IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.7163 of 2003 V.Jayesh Sanghavi Rep by his Power Agent V.H.Sanghavi ... Petitioner vs. 1.The Government of Tamil Nadu, rep. By its Secretary, Revenue Department, Fort St.George, Chennai-9. 2.The Principal Commissioner & Commissioner of Land Reforms Chepauk, Chennai-5. 3.The Competent Authority, Urban Land Ceiling, Poonamallee. ... Respondents Prayer: Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the records of the respondents especially the orders of the third respondent dated 19.8.97 vide Ref.S.R.Na.Ka.2350/97/D and Notice under Section 11(5) dated 29.12.1998 vide Ref.Rc.2350/97/D in respect of land in Survey No.66/2A of Nemilichery Village, Sriperumbudur Taluk, and quash the same and further direct the respondents to treat the proceedings acquiring the above land as abated under Section 4 of Act 20 of 1999. For Petitioner : Mr.T.Thiyagarajan For Respondents : Mrs.C.K.Vishnupriya Additional Government Pleader O R D E R The petitioner filed this writ of certiorarified mandamus in calling for the records of the third respondent dated 19.8.97 in Ref.S.R.Na.Ka.2350/97/D and the notice dated 29.12.1998 in Ref.Rc.2350/97/D as per Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 in respect of land in Survey https://hcservices.ecourts.gov.in/hcservices/ No.66/2A of Nemilichery Village, Sriperumbudur Taluk and to quash the same and also to direct the respondents to treat the proceedings acquiring the above land as abated under Section 4 of Act 20 of 1999. 2. The petitioner had purchased an agricultural land measuring 31 cents in Survey No.66/2A of Nemilichery Village, Sriperumbudur Taluk from one Sri Baktavatsalam and his son Venkatesan as per sale deed dated 12.12.1990. He obtained patta as early as 31.01.1991 and his name was incorporated in revenue records like patta, chitta and adangal. He was in possession and enjoyment of the property absolutely in his own right without any interference from anyone. 3. The land was inspected by the revenue officials in August 2002 and on being questioned, they informed that the land was acquired as per Tamil Nadu Urban Land (Ceiling and Regulation) Act 24 of 1978 and the petitioner applied for the Certified copy of the orders of the third respondent acquiring the land and the acquisition was questioned in the present writ petition. 4. It appears that the third respondent had issued the notice as per Section 7(2) of the Act dated 30.07.1996 and based on the report of the Deputy Tahsildar passed an order dated 19.08.1997 under Section 9(5) of the Act acquiring an extent of 850 sq.ft. In the name of C.Baktavatsalam. In short, the order as per Section 9(5) of the Act lacks particulars and there was no discussion in regard to ownership, character or eligibility to retain the vacant land by the land owner. The notice as per Section 9(4) of the Act along with draft statement under Section 9(1) were served on the land owner in person on 29.04.1997 and there was no objection by the land owner and since there was no response to the enquiry, the order pertaining to the excess vacant land was passed based on the report and the personal inspection was made by the Deputy Tahsildar. 5. According to the petitioner, the notice as per Section 9(4) and draft statement as per Section 9(1) of the Act could not be served on the land owner personally and all notices under the Act ought to be served by the Registered Post Acknowledgement Due as per Rule 8 of the relevant rules and failure to follow this mandatory provision vitiates the order of acquisition in the eye of law. 6. It is also the stand of the petitioner that when the land was purchased by the petitioner in December 1990 and his name was entered in all revenue records in 1991 itself, when the third respondent was aware of the ownership of the land then initiation and continuation of the proceedings in the name of the erstwhile land owner C.Baktavatsalam could not be sustained and also that the family entitlement to hold the vacant land as per Section 5(3)(1) of the Act was not worked out with reference to the family size of the erstwhile land owner C.Baktavatsalam. https://hcservices.ecourts.gov.in/hcservices/ 7. Apart from the above, it is the contention of the petitioner that Section 9(5) order was passed without hearing the petitioner personally and no notice of personal hearing was given by the third respondent before passing orders as per Section 9(5) of the Act and therefore the said order suffers from serious infirmities in the eye of law. Added further, the notice under Section 11(5) of the Act was not served even on the erstwhile land owner and when the petitioner was the owner of the property and in possession and enjoyment of the same, the notice as per Section 11(5) of the Act ought to have been served only on the petitioner and since there was non-service of notice on the interested persons as mentioned under Section 11(5) of the Act, the possession was deemed to be with the petitioner. In this connection, the learned counsel for the petitioner