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Judgment
Swamikkannu, J.—This is a writ petition for the issue of a writ of mandamus directing the respondents herein to forbear from acquiring the petitioner''s lands in Survey Nos. 576/1A and 576/2A-1, New T.S. No. 11/2, in Ward No. F1 and Block No. 1 of Thiruvottiyur Town, Madras-19, under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (referred to as the Act for short). In the affidavit filed in support of the writ petition, sworn to by the petitioner, it is stated as follows: The petitioner is the owner of lands measuring 3 cents in S. No. 576/1A and 75 cents in S. No. 576/2A-1 in Thiruvottiyur village. He and his brother are partners of the firm, M/s. Arun Industries and they do iron and steel fabricating works. The properties in question were purchased in the name of the petitioner for the purpose of the above industry. Since the business earned on by the firm is a family business the petitioner never thought fit to take the sale deeds in the name of the firm, but the properties were purchased in his same, he being in management of the industry. After the Act came into force in 1978, the petitioner submitted an application under S. 21 of the Act claiming exemption of the above said lands from the provisions of the Act as they were purchased for the purpose of the above industry. After consideration, the second respondent, by his order dated 21-8-1979, declared an extent of 2657 sq. metres as excess vacant lands. Again, by another order dated 3-10-1979, the second respondent sent the revised statement in the individual name of the petitioner declaring the said extent of lands as excess vacant lands, and on that footing, proceeded to acquire the said lands under the provisions of the Act from the petitioner. When he filed the original application to the second respondent, the petitioner had sought exemption of the lands of an extent of 3157 sq. metres from the provisions of the Act and for the purpose of the industry. After rejecting the request of the petitioner, the second respondent proceeded to acquire the lands under the provisions of the Act. When the request for exemption in favour of the industry had been rejected, it was but proper that the subsequent proceedings should have been conducted in the individual name of the petitioner, and should have followed the procedure for enquiry as provided under R. 9 of the Rules framed under the Act. The said Rule is specific that no order prejudicial to any person shall be passed without giving such person a reasonable opportunity to make his representation against such an order. The subsequent proceedings taken should have been in the individual name of the petitioner and should have been a de novo enquiry. But, the second respondent did not give any opportunity to the petitioner to state his case and has published the draft and final statements based on the materials gathered, for the claim of exemption in favour of the industry, M/s. Arun Industries.
The petitioner would further state that if the proceedings arc in the individual name of the petitioner, then the petitioner is entitled to claim exemption based on the total number of his family members which include his brothers and parents since all of them are residing jointly. Further, since the properties were purchased in his name as he is in management of the industry along with his mother, his brother would also be entitled to a share in the properties and thereby, larger extent of lands would have come to be exempted from the provisions of the Act. After the publication of the draft statement, the petitioner sent an application on 24-10-1979 to the first respondent and he also wanted to file the partnership deed dated 1-4-1977, but the respondents did not give him any opportunity to do so, but assessed the lands in his individual name. The petitioner further states that the vacant land referred to in the assessment is not fit for housing purposes and the area itself had been declared as an industrial area. The competent authority has also not considered the above circumstance in his assessment of the lands, for which exemption had been claimed The petitioner is specific in para 13 of the affidavit that he is still in possession of the lands. He also prayed that the respondents should be restrained by means of an interim injunction from dispossessing him from the lands in question pending disposal of the writ petition.
It is seen that in W.M.P. No. 4158 of 1983 filed in this writ petition, this Court has ordered interim injunction on 29-3-1983 and has further made it absolute on 18-8-1983.
The main contention of learned counsel for the petitioner is that S.9 of the Act had not been complied with by the competent authority while passing the order on 24-9-1980 in SR. 63/78 S. 7(1), in that no personal hearing was given to the petitions while disposing of the objection petition sent by the petitioner under S. 9 (5) of the Act tithe Government for exemption of the excess land in favour of the industry run by the petitioner and his brother, a copy of which petition had also been sent to the competent authority by the petitioner on 24-10-1979. In this regard, petitioner''s counsel refers to Reference No. 2 cited in the order of the competent authority dated 24-9-1980 referred to above.
Mr. Shakir Ali the learned Addl. Government Pleader refers to paragraph 12 of the counter-affidavit filed on behalf of the respondents, sworn to by the Deputy Secretary to Government and states that all the. necessary action had been taken and that according to S. 11(3) of the Act, the case lands vest with the Government with effect from 15th September, 1982 as per Notification No. VI (i) 1009/82 dated 28-8-1982 published in the Tamil Nadu Government Gazette, and possession of the excess vacant land was handed over to the Tahsildar, Saidapet on 24-1-1983. This writ petition, it would be seen, was filed on 25-3-1983 and admitted on 29-3-1983, and the interim injunction granted on that date has been made absolute on 18-8-1983. In the circumstances, the only question that has to be considered is whether the provisions of S. 9 (5) of the Act have been complied with by the authorities concerned or not.
