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Judgment
M. Sathyanarayanan, J.—The official respondent in the writ petition are the appellants and aggrieved by the order dated 23.8.2010, wherein
the writ petition filed by the respondent herein, came to be allowed and consequent direction was issued to the third respondent in the writ petition
to issue patta in favour of the writ petitioner, the present writ appeal is filed. The facts of the case as culled out from the affidavit filed in support of
the writ petition and counter affidavit filed by the official respondents therein, would disclose that one Tmt. Manickammal has filed a return u/s 6(1)
of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. (in short ''Urban Land Ceiling Act'') before the competent authority (Urban
Land Ceiling) & Assistant Commissioner (Urban Land Tax), Coimbatore on 30.9.1977, in respect of the lands owned by her in S. Nos. 142,
143, 144 of Uppilipalayam Village and S. Nos. 184/1B(Part), 184/2 (Part), 184/3A, 195/1 A(Part) of Sowripalayam Village.
On 31.10.1984, the Assistant Commissioner, Urban Land Tax, Coimbatore, after taking into consideration the return filed by the original
owner, has passed an order u/s 9(5) of the Urban Land Ceiling Act declaring the vacant lands of 1 1003 sq. mt. in S.F. No. 142/2B and 9100 sq.
mt. in/S.R. No. 143/2 and 10,900 sq. mt. in S.F. No. 144/2A ad-measuring to an extent of 31003 sq. mt. in Uppilipalayam Village, as excess
lands.
The notice u/s 9(4) of the Urban Land Ceiling Act with statement u/s 9(1) of the Urban Land Ceiling Act, was served on 7.11.1985 and
13.11.1985, on the land owner and since no objections were received, another notice dated 12.12.1986, was sent and it was served on
20.12.1986. and in response to the said notice also, no objections were received from the land owners and therefore an order u/s 9(5) of the
Urban Land Ceiling Act was passed by the third respondent on 23.3.1987, and it was served on 25.3.1987, and the final statement u/s 10(1) was
also issued by the third respondent and it was served on the land owner.
Thereafter, notifications u/s 11(1) of the Urban Land Ceiling Act was published in the Tamil Nadu Government Gazette dated 11.1.1989 and
30.8.1989, respectively and subsequently, notice u/s 11(5) of the Urban Land Ceiling Act was issued by the third respondent on 20.9.1989, and it
was served on 28.9.1989.
The District Collector, Coimbatore has instructed the Tahsildar, Coimbatore (south) to take over possession of excess vacant land of 3 1003
sq. mts. At that juncture, Manickammal and others filed W.P. No. 14156 of 1989 and obtained an order of interim stay in W.M.P. No. 20447 of
1989 on 27.10.1989.
This Court vide order dated 15.9.1998, dismissed the said writ petition granting liberty to the petitioners therein to work out their remedy before
the appropriate forum.
According to the appellants/respondents, the third respondent in the writ petition, had taken possession of the excess land on 31.5.1999, and
thereafter, the present W.P. No. 34344 of 2005 came to be filed.
The Learned Single Judge, after taking into consideration the materials placed on record, found that the possession remains with the writ
petitioner, who is the subsequent purchaser of the land and though he purchased the land in the year 1981, the official respondents had issued
notice only to the previous owner and possession of the land was not taken over from the writ petitioner.
The learned Single Judge citing the said reason, allowed the writ petition and also issued a consequential direction directing the third respondent
therein to issue patta in favour of the writ petitioner within a stipulated time and challenging the vires and legality of the same, the official
respondents have filed the present writ appeal.
Mrs. A. Sri Jayanthi, learned Special Government Pleader appearing for the appellants/respondents, would submit that even assuming without
admitting, that the respondent herein is in possession of the land as per Section 6 of the Urban Land Ceiling Act, no person holding vacant land in
excess of the ceiling limit immediately before commencement of this Act, shall transfer any such land or part thereof by way of sale and even as per
the version of the writ petitioner, the land in question has been conveyed only after the commencement of the Act and therefore, the sale in favour
of the writ petitioner is to be treated as null and void. It is the further submission of the learned Special Government Pleader that notice u/s 11(5) of
the Urban Land Ceiling Act was served on the previous owner viz., Venkatachalapathy, and possession was take on 31.5.1999, and since the
actual possession has been taken prior to the Repealing Act, the vital stand taken by the writ petitioner, has no legs to stand and hence, prays for
allowing the writ appeal.
Learned Special Government Pleader also produced the original records pertaining to the urban land ceiling proceedings.
This court made its best attention to the rival submissions and also perused the typed set of documents filed by the respective parties and also
the original records.