made a reference to the decision in B.N.BHAGDE V.THE MANAGING DIRECTOR, BHAGWAT, AIR 1975 SC at page 1767 and THE TAMIL NADU HOUSING BOARD V. A.VISWAM (Deceased) Rep. by L.Rs. AND OTHERS, AIR 1996 SC at page 3377 wherein it was held that 'a person shall be deprived of possession only after preparation of memorandum or panchanama signed by witnesses and therefore it should be construed that the possession was with the petitioner and all proceedings should be abated as per Section 4 of the Act.' 8. The Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 was repealed with effect from 16.06.1999 and no provision was saved. The petitioner had projected this writ petition because of the fact that the second respondent who was empowered to entertain Appeal as per Section 33 of Act 24 of 1978 was not entertaining any appeal and several appeals filed after the repeal of the Act were pending before the second respondent without disposal. The petitioner was perforced to file the writ petition before this Court and prayed for allowing the present writ petition. 9. The contention of the learned Additional Government Pleader appearing for the respondents is that the land in S.No.62/2A measuring an extent of 1350 sq.mts., Nemillichery Village, Poonamallee Taluk, Tiruvallur District stood registered in the name of C.Baktavatsalam in the revenue records and since the land was urban in nature, he was bound to file the return as per Section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 but the land owner had not filed his return and as such a notice dated 30.07.1996 was issued as per Section 7(2) of the Act to the land owner C.Baktavasalam and the said notice was served on his wife Saraswathi and the land owner had not replied to the notice and not filed any objection and therefore notice dated 13.02.1997 as per Section 9(4) along with draft statement as per Section 9(1) of the Act was issued in SR.8/97 calling for objection if any in regard to the proposed acquisition of the excess vacant land measuring an extent of 850 Sq.mts. in S.No.66/2A of Nemilichery Village after allowing 500 Sq.mts. towards family entitlement as per Section 5(1) of the Act and the same was served on 29.04.1997. https://hcservices.ecourts.gov.in/hcservices/ 10. The land owner had not filed any objections and after the land being inspected by the Deputy Tahsildar attached to the third respondent on 06.08.1997, he had reported that the land was laid out into house site plots and hence an order as per Section 9(5) of the Act was passed on 19.08.1997 and it was served in person to the land owner on 15.11.1997. A final statement as per Section 10(1) of the Act was issued on 31.12.1997 which was duly served on 25.02.1998. The said notification as per Section 11(1) of the Act was published in the Tamil Nadu Government Gazette dated 05.08.1998 and the notification under Section 11(3) vesting the excess vacant land with Government on 15.10.1998 was published in Tamil Nadu Government Gazette on 11.11.1998. Further notice as per Section 11(5) of the Act was issued on 29.12.1998 to hand over the possession of the excess vacant land acquired and finally the possession was handed over to the revenue authorities on 14.06.1999 and a notice as per Section 12(7) of the Act was issued on 03.01.2002 which was served on 11.02.2002. 11. On behalf of the respondents, a plea is put forward that the petitioner's purchase of the land was against the provisions of the Act and the sale in his favour was null and void as per Section 6 of the Act and in short, if the claim of the petitioner that the land was agriculture in character could not be accepted and also the claim of the petitioner that he was in possession and enjoyment of the land could not be accepted because of the simple fact that he had no right upon the land. Further more, any sale made after the crucial date i.e., 03.08.1976 was null and void as per Section 6 of the Act and as on 03.08.1976, the owner of the land was C.Baktavasalam as per the revenue records. Hence action was taken to acquire the excess vacant land held by him and the subsequent sales effected after 03.08.1976 were invalid and therefore the petitioner being a subsequent purchaser could not claim any right over the land in issue. 12. A specific stand is taken on behalf of the respondents that notice was issued as per Section 7(2) of the Act on 30.07.1996 and further notice as per Section 9(4) together with draft statement as per Section 9(1) was issued on 13.02.1997 inviting objection if any, from the urban land owner against the proposed acquisition and since the land owner neither filed his objections nor appeared for enquiry, orders were passed as per Section 9(5) of the Act by the third respondent in consonance with the provisions of the Act and since the urban land owner refused to receive the notice issued on 29.12.1998 as per Section 11(5) of the Act, the same was served by affixture on 02.01.1999 and it was not mandatory to serve notices and orders to individuals other than the land owner as on 03.08.1976 and the petitioner can only be called as illegal encroacher of the Government land and he was not a party interested in the above land and the possession of the excess vacant land was handed over to the revenue authorities on 14.06.1999 and the Act was silent in regard to the https://hcservices.ecourts.gov.in/hcservices/ mode of taking possession. 