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Judgment
A. Kulasekaran, J.—The prayer in this writ petition is for a Writ of Mandamus directing the respondents to treat the proceedings initiated by
the second respondent under the provisions of the Principal Act, Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1978 as abated by virtue of
Section 4 of the Repeal Act 20 of 1999 in respect of the petitioner''s land comprised in Survey Nos. 73/2, 74/12 and 74/3, measuring to an extent
of 6550 sq. mts., situate at Selavoyal Village, Fort-Tondiarpet Taluk, Chennai District.
The case of the petitioner is as follows:
The agricultural lands comprised in Survey Nos. 73/2, 74/12 and 74/3, measuring to an extent of 6550 sq. mts., situate at Selavoyal Village, Fort-
Tondiarpet Taluk, Chennai District originally belonged to Govindasamy Naicker, father of the petitioners herein, who died in the year 1972 leaving
behind the petitioners as his legal heirs. Thereafter, the petitioners have been cultivating the said lands and are in continuous possession of the same
ever since the date of death of their father, however, the Chitta and Adangal Extract stands in the name of their father Govindasamy Naicker all
along. It is stated that the second respondent said to have issued a notice dated 22.08.1985 addressed to Govindasamy Mudaliar instead of
Govindasamy Naicker, indeed, at that time, their father was not alive. In the year 1998, the petitioners have approached the respondents for
mutation of their names in the revenue records and for transfer of patta and at that time they were informed by the second respondent that except
500 square meters of land in Survey No. 73/2, the remaining lands are in possession of the Government and the said possession was taken in
accordance with the order passed under the provisions of Tamil Nadu Urban Land Ceiling Regulation Act, 1978, immediately, the petitioners have
applied for certified copy of the proceedings, which were served on them on 18.10.1998 and thereafter, they have filed an appeal on 17.11.1998
to the first respondent. The first respondent rejected the appeal by order dated 17.03.2003 stating that ""the Act was repealed with effect from
16.06.1999, hence, the appeal could not be entertained now on merits."" It is also stated by the first respondent in the said order that ""the Hon''ble
Division Bench, while disposing of the petition has viewed that since the Principal Act has been repealed, the question of Appellate Authority
hearing the appeal does not arise"". Thereafter, the petitioner also sent representations to the second respondent requesting to exclude their lands as
the proceedings initiated were invalid as no notice was served on them, besides that the possession of the lands is with them and also abated by
virtue of Section 4 of the Repeal Act 20 of 1999, but no reply has been received from the second respondent, hence, the present writ petition has
been filed.
The learned Counsel appearing for the petitioners submitted that the second respondent has initiated proceedings against a person namely
Govindasamy Mudaliar, who is neither an owner nor in possession of the lands. Assuming the name Govindasamy Mudaliar is wrongly mentioned
instead of Govindasamy Naicker, who died in the year 1972, the notice dated 22.08.1985 issued u/s 7(2) in the name of a dead person is invalid.
The statement u/s 9(1) dated 31.05.1989; Order u/s 9(5) dated 21.09.1990; Final statement u/s 10(1) dated 29.11.1990; notification u/s 11(1)
dated 27.03.1991; notification u/s 11(3) dated 30.09.1991; notice u/s 11(5) dated 30.12.1991 were all stated to have issued by the second
respondent only in the name of dead person; that admittedly, the said notices were not even served on the petitioners; that the stand taken by the
second respondent that notices were served by way of affixture is not valid at all; that the averment that the second respondent has allegedly taken
possession on 23.10.1992 is concerned, the possession remains only with the petitioners all along; that the petitioners came to know the ceiling
proceedings only in the year 1998 when they approached the second respondent for mutation of name and for patta transfer; that immediately,
they filed an appeal before the first respondent on 17.11.1998, which was rejected on 17.03.2003; that thereafter, the petitioners have submitted
representations to the second respondent, but no reply was received, hence, the present writ petition was filed and this Court also granted interim
injunction in favour of the petitioners thereby the possession of the lands prior as well as subsequent to the filing of the writ petition is protected;
that in view of the fact that possession is retained by the petitioners all along, at the time of repealing Act as well as after the repeal Act, hence the
entire proceedings shall be treated as abated and prayed for allowing of the writ petition.
Mr. Gopinathan, learned Additional Government Pleader appearing for the respondents submitted that the notice dated 22.08.1985 u/s 7(2) of
the Act; Statement dated 31.05.1989 u/s 9(1) of the Act; Order dated 21.09.1990 u/s 9(5); Final statement dated 29.11.1990 u/s 10(1);
notification dated 27.03.1991 u/s 11(1); notification dated 30.09.1991 u/s 11(3); notice dated 30.12.1991 u/s 11(5) were duly served on the
father of the petitioners by way of affixture and thereafter, possession was handed over to the second respondent by the Tahsildar on 23.10.1992;
that notice u/s 12(7) relating to payment of amount for acquiring of the land was also served by way of affixture in the agricultural land; that the
notice dated 06.10.1995 u/s 12(6) of the Act was issued and served by means of affixture, thus, the second respondent has complied with the
mandatory provisions of the Act and prayed for dismissal of the writ petition.
