IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 09.02.2011 Coram:- The Hon'ble Mr. Justice T.RAJA Writ Petition No.4988 of 2010 1. B.Valarmathi 2. B.Yasoda 3. B.Elangovan 4. B.Pannerselvam ... Petitioners vs. 1. The Government of Tamilnadu Rep. by its Secretary, Department of Revenue, Fort St. George, Madras 600 009. 2. The Principal Commissioner and Commissioner of Land Reforms, Chepauk, Madras 600 005. 3. The Competent Authority (ULC) & Asst. Commissioner (ULT) Poonamallee, Madras 600 056. ... Respondents Petition under Article 226 of the Constitution of India for the relief as stated therein. For Petitioners : Mr.K.Kasirajan For respondents : Mr.S.Sivashanmugam, Govt. Advocate. O R D E R
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.
4. In the light of the elaborate arguments advanced on either side, certain core and vital aspects need to be answered are:
(a) whether, in fact, excess vacant land was available for application of the Principal Act against the urban land owner?
(b) if vacant land was available, attracting the provisions of the Principal Act, whether the acquisition proceedings proceeded in right track against right person by properly adhering to the statutory obligations and procedure adumbrated in the Principal Act in particular, Section 11 thereof?
(c) whether the respondents-authorities are justified in claiming that the land was taken over lawfully by them on 19.08.1992 as per the Land Delivery Receipt when the landowner died on 19.12.1989?
(d) whether the non-payment of compensation even after 22 years would vitiate the entire impugned proceedings under the Act?
(e) Whether the provisions of the repealed Act would save the claim of the petitioners or that of the authorities?,
5. 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.
6. As regards adherence to the procedure prescribed, in particular Section-11 (1) (3) (4) &(5) of the Principal Act, it is relevant to extract the said provisions hereunder:-
11. Acquisition of vacant land in excess of ceiling limit.– As soon as may be after the service of the final statement under section 10 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that–
……..
(3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification in the Tamil Nadu Government Gazette declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.
(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3)-
(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and
(ii) no person shall alter or cause to be altered the use of such excess vacant land.
(5) 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 authorised by the State Government in this behalf within thirty day of the service of the notice.
From a reading of the above provisions, it is clear that the exercise prescribed in sub-clause 5 is the final stage where the Government issues notice to the person in possession of the vacant land to surrender the lands within 30 days of service of the notice. Further, the position is well settled that such a notice issued to the owner who is not in possession will not be construed as a proper notice. In that regard, it is relevant to point out that the Notice issued under Section 7(2) on 31.10.1985 was not served on the land owner but only by affixture stating that there was refusal on the part of the land owner. Similarly, the impugned order, dated 30.09.1988, passed under Section declaring 6700 sq. mts. of land as vacant land came to served by way of affixture on the ground that the land owner refused to receive the notice. The final statement under Section 10(1), dated 06.12.1989, was said to have been received by one A.Padmavathy and not by the petitioners/legal heirs. In the meanwhile, the urban land owner Kistappa Naicker died on 19.12.1989. After publication of the Notifications under Section 11(1) and 11(3) dated 14.03.1990 and 30.11.1990 in the Government Gazettee on 25.04.1990 and 09.01.1991 respectively, the crucial notice under section 11 (5), dated 12.2.1991, was served by affixture and the routine and convenient reason assigned was, the land owner Kistappa Naicker refused to receive it when, in fact, he was no more then since he died as early as on 19.12.1989. It is unfortunate that the authorities were mechanically issuing notices against a dead person and now, they have come forward with a faint plea that they proceeded with the details available in the revenue records.
At this juncture, it is but proper to refer to sub-section (6) of Section 11 which reads as under:-
If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the State government or to any person duly authorised by the State Government in this behalf and may for that purpose use such force as may be necessary.