In this regard, the learned Addl. Government Pleader submits that reasonable opportunity had been given to the petitioner to file his objections and the documents that were produced including the partnership deed as well as the state of affairs as then available, in that the petitioner was only a bachelor during the time of the said objections being filed, were all taken into consideration and orders were passed. The petitioner''s counsel, on the other hand, submits that the order dated 24-9-1980 passed by the competent authority clearly discloses that an objection petition under S. 9 (5) was sent to the Government claiming exemption of the vacant land, by the petitioner, with a copy thereof marked to the competent authority which had been received by him as seen from Reference No. 2 cited in the order dt. 24-9-1980 of the competent authority and as such, the objections sent by the petitioner under S. 9 (5) was within the time prescribed in the said Section and as such, when the competent authority had passed the order on 24-9-1980, he ought to have given a personal hearing to the petitioner as per the said provision by complying with the mandate contained therein of giving an opportunity of personal hearing to the petitioner before an order could be passed. In other words, the petitioner''s case is that the competent authority has only stated in the order dated 24-9-1986 that the Government had rejected the request of the petitioner for exemption of the excess vacant land in the name of the industry and therefore, the objection raised by him in the reference second cited tin the order dated 24-9-1980 had to be overruled. According to the petitioner, this method of dealing with the question raised in the objection petition, especially when a copy of the said petition had already been sent to the competent authority also, is not in accordance with the provisions of S. 9 (5) of the Act. S. 9 (5) of the Act can be looked into at this stage. It reads:
The competent authority shad duly consider any objection received, within the period specified in the notice referred to in sub-S. (4) or within such further 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 orders as it deems it.
A careful reading of the Section would clearly show that there is a duty cast on the competent authority to give the objector a reasonable opportunity of being heard and then only, it can pass such orders as it deems fit. The provision being mandatory in character, non-compliance with it by the competent authority is certainly bad in law. In the instant case, merely because the competent authority has stated that the Government had rejected the petitioner''s request for exemption of the vacant land in the name of the industry, that cannot be made a ground to reject the objections filed by the petitioner, copy of which was admittedly received by the competent authority even on 24-10-1973, as disclosed in Reference No. 2 cited in its order dated 24-9-1980. It is necessary that in the enquiry contemplated under S. 9(5) on the objection petition, there should be a reasonable opportunity given to the petitioner by giving notice to the petitioner regarding the date of hearing of the said objection petition as well as the fact that on the appointed date the representation made by the petitioner would be heard personally. The expression, "opportunity of being heard" as occurring in S. 9(5) of the Act, means and includes personal hearing. There need not be any question of the part of the objector asking for a personal hearing. A competent authority or the Government, as the case may be, which entertains a petition under S. 9(5), should necessarily comply with this mandatory provision of giving notice of hearing and it is only after hearing the petitioner who raised the objections, an order could be passed, in this. regard, it is submitted by the learned Addl. Government Pleader that the partnership deed as well as the sale deed were taken into consideration by the Government and the government had rejected the request of the petitioner for exemption of vacant land in the name of the industry. This is not sufficient. Even for argument''s sake it is to be held that the Government has got powers to take on its own the reins of administration for disposal of such objections filed under S. 9(5), it is but necessary that compliance with the mandatory provision of S. 9(5) by the said authority is expected. In this case, there is no doubt that the copy of the objection petition sent by the petitioner to the Government had been sent to the competent authority who had received it in time, even on 24-10-1979, and there is nothing to show that the said objections were considered by the competent authority or that the objector was heard in person. In these circumstances, the order dated 24-9-1980 passed by the competent authority is erroneous and is not in compliance with S. 9(5) of the Act since no personal hearing had been given to the petitioner Necessarily, therefore, the matter has to be remanded to the competent authority for fresh consideration by setting aside the order dated 24 9-1980 for compliance with the provision of Sec. 9(5) of the Act and to dispose of the objection petition. The competent authority will take the objection petition dated 24-10-1979 on file and dispose of the same in accordance with law as early as possible, after giving the petitioner notice of the date of the hearing to be fixed by it. There will be an order in the writ petition in the above terms. There will, however, be no order as to costs.