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Advocates
  • For the Appellant: G. Desingu
  • Special Government Pleader. For the Respondent: V. Ramesh
  • Advocate.
Judges
  • Hon'ble Thiru.Justice Elipe Dharma Rao
  • Hon'ble Thiru.Justice K.K. Sasidharan
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellant: G. Desingu
  • Special Government Pleader. For the Respondent: V. Ramesh
  • Advocate.
Judges
  • Hon'ble Thiru.Justice Elipe Dharma Rao
  • Hon'ble Thiru.Justice K.K. Sasidharan
Acts
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Smart Summary

Structured Summary of the Opinion (Division Bench: Elipe Dharma Rao, J.)

Factual and Procedural Background

The Writ Appeal arises under Clause 15 of the Letters Patent against an order of the learned Single Judge in W.P.No.7539 of 2004 dated 28.4.2009. The Single Judge had allowed a Writ Petition filed by the Respondent (the person who claimed ownership of certain agricultural land) challenging acquisition proceedings taken under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 ("the Act"). The appeal was mounted by the appellants, represented by the Special Government Pleader, against that order.

The recorded factual timeline in the opinion (as stated by the court) includes:

  • Respondent (or her family) claimed title to agricultural land in S. No.1/3, Peerkankaranai Village by virtue of a 1958 Settlement Deed. The Respondent's mother had cultivated and paid tax on the land; after her mother's death the property vested in the family and thereafter in the Respondent.
  • Statutory notices: A notice under Section 7(2) of the Act was issued on 17.10.1996 and served on 3.11.1996. A draft statement under Section 9(1) and notice under Section 9(4) were issued on 1.9.1997; because the owner refused to receive the notice it was served by affixture in the presence of the Village Administrative Officer, and no objection was filed.
  • Assistant Commissioner inspected the land on 1.10.1997, found no cultivation, and declared excess vacant land (stated as 1759 sq. mts. in the record after allowing an entitlement of 500 sq. mts.). A final statement under Section 10(1) was issued on 28.4.1998 and served by affixture. Notifications under Sections 11(1), 11(3) and 11(5) were published in the Government Gazette on 12.8.1998 (as reported).
  • Possession of the land was taken and the record indicates the possession was taken before the repeal of the Act (the Repeal Act 20 of 1999, effective from 16.6.1999). The land was thereafter allotted to the Tamil Nadu Slum Clearance Board by G.O.Ms. No.391 dated 17.9.2003 (as recorded in the opinion).
  • The Respondent had challenged an order dated 7.10.1997 passed under Section 9(5) of the Act and consequential orders, and filed the Writ Petition which the Single Judge allowed; the appellants then filed the present Writ Appeal.

Legal Issues Presented

  1. Whether the service of statutory notices (in particular service by affixture) complied with Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rules, 1978, when the statutory address of the landowner was available.
  2. Whether proceedings under the Urban Land (Ceiling and Regulation) Act that had progressed and possession that had been taken prior to the Repeal Act (Repeal Act 20 of 1999 with effect from 16.6.1999) were subject to challenge thereafter — i.e., whether proceedings abated on repeal and whether the Respondent could maintain the Writ Petition.
  3. Whether, on the facts, the authorities followed the procedure contemplated by law and whether the Single Judge was justified in setting aside the statutory proceedings and possession/allotment to the Slum Clearance Board.

Arguments of the Parties

Appellants' Arguments (as presented by the Special Government Pleader)

  • The appellants contended that possession of the land was taken prior to the repeal of the Act (the opinion records dates indicating possession prior to 16.6.1999) and therefore the Respondent had no right to challenge the proceedings thereafter; the proceedings should be treated as abated by the Repeal Act.
  • Reliance was placed upon section 4 of the Repeal Act (as described in the opinion) to argue that 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 that basis the appeal should be allowed.
  • Factual submissions were advanced that the statutory procedural steps were taken: draft statement and notices were issued on 1.9.1997, notices served by affixture when the owner refused to receive them, Assistant Commissioner inspection on 1.10.1997, final statement under Section 10(1) on 28.4.1998, Gazette notifications on 12.8.1998, and possession taken and handed over to the Revenue Department and later allotted to the Tamil Nadu Slum Clearance Board by the Government Order.
  • Reliance on judicial decisions: Angoori Devi v. State of U.P. (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, W.P. No.12987 of 2001.

