IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.09.2011 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.19105 of 2008 Mr.S.Rm.Pl.Subramanian .. Petitioner Vs. 1. The Special Commissioner & Commissioner of Land Reforms, Chepauk, Chennai 600 005. 2. The Assistant Commissioner/U.L.T, Competent Authority (Urban Land Ceiling) Alandur, Sannadhi Street, Adambakkam, Chennai 600 088. 3. The Tahsildar, Tambaram Taluk, Tambaram, Chennai. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the respondents, especially that of the second respondent dated 13.07.1989 vide ref.SR179/78A (Rc.2196/83) under Section 9(5) and the Notice under Section 11(5) dated 30.06.1990 in Rc.334/90A, in respect of lands in Survey No.723 of Pallikaranai Village and Survey No.308 Part of Thiruneermalai village measuring an extent of 1.71.50 hectares and 0.48.50 hectares respectively and quash the same and further, direct the respondents to treat the proceedings of the second respondent referred to above as abated under Section 4 of Act 20 of 1999 to enable the third respondent to incorporate the name of the petitioner as owner in all revenue records like patta, chitta and adangal. For Petitioner : Mr.V.Ramesh For Respondents : Mr.P.S.Sivashanmugasundaram Additional Government Pleader. O R D E R The petitioner has come forward with this petition challenging the order of the second respondent dated dated 13.07.1989 vide ref.SR179/78A (Rc.2196/83) under Section 9(5) and the Notice under Section 11(5) dated 30.06.1990 in Rc.334/90A, in respect of lands in Survey No.723 of Pallikaranai Village and Survey No.308 Part of https://hcservices.ecourts.gov.in/hcservices/ Thiruneermalai village measuring an extent of 1.71.50 hectares and 0.48.50 hectares respectively, with a prayer to quash the same and further, directing the respondents to treat the proceedings of the second respondent referred to above as abated under Section 4 of Act 20 of 1999 to enable the third respondent to incorporate the name of the petitioner as owner in all revenue records like patta, chitta and adangal. 2. The factual matrix of the case is as follows: 2.1. The father of the petitioner, later Mr.S.Rm.Palaniappan, purchased agricultural lands in Perungudi and Pallikaranai Village by means of a Sale Deed dated 21.01.1963 bearing Doc.No.116/1963, SRO Adyar. The petitioner's father also purchased another agricultural land comprised in Survey No.308 of Thiruneermalai Village and the extent of land purchased is about 4 acres 24 cents in Pallikaranai village and 1 acre and 44 cents in Thiruneermalai Village. The lands are purely agricultural in nature and were subjected to cultivation of agricultural crops. 2.2. The petitioner understands that during the lifetime of his father, proceedings were initiated under the Tamil Nadu Urban Land Ceiling and Regulation Act (hereinafter referred to as 'Act') after a return was filed by the petitioner's father on 11.09.1978. In the return, the petitioner's father specifically and clearly declared that the above said lands are only agricultural lands. 2.3. After the above said return preferred by the father of the petitioner, a Draft Statement under Section 9(1) together with a Notice under Section 9(4) of Act 24 of 1978 appears to have been issued and an order under Section 9(5) has been passed on 13.07.1989 by the competent authority. In the said order, the competent authority has allowed only an extent of 1000 sq.mts. in S.No.308 Part of Thiruneermalai village and declared an extent of about 22000 sq.mts. in both Pallikalarani and Thiruneermalai village as excess vacant land. The said proceedings continued and a notice under Section 11(5) was issued. The father of the petitioner on issuance of the notice under Section 9(4), had replied on 22.02.1984 to the effect that the land in Pallikaranai village is a wet land used for agricultural purposes and similarly, the land in Thiruneermalai village is also an agricultural land. It is also stated by the father of the petitioner that due to old age and failure of monsoon, he could not able to carry out intensive cultivation activities, but he has stated that he has intended to continue to use the lands for agricultural purposes and therefore, it is outside the purview of the Act. 2.4. The notice under Section 11(5) was not complied with and the father of the petitioner has not surrendered the possession of the lands. The father of the petitioner died on 18.11.1996 and the petitioner succeeded to the property and he is in possession and enjoyment of the lands and the Income Tax Returns would amply prove the same. During his lifetime, the father of the petitioner executed a registered Will dated 06.11.1992 and the petitioner has been appointed as an Executant and Trustee. The said Will was duly https://hcservices.ecourts.gov.in/hcservices/ probated by an order of this Court dated 16.06.1997 in O.P.No.149/1997. 