IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 21.10.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.2696 of 2001 1. A.Kaliammal 2. R.Selvam 3. R.Balaji .. Petitioners Versus 1. The Tahsildar, Salem. 2. The Assistant Commissioner, Urban Land Tax, Salem. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, calling for the records relating to the Order bearing No.Nil dt.19.05.1999 on the file of the 2nd respondent and the order bearing No.Mu.Mu.17315/2000 dt. 27.09.2000 on the file of the first respondent and quash the same and consequently, to direct the 1st respondent to transfer the patta for the land along with the building, bearing Door No.4/723, measuring 579 sq.ft., comprised in S.F.No.203/9B2A, 203/9D in Annadhanapatti, Salem and purchased by the first petitioner under Sale Deed dt.29.11.1999 and registered as Doc.No.4459/99 (Sub Registrar, Thathagapatti, Salem) in her name. (Prayer amended as per order dated 30.07.2009 by NPVJ in WPMP No.497/09 in Wp.No.2696/01). For Petitioners : Mr.T.P.Manoharan For Respondents : Mr.P.Subramanian, Additional Government Pleader. O R D E R The request of the 1st petitioner for change of patta in her name in respect of land along with the building, bearing Door No.4/723, measuring 579 sq.ft., comprised in S.F.No.203/9B2A, 203/9D in Annadhanapatti, Salem and purchased by the 1st petitioner under Sale Deed dt.29.11.1999 was rejected by the 1st respondent by order dated 27.09.2000 and the said order was initially put to challenge in this writ petition. The petitioner has also prayed for a direction to the 1st respondent to transfer the patta in respect of the above said lands to the 1st petitioner. 2. During the pendency of this writ petition, records were produced by the learned Additional Government Pleader and a contention was raised that possession in respect of the said property had already been taken over by the Special Deputy Tahsildar, Land Reforms and handed over to the Zonal Deputy Tahsildhar, Salem by proceedings in Mu.Mu.17315/2000 dt. 27.09.2000. In these circumstances, the petitioner has filed WPMP.No.497 of 2009 for an amendment as follows: ".....writ of Certiorarified Mandamus or any other appropriate writ, direction or order, calling for the records relating to the Order bearing No.Nil dt.19.05.1999 on the file of the 2nd respondent and the order bearing No.Mu.Mu.17315/2000 dt.27.09.2000 on the file of the first respondent and quash the same and consequently, to direct the 1st respondent to transfer the patta for the land along with the building, bearing Door No.4/723, measuring 579 sq.ft., comprised in S.F.No.203/9B2A, 203/9D in Annadhanapatti, Salem and purchased by the first petitioner under Sale Deed dt.29.11.1999 and registered as Doc.No.4459/99 (Sub Registrar, Thathagapatti, Salem) in her name....." Record of proceedings shows that this Court by order dated 30.07.2009 has permitted the amendment. 3. Facts leading to the writ petition are as follows: Originally one L.Kotteswaran and others were the owners and in possession of lands bearing S.Nos.203/9A, B & C in Annathanpatti Village, Salem Taluk, under Sale Deed dated 18.04.1979 and they have sold the said lands to one K.Sekar and handed over possession of the same to him. Subsequently, under Sale Deed dated 25.02.1983, the said Sekar sold the lands to one R.Ponna Gounder and handed over the possession of the same to him. After the purchase of the said lands, R.Ponna Goundar divided the lands into number of residential plots and constructed terraced buildings, obtained Electricity power connection in his name for the said houses and sold the same to various persons. The 1st petitioner has further submitted that R.Ponna Gounder through his power of attorney sold his plot measuring 579 sq.ft. comprised partly in S.No.203/9B2 and partly in S.No.203/9D with the building constructed thereon to the petitioners 2 and 3 and handed over possession of the same to them. By order dated 30.05.1986, of the Additional Head Quarter Deputy Tahsildar, Salem, patta was jointly issued in their names under Patta No.723 and their names were also duly entered in all the revenue records as owners of the property. 4. The 1st petitioner has further contended that petitioners 2 and 3 were in possession and enjoyment of the property and paying electricity charges, property tax, etc. Thereafter, under sale deed dated 29.11.1999, they sold the said property to the 1st petitioner for a valuable consideration and also handed over possession. It is the contention of the writ petitioner that she is in possession and enjoyment of the property by paying property tax, electricity charges, etc. She has also submitted that on an application made by her, by order dated 30.10.2000, the Junior Engineer (O & M), TNEB, Salem has transferred the Electricity Service Connection No.263 in her name. Since patta of the property was in the name of her vendors namely, petitioners 2 and 3, in the month of September 2000, she made an application before the Tahsildar, Salem, requesting him to transfer the patta in her name, by enclosing necessary documents. 