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.) PER contra, Mr.Sivashanmugam, learned Government Advocate would submit that, on verification of the records available in the form of Form -XIII declaration under Section 27 of the Act by one Mohana, Kistappa Naicker was found to be the owner of the land in S. No.447 measuring 1.78 Acres in Maduravoyal Village on the date of commencement of the Principal Act ie., 03.08.1976. A Notice under Section 7 (2) of the Principal Act was issued on 31.10.1985 to the address given in Form -XIII declaration and it was served by affixture on 15.11.1985 as the Urban Land Owner had refused to receive the same. As no objection was received, a Notice under Section 9(4) of the Principal Act along with Report/Statement under Section 9(1) was issued on 13.03.1987 calling for objections from the urban land owner for the proposed acquisition of the excess vacant land of 6700 sq. mts after allowing 500 sq mts. as entitlement area. Ultimately, by order, dated 30.09.1988, passed by the 3rd respondent under Section 9(5) of the Principal Act, the excess vacant land was directed to be acquired and such order was served by affixture on 23.09.1989 as the urban land owner refused to receive it. The final statement under Section 10(1) of the Principal Act came to be issued by R -3 on 06.12.1989 and it was received by one Padmavathy on 03.1.1990 and the address was found as No.228, Perumal Koil Street, Alapakkam. Thereafter, a Notification under Section 11 (1) of the Principal Act was issued on 14.03.1990 and the same was also published in the T.N. Government Gazette, dated 25.04.1990. After publication of the Notification, dated 30.11.1990, under Section 11 (3) of the Principal Act, in the Government gazette on 09.01.1991, Notice under Section 11 (5) of the Principal Act was issued on 12.02.1991 and, according to the learned Government Advocate, it was also served by affixture because the urban land owner had refused to receive it. Ultimately, possession of the excess vacant land was taken and handed over to the revenue Inspector of Maduravoyal Firka on 19.08.1992. The Notice under Section 12(7) of the Principal Act came to be issued on 25.05.1992 and again, the said notice was also served by affixture, because the urban land owner had refused to receive it. Thereafter, the order under Section 12 (6) was issued on 26.10.1992 and the copy of the order sent by post on 22.11.1992 was acknowledged. At such stage, the petitioners applied for certified copies of acquisition proceedings on 27.06.2008. 3 -a. Learned Government Advocate, highlighting the above transactions, would submit that the details of settlement within the family was not brought to the notice of the third respondent and that the entries pertaining to transfer were not effected in the Revenue Records and therefore, the said authority could take action in the name of Kistappa Naicker who was the owner as per the Revenue Records as on the date of commencement of the Principal Act. According to him, the possession of the land in question held by the petitioners even after the proceedings under the Principal Act is nothing but a clear case of encroachment and therefore, the plea of the encroachers for dropping of the proceedings could not be considered positively and this court, viewing at such perspective, may turn down their plea by dismissing the Writ Petition.