2.5. The petitioner had decided to challenge the acquisition proceedings and by that time, the repeal of the Act was on the cards and therefore, the petitioner was waiting for the Act to be repealed. The Act was repealed with effect from 16.09.1999 and the petitioner was under the bonafide impression that all proceedings under the acquisition will abate purely based on the possession and enjoyment of the lands on the date of the repeal of the Act. Under the said circumstances, the petitioner has been constrained to approach this Court with the present petition with the above said prayer. 3. Mr.V.Ramesh, learned counsel appearing for the petitioner vehemently contended that the impugned proceeding is liable to be quashed and put forward the following contentions: (i) The subject lands situated at Pallikaranai and Thiruneermalai village are agricultural lands and as such, the said lands are excluded from the purview of the Act. Section 3(o) and 3(p) of the Act defines "Urban Land" and "Vacant Land" and the definition of the word "Urban Land" and "Vacant Land" specifically excludes lands, which are agricultural in nature. (ii) The observation of the competent authority that during inspection there was no trace of cultivation of the above said lands, is not correct, as the father of the petitioner was continuously cultivating the lands and there is no finding by the competent authority to the effect that the lands are plotted out as urban lands. (iii) The objection of the father of the petitioner dated 22.02.1984 for the order under Section 9(5) after notice under Section 9(4) and Draft Statement under Section 9(1), has not been properly considered and the petitioner's father was not given the opportunity of personal hearing as contemplated under the provisions of the Act and in view of such violation of mandatory provision, the order passed under Section 9(5) is vitiated. (iv) Neither the petitioner' father nor the petitioner was served with any notice as per Rule 8 of the Urban Land Ceiling and Regulation Rules. (v) The petitioner's father and as well as the petitioner was in continuous possession and enjoyment of the disputed land and the possession which the respondents claim pursuant to the notice under Section 11 (5) would be merely on paper and no physical possession was taken. https://hcservices.ecourts.gov.in/hcservices/ (vi) There is no proof for voluntary surrender of the disputed lands to the respondents by the petitioner or his father at any point of time. (vii) The written communication dated 31.03.2010 produced by the learned Additional Government Pleader contains the statement of execution of Power of Attorney by the father of the petitioner in favour of one Elumalai, raises serious doubt about the genuineness of the said document more particularly, the said document was said to have been executed on 18.06.1996 and the petitioner's father died on 18.11.1996 and the age of the petitioner's father was mentioned as 42 and son of one Shanmugasundaram and the petitioner's grandfather name is Ramanathan Chettiyar and the age of the petitioner's father as on date is above 85 years. (viii) The statement of the said communication to the effect that a notice under Section 11(5) dated 30.06.1990 was issued to the land owner to deliver possession of the excess vacant lands would not amount to serving of notice as the issuance is different from serving. (ix) The Power Agent of the petitioner's father executed sale deeds in favour of 82 persons, is baseless, as no such Power of Attorney was executed by the father of the petitioner, as contended earlier and the said Power of Attorney Document is a forged document, which the petitioner came to know only through the above said communication dated 31.03.2010. (x) The claim and allegation to the effect that the alleged Power Agent of the petitioner's father has sold plots to 82 persons itself is baseless and unbelievable, as the petitioner's father died on 18.11.1996 and the sale deeds are executed on 10.05.2002 and thereafter and as such, even assuming that there is any Power of Attorney document after the death of the petitioner's father, the said Power of Attorney Document has already become invalid. (xi) The execution of Will by the father of the petitioner in favour of the petitioner dated 06.11.1992, which was probated subsequently after the death of the petitioner's father substantiates the claim of the petitioner that he is in continuous possession and enjoyment of the subject property coupled with the Wealth Tax and the Income Tax Returns submitted by the petitioner's father in the year 1996-1997 substantiates the claim of the petitioner. (xii) The alleged claim to the effect that the disputed property were sold to 82 persons, even assuming https://hcservices.ecourts.gov.in/hcservices/ true, would make it clear that the respondents have not taken physical possession of the subject property, which supports the claim of the petitioner herein. (xiii) There is no lapse on the part of the writ petitioner in preferring the writ petition, as the Will executed by his father was probated in the year 1997 and there was no notice served on him and he has no reason to prefer the writ petition earlier. The learned counsel for the petitioner, in support of his contentions, placed reliance on the following decisions: (i) Ft.Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. & Others reported in JT 2000 (3) SC 391 (ii) G.Krishnamoorthy and Others v. Government of T.N reported in (2009) 8 MLJ 85 (iii) V.Somasundaram and Others v. Secretary to Government, Revenue Department, Chennai and Others reported in (2007) 1 MLJ 750 (iv) Unreported decision of this Court dated 22.08.2006 in W.P.No.17416 of 2004 (v) Unreported decision of this Court dated 07.08.2009 in W.P.No.1584 of 2009 (vi) Unreported decision of this Court dated 19.10.2006 in W.P.No.29081 of 2003 4. Per contra, Mr.P.S.Sivashanmugasundaram, learned Additional Government Pleader contended that there is no infirmity or illegality in the impugned proceedings. It is contended that in respect of both the lands, namely, the lands situated at Pallikaranai and Thiruneermalai village, a notification dated 30.01.1990 under Section 11(1) of the Act was published in the Tamil Nadu Government Gazette. It is further contended that a notice under Section 11(5) of the Act was also issued on 30.06.1990, requesting the land owner to deliver possession of the excess vacant lands and thereafter, the excess land was taken over and handed over to the Revenue Department on 13.11.1990. It is also submitted that a notice under 12(7) of the Act was also issued on 17.06.1997, which was sent by RPAD and no reply was received from the land owner and the proceedings under Section 12(6) was issued as per the proceedings dated 20.02.1995, determining the compensation amount of Rs.32,825/- and the same was sent to the Urban Land owner, but not reply was received. The learned Additional Government Pleader pointed out that as per order passed under Section 9(5) of the Act dated 13.07.1989, the urban land owner was enquired and a statement were obtained. It is also pointed out that in the same proceeding dated 13.07.1989, it is stated that the urban land owners did not produced any record and https://hcservices.ecourts.gov.in/hcservices/ evidence to show that the said lands were under cultivation and he claims that he has proposed to retain the lands at Thiruneermalai village and to surrender the lands at Pallikaranai village to the Government on payment of compensation. The learned Additional Government Pleader contended that the petitioner's father late S.Rm.Palaniappan executed a Power of Attorney in favour of one Elumalai and the said Power Agent sold the said lands to various persons and as such, it cannot be contended by the petitioner that the disputed lands are agricultural lands. The learned Additional Government Pleader lastly contended that the writ petition itself is liable to be dismissed on the ground of delay and laches, as the father of the petitioner died in the year 1996 and the writ petition was preferred only in the year 2008. 5. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned proceedings. 6. The fact remains that the father of the petitioner, late Mr.S.Rm.Palaniappan, purchased two properties, which are the subject matter of this writ petition namely one at Pallikaranai village in S.No.723 measuring to an extent of 4 acres and 24 cents purchased under the Sale Deed dated 21.01.1963 as per Document No.116/1993 and another one at Thiruneermalai in S.No.308 measuring to an extent of 1 acre and 44 cents purchased as per the Sale Deed dated 21.02.1982. The definite stand of the father of the petitioner is that the said lands are agricultural lands. The second respondent initiated proceedings as per the provision under Section 9(5) of the Act, declaring that an extent of 22000 sq.mtrs in respect of both the properties as surplus, as per the proceedings dated 13.07.1989, which is under challenge in this matter as stated above. At the outset, it is to be stated that in the impugned proceedings dated 13.07.1989, it is clearly and categorically stated as hereunder: "In the return, the lands referred to above are classified as agricultural lands." It is further seen from the impugned proceedings that the Assistant Commissioner (Urban Land Tax) claims to have inspected the