A perusal of the typed set of documents filed by the respondents in the writ petition, would disclose that the Tahsildar, Coimbatore South has
given a Certificate dated 15.4.1989, stating that in the land ad-measuring to an extent of 0.70 cent in S. NO. 142/2 at Uppilipalayam village, there
is no poramboke land available and it is also not subjected to any land acquisition proceedings. The writ petitioner and others have also been
granted planning permission by the local town planning authority in August, 1997 and in paragraphs 4 and 5 of the affidavit filed in support of the
writ petition, the writ petitioner has taken a specific stand that after getting the approval of lay out of the plots during the year 1984, superstructures
have been put up and they have also formed an association under the name and style of ''Mookambigai Nagar Welfare Association'' (Registration
No. 101/23/3/00) and all the properties were subjected to statutory levies. In paragraph-5 of the writ petition affidavit, it is averred that of out of
an extent of 7.42 acres, 72 plots were developed and the development charges were also paid to the Corporation. 52 persons have purchased all
the 72 plots respectively and majority of them have obtained planning permission and building permission from the Corporation of Coimbatore and
are living there for the past 18 years and a temple was also constructed and regular poojas are taking place.
In the counter affidavit filed by the respondents therein, the said fact has not been disputed and it is stated that the possession of the lands was
take on 31.5.1999. A perusal of the records would also disclose that the wife of one of the previous owners, viz. venkatachalapathy, has received
the notice u/s 11 of the Urband Land Ceiling Act.
The point arises for consideration in this writ appeal is as to whether the appellants/official respondents have followed the mandatory provision
contemplated u/s 11(5) of the Urban Land Ceiling Act.
A similar issue arose for consideration before the Division Bench of this Court in G. Krishnamoorthy and Others Vs. The Government of Tamil
Nadu, wherein it has been held as follows:-
20...The learned Special Government Pleader fairly admitted that as per the records, notice u/s 11(5) was not served on the petitioners. They
heavily relied on ''may'' used in Section 11(5) of the Act in support of their submission that notice u/s 11(5) is not mandatory. We are not in
agreement with their submissions, as it is concluded by various judgments of this Court and more particularly the judgment of the Division Bench of
this Court (presided over by Honourable Mr. Justice Sathasivam (as he then was) in V. Somasundaram, Nityakalyani and V. Sugandhi Vs. The
Secretary to Government Revenue Department, The Assistant Commissioner (Land Reforms and Urban Land Ceiling) and S. Pitchai, of the said
judgment is heavily relied on by the learned counsel for the petitioners, which is extracted hereunder at p. 754 of MLJ:
From the perusal of the file it is clear that proceedings were initiated against the third respondent, who is the erstwhile owner of the lands in
question, in respect of transfer of his land to the appellants herein, Section 11(5) notice was also issued to the third respondent, who was not the
real owner. As per Section 11(5) of the Act, the competent authority is bound to issue notice in writing to any person, who may be in possession
of the land, to surrender and deliver possession thereof, to the State Government or to any person duly authorised by the State Government, within
thirty days'' time. No notice having been issued against the appellants, who are in possession of the lands as stated supra, taking possession of
lands on 30.4.1999 by the second respondent is non-est. It is to be noted that due to the repealing of the Tamil Nadu Urban Land (Ceiling and
Regulation) Act, 1978, with effect from 16.9.1999, it is not open to the authorities to proceed against the appellants at this stage to rectify the non-
compliance of Section 11(5) of the Act.
Similar issue was considered by another Division Bench of this Court in Writ Appeal Nos. 693 to 695 of 2003 (Annie Jacob and Others vs.
State of Tamil Nadu and Another), wherein it has been held as follows:-
...8. There is nothing on the record to suggest that the competent authority issued any notice in writing directing the original land holder or the
appellants to surrender or deliver possession of the lands in question. Nothing has been produced to suggest that the original land holder or the
appellants refused or failed to comply with such order and on failure the possession of the lands were taken by force. In absence of such notice u/s
11(5) or action taken u/s 11(6), a bald statement as made by the respondents that possession was taken on 10.2.1995, cannot be accepted....
The counter affidavit filed by the respondents coupled with records produced before us, would disclose that notice u/s 11(5) was served on
one of the previous owners, viz., venkatachalapathy. The affidavit filed in support of the writ petition, coupled with the documents filed, would also
disclose that the writ petitioner and others are in possession even prior to taking possession of the land by the respondents on 31.5.1999. Once
we hold that the writ petitioner is in possession of the land, it is mandatory on the part of the official respondents to serve notice on the writ
petitioner in terms of Section 11(5) of the Act. But, admittedly, no notice whatsoever, has been served on the respondent/writ petitioner. The
learned Single Judge also considered the said issue in extenso and found that the official respondents without complying with the provisions of the
Act in letter and spirit, have passed the impugned proceedings and accordingly, allowed the writ petition. This Court, on an independent
application of mind to the materials placed, is of the considered opinion that there is no error apparent or infirmity in the impugned order passed by
the learned Single Judge in allowing the writ petition and this Court finds no merit in the writ appeal and accordingly, the same is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.