IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.2.2011 CORAM THE HONOURABLE MR. JUSTICE D. MURUGESAN AND THE HONOURABLE MR. JUSTICE B. RAJENDRAN WRIT APPEAL NOS.495 & 496 OF 2010 AND M.P.NOS.1 AND 2 OF 2010 Writ Appeal No.495 of 2010:- 1. The Government of Tamil Nadu rep. by its Secretary to Government Revenue Department Fort St. George Chennai – 600 009. 2. The Special Commissioner and Commissioner (Land Reforms), Chepauk Chennai – 600 005. 3. The Assistant Commissioner Urban Land Ceiling & Taxes Chennai. ... Appellants/Respondents Vs. 1. Nandagopal 2. Krishnappan 3. Nagammal 4. Govindu ... Respondents/Petitoners Writ Appeal No.496 of 2010:- 1. The Government of Tamil Nadu rep. by its Secretary to Government Revenue Department Fort St. George Chennai – 600 009. 2. The Special Commissioner and Commissioner (Land Reforms), Chepauk Chennai – 600 005. 3. The Assistant Commissioner Urban Land Ceiling & Taxes Chennai. ... Appellants/Respondents https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. Krishnaveniammal 2. Gunasundari ... Respondents/Petitioner Writ Appeals filed under Clause 15 of Letters Patent against the common order dated 25.4.2005 made in W.P.Nos.2834 and 2837 of 2002. filed under Article 226 of the Constitution of India for issuance of Writ of Declaration, declaring the Urban Land Ceiling proceedings initiated by the respondents herein, in respect of the petitioners' land in S.Nos.402/4G, 402/4B, 402/4H and 402/4J herein respect of the petitioner lands to an extend of 4350 Sq.feet in S.No.402/5 and 1900 Sq.feet in S.No.402/8 respectively in Okkium Thorapakkam as void, illegal, ultra vires and at any rate has abated with effect from 16.6.1999. For Appellants : Mr. M. Dhandapani, Special Government Pleader For Respondents : Mr. AR.L. Sundaresan Senior Counsel for Ms. AL.Ganthimathi COMMON JUDGMENT (Judgment of the Court was delivered by D. Murugesan, J.) Both these appeals arise out of a common order passed in W.P.Nos.2834 and 2837 of 2002, dated 25.4.2005 filed by the respondents. 2. The land comprised in Survey Nos.402/4B (300 sq.mts), 402/4H (750 sq.mts), and 402/4J (4200 sq.mts) stood registered in the name of one Thiru N.Nandagopal and the lands remained vacant. On the ground that holding of the land was more than the ceiling limit allowable to a family, action under the provisions of the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978, (hereinafter referred to as the "Act") was initiated by issuance of notice under Section 7(2) of the Act. Objections were raised and ultimately the proceedings culminated into one of issuance of notice dated 27.4.1999 under Section 11(5) of the Act. With the grievance that on the date when the Act was repealed viz., 16.6.1999, the possession of the land in question was not taken in the manner known to law, the respondents approached this Court by contending that the proceedings initiated shall lapse after the Act had come into force and the writ petitions were allowed by following the judgment reported in 2002 (2) CTC 716 (Allind Metal Fabricators Pvt. Ltd., vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Madras). https://hcservices.ecourts.gov.in/hcservices/ 3. As against the above common order dated 25.4.2005, the above appeals have been filed by the State. According to Mr.M.Dhandapani, learned Special Government Pleader, the symbolic possession of the land in question was taken on 15.6.1999, which was one day prior to the date of the Repealing Act, viz., on 16.6.1999. In the event possession is taken, the question of placing reliance on the Repealing Act does not arise and therefore, the learned Judge is not correct in placing reliance over a judgment, which related to a case, where possession was admittedly taken prior to the Repealing Act. 4. On the other hand, Mr. AR.L.Sundaresan, learned Senior Counsel would submit that the respondents are entitled to the benefit of the Repealing Act on two grounds. Firstly, even in the counter affidavit filed by the State, it is contended that only a symbolic possession was taken and in the absence of physical possession taken by the authorities, the State cannot oppose the applicability of the Repealing Act. In support of the said contention, the learned Senior Counsel would rely upon the judgment of this Court reported in 2009 (6) MLJ 1102 (S. Nasira Anjum and Others vs. State of Tamil Nadu) and 2009 (8) MLJ 522 (Sree Jayalakshmi Brick Industries vs. Special Commissioner & Secretary to Government). Secondly, the learned Senior Counsel would submit that in any event, notice under Section 11(5) of the Act, which is a mandatory requirement before ever possession is taken has not been issued and served as per Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978 (hereinafter referred to as the "Rules"). According to the learned Senior Counsel, except an affixture of the said notice made in the vacant site in question, the other requirements under sub-rules (1) and (2) of Rule 8 of the Rules were not followed. 5. We have considered the submissions. We will first consider the second point relating to the service of notice. After the compliance of the provisions of Section 11(1) to (4), if the land is a vacant land, 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 under section 11(5) of the Act. The manner in which such a notice should be served with the particulars is contemplated under Rule 8 of the Rules. The relevant Rule for the purpose of issuance and service of notice is sub-rule (2) of Rule 8, which reads as under:- " (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 lands, and (ii) all other persons, so far as may be known, who have, or are likely to have any claim to, or interest in, the ownership, or possession, or both, of the vacant lands, https://hcservices.ecourts.gov.in/hcservices/ 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 addresses. (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 the 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 in known to have last resided or carried as business or personally worked for gain. " 6. By that Rule, the draft statement together with the notice referred to in sub-section (4) of section 9 shall be served on the holder of the vacant lands, and all other persons, so far as may be known, who have, or are likely to have any claim 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. Only in the event the notice sent through registered post could not be served for any reason, the question of affixture would arise. 7. In order to find out as to whether the notice as required under Section 11(5) of the Act read with Rule 8 of the Rules was served on the respondents or not, we called for the records and perused. Admittedly, there is no such notice sent through registered post, except the competent authority affixing the said notice on the vacant site, which should be only a last resort after making an attempt to send the notice by registered post and in spite of the same, they could not be served with the notice. In that view of the matter, even assuming that the possession is said to have been taken as contended by the learned Special Government Pleader, such taking over of possession cannot be considered to be valid in the eye of law so long as the provisions of Section 11(5) of the Act read with Rule 8 of the Rules was not complied with. On this ground alone, the contention of the respondents that in the event of physical possession not being taken in the prescribed manner, the provisions of the Repealing Act would come to the benefit of the respondents https://hcservices.ecourts.gov.in/hcservices/ must be accepted. 8. For the said reason, we are also of the considered view that the respondents are entitled to the benefit of the Repealing Act and accordingly, we find no reason to interfere with the impugned order. Accordingly, the writ appeals are dismissed. However, the issue as to whether the State could claim the taking over of symbolic possession and hence the question of physical possession is necessary or not is left open. No costs. Consequently, connected miscellaneous petitions are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kb To 1. The Secretary to Government Revenue Department Fort St. George Chennai – 600 009. 2. The Special Commissioner and Commissioner (Land Reforms), Chepauk Chennai – 600 005. 3. The Assistant Commissioner Urban Land Ceiling & Taxes Chennai. 1 cc To The Government Pleader, SR.12803 2 cc To Ms. AL.Ganthimathi, Advocate, SR.12842, 12841 W.A.Nos.495 & 496 of 2010 bs(co) pmk.4.3.2011 https://hcservices.ecourts.gov.in/hcservices/