said lands which are the subject matter in this case and unilaterally decided that the said lands cannot be treated as agricultural lands and as such, the same were treated as urban lands. It is pertinent to note that even in the said impugned proceedings, the specific objection raised by the petitioner is also incorporated stating that the Pallikaranai village lands as well as the Tiruneermalai village lands are agricultural land and the petitioner's father was having intention to continue the land for agricultural purpose only and he has requested the authorities concerned to withdraw the further proceedings under the Act. Merely on the basis that the said lands were found to be vacant lands at the time of inspection, it cannot be concluded that the said lands are not agricultural lands and the owners of the land could have used for agricultural purpose as agriculturists can put up crops seasonally and depending upon whether conditions. https://hcservices.ecourts.gov.in/hcservices/ 7. With this background of the nature of the lands involved in this matter, let me now consider the core question involved in this matter, namely, whether the authorities, namely, respondents 1 and 2 followed the mandatory provisions contemplated under Section 9(5) and 11(5) of the Act r/w. Rule 8. Section 9(5) of the Act reads hereunder: 9.Preparation of draft statement as regards vacant land held in excess of ceiling limit.- ... (5) The competent authority shall duly consider any objection received, within the period specified in the notice referred to in sub-section (4) or within such period as may be specified by the competent authority, for any good and sufficient reason, from the person on whom a copy of the draft statement has been served under that sub-section and the competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such order as it deems it. Section 11(5) of the Act reads hereunder: 11.Acquisition of Vacant land in excess of ceiling limit.- ... (5)Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice. A reading of the provision under Section 9(5) of the Act makes it crystal clear that not only the notice should be served but the concerned person should also be afforded reasonable opportunity of being heard. Section 11(5) of the Act contemplates issuing notice in writing to the land owner, who was in possession of the said land, calling upon him to surrender or deliver possession. As far as the case on hand is concerned, it is the specific contention of the petitioner that the respondents 1 and 2 have given a total go- by to the above said mandatory provisions and they have not produced any material or evidence to substantiate their claim that they have served any notice or given opportunity to the petitioner of being heard. 8. It is pertinent to note that the second respondent has given a written instructions to the learned Additional Government Pleader dated 31.03.2010 in respect of the contentions put forward by the petitioner and in the said written instructions, the second respondent has not made a whisper about serving the notice under Section 9(5) of the Act and it is merely stated that notice was issued under Section 9(4) along with the Draft Statement under Section 9(1) and the orders under Section 9(5) of the Act were passed. The second respondent has not produced any other other material or made any statement even in the said instructions dated https://hcservices.ecourts.gov.in/hcservices/ 31.03.2010 to the effect that the notice contemplated as per the provision under Section 9(5) of the Act was served on the owner of the land at any point of time. Therefore, this Court has no difficulty to come to the conclusion that there is a gross violation of the mandatory provision under Section 9(5) of the Act, in this matter. 9. Now coming to the next grievance of the petitioner that the petitioner has not been served with any notice under Section 11(5) of the Act, it is pertinent to note from the written instructions of the second respondent dated 31.03.2010 that here again, it is merely stated that the notice under Section 11(5) of the Act was issued on 30.06.1990 requesting the land owner to deliver possession of the excess vacant land. But the undisputed fact remains that the second respondent has not made a whisper about serving the said notice on the owner of the land. A perusal of the said instructions dated 31.03.2010 further reveals that the authorities claim to have issued notice under Section 12(7) of the Act on 17.07.1991 through RPAD. Here again, it is to be noted that it is not stated by the second respondent that the said notice was actually served on the land owner. Mere issuing or sending notice through RPAD is not sufficient. The main object and purpose of issuing such notice is to the effect that the said notice should be served on the concerned person. It is claimed by the second respondent that a letter was received from the owner of the land seeking time for submitting objections and thereafter, another notice was issued to him on 26.09.1996 through RPAD and the same was said to have been received by his representative, but on the other hand it is emphatically denied by the petitioner that the petitioner's father has not authorized anyone to receive such notice and it is to be seen that Section 12(7) notice is only in respect of awarding compensation and that has nothing to do with the question involved in this matter. 