5. By proceedings dated 27.09.2000, the Tahsildar, Salem rejected her request on the ground that the subject matter of land had already been taken possession under the Urban Land (Ceiling & Regulation) Act, 1976 and that the lands have been declared as Government Porambokke lands. The said proceedings was originally impugned in this writ petition and subsequently, the prayer has been amended as stated supra. 6. Reiterating the transactions from 1979 to 1984 stated supra Mr.T.P.Manoharan, learned counsel for the writ petitioners submitted that when the proceedings under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 was initiated, the competent authorities ought to have verified the revenue records and notices under Sections 7(1) and (2) ought to have been issued to the real owners of the property, who were in actual possession, namely, petitioners 2 and 3, so as to enable them to submit their objections before declaring the lands as surplus. 7. Inviting the attention of this Court to the date of death of R.Ponna Goundar i.e., 06.12.1986, he submitted that the notices, said to have been issued under Sections 7(1) and (2) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 to a dead person is a nullity. He therefore submitted that the whole proceedings, initiated and said to have been finalised under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 are null and void, as no final statement can be made without hearing the objections of the real owners. 8. Referring to the provisions under Sections 11 (5) and 11(6) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, learned counsel for the petitioners submitted that after making a declaration, under Section 11(3) of the said Act, the 2nd respondent has to issue notice to the person in possession, ordering him/her to surrender possession of the lands, declared as surplus, to the Government. Even after the receipt of such notice, if the person in possession fails or refuses to surrender or deliver possession, the 2nd respondent can use minimum force, as may be necessary for the purpose of taking possession. 9. According to the learned counsel, the petitioners 2 and 3 were in actual physical possession and enjoyment of the lands in question, by paying property tax, electricity charges, etc., from 30.04.1984 onwards, till they sold the same to the 1st petitioner on 29.11.1999. Inviting the attention of this Court to the "Possession Certificate" dated 19.05.1999, said to have been issued by the Special Deputy Tahsildar, Urban Land Tax, Salem to the Zonal Deputy Tahsildhar, No.I, Salem, learned counsel for the writ petitioners, submitted that perusal of the same would show that 17 persons were in possession of the lands in Survey Nos.203/9B2A, 203/9B2B and 203/11 and petitioners 2 and 3 were also included in the Annexure. 10. Placing reliance on the decision of a Division Bench of this Court in V.Somasundaram and Others Vs. Secretary to Government, Revenue Department, Chennai and Others, reported in (2007) 1 MLJ 750 and by referring to Section 11(5) of Act, he submitted that when a vacant land is vested in the State Government under Section 11(3) of the Act, 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. Placing reliance on the "Possession Certificate" stated supra, he submitted that when the actual possession of the lands with buildings thereon, was with owners of the lands, namely, the petitioners 2 and 3, among others, as admitted in the said certificate, the contention of the respondents that they have taken possession of the land is farce and therefore the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, stands abated, on coming into force of the repealing Act. 11. Learned counsel for the writ petitioners submitted that when the possession was with 17 person, the competent authority resisting dispossession ought to have used minimum force to dispossess them, but that was not done under Section 11(6) of the Act and therefore to say that possession has been taken by the competent authority is nothing but paper possession, and not actual physical possession. According to the learned counsel, the contention that R.Ponna Gounder had sold the properties and that the petitioners 2 and 3 were in possession, even prior to the initiation of Urban Land proceedings is fortified, by the "Possession Certificate" dated 19.05.1999 and therefore, unless the procedure contemplated under Sections 11(5) and (6) of the Land Ceiling Act is duly followed in letter and spirit, the proceedings are abated and therefore the 1st respondent ought to have effected transfer of patta in favour of the 1st petitioner. 