B VALARMATHI Vs. GOVERNMENT OF TAMILNADU

JUDGEMENT

(1.) THE writ petitioners herein seek for issuance of a writ of certiorari to call for the records of the 3rd respondent in his proceedings Na.Ka.1192/87/E, dated 30.09.1988, passed under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as the 'Principal Act'), in and by which, 6700 sq. mts. of land in Survey No.447 at Maduravoyal Village, was sought to be surrendered by the petitioners as being excess vacant land within a reasonable time, and to quash the said proceedings.

(2.) IN an arduous endeavour to assail the impugned proceedings, Mr.Kasirajan, learned counsel for the petitioner, while advancing elaborate arguments, at the first instance, highlighted certain factual aspects, by pointing out that one P.Kistappa Naicker and his wife Babiammal jointly executed a Settlement Deed dated 04.07.1968 bearing Document No.332 of 1968, registered in the Office of the Assistant Registrar, Kodambakkam, whereby various items of immovable properties including 62 cents of land out of 1.78 acres in Survey No.447, Maduravoyal Village, were settled in favour of their only daughter and minor grand-children/petitioners herein, viz., Yashodaiammal, W/o.Balaraman Naicker, minors B.Elangovan and B.Valarmathi. While executing the document, Kistappa Naicker was 62 years old and during his last days, he was permanently residing at No.16, Chitrarasu Street, Ullagaram, Puzhuthivakkam Town Panchayat, and five years prior to his death on 19.12.1989, due to fragile health, he remained bed-ridden without sound state of mind. After execution of the Settlement Deed, dated 04.07.1968, the joint family of the settlee consisting of five members viz., Balaraman, Yasoda, Elangovan, Valarmathi and Pannerselvam, were enjoying the property measuring 62 cents of land in S.No.447 without any interruption till 1992 and, on 20.03.1992, the property was divided amongst the family members by way of a partition deed, bearing Document No.2337 of 1992, registered in the Office of the Sub-Registrar, Virugambakkam. On the same day, Yasoda, Elangovan, Pannerselvam and Valarmathi sold away two items of property measuring 581 sq. ft. and 594 sq. ft., in total 1175 sq. ft., out of 62 cents to one Arasu, son of Ekambara Naicker, vide Document No.1011 of 1992 registered on 20.03.1992 at the Office of the Sub Registrar, Virugambakkam. Thereafter, some more portions of the land came to be sold. IN terms of the registered Partition Deed dated 20.03.1992, the Deputy Tahsildar, Saidapet, Madras, issued patta Nos.2193 to 2196 to Yasodha, Pannerselvam, Elangovan and Valarmathi respectively on 11.12.1995 and since then, they were enjoying their respective shares as found in the schedule separately. 2-A. While so, the first petitioner herein approached the Maduravoyal Town Panchayat with a Building Plan for approval during 2005 and approval was refused stating that the site in question is covered under the Principal Act and further enquiries revealed that the 3rd respondent herein had passed the impugned order, directing Kistappa Naicker to surrender 6700 sq. mts. of land under Section 9(5) of the Principal Act. 2-B. Pausing here, learned counsel submits that none of the family members including Late Kistappa Naicker was ever aware of the above-said proceedings for the reason that the said Kistappa Naicker, addressing whom the impugned proceedings were said to have been issued on 30.09.1988, was not in sound state of mind and remained bed-ridden for couple of years prior to his death on 19.12.1989 and further, he was never residing at Kullappa Naicker Street, Puthapedu, Porur, Chennai, or at No.228, Perumal Koil Street, Alapakkam, as the residential address shown in the proceedings of the 3rd respondent, whereas, the permanent residential address of the said Kistappa Naicker was No.16, Sitrarasu Street, Ullagaram, Puzhuthivakkam Town Panchayat, Chennai. Therefore, the supposed claim of the authorities that the Notice under Section 9(4) and the Report under Section 9(1) of the Principal Act sent to Kistappa Naicker were duly received by him on 14.04.1987 is far from truth and such claim has no basis for acceptance. If, in fact, those two documents had been received by Kistappa Naicker, he would have certainly brought to the notice of the 2nd respondent the details about the settlement deed, dated 04.07.1968, settling the subject matter of the property in favour of the daughter and grandchildren long prior to the impugned proceedings. As the registered settlement deed is a legally acceptable piece of evidence, which depicts that the land shown to be covered by the provisions of the Principal Act by the impugned proceedings of the year 1988 had been alienated way back in 1968, the act of the authority in initiating the proceedings under the Principal Act without verifying the vital particulars necessary in such a case before initiating the proceedings, cannot be legally sustained. 