(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order of the learned Single Judge in W.P.No. 7539 of 2004, dated 28.4.2009)

Elipe Dharma Rao, J.

1. The attempt of the legal heirs of an erstwhile Landowner from whom excess land was taken possession by the authorities even before the repeal of Urban Ceiling and regulation (Repealing) Act, 1999, to restore possession of the land is the subject matter of the Writ Petition, which was ultimately dismissed by the learned Single Judge.

2. Thought the Writ Appeal is listed for admission, in the presence of the Counsel for the Respondent, who entered appearance on Caveat and with the consent of the Counsel appearing for both sides, the main Writ Appeal itself is taken up for final disposal.

3. Heard the learned Special Government Pleader appearing for the Appellants and the learned Counsel appearing for the Respondent.

4. The present Writ Appeal is directed against the order of the learned Single Judge in W.P.No.7539 of 2004 dated 28.4.2009, wherein and whereunder the Writ Petition filed by the Respondent challenging the Acquisition proceedings under Tamil Nadu Urban land (Ceiling and Regulation) Act, 1978, was allowed.

5. The facts leading to filing the Writ Petition as well as the Writ Appeal are as follows:

(A) The Respondent has become owner of agricultural lands comprised in S. No.1/3 in Peerkankaranai Village by the Settlement Deed executed by her father in 1958. According to the Respondent, the said land has been acquired by her mother and she had been cultivating the lands by paying tax. After the demise of her mother, the property had vested with her family members and thereafter to her. While so, a notice under Section 7(2) of the Tamil Nadu Urban Land (Ceiling and regulation) Act, 1978 (hereinafter referred to as the Act ) was issued on 17.10.1996 and it was served on 3.11.1996. The draft statement under Section 9(1) and notice under Section 9(4) were issued on 1.9.1997. Since the owner refused to receive the notice, it was served by affixture in the presence of the Village Administrative Officer. No objection was raised by the Landowner.

(B) The Assistant Commissioner, who inspected the land on 1.10.1997, having found that there was no cultivation declared the excess vacant land as 1759 sq. mts. After allowing 500 sq. mts., towards entitlement. The final statement under Section 10(1) was issued on 28.4.1998 and served by affixture. Notification under Section 11(1) was published in the Government Gazette dated 12.8.1998 and the Notification under Sections 11(3) and 11()5) were also published in Government Gazette.

(C) The possession of the land was taken on 24.5.199 and it was handed over to the Revenue Department. Thereafter the land was allotted to Tamil Nadu Slum Clearance Board by G.O.Ms. No.391 dated 17.9.2003. Challenging the order dated 7.10.1997 passed under Section 9(5) of the Act and the consequential order dated 13.2.2004, the Writ Petition was filed.

6. The contention of the Respondent (Writ Petitioner) before the learned Single Judge was that the present Third Appellant having accepted the statement under Section 7(1) of the Act and having acknowledged the same on 24.10.1978, ought to have issued the notice in the correct address before passing the order. Learned Counsel had mainly disputed the service of service. His specific contention was that service of notice was not made as contemplated under Rule 8 of the Tamil Nadu Urban Land (Ceiling and regulation) Rules, 1978 and, therefore, the impugned orders passed in gross violation of the Principles of Natural Justice had to be set aside.

7. On hearing both sides and after going through the records available, the learned Judge with regard to service e of notice observed that when the address of the mother of the Writ Petitioner was available, the service by affixture cannot be the mode contemplated under the Rules, So far as the possession is concerned, the learned Judge concluded that since the authorities were not in a position to state as to when the actual physical possession was taken, the claim of the Appellants 1 to 3 that the land was allotted to the Tamil Nadu Slum Clearance Board, the Fourth Appellant, by order dated 17.9.2003, cannot be held to be valid. Accordingly, the learned Judge allowed the Writ Petition. Aggrieved the said order, the present Writ Appeal has been filed.