12. Referring to the various proceedings, such as transfer of Electricity Service Connection E.C.No.263 in favour of the 1st petitioner effected by the Junior Engineer (O&M), TNEB, Salem, the change in the electricity consumption cards along with the receipts and payment, the Ration Card issued by the Civil Supplies and Consumer Protection Department for the period between 1993 and 2003 and the Certificate issued by the Salem Municipal Corporation, Salem dated 04.12.2000 to the effect that property tax has been levied on the 1st petitioner, learned counsel for the petitioners submitted that all these documents would go to show that the subject lands are in actual possession of the 1st petitioner and without verifying the actual possession, the authorities would not have effected change of supply of power. Likewise the authorities of the Civil supplies and Consumer Protection Department and Salem Municipal Corporation, Salem, have discharged their functions diligently and only after verification of actual physical possession, effected the change and issued the certificate, stated supra. He therefore submitted that the "Possession Certificate" of the Special Tahsildar, Urban Land Tax, Salem dated 19.05.1999 is nothing but a document created for the purpose of showing as if possession had been taken under Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976. 13. In support of his contention, that actual physical possession had not been taken by the competent authority, as provided under the Act and the Rules framed therein; that the proceedings initiated under Urban Land Ceiling Act has come to an end, on coming into force of the repealing Act, 1999, and in support of the proposition that notice should be issued to any person in possession, as per Section 11(5) of the Act, learned counsel for the petitioners placed reliance on the decision of the Division Bench in V.Somasundaram and Others Vs. Secretary to Government, Revenue Department, Chennai and Others, reported in (2007) 1 MLJ 750, Allind Metal Fabricators Pvt. Ltd., rep. by its Managing Director Vs. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Fort St. George, Madras, reported in 2002 (2) CTC 716 and in V.Elumalai Naicker Vs. The Government of Tamil Nadu rep. by its Secretary, Revenue Department, Fort St. George, Chennai and two others, reported in 2009 Writ L.R.451. For the above said reasons, he prayed that the impugned orders are liable to be set aide and consequently prayed for a direction to the 1st respondent to issue patta in favour of the 1st petitioner in respect of the subject mentioned property. 14. Based on the averments in the counter affidavit filed by the Joint Commissioner (Land Reforms), Erode and the Tahsildar, Salem, Mr.P.Subramanian, learned Additional Government Pleader submitted that Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, was applied to Salem Urban agglomeration on 03.08.1976. Notice under Sub-Section (2) of the Section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 was issued on 02.11.1987 in S.R.A.Roc.7719/87-A2 to R.Ponna Goundar, who was ascertained to have held excess urban land in S.F.203/9B2, 203/9C2, 203/9D of Annadhanapatty Village, comprised in Salem Urban agglomeration. The land owner was directed to file a statement of excess Urban Land held by him, within seven days as required under Section 7(1) of the Act. 15. Learned Additional Government Pleader further submitted that though one Ravi had acknowledged the notice on behalf of the owner of the land, there was no response to the notice. Therefore, a draft statement was prepared as required under Section 9(1) of the Act, stating that the land owner was holding excess land to an extent of 4045 sq.mts. Subsequently, the draft statement was also sent to the said individual along with a notice under Section 9(4) of the Act on 14.08.1991 and that the land owner was directed to furnish his objections to the draft statement, within 30 days from the date of receipt of the draft statement. As there was no response from the land owner, orders were passed under Section 9(5) of the Act proposing that no alteration to the extent of land, to be declared as excess vacant land would be permitted and accordingly, a final statement under Section 10(1) of the Act was sent to the Urban Land owner, R.Ponna Goundar on 13.05.1992, determining the excess vacant land. 16. Learned Additional Government Pleader further submitted that after