The Government of Tamil Nadu vs Nandagopal, Krishnappan, Nagammal and Govindu

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.

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 u/s 7(2) of the Act. Objections were raised and ultimately the proceedings culminated into one of issuance of notice dated

27.4.1999 u/s 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 With the grievance that on the date when the Act was repealed viz., 16.6.1999, the possession of the land in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., v. The Secretary to Government, Revenue Department, Government of Tamil Nadu, Madras).

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.

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 S. Nasira Anjum and Others Vs. The State of

Tamil Nadu and Arvind Leathers Private Limited, and Sree Jayalakshmi Brick Industries Vs. The Special Commissioner and Secretary to

Government, Government of Tamil Nadu Revenue Department, The Special Commissioner and Commissioner of Land Reforms, The Assistant

Commissioner Competent Authority (Urban Land Ceiling) and The Tahsildar, . Secondly, the learned Senior Counsel would submit that in any

event, notice u/s 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.

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 u/s 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, 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.

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.

In order to find out as to whether the notice as required u/s 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 must be accepted.

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.