the various documents produced along with the typed set of papers, it is clear that notice was not served on him. It is seen from the records that as per the proceedings dated 10.04.1997 of the second respondent, the order under Section 9 (5) of the Act was passed symbolically taking possession of the property. In that order, it was stated that the notice under Section 7 (2) was not served on the original owner since his whereabouts were not known and therefore, on 01.03.1996, the notice was served by affixture by putting a stick in the land. According to the second respondent, there was no objection received from the land owner pursuant to the notice served by way of affixture and therefore, the notices under Sections 9 (1) and 9 (4) of the Act were issued. Here again, these notices were alleged to have been refused by the owner and therefore, they were served by means of affixture by putting a stick in the land. Even for this notice the land owner did not respond, therefore, the order under Section 9 (5) of the Act was passed. Even this order was not served or sent by Registered post with acknowledgment, but only served by means of affixture. 9. The original documents were produced and verified by this Court in the open Court. No where, it is mentioned that at that the department had made any attempt to send the notices under Section 7 (2), 9 (1), 9 (3) and 9 (4) of the Act by Registered post with acknowledgment due and thereafter they have resorted to serve the notice by affixture. Similarly, if we take into account the mode of https://hcservices.ecourts.gov.in/hcservices/ service of the notice under Section 11 (5) in Form III, it was addressed to one Devaraj of Voyanallur, Opposite to Gandhi Nagar Bus Stop, Pattabiram, Chennai calling upon him to surrender the land in his possession. This notice was also not sent by registered post. The original files produced does not disclose any record or proof to show that this notice was sent by registered post or it was refused and thereafter it was served by affixture. As far as possession is concerned, the only entry made was that the possession was