13. The prime contention put forward on the side of the respondents is that the possession of the land was already handed over to the revenue authorities on 14.06.1999 and hence the question of abatement as per Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999 (Tamil Nadu Act 20 of 1999) would not apply to the present case on hand and further Section 3(1) (a) of the Repeal Act 20/1999 enjoins that the repeal of the principal Act would not affect the vesting of any vacant land as per section 11(3) of the Act. 14. At this stage, the learned counsel for the petitioner submits that as per Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978, the draft statement together with the notice referring to in Sub Section 4 of Section 9 must be served on the owner of the vacant land and on other persons who are likely to have any claim was interested in the ownership or possession by sending the same by Registered Post addressed to the person concerned and in the present case on hand, such a procedure was not resorted to and the same was not adhered to by the competent Authority/third respondent. Also it was contended on behalf of the petitioner that Section 10(1) notice was not served and also the notice as per Section 11(5) of the Act were not followed. 15. Countering the submissions of the learned counsel for the petitioner, the learned Additional Government Pleader contends that Tamil Nadu Gazette Publication was issued on 05.08.1998 and in fact the notice as per Section 7(2) of the Act was received by one Saraswathi viz., the wife of the land owner C.Baktavatsalam and 11(5) notice was refused by the land owner C.Bakvatsalam as per endorsement made by the Revenue Inspector dated 02.01.1999 and in the final statement prepared under Section 10(1), was received by one Navaneetham (wife) dated 25.02.1998 and possession was taken on 14.06.1999 by the Zonal Deputy Tahsildar in the presence of Revenue Inspector, Thiruninravur Firka, Poonamallee Taluk and the possession was handed over by the Deputy Tahsildar, Urban Land Tax, Poonammallee. 16. It is not out of place for this Court to make a mention that Section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 1999 specifies as follows:- "Abatement of legal proceedings: All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal, or any authority shall abate: Provided that this section shall not apply to the https://hcservices.ecourts.gov.in/hcservices/ proceedings relating to Sections 2,13,14,15,15-B and 16 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority'. 17. Also it is apt for this Court to recall the observations made by a Division Bench of this Court in the order dated 01.09.2009 in W.P.No.19315 of 2000, which runs thus:- "When the matter came up for hearing, the learned Special Government Pleader representing the respondents brought to the notice of this Court that the Tamil Nadu Urban Land(Ceiling and Regulations) Act, 1978 was repealed by Act 20 of 1999 on 16.6.1999 and also produced a copy of the Tamil Nadu Government Gazette Extraordinary. She also relied on the Constitution Bench decision of the Supreme Court in Smt.Angoori Devi -v- State of U.P.and others (JT 2000 (Suppl.1)SC 295). Heard the learned counsel appearing for the parties and perused the records including that of the Government Gazette Extraordinary. A perusal of the Tamil Nadu Government Gazette Extraordinary would make it clear that the Tamil Nadu Urban Land (Ceiling and Regulations) Act, 1978 was repealed by Act 20 of 1999 even as early as on 16.6.1999. If that is so, it is not known as to how the tribunal passed the order on 17.8.2000 as against which the present writ petition has been filed." 18. In so far as the present case is concerned, since the Repealing Act 20 of 1999 came into force on 16.06.1999 and bearing in mind of the Hon'ble Supreme Court that the decision in Smt.Angoori Devi -v- State of U.P.(JT 2000 (suppl.1)SC 295) and because of the fact that all proceedings pertaining to any order before any Authority got abated by virtue of Act 20 of 1999, the writ petition filed by the petitioner also stands abated and in that view of the matter, this Court is not inclined to go into the merits of the matter and accordingly disposes of the writ petition without costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vri To 1.The Secretary, Government of Tamil Nadu, Revenue Department, Fort St.George, Chennai-9. 2.The Principal Commissioner & Commissioner of Land Reforms Chepauk, Chennai-5. 3.The Competent Authority, Urban Land Ceiling, Poonamallee. 1 cc to Government Pleader, Sr.No.13435 1 cc to Mr.V.Ramesh, Advocate, Sr.No.13249 W.P.No.7163 of 2003 AKR {CO} TP/8.3.2010. https://hcservices.ecourts.gov.in/hcservices/