Respondent's Arguments (as presented by Respondent's Counsel)

  • The Respondent's primary contention was that the Third Appellant (authority) had accepted a statement under Section 7(1) of the Act and had acknowledged the same on 24.10.1978, and that notices should have been issued to the correct address; service by affixture was not the mode contemplated under Rule 8 of the Rules.
  • It was contended that Rule 8 requires notice to be sent by Registered Post with Acknowledgement Due, and that the authorities had produced no material to show compliance with that procedure.
  • The Respondent asserted that the statement in Form-1 containing a residential address was submitted to authorities as early as 24.10.1978, but no notice was sent to that address.
  • On maintainability the Respondent relied on a Division Bench decision (V. Somasundaram and others v. Secretary to Government, Revenue Department, Chennai and others, 2007 (1) MLJ 750) to submit that where the alternative remedy of appeal is lost due to the Repeal Act, the Respondent can maintain a Writ Petition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Angoori Devi v. State of U.P. and others, JT 2000 (Suppl.1) SC 295 Relied upon by the Appellants to support the contention that proceedings pending under the Principal Act abate on repeal (i.e., to support the submission based on Section 4 of the Repeal Act). The opinion records that the Special Government Pleader placed reliance on this Supreme Court decision; the court accepted the abatement-related contention in its reasoning and allowed the appeal, treating the proceedings as having attained finality and not fit for interference.
C. Balasubramaniam v. The Principal Commissioner and Commissioner for Land Reforms, Chepauk, Chennai, W.P. No.12987 of 2001 (Division Bench, unreported) Relied upon by the Appellants in support of the contention regarding abatement or related procedural consequences of the Repeal Act. The opinion records reliance upon this Division Bench decision by the appellants; the court treated the abatement argument as valid in its conclusion that there was no justification to interfere with the Urban Land Ceiling proceedings.
V. Somasundaram and others v. Secretary to Government, Revenue Department, Chennai and others, 2007 (1) MLJ 750 Relied upon by the Respondent to argue that where an alternative remedy (an appeal) is lost due to the Repeal Act, a Writ Petition can be maintained. The opinion records the Respondent's reliance on this Division Bench authority; the court nevertheless concluded on the facts that the Respondent had not made out a case to quash the statutory proceedings and that interference was not justified, effectively not accepting the Respondent's reliance to overturn the administrative actions challenged in the Writ Petition.

Court's Reasoning and Analysis

The Division Bench heard counsel for both sides and examined the record and the sequence of statutory steps taken under the Act. The court's reasoning proceeded in the following steps (as stated in the opinion):

  1. The court set out the sequence of statutory notices, inspections and formal steps: notice under Section 7(2) issued 17.10.1996 (served 3.11.1996); draft statement under Section 9(1) and notice under Section 9(4) on 1.9.1997 (served by affixture when the owner refused to receive them); inspection by the Assistant Commissioner on 1.10.1997; final statement under Section 10(1) on 28.4.1998 (served by affixture); and Government Gazette notifications on 12.8.1998 under Sections 11(1), 11(3) and 11(5).
  2. The court observed that the original landowner had been aware of the proceedings during her lifetime: the affidavit in support of the Writ Petition itself stated that the landowner had applied for a copy of the impugned order dated 7.10.1997. The court treated this as evidence that the owner knew of the final order and had not challenged it during her lifetime.
  3. The court evaluated the service complaints. It noted that the Respondent alleged irregular service by affixture (fixed on a stick in the vacant land), but the record showed that the owner was in fact aware of the statutory proceeding; further, no objections had been filed at the administrative stage. The court concluded there was no basis, on the material before it, to accept the Respondent's averments that formalities were not as per the statute.
  4. On the question of repeal and abatement, the court accepted the appellants' contention that when possession had been taken prior to the Repeal Act (the opinion records that possession was taken before 16.6.1999), the Respondent could not successfully challenge the proceedings thereafter and that the Repeal Act operated to abate further continuance of proceedings after its commencement. The Special Government Pleader's reliance on decisions and on section 4 of the Repeal Act was recorded.
  5. The court further found that the authorities had followed the procedure contemplated under law, possession was taken and the land had been allotted (the opinion records allotment to 198 families and transfer/allotment to the Slum Clearance Board). On these combined factual and legal bases the court held that the Single Judge had erred in setting aside the Urban Land Ceiling proceedings.
  6. Concluding from the foregoing, the court found that the Respondent had not made out a case for quashing the statutory proceedings, and that there were no justifiable reasons to interfere with the ULC proceedings; therefore the Division Bench set aside the Single Judge's order.

Holding and Implications

The Writ Appeal is allowed and the order dated 28.4.2009 in W.P.No.7539 of 2004 is set aside.

Direct consequences (as stated in the opinion):

  • The Division Bench overturned the Single Judge's order that had quashed the statutory Urban Land Ceiling proceedings; the statutory proceedings and the administrative steps taken by the authorities (including possession and allotment) stand as not being interfered with by the court on the facts presented.
  • No costs were awarded. The connected Miscellaneous Petition was closed.

The opinion does not purport to lay down a new broad legal precedent in terms beyond applying the cited authorities and statutory provisions to the facts; the decision's immediate effect is to reverse the Single Judge and to decline to set aside the ULC proceedings on the record before the court.

Show full summary ...

    State Of Tamil Nadu, Rep. By The Secretary To Government, Revenue Department Others v. M. Nalini

    (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.

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    Comments

    State Of Tamil Nadu, Rep. By The Secretary To Government, Revenue Department Others v. M. Nalini
    (Jun 21, 2010)