M.T.S.RAGHAVAN Vs. SPECIAL COMMISSIONER

JUDGEMENT

(1.) Writ Petition No.9103 of 2009 has been filed challenging the impugned order dated 16.3.2009 passed by the Principal Secretary/Commissioner of Land Reforms in-charge, the second respondent herein holding that the case of the petitioner falls under Section 3(1)(a) of the Repeal Act 20 of 1999, where the Repeal of the Principal Act shall not affect the land vested with the Government under Section 11(3) of the Act, because possession of the land has already been handed over to the Revenue Department, hence, the endorsement issued stands cancelled.

(2.) Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioner in W.P.No.9103 of 2009 argued that Mr.M.T.S.Raghavan became the owner of the property bearing Survey No.339/1A measuring about 3804 sq.mts., in Velacherry village by purchasing the property from Mr.A.S.L.Raja Nadar and Mr.Raja Pandiya Nadar under a registered sale deed dated 4.4.64 bearing Document No.954 of 1964 and from the date of purchase, he had been in possession and enjoyment of the same and subsequently, as he passed away during the pendency of the writ petition, his legal representative has been brought on record. Adding further, Mr.Sundaresan argued that an extent of 2300 sq.mts., in Survey No.339/1A of Velacherry village was acquired under the Tamil Nadu Urban Land (Ceiling and Regulation) Act , but the possession of the property was not taken over and continuously vested with the writ petitioner. Even as per Section 3(1)(a) read with Section 4 of the Repeal Act, if the possession of the property is vested with the land owner, then the proceedings would lapse and the property would be free from encumbrances and this apart, entire acquisition proceedings have been vitiated on the ground that Section 11(5) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act was not complied with, since no notice was issued to the petitioner. In view thereof, the petitioner's father approached this Court with W.P.No.23565 of 2008 seeking a direction against the first respondent to consider his representation dated 19.9.2008 and pass orders on merits. This Court, considering the limited prayer, directed the first respondent to consider the representation of the petitioner and pass orders on merits. Consequently, the first respondent, on receipt of the order of the High Court, has passed the order dated 23.10.2008 and dropped the proceedings. Accordingly, the petitioner got back the land admeasuring 2300 sq.mts., in Survey No.339/1A free from all encumbrances from the Tamil Nadu Urban Land (Ceiling and Regulation) Act . Subsequently, after the order of the first respondent dated 23.10.2008, the petitioner's father approached the revenue authorities to make proper mutation entries in the revenue records. In the meanwhile, the petitioner's father received a letter of cancellation of the second respondent dated 16.3.2009. Therefore, the first respondent passed the cancellation order without issuing notice to the petitioner. The order of cancellation stated that the petitioner's father had given his willingness on 30.4.79 for surrendering the vacant land in Survey No.339/1A of Velacherry village and to receive the compensation fixed by the Government. However, the petitioner's father had not handed over possession of the property to the Government and it was in his continuous physical possession. Hence, the petitioner is entitled to be in possession of the property free from all encumbrances under Section 3(1)(a) of the Repeal Act 20 of 1999.

(3.) The learned Senior Counsel further submitted that it may be true that the petitioner's father has given his willingness to surrender the land, but there is no document thereon to show that the Government has taken over the possession of the land in question, hence, the petitioner is eligible for the benefit of Section 3 of the Repeal Act 20 of 1999. Again challenging the act of the second respondent as illegal, it is further contended that the second respondent ought to have issued notice to the petitioner before cancelling the order, whereas the second respondent without observing the procedures contemplated under law, wrongly passed the order against the principles of natural justice. Therefore, when the petitioner has been wrongly deprived of the property by not adopting due process of law and without affording reasonable opportunity, the impugned order is liable to be set aside. Again referring to the order dated 25.9.2008 passed by this Court in W.P.No.23565 of 2008 filed by Mr.M.T.S.Raghavan, the father of the petitioner for issuance of a mandamus directing the first respondent to dispose of his representation dated 19.9.2008 in accordance with law, as the possession of the land continued with the petitioner's father, has stated that pursuant to the order of this Court directing the Special Commissioner and Commissioner of Urban Land Ceiling to consider the petitioner's representation, the first respondent in Rc.No.10344/2008(G3) dated 23.10.2008, passed an order stating that an extent of 2300 sq.mts., in Survey No.339/1A of Velacherry village acquired under the Tamil Nadu Urban Land (Ceiling and Regulation) Act stood abated under Section 3(1)(a) read with Section 4 of the Repeal Act 20 of 1999, since notice under Section 11(5) was not served to the urban land owner. The said order also further states that further action in this regard was also dropped. Therefore, when the order dated 23.10.2008 itself is very clear that the land in question is free from the Tamil Nadu Urban Land (Ceiling and Regulation) Act , 1978 and the Repeal Act 20 of 1999, the subsequent impugned proceedings dated 16.3.2009 issued by the Principal Secretary/Commissioner of Land Reforms in-charge stating that the case of the petitioner falls under Section 3(1)(a) of the Repeal Act 20 of 1999 where the repeal of Principal Act shall not affect the land vested with the Government under Section 11(3) of the Act, because possession of which has already been taken and handed over to the Revenue Department, is wholly untenable and unsustainable in law. Therefore, the writ petition deserves to be allowed, he pleaded.