IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.11.2009 CORAM THE HON'BLE MR. JUSTICE N.KIRUBAKARAN W.P.No.21916 of 2003 Venkatasubramanyan ... Petitioner vs 1.The Principal Commissioner and Commissioner of Land Reforms,Chepauk, Chennai-600 005. 2.The Assistant Commissioner of Urban Land Tax and Competent Authority of Urban Land Ceiling, Alandur Area, Sannadhi Street, Adambakkam, Chennai-600 088. 3.The Tahsildar, Tambaram Taluk, Tambaram, Chennai-600 045. ... Respondents This petition is filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the connected records of the second respondent issued in his proceedings R.C.169/98.A. dated 24.2.1998 under Section 9(5) of the Principal Act declaring the petitioner's land in S.No.495/1 of Perumbakkam Village, measuring to an extent of 5600 sq. Mts. as excess vacant land and the notice issued by him under Section 11(5) of the said Act in his proceedings R.C.69/98.B. dated 16.11.1998 requiring to surrender possession of the said land with the Tahsildar, Tambaram and the orders issued by the first respondent in his endorsement R.C.No.2694/2001-J2 dated 16.4.2003 and quash the same so far as the petitioner is concerned and direct the second respondent to declare that all proceedings taken by the second respondent to acquire the land excess vacant land of an extent of 5600 sq.Mts. in S.No.495/1 of Perumbakkam Village, shall abate under Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 20 of 1999. For Petitioner .. Mr.M.Muthappan For Respondents .. Mr.Thandapani Special Govt. Pleader for Mr.P.Gurunathan Govt. Advocate https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petition has been challenged the proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 in respect of the excess land to an extent of 5600 square meters in S.No.495/1 Perumbakkam Village. The lay out submitted by the petitioner was approved by the then MMDA now known as CMDA as PPD/L.O.No.87/88 on 10.5.1988. 2. When things stand so, the Village Perumbakkam in which the property is situated namely the property comprised in S.F.No.495/1 brought the purview of the Tamil Nadu Urban Land Ceiling Act, 1978 and by G.O.Ms.No.679 Revenue Department dated 17.7.1995 the said village perumbakkam was included as "Item No.100" by amending the schedule-I to the said Act. As per the Act, the Urban Land owner who is holding excess land over and above the Ceiling limit has to file a statement before the competent authority under Section 7(1) of the Act. In case of failure by the owner, under section 7(5) of the Act, the competent authority may obtain necessary information with regard to the property and prepare a statement under Section 9(1) of the Act. After preparation of 9(1) statement, the said statement has to be served on the owner/person who has got right/interest/possession of the property. 3. Service of statement under Section 9(1) of the Act has to be done as per Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978, which reads as follows: "8. Filing a statement in cases where vacant land held by a person is situated within the jurisdiction of two or more competent authorities.-- (1) Where a person holds vacant land situated within the jurisdiction of two or more competent authorities, then, he shall file his statement under sub-section (1) of section 7 before the competent authority within the jurisdiction of which the major part thereof is situate and thereafter all subsequent proceedings under this Chapter shall be taken before that competent authority to the exclusion of the other competent authority or authorities concerned and the competent authority, before which the statement is filed, shall send intimation thereof to the other competent authority or authorities concerned." "9. Preparation of draft statement as regards vacant land held in excess of ceiling limit-- (1) On the basis of the statement filed under sub-section (1) of sub-section (2) of section 7 or on the basis of information obtained under sub-section (5) of that section and after such enquiry as the competent authority may deem fit to make, the competent authority shall prepare a draft statement in respect https://hcservices.ecourts.gov.in/hcservices/ of the person who has filed the statement under sub- section(1) or sub-section (2) of section 7, of as the case may be, about whose lands information has been obtained under sub-section (5) of that section." 4. After service of statement, the competent authority shall consider the objection received from the owner if any and pass orders after giving a reasonable opportunity. After disposal of the objection, a final statement under Section 10 of the Act would be made determining the vacant lands held by the persons concerned in excess of the Ceiling Limit. After service of final statement made under Section 10 on the concerned person, acquisition proceedings of taking land in excess of Ceiling limit would be done according to Section 11 of the Act. As per Section 11(1) of the Act a notification giving particulars of the vacant land would be published. If any claim is made by the persons interested in the vacant land, the competent authority shall determine the nature and extent of such other claims and pass orders under Section 11(2) of the Act. After that the competent authority may by publication in the Tamil Nadu Government Gazette declare the excess vacant land under Section 11(3) of the Act and by publication the excess land would be deemed to be vested with the government. For taking possession, the government has to resort Section 11 (5) of the Act viz. the competent authority by notice in writing to the person who is in possession within 30 days from service of the notice. 