8. Learned Special Government Pleader appearing for the Appellants would submit since the possession of the land was taken prior to the repeal of the Act i.e. 24.5.1999, the Respondents have no right to challenge the proceedings and the proceedings should be treated as abated. He would further contend that as per section 4 of the repelled act, all proceedings relating to any order made under the Principal Act pending immediately before the commencement of the Repeal Act, before any Court shall be taken to be abated and, on this score, the Appeal has to be allowed. In support of the aforesaid contention, the learned Special Government Pleader has placed reliance upon a decision of the Supreme Court reported in Angoori Devi v. State of U.P. and others, JT 2000 (Suppl.1) SC 295 and an unreported Division Bench decision of this Court in C. Balasubramaniam v. The Principal Commissioner and Commissioner for Land Reforms, Chepauk, Chennai, W.P. No.12987 of 2001. On facts, learned Special Government Pleader would submit that the draft statement under Section 9(1) and notice under Section 9(4) were issued on 1.9.1997 and since the owner refused to receive the notice, it was served by affixture in the presence of the Village Administrative Officer and no objections were filed by the Landowner. He would further submit that the Assistant Commissioner, who inspected the land on 1.10.1997, having found that there was no cultivation, declared the excess vacant land as 1750 sq.mts. Thereafter, the final statement under Section 10(1) was issued on 28.4.1998 and it was also served by affixture. Notification under Section 11(1) was published in the Government Gazette dated 12.8.1998 and the Notifications 11(3) and 11(5) were also published in Government Gazette. Learned Special Government Pleader would also submit that possession of the land was taken on 24.6.1999 and the same was handed over to the revenue Department and thereafter the land was allotted to Tamil Nadu Slum Clearance Board by G.O.Ms. Ni.391 dated 17.9.2003. Therefore, the learned Judge was not justified in setting aside the proceedings.

9. Learned Counsel for the Respondent would submit that as per Rule 8 of the Urban Land (Ceiling and Regulation) Rules, notice has to be sent by Registered Post with Acknowledgement Due, but no material has been produced by authorities to show that such procedure has been followed. He would also submit that though the statement required under sub-section (1) of Section 7 in Form-1 was submitted before the authorities containing the residential address of the Respondent as early as on 24.10.1978, no notice was sent to the Respondent. With regard to maintainability of the Writ Petition, learned Counsel for the Respondent by placing strong reliance upon a Division Bench decision of this Court reported in V. Somasundaram and others v. Secretary to Government, revenue Department, Chennai and others, 2007 (1) MLJ 750, would submit that when the alternative remedy of Appeal is lost due to the enactment of the Repeal Act, 1999 from 16.6.1999, the Respondent can maintain a Writ Petition.

10. In the present case, notice under Section 7(2) of the Tamil Nadu Urban Land (Ceiling and regulation) Act, 1978 was issued on 17.10.1996 and served on 3.11.1996. Thereafter, draft statement under Section 9(1) and notice under Section 9(4) were issued on 1.9.1997. It is not in dispute that the proceedings were initiated under the Tamil Nadu Act 24 of 1978. The said Act was repealed by the Repeal Act 20 of 1999 with effect from 16.6.1999.

11. The Landowner was very much available during the pendency of the proceedings before the statutory authority. She died only on 11.3.1994. Affidavit filed in support of the Writ Petition sworn by the Respondent contains a statement that the Landowner has made an Application for a copy of the impugned order dated 7.10.1997. Therefore, it is evident that the Landowner was aware of the final order passed by the competent authority dated 7.10.1997 even during her life time. However, for the reasons best known to her, the order remained unchallenged during her lifetime. The First Respondent was not in the picture at all during the pendency of the proceeding. When the proceeding has come to an end and the property was taken possession even before the Repeal Act, there was nothing to be agitated thereafter. The land which was taken possession on 24.5.1999 was handed over to the Slum Clearance Board on 17.8.2003. In any cages, it was not the case of the Landowner the she was not aware of the statutory proceeding. The original Landowner was very much aware of all the proceedings. The Respondent has stated in her Affidavit that notice was fixed on a stick in the vacant land and formalities completed were not as per the Statute. However, there was no basis for such averments as the Respondent was not in the picture. Her averments in the Affidavit that her mother made Application during her lifetime for obtaining a copy of the order dated 7.10.1997 would clearly show that everything was within the knowledge of the Landowner.

12. The authorities have followed the procedure contemplated under law. The possession of the property was taken and it was allotted to 198 families and therefore, the learned Judge was not justified in interfering with the Urban Land Ceiling proceedings. In such circumstances, the First Respondent has not made out a case for quashing the Statutory proceeding.

13. The Respondent was attempting to agitate the matter which has attained finality long ago. In view of the Repeal Act no proceedings could be continued after 16.6.1999. Therefore, we are of the considered view that there were no justifiable reasons made out to interfere in the ULC Proceedings. Hence, we have no other alternative than to set aside the order passed by the learned Single Judge.

In the result, the order dated 28.4.2009 in W.P.7539 of 2004 is set aside. The Writ Appeal is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.