issuing a notification under Section 11(1) of the Act, the land was acquired by the State Government and the same was published in Tamil Nadu Government Gazette on 26.11.1997. Lateron, a publication under Section 11(3) of the Act was also effected on 01.04.1998. Thereafter, a notice in S.R.66/91A1 dated 09.03.1999 under Section 11(5) of the Act was issued to the Urban Land owner R.Ponna Goundar to surrender possession of the excess Urban Land of 3800 sq.mts. But there was no response. Therefore, the excess land was taken possession on 19.05.1999 and mutation was also effected in the village records by the Sub-Inspector of Survey, Office of the Assistant Commissioner, Urban Land Tax, Salem, on 23.06.1999. Therefore, learned counsel for the respondents submitted that the procedure under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976 was duly followed and that possession was taken as per Sections 11(5) and 11(6) of the Act. 17. Referring to Section 6 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, the State Counsel further submitted that the subsequent purchaser has no legal right to challenge the proceedings initiated under the Land Ceiling Act. He submitted that the proceedings initiated under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, against R.Ponna Gounder, the owner of the lands had come to an end. He further submitted that notices were issued to the owner of the land, as per the entries in the revenue records and therefore, there is a substantial compliance of statutory provisions. According to him, the subsequent purchasers namely, the petitioners have no locus standi to test the correctness of the proceedings initiated under Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976. According to him, any transaction after the declaration of lands as surplus under the Act, is not a valid transaction. For the above said reasons, he submitted that there is no manifest illegality in the order made by the respondents and therefore prayed for dismissal of the writ petition. 18. Heard the learned counsel for the parties and perused the materials available on record. 19. The contention of the writ petitioner that the lands in S.Nos.203/9A, B & C in Annathanpatti Village, Salem Taluk originally owned by L.Kotteswaran were subsequently sold to Sekar under a registered sale deed dated 18.04.1979 and thereafter to R.Ponna Goundar on 25.02.1983, is supported by Document No.1, a registered sale deed enclosed in the typed set of papers, and the same is not disputed. 20. Perusal of the sale deed dated 30.04.1984, executed by the Power Agent of R.Ponna Goundar shows that the property measuring an extent of 579 sq.ft. comprised partly in S.No.203/9B2 and partly in S.No.203/9D and the building constructed thereon, were purchased by the petitioners 2 and 3 for consideration and that they were in possession since then. The Additional Head Quarters Deputy Tahsildhar, Salem in his proceedings dated 30.05.1986 has also issued a joint patta in favour of the writ petitioners 2 and 3, under patta No.723 and that their names were subsequently entered in the revenue records. The issuance of patta in proceedings No.682.6/11/86-87 dated 30.05.1986 in respect of Survey No.203/9B2A, 9D in favour of writ petitioners Selvam and Balaji, Sons of late V.Radhakrishna Chettiyar, is also not disputed. 21. The proceedings dated 30.10.2000 of the Junior Engineer (O&M) TNEB, Salem, shows that the Electricity Supply connection which stood in the name of R.Ponna Gounder under S.C.No.263 has been changed to the 1st petitioner, on the basis of her application dated 04.10.2000. The electricity supply consumption card, enclosed at page No.47 of the typed set of papers also shows that there was power supply in the subject land and consumption charges were levied till 1999. 22. The family card, issued by the Civil Supplies Consumer Protection Department to the mother of writ petitioners 2 and 3 enclosed at Page No.55 of the typed set of papers also proves that they were in possession of the property at D.No.4/723, JJ Nagar, Salem. 23. The Certificate dated 04.12.2000, issued by the Commissioner, Salem Municipality, to the husband of the 1st petitioner shows that property tax has been levied for a house in Door No.1/723 of Annathanapatti Village, which according to the learned counsel for the writ petitioners corresponds to the property partly in S.No.203/9B2 and partly in S.No.203/9D. 24. Perusal of the above documents shows that subject matter of lands with the constructed building measuring an extent of 579 sq.ft. comprised partly in S.No.203/9B2 and partly in S.No.203/9D were in continuous possession and enjoyment of the owners of the property, initially in the name of R.Ponna Gounder and thereafter the writ petitioners 2 and 3 respectively, till the 1st petitioner purchased the same on 29.11.1999. 