2-C. It is next submitted that, even after passing the impugned order, the authorities did not take any step to take actual possession of the surplus land of 6700 sq. mts. meant to be surrendered by the land owner. At any rate, after the settlement in favour of the petitioner's family by the land owner, partition was also effected by way of registered document amongst the family members, who have also sold portions of the property to third parties; that being so, when there is no surplus land available with any one of the family members so as to bring the land sought to be taken over under the purview of the principal Act, the impugned order is totally unworkable even as per the scheme of the Act itself. 2-D. Learned counsel for the petitioner, by referring to Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which provides that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the commencement of this Act before any court, tribunal or other authority shall abate, would submit that, while repealing the Act, the State Government had fixed the cut off date as 16.06.1999 ie., on or before which date if the land is continuously enjoyed by the land owners, such lands will not be disturbed. According to the learned counsel, the land is continuously in actual possession and enjoyment of the petitioner's family and further, as on the date of the impugned proceedings, there was no excess land available and under such circumstances, the authority totally misdirected itself in initiating the proceedings challenged herein. 2-E. Learned counsel, in the line of submissions, next pointed out that, immediately after coming to know about the proceedings in the year 2005, the petitioners instantly sought for a certified copy of the order from the office of the 3rd respondent on 24.07.2008, and that, since they continue to be in possession and such possession was never disturbed by the authorities at any point of time, with a fond hope that, even otherwise, the provisions of the repealed Act would save their possession in a given situation, made a detailed representation to R-2 and R-3 on 01.12.2009 by way of registered post with acknowledgment due requesting the said respondents to rescind the impugned order and to drop all further proceedings so that the petitioners could peacefully enjoy their respective shares in 6700 sq. mts. of land sought to be surrendered as being excess land. Though the 3rd respondent acknowledged the said representation, no reply was sent to the petitioners, which necessitated initiation of the present writ proceedings. 2-F. While reiterating the submissions made above, learned counsel, in parallel, would put-forth two-fold arguments, by stating that the impugned order is bad in law as it is not in consonance with the governing provisions under the Principal Act viz, Sec.11(5) and 12 (7) and (8), pertaining to the process involved in acquisition of the excess vacant land and payment of amount for such land. According to him, when the land itself was settled by way of registered settlement deed, dated 04.07.1968, whereby, various items of immovable properties including 62 cents of land out of 1.78 acres in S.No.447 at Maduravoyal Village had been settled to the daughter and grandchildren of Kistappa Naicker, the report under Section 9(1) of the Principal Act said to have been sent and alleged to have been received by the land owner Kistappa Naicker on 14.04.1987 cannot have any legal bearing, for, there was no service at all as contemplated under Section 11 of the Principal Act in particular sub-Section(5) thereof, which provides that where any vacant land is vested in the State Government under sub-Section (3), 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 authorized by the State Government within 30 days of the service of the notice. Here, it could be easily discerned that the Notice under Section 11(5), issued on 12.02.1991, could never be served upon the urban land owner as he expired as early as on 19.12.1989 and further, long back, during 1968 itself, he executed the registered settlement deed. Further, admittedly, the petitioners are in actual possession of the land and none of them was ever served with any notice by the 3rd respondent. Thus, when there is flagrant violation of the mandatory procedure as stipulated in Section 11 of the Principal Act, the rigor of the impugned proceedings is totally taken away in respect of the land in question. 2-G. The other segment of the argument is that when Kistappa Naicker, against whom the proceedings were initiated, died on 19.12.1989, the Notification under Section 11(1) issued on 14.03.1990 and published in the Tamil Nadu Government Gazette, dated 25.04.1990, is rendered non-est in the eye of law. Similarly, the notification issued under Section 11 (3) on 30.11.1990 and published in the Gazette on 09.01.1991 is also rendered meaningless since there was no proper service of the proceedings, rather, it was served by way of affixture stating that the urban land owner himself refused to receive it, when, in fact, the land owner was not alive then. 2-H. So submitting, learned counsel states that, looking at any angle, there may not be any justification to uphold the impugned proceedings on the face of the glaring and gross violation of the statutory provisions and utter non-application of mind on the part of the authorities and hence, this is a much deserving case, where interference by this Court is absolutely warranted.