5. As far as the case in hand is concerned, admittedly the village was brought within the purview of the Act on 17.7.1995, and the Original Act came into force on 3.8.1976. Even before that the petitioner obtained sanction for lay out on 10.5.1988. Mr.Muthappam learned counsel of the petitioner contended that as the petitioner obtained sanctioned plan for plotting out the property on 10.5.1988, by virtue of Section 5(3) of the Act, the petitioner is entitled to right of protection of the land. Section 5(3) reads as follows: "(3) Notwithstanding anything contained in sub- section (1), where any person with the object of development of vacant land for sale by allotment of plots of land to others, has by himself, or through any other person, obtained before the commencement of this Act, the sanction of the appropriate authority for the lay-out of such vacant land held by such person, then the person so holding the land shall be entitled to continue to hold such vacant land." 6. By relying upon the said provision, learned counsel vehemently argued that the petitioner continues to be in possession of the property. Learned counsel also pressed into service the provisions of the Repealed Act under which the petitioner is entitled to the benefits. As per Act 20 of 1999 (Repealing Act), learned counsel submits that by virtue of https://hcservices.ecourts.gov.in/hcservices/ Section 3(1)(a), the petitioner is entitled to the benefit under the Act. Section 3(2)(a) speaks about retention of possession. If the possession of the vacant land has not been taken by the authority, referring to Section 3(1) (a), learned counsel for the petitioner submitted that since as per Section 5(3) of the original Act, the petitioner was allowed to retain the possession of the property and therefore, the petitioner is entitled to the benefit under Section 3(1)(a) of the Act. Secondly learned counsel for the petitioner convincingly submitted that if the person holding the lands does not submit any statement under Section 7(1) of the Act, the competent authority under Section 7 (2) of the Act shall call upon the person to file the statement and that no such notice was issued to the owner; No statement under Section 9(1) of the Act was served as per Section 9(4) of the Act. No notice as per Section 11(5) of the Act was served. For service, the authorities have to follow rule (8) of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules 1978. The learned counsel for the petitioner submitted that no notice as contemplated under Rule (8) was served on the owner or the person in possession of the property. In view of non-compliance of the provisions of the Act, the learned counsel for the petitioner submitted that the entire proceeding is vitiated. 7. Learned counsel for the petitioner further submitted that when the service as referred to above was not complied with, the possession of the property cannot be taken and even if they have taken, it is only a paper possession and not actual possession. He relied upon the judgement of this court in V.Somasundaram and others vs. Secretary to Government, Revenue Department, Chennai and others reported in (2007) 1 MLJ 750. In the said case, notice was issued to the erstwhile owner and no notice was issued to the party in possession and therefore the Division Bench of this court held that as per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to the person, who may be in possession of the land and failure to do would make the proceedings nonest. 8. Similarly in Saraswathi and another versus the Principal Commissioner and Commissioner of Land Reforms, Chepauk, Chennai-5 and another reported in 2007-3-L.W.982, Lordship Justice A.Kulasekaran as he was then was pleased to hold that in the absence of notice served upon the owner or the person in possession of the lands the proceedings as abated by virtue of Section 4 of the Repeal Act 20 of 1999. In another case Jayaseelan and another versus The Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St.George, Chennai-600 009 reported in 2006-3- L.W. 440, Lordship Justice M.Jaichandren was pleased to hold that the proceedings initiated under the 1978 Act, for non-service of notice under Section 11(5) of the Act stand abated. 9. On the other hand Mr.M.Dhandapani, learned Special Government Pleader submitted that the procedures have been https://hcservices.ecourts.gov.in/hcservices/ followed and the possession was taken and that lands are with the government. He submitted that the property is a vacant land and all the proceedures have been complied with and the possession remains with the government as per Section 11 of the Act. 10. A perusal of the Act would show that it is a stringent Act, where right of property is being taken away which is the fundamental rights and subsequently by way of amendment which was deleted from fundamental rights. However right to property is incorporated under Article 300-A of the Constitution of India as constitutional right. In any event recently the Hon'ble Supreme Court has recognised the right to property as human right. When the right to property is affected the provisions stated in the Act, the procedures have to be scrupulously followed. When the act requires acts to be done in a particular manner, the same have to be followed in the same manner and not otherwise. Any violation or deviation would necessarily vitiate the proceedings. In this case the petitioner obtained approval of the local authority as early as on 17.12.1990 whereas the petitioner's property was brought under the purview of the Act only on 17.7.1995. As rightly contended by Mr.Muthappan, learned counsel for the petitioner, the petitioner is entitled to retain the possession of the property under Section 5(3) of the Act, of course without encumbering or alienating the property. 