25. Section 7 of the Urban Land (Ceiling and Regulation) Act, 1976 reads as follows: 7. Filing of 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, whether in the same state or in two or more states to which this Act applies, then he shall file his statement under sub-section (1) of Section 6 before the competent authority within the jurisdiction of which the major part thereof is situated and thereafter all subsequent proceedings 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. (2) Where the extent of vacant land held by any person and situated within jurisdiction of two or more competent authorities within the same state to which this Act applies is equal, he shall file his statement under sub- Section (1) of Section 6 before any one of the competent authorities and send intimation thereof in such form as may be prescribed to the State Government and thereupon, the State Government shall, by order, determine the competent authority before which all subsequent proceedings under this Act shall be taken to the exclusion of the other competent authority or authorities and communicate that order to such person and the competent authorities concerned. (3) Where the extent of vacant land held by any person and situated within the jurisdiction of two or more competent authorities in two or more States to which this Act applies is equal, he shall file his statement under sub-Section (1) of Section 6 before any one of the competent authorities and send intimation thereof in such form as may be prescribed to the Central Government and thereupon, the Central Government shall, by order, determine the competent authority before which all subsequent proceedings shall be taken to the exclusion of the other competent authority or authorities and communicate that order to such person, the State Governments and the competent authorities concerned. 26. The contention of the writ petitioners that the original owner of the lands namely, R.Ponna Goundar died on 06.12.1986, has not been refuted by the respondents. On the contrary, they have submitted that all the statutory notices were issued in the name of the said individual, but there was no response. The Additional Head Quarters Deputy Tahsildar, Salem has effected the change of patta in the name of 2nd and 3rd petitioners under Patta No.723 in respect of the above said property on 30.05.1986 prior to the death of R.Ponna Gounder i.e. on 06.12.1986 and there are documents to prove that property tax, electricity charges were paid by petitioners 2 and 3, in respect of the subject property. 27. The competent authority ought to have issued the statutory notice under sub Section 2 of Section 7 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976, to the actual owners, but the statutory notice had been issued in the name of R.Ponna Gounder, a dead person on 02.11.1987 in S.R.A.Roc.7719/87-A2. As there was no response, the competent authority had proceeded to issue the draft statement under Section 9(1) of the Act holding that the land owner was in possession of excess land to an extent of 4045 sq.mts. On that basis, a further notice had been issued under Section 9(4) of the Act on 14.08.1991, calling upon a dead man to submit his objections to the draft statement and on his failure, a final statement under Section 10(1) of the Act had been issued to the Urban Land owner R.Ponna Goundar on 13.05.1992. The notification under Section 11(3) of the Act has been published on 01.04.1998 in the Tamil Nadu Government Gazette. In S.Subramaniam Vs. State of Tamilnadu, represented by the Secretary to Government, Revenue Department, Chennai and others reported in 2006 3 MLJ 509 and Saraswathi and another Vs. Principal Commissioner and Commissioner of Land Reforms, Chennai and others reported in 2007(5) MLJ 1240, this Court has held that notice issued to a dead person is a nullity. 28. The Urban Land (Ceiling and Regulation) Repealing Act,1999 has come into force on 16.06.1999. As per Section 3 of the Act, "3. Savings:- (1) The repeal of the principal Act shall not effect- (a) the vesting of any vacant land under the sub Section (3) of Section 11, 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. (b) The validity of any order granting exemption under sub-Section (1) of Section 21 or any action taken thereunder. (2) Where - (a) any land is deemed to have vested in the State Government under sub-Section (3) of Section 11 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by by competent authority; and (b) any amount has been paid by the State Government with respect to such land, then, such