(3.) AS regards application of the principal Act in the case of the petitioners, now, it is the admitted case that Late Kistappa Naicker along with his wife Babiammal, way back in 1968 ie., much prior to the commencement of the Principal Act in 1978, settled various properties including the land in question at S. No.447/1 of Maduravoyal Village by way of settlement deed, dated 04.07.1968, registered at the office of the ASsistant Registrar, Kodambakkam, as Document No.332 of 1968, in favour of the petitioners herein, who are his daughter and grandchildren. It is also the admitted case that Kistappa Naicker died on 19.12.1989 and he was not physically and mentally sound for some years prior to his death and that the impugned proceedings commenced during October, 1985, culminated in the impugned notice, dated 30.09.1988. In this background, if one looks at the principal Act, Section-7(1) of the Principal Act saddles an obligation on the urban land owner to file a statement before the competent authority about the vacant land and the ceiling limit which he desires to retain and Section 7 (2) provides that, if the competent authority is of the opinion that there is land available excess of the ceiling limit, notwithstanding anything contained in sub-Section(1), he may serve a notice upon the urban land owner to file a statement as referred in sub-section(1). Therefore, the Scheme is succinctly clear that despite the self-obligation on the part of the land owner to file statement as provided under sub-Section(1), the authority may, in appropriate cases, by issuing notice, require the Urban Land owner to file the statement. Pausing here, it is useful to contrast the stand taken by the respondents to the effect that they could proceed in the name of Late Kistappa Naicker as the transfer of property by way of settlement was not reflected in revenue records, with what is provided in Section 7(5) of the Principal Act, which runs to the following effect:- " If any person who is liable to file a statement under this section fails to file the statement within the period within which it has to be filed, the competent authority, may obtain necessary information in such manner as it thinks fit. " At this juncture, it must be highlighted that the return/statement is to be made by a person who holds vacant land in excess of the ceiling limit; thus, no return is necessary if it is below the limit. By executing the registered settlement deed, the land was already settled amongst the family members and therefore, even during the commencement of the Act, actually, there was no aggregate vacant land available for acquisition under the Act. The Minutes, dated 15.07.1991, available at page No.5 of the File indicates that the Revenue Officer could not take over the land as there was a superstructure and building in existence on the land. After going through the entire file, this Court could not find anything to suggest that, before initiating the proceedings, there was in fact any real and honest effort on the part of the competent authority to obtain necessary information, in the absence of a statement by the urban land owner, about the availability of excess land and its status. Furthermore, the authorities could have presumed well about alienation/transfer/settlement of the land in question when they inspected the land during 1988 itself and found that the land not lying vacant. The Notes of inspection, dated 22.09.1988, found in the File states that, in the land at S.No.477, there is a company being run in the name of Sivalapuri Home appliance over an extent of 11 cents; building under construction over an extent of 6 cents; agricultural activity over an extent of 0.50 acre with a Well connected to electric pump-set and rest of the land lying waste as housing plots. Even as per the counter affidavit, the authorities made verification from Form XIII Declaration filed by Mohana and others, therefore, they were aware on the first day itself that Kistappa Naicker may not be the urban land owner at that time. Had the authorities conducted proper enquiry and detected that the property was no more available for application of the Principal Act since it was settled long back and such settlement was acted upon, they would not and could not have initiated the impugned proceedings. Thus, when the position is very clear that, by virtue of the registered settlement deed, the land was settled amongst five of the family members and thereby, the land would never come under the scope of the Principal Act, this court is of the view that the Authority did not take pains to verify and ascertain the availability of the land for acquisition and proceeded in a mechanical manner without application of mind, which would render the entire proceedings otiose.