11. The act was repealed and the same came into force on 16.6.1999. As per repealed Act, the land owners who retain the possession of their property and the properties in which proceedings were pending were given benefit under the repealing Act. In this case admittedly as per Section 5(3) of the Act, the petitioner retained the possession. In view of that, the rights would accrue on the petitioner in view of the repealed Act. The Honourable Supreme Court in Angoori Devi versus The State of Uttrapradesh reported in JT 2000 Supplement (1) SC 295 has held that when the possession of the property remaining with the owner he is entitled to get the benefit under the Act. Apart from that the records produced before this court reveals that no service of proceedings at any stage effected and the owner was not put on notice. Even in the counter affidavit it is stated that since the land owner was not residing in the village and also his address was not known, the service of notice was completed by affixing the notice on pole and on the stick placed in the land. 12. A perusal of Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rule 1978 would make it crystal clear that no such procedure is contemplated for service of notice. Rule 8 is extracted as follows: "8. Particulars to be contained in draft statement as regards vacant lands and manner of service of the same.--(1) Every draft statement prepared under Section (1) of Section 9 shall contain the particulars specified in Form III. https://hcservices.ecourts.gov.in/hcservices/ (2) (a) The draft statement together with the notice referred to in sub-section (4) of Section 9 shall be served on-- (i) the holder of the vacant land, and (ii) all other persons, so far as may be known, who have, or are likely to have any clalim to, or interest in, the ownership, or possession, or both, of the vacant lands, by sending the same by registered post addressed to the person concerned-- (i) in the case of the holder of the vacant lands, to his address as given in the statement filed in pursuance to sub-section (1) of section 7, and (ii) in the case of other persons, at their last known address. (b) Where the draft statement and the notice are returned as refused, by the addressee, the same shall be deemed to have been duly served on such person. (c) Where the efforts to serve the draft statement and the notice, on the holder of the vacant lands, or, as the case may be, on any other person referred to in clause (a), in the manner specified in that clause are not successful for reasons other than the reason referred to in clause (b), the draft statement and the notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon some conspicuous part of the house ( if any) in which the holder of the vacant lands or, as the case may be, the other person is known to have last resided or carried on business or personally worked for gain. (3) the notice under sub-section (4) of section 9 shall be in Form IV." Mr.M.Dandapani, learned counsel for the respondent argued referring to Rule 8(c)(b) affixture of notice is more than enough, whereas Rule 8(c)(b) would state that notice shall be served by affixing copies of the same in a conspicuous place in the office of the competent authority and also upon the conspicuous part of the house (if any) in which the holder of the vacant lands resides or, as the case may be, the other person is known to have last resided or carried on business or personally worked for gain. File does not reveal what are all the steps taken by the authority to find out the actual place of residence of the owner/person in possession. A mere reference has been stated in the proceedings dated 24.2.1998 as follows: https://hcservices.ecourts.gov.in/hcservices/ "epy chpikahsh; fpuhkj;jpy; trpf;fhjjhYk;-mtuJ jw;nghija Kfthp bjhpahjjhYk;. nkw;go gphpt[ 7(2) ,d; fPHhd mwptpg;g[ nkw;go epyj;jpy; Fr;rp el;L xl;o rhh;t[ bra;ag;gl;lJ" 13. When power is given under the Act to do certain things in a particular way it should be done in the same way otherwise it would vitiate entire proceedings. This dictum has been laid down in Ramachandra Maraila Bhattad vs. State of Maharastra reported in 2007 2 SCC 588. The following judgements also laid down the above dictum. 1. (1999) 3 SCC 422 Part 31 and 32 (Babu Verghesh vs. Bar Council of Kerala; 2. AIR 1954 SC 322 (Rao Bahadur Singh vs. State of U.P. 3. AIR 1961 SC 1527 (Deep Chand vs. State of Rajasthan 4. AIR 1964 SC 358 State of UP vs. Singhara Singh 5. 2007 (2) SCC 588 Ramachandra Murarilal Bhattad vs. State of Maharashtra 6. AIR 1936 PC 252(2) Nazir Ahmed vs. King Emperror 7. AIR 1964 SC 538 para 7 & 8 State of UP 8.V.Sighara Singh (1876) 1 Ch.D 426 Jaylor vs. Taylor 14. When the procedure resorted to by the authorities is foreign to the Act, this court has to come to the conclusion that no procedure as contemplated under the Act has been followed, which makes the entire proceedings vitiated. This court comes to the conclusion that as the notice under Section 9(4) of the Act itself is not effected as per the Act, the question of going into further procedure like service of notice under Section 11(5) does not arise. In any event, notice under Section 11(5) of the Act was not effected as per the Act. As the procedures adopted by the authorities are in utter violation of provisions contemplated under the Act, this court quashes the entire proceedings as null and void. 15. For the reasons stated above the writ petition is allowed. No costs. Sd/- Asst. Registrar /true copy / Sub Asst.Registrar vk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Commissioner and Commissioner of Land Reforms,Chepauk, Chennai-600 005. 2.The Assistant Commissioner of Urban Land Tax and Competent Authority of Urban Land Ceiling, Alandur Area, Sannadhi Street, Adambakkam, Chennai-600 088. 3.The Tahsildar, Tambaram Taluk, Tambaram, Chennai-600 045. + 1 cc to Government Pleader,SR.61881 + 1 cc to Mr.M.Muthappan,Advocate,SR.61735 W.P.No.21916 of 2003 PA(CO) EM/26.2.10 https://hcservices.ecourts.gov.in/hcservices/