This Court carefully considered the argument of the counsel for both sides and perused the material records.
Section 7 of the Act provides that the persons holding vacant land in excess of ceiling limit has to file statement. Section 9(1) of the Act provides
for preparation of draft statement as regards vacant land held in excess of ceiling limit. As per Section 9(1), on the basis of the statement filed
under Sub-section (1) or Sub-section (2) of Section 7 or on the basis of information obtained under Sub-section (5) of that section and after such
enquiry as the competent authority may deem fit to make, the competent authority shall prepare a draft statement in respect of the person who has
filed the statement under Sub-section (1) or Sub-section (2) of Section 7 or as the case may be, about whose lands informations has been
obtained under Sub-section (5) of that section.
As per Section 9(5), the competent authority shall duly consider any objection received within the period specified in the notice referred the in
Sub-section (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 fit.
As per Section 10(1), final statement shall be prepared after the disposal of the objections by the authorities. After the preparation of the draft
statement and hearing objections, if any, a final statement is prepared determining the vacant land held by a person and declaring as surplus the
lands held in excess of the ceiling limit. A copy of the final statement should be sent to all parties having an interest in the land. Section 3(B) defining
''holding'' states that anybody in possession of the lands as tenant mortgagee, or under power of attorney or hire purchase agreement is a person
''holding'' the lands. Hence, notices should be sent to all these petitioners in Form 4 by registered post to the last known address and if undelivered
a copy should be affixed in the last known residence as per the provisions in Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules
1978.
Section 10 gives discretion to the competent authority that if any such excess vacant land is not fit or cannot be used for building purposes, to
report to the Government accordingly, and the Government can declare that such land is not excess vacant land. It follows that the criterion for
taking over excess land is its suitability for building purposes. If land that is unfit for building purposes is taken over by Government it is liable to be
challenged on that ground.
Section 11 provides for acquisition of vacant land in excess of ceiling limit. As per Section 11, as soon as may be after the service of the final
statement u/s 10 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such
person in excess of the ceiling limit. As per Section 11(5), where any vacant land is vested in the State Government under Sub-section (3) of
Section 11 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.
Taking into consideration of the above said mandatory provisions of the Act, when we look into the case on hand, no valid evidence is
produced by the Respondents to show that the draft statement was served on the Petitioners, as regards vacant land held in excess of ceiling limit
by them. As per Section 9(4), the draft statement shall be served in such a manner as may be prescribed on the person concerned together with a
notice, stating that any objection to the draft statement shall be preferred within 30 days of the service thereof. The said notice shall be served as
contemplated under Rule 8. Rule 8 contemplates that notice shall be served by Registered Post with Acknowledgement Due to the last known
address and if not delivered a copy should be affixed in the said known residence, but in so far as both the mandatory provisions are concerned,
the Respondents have not complied with the same. It is to be remembered that after the disposal of the objection filed u/s 9(5), shall make
necessary alterations in the draft statement in accordance with the order based on the objections and shall determine the vacant land held by the
persons concerned in excess of ceiling limit and cause a copy of the statement as so altered to be served in the manner referred to in Sub-section 4
of Section 9 on the persons concerned. It is alleged by the Respondents that final statement was also served on the Petitioners father who died in
1972 by affixture, which is contrary to Rule 8. Without sending it by Registered Post as contemplated u/s 10 read with Rule 8, it was allegedly
affixed, hence, it is not a valid service. Moreover, this Court also verified the affixture procedures followed by the Respondents, which are also not
satisfactory.
It is alleged by the Respondents that 11(5) notice dated 30.4.1999 was served by way of affixture, which is also invalid.
It is stated by the Respondents that on 23.10.1992, possession was taken over by them. Even assuming that the possession was taken by the
Respondents, it is nothing but only a paper possession. Moreover, this Court also protected the possession of the Petitioners by way of interim
orders during the pendency of this Writ Petition.
In view of the facts that the Respondents have not complied with the mandatory provisions of serving notice, final statement and delivery of
possession and failed to give opportunity to the petitioners to file their objections and no where in their order made any discussion about the
suitability of the lands for construction of houses as the said lands admittedly used only for agricultural purpose and even the alleged take over of
possession is not proved by any valid evidence and that the Petitioners are in continuous possession of the lands in dispute all along even prior to
the Repeal Act and after the Repeal Act and the petitioners possession is protected by this Court during the pendency of this writ petition by
granting interim order, this Court is of the considered view that the prayer as sought for in this Writ Petition is to be granted.
In the result, this Writ Petition is allowed, as prayed for. No costs.