Though the mandatory procedure outlined in Section 11(5) is not at all complied with in this case, assuming compliance, as per the above provision, if there was refusal on the part of the land owner in receiving the notice under Sub-section (5) and thereby possession was not delivered, the mode provided is for taking over the possession by using necessary force and thereby, the scope for a symbolic possession is totally whittled down. Thus, when there was a serious failure in complying with the procedure prescribed in Section 11(5) & (6), there may not be any difficulty in perceiving that the authorities were not cautious enough throughout the course and, did they verify the actual state of affairs by conducting proper enquiries about the transfer of the land by the land owner to the legal heirs by way of settlement and thereby, the urban land owner himself was not the actual owner as on the date of commencement of the Act, much time and energy could have been saved without recourse to such pointless proceedings. In this regard, it would be useful to refer to the unreported Division Bench decision rendered in W.P. Nos.693 to 695 of 2003 (Annie Jacob and others v. State of Tamil Nadu and another) wherein, it has been observed as follows:-
There is nothing on the record to suggest that the competent authority issued any notice in writing directing the original land holder or the appellants to surrender or deliver possession of the lands in question. Nothing has been produced to suggest that the original land holder or the appellants refused or failed to comply with such order and on failure the possession of the lands were taken by force. In the absence of such notice u/s 11 (5) or action taken u/s 11 (6), a bald statement as made by the respondents that possession was taken on 10th Feb, 1995 cannot be accepted. …
In the aforesaid circumstances, the respondents cannot take advantage of Section 3 of the Repealing Act 20 of 1999 and nor deny the advantage u/s 4 to the appellants. Such provisions being in favour of the appellants, we hold that the total proceedings shall stand abated.
In another case decided in W.P No.29081 of 2003 (Sundarakkani v. Government of Tamil Nadu and others), a learned Judge of this Court, while dealing with almost similar case, ruled thus:
These records can never be believed as neither the petitioner nor the predecessor-in-title have been served with proper notices in terms of the Act and the Rules made thereunder. When valuable lands are sought to be taken over by a statutory enactment, it is incumbent on the part of the authorities to scrupulously follow the rules prescribed thereunder. The mode of affixture cannot be resorted to as a matter of course and attempt should have been made to send the notice by Registered post as contemplated under the Rules. If this process is resorted to by the respondents, any land can be taken over without even notice to the land owners by not complying with the mandatory provisions of the Rules.
In the case on hand, since series of notices including the one under Section 11(5) were served only by affixture, the only conclusion would be that there was non-compliance of Section 11(5) of the Act which would adversely affect the entire acquisition proceedings.
7. Referring to Section-3(a) of the repealed Act, which provides that the repeal of the principal Act shall not affect the vesting of any vacant land under sub-section 10, possession of which has been taken over by the state government or any person duly authorized by the state government in this behalf or by the competent authority, it is strenuously contended on behalf of the respondents that the land was taken over on 19.08.1992 and therefore, the action of the State is saved under the above provision. In this regard, it must be pointed out that the respondents attempt to mean the symbolic possession as actual possession and admittedly, the authorities did not and could not resort to the mode provided under Section 11(6) of the Principal Act as glaringly, there was no proper compliance of the mandatory procedure laid down under Section 11 (5). A bare perusal of the so-called ‘Land Delivery Receipt’ available at page No.143 of the File shows that the extent of land as shown therein has been delivered by the land owner-Kistappa Naicker on 19.08.1992 and taken possession of by the Firka Revenue Inspector. The said document itself is sufficient to discard the whole case of the respondents for more than one reason. Admittedly, Kistappa Naicker died during 1989 whereas the delivery receipt mentions his name as the land owner and conveniently, in both places for ‘handed over’ and ‘taken over’, the signature of the authorities was put as if one authority takes over possession and hands it over to the other in the presence of the land owner, when he was not alive at all then. In the absence of the land owner, the authorities should have at least obtained signature of independent witnesses by preparing panchanama, but that is not the case here. Therefore, the records of the respondents themselves suggest that the respondents did not proceed within the legal framework as outlined in the statutory provisions and that actual possession of the land was never taken over by the State.