10. The learned counsel for the petitioner also strongly placed reliance on the instructions of the second respondent dated 31.03.2010 given to the learned Additional Government Pleader wherein it is stated that the disputed land was already plotted out into 82 plots and sold to third parties by the Power Agent of the petitioner's father and that itself shows that the authorities concerned have not taken possession of the disputed land. Apart from such statement it is also pointed out by the learned counsel for the petitioner that the father of the petitioner never appointed any Power Agent in respect of the said lands and the certified copy of the Power of Attorney document dated 18.06.1996 obtained by the petitioner reveals that the petitioner's grandfather's name was mentioned as Shanmugasundaram, whereas the name of the petitioner's grandfather is Ramanathan. It is also further pointed out that the age of the petitioner's father was mentioned in the said Document as 42 years and whereas the petitioner's father was aged about 82 years in the year 1996 and as such, the said document is nothing but a fabricated document and no reliance could be placed. It is also pointed out that certain sale deeds said to have been executed by the Power Agent dated https://hcservices.ecourts.gov.in/hcservices/ 10.05.2002 and whereas the father of the petitioner died on 18.11.1996 itself. Therefore, it is rightly contended by the learned counsel for the petitioner that the respondents cannot place any reliance on the Power of Attorney document and the Sale Deeds, to come to the conclusion that the said properties were already plotted out and sold to third parties. The learned counsel for the petitioner vehemently contended that even as on date, the petitioner is in absolute possession and enjoyment of the said properties. Therefore, this Court has no hesitation to hold that in view of the above said circumstances, the respondents 1 and 2 have not taken possession of the subject properties situated in Pallikaranai and Thiruneermalai village. 11. At this juncture, it is relevant to refer the Division Bench decision of this Court in G.Krishnamoorthy and Others v. Government of T.N. reported in (2009) 8 MLJ 85. In the said decision, the Division Bench placed reliance on the two earlier Division Bench decisions of this Court in respect of holding that notice under Section 11(5) is a mandatory one and has held as hereunder: "20. ....... The learned Special Government Pleader fairly admitted that as per the records, notice under Section 11(5) was not served on the petitioners. They heavily relied on "may" used in Section 11(5) of the Act in support of their submission that notice under Section 11(5) is not mandatory. We are not in agreement with their submissions, as it is concluded by various judgments of this Court and more particularly the judgment of the Division Bench of this Court (presided over by Honourable Mr.Justice SATHASIVAM as he then was) in V.Somasundaram and Others v. Secretary to Government, Revenue Department, Chennai and Others (2007) 1 MLJ 750. Paragraph No.9 of the said judgment is heavily relied on by the learned counsel for the petitioners, which is extracted here-under at P.754 of MLJ. "9. From the perusal of the file it is clear that proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in question, in respect of transfer of his land to the appellants herein. Section 11(5) notice was also issued to the third respondent, who was not the real owner. As per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession of the land, to surrender and deliver possession thereof, to the State Government or to any person duly authorised by the State Government, within thirty days' time. No notice having been issued against the appellants, who are in possession of the lands as stated supra, taking possession of lands on 30.04.1999 by the second respondent is non-est. It is to be noted that https://hcservices.ecourts.gov.in/hcservices/ due to the repealing of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, with effect from 16.09.1999, it is not open to