8. It is argued on behalf of the respondents that in the light of the proviso to Section-4 of the repealed Act which states 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, provided that this Section shall not apply to the proceedings relating to sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are related to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority, the petitioners have no case since the said provision would in no way enure to the benefit of the petitioners. As already stated, the effect of Sections-11 and 12 are taken away in this case since the authorities did not act within the framework provided therein and further, the provisions under Sections-13 and 14 are only consequential to the implications arising from Sections-11 and 12. Till to-day actual possession has not been taken over and no compensation has been fixed or paid. The petitioners have produced documents such as patta, property tax receipts etc., to suggest that they are still in possession of the land in question. In the given circumstances, since the repealed Act in particular Section-4 thereof would run only in favour of the petitioner’s case and not that of the respondents, this Court could safely conclude in line with the observation made in (Tessy John v. Principal Commr.& Commr. of Land Reforms) 2008 1 MLJ 383, to the effect that when the physical possession of the property has not been taken over from the land owner who continues to be in possession and enjoyment of the property, the land owner is entitled to have the benefit under Section 4 of the repealed Act. Similarly, in the decision reported in 2005 (5) MLJ 339 (T.V.Antony v. State of Tamil Nadu), it has been categorically held that, in view of the repealed Act, the land acquisition proceedings would stand abated if the authorities are not in a position to show that physical possession of the land in question had been taken over and due compensation had been paid to the Land Owner.
9. As regards payment of amount, it is but proper to quote below the relevant provisions viz., Section 16 of Principal Act and Rule-11 (1) & (2) of the Rules framed thereunder.
16. Mode of payment of amount.– (1) The State Government shall, within a period of six months from the date of the order of the competent authority, determining the amount to be paid under section 12, or, in a case where an appeal has been preferred against such order under Section 13 or where a revision has been preferred under section 15, within a period of six months from the date of the final order of the appellate or revisional authority, pay the amount referred to in section 12 to the person or persons entitled thereto.
11. Determination of the amount and disposal of cases by the Competent Authority under sub-sections (7) and (8) of Section 12.– (1) Every case for determination of the amount to be paid to the person or persons having any interest in any vacant land shall be disposed of by the Competent Authority within one year from the date on which such vacant land is deemed to have been acquired by the State Government.
(2) The notice under sub-section (7) of section 12 shall be in form XIV and issued to all persons interested in the lands to appear in person or by authorised agents on the date fixed to file their claims for the share in the amount payable under section 12 and their objection, of any to the claims of other interested persons.
A conjoint reading of the above provisions would go to show that it is mandatory on the part of the State Government to determine the amount to be paid under Section 12 to the person or persons interested or entitled thereto; but seemingly, there is no compliance in that regard and assuming that possession had already been taken over on 19.8.1992, even after 18 years, no compensation was paid till now. In this regard, the minutes, dated 24.12.1992, available at page No.6 of the File shows that since funds are not available, the File may be closed with a proposal for fresh action under new File. Such aspect reflected from the File would suggest that the authorities were not agile and reactive throughout and proceeded as if they are dealing with routine matters in usual course. Even after 22 years from the date of issuance of the impugned notice, no step was ever taken for fixation/payment of the compensation amount. Thus, the authorities never bothered to verify the persons interested or entitled to receive the amount so as to comply with the procedure mandated for payment of money.
10. Therefore, this is an exceptional case where the authorities, from the inception till conclusion of the entire proceedings, proceeded all along in a mechanical manner without application of mind to both basic and core aspects, in as much as they initiated the proceedings under the Principal Act in respect of a land which is not even covered by the purview of the Act since it was settled by the land owner amongst the family members by a registered settlement deed dated 04.07.1968 long before the commencement of the Principal Act; the authorities given a convenient go-bye to the mandatory procedure for instance, at the crucial stage during issuance of notice under Section 11 (5), they were proceeding against a person, who was no more then as he died on 19.12.1989 and, by virtue of the settlement, was not the urban land owner even on the date of commencement of the Principal Act ie., 03.08.1976 and ironically, the respondents themselves shown to have taken possession from such dead person on 19.08.1992, that is, 3 years after his death; and further, their action could not be saved under the repealed Act as the entire proceedings initiated under the Principal Act are rendered invalid and non-est in the eye of law. Thus, in the light of the foregoing reasons, this Court holds that the authorities are totally unjustified in initiating the impugned proceedings which suffer from total non-application of mind and gross violation of the mandatory procedure prescribed in the Act and the Rules.
11. In the result, the Writ Petition is allowed and the impugned proceedings are hereby quashed. No costs.
File received from the learned Government Advocate is returned to him in the open court.
JI.
To
1. The Secretary, Department of Revenue,
Fort St. George, Madras 600 009.
2. The Principal Commissioner and Commissioner of Land Reforms, Chepauk,
Madras 600 005.
3. The Competent Authority (ULC) &
Asst. Commissioner (ULT), Poonamallee,
Madras