The Writ Petition is filed praying to issue a Writ of Declaration, declaring that the petitioner is entitled for the benefit of Repeal Act 20 of 1999 under Sections 3 and 4 of the said Act and entitled to hold the property as a free hold property free from Urban Land Ceiling Regulation Act, 1978 and also the Repeal Act 20 of 1999 in furtherance of the Order passed by the first respondent under Ref.No.G2/18381/2004 dated 19.01.2005 in respect of his land measuring 20 cents comprised in Survey No.18/1 at Selaiyur village, Tambaram Taluk, Kancheepuram District.
2. Petitioner is the owner of agricultural land measuring to an extent of 1 acre and 21 cents in Survey No.19/4 situated at old No.173, Selaiyur village. Petitioner claims that he sold major portion of land and 20 cents alone is retained. According to the petitioner in the year 1992 based on the representation from the petitioner's family, the land in question was excluded from the proceedings of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. Further, as on 20.10.1992, petitioner states that he owned only 20 cents of land. Petitioner stating that he is in possession of the land applied for approval of lay out plan on conversion of the land into house sites and the same was approved. The writ petition has been filed by the petitioner stating that entire proceedings is contrary to the provisions of Act 24 of 1978 and the possession of the land in question has not been taken. In view of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act (Tamil Nadu Act 20 of 1999, the proceedings of the respondents abates.
3. A counter affidavit has been filed by the second respondent. In paragraph 2 of the counter-affidavit all the details of proceedings in terms of Act 24 of 1978 are set out and the same is extracted as hereunder:-
"2. It is submitted that Thiru Ranganatha Naicker was the owner of the following lands as on 3-8-1976.
Village: Selaiyur.
Survey No. Total Extent Entitle-ment Excess vacant land 18/1 (pt) 800 sq.mts.
500 sq.mts.
300 sq.mts 18/2A 1800 sq.mts.
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1800 sq.mts.
18/2B 700 sq.mts.
-
700 sq. mts.
19/1, 1600 sq.mts.
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1600 sq.mts.
4900 sq.mts
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4400 sq.mts.
The petitioner did not file return under section 7(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 for the lands owned by him. Hence a notice under section 7(2) of the Act was issued to him vide Assistant Commissioner, Urban Land Tax, Tambaram in SR.98/95 dated 18-7-1995. Then, a notice under section 9(4) with draft statement u/s 9(1) of the Act was issued on 27-12-1995 and served by affixture as the urban land owner was residing in the village and his address was not known. The Assistant Commissioner had inspected the land on 20-7-1996 and found that this land was converted as house sites. As there was no response to the Drafty Statement, Order under section 9(5) of the Act was passed vide Rc.No.C/2334/96, dt.26-7-96 declaring the excess vacant land of 4400 sq. mts., and the same was sent by R.P.A.D., which was returned undelivered. Hence, the order was served by affixture in the presence of the Village Administrative Officer concerned. After scrutinizing the sub-division records final statement under section 10(1) of the Act was issued on 19-9-1997 and sent to the urban land owner by RPAD and it was returned to office with remarks "No such address". Notification under section 11(1) was issued on 24.10.1997 and the notification was published in T.N.G.G. No.51 dated 3.12.1997 as per notification VI(1)171/97 at page 1789 of the Gazette. The notification u/s 11(3) of the Act was issued on 10-2-98 and published in T.N.G.G., dated 3-2-99. The notice under section 11(5) was issued on 8-3-99. The possession of the excess vacant land was taken over on 4-5-99 and handed over to Revenue Department after making necessary changes in the Village Accounts as per 8A/1806/1408."
4. The learned Government Advocate reiterated the stand taken in the counter-affidavit and stated that possession was taken and hence the Repeal Act will not be attracted.
5. On going through the counter-affidavit, it is clear that the notice under section 9(4) of the Act with draft statement under section 9(1) of the Act was issued on 27.12.1995 by way of affixure stating that the urban land owner was residing in the village and his address was not known. It is further stated that an order dated 26.7.1996 declaring the excess vacant land of 4400 square metres under section 9(5) of the Act was sent by Registered Post with Acknowledgment Due and was undelivered. Therefore, it was served by affixure. It is further averred that the possession of the excess land was taken over on 4.5.1999 and handed over to the Revenue Department. From the statement of the counter-affidavit, it is clear that
(i) While issuing notice under section 9(4) enclosing draft statement under section 9(1) of the Act, the procedure prescribed under Rule 8 of the Tamil Nadu Urban Land (Ceiling and Regulation) Rule 1978 has not been followed.
(ii) Even the service of order under section 9(5) of the Act states that it was returned undelivered. The reason for non-delivery is not stated. In any event, there is no proof that it was refused.
(iii) Except the bald statement in the counter-statement that possession was taken on 4.5.1999, no material has been produced to show that possession was taken following the procedure prescribed.
(iv) Petitioner stating that he is in possession of the land approached the planning authority for approval of the lay out and the same was approved.
(v) The procedure adopted by the respondents is contrary to the prescription in the Act and Rule and since the possession in this case has not been taken in the manner known to law, and since it is stated that possession still continues with the petitioner, which is supported by the planning permission sought for and given by the competent authority, the question of application of Act 24 of 1978 does not arise. Further, in view of section 4 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act 20 of 1999, the proceedings of the respondents abates and consequently, the petitioner is entitled to the relief as prayed for.
6. In the result, the impugned proceedings are set aside. The writ petition is allowed as prayed for. No order as to costs. Consequently, connected miscellaneous petition is closed.
ts To
1.The Special Commissioner & Commissioner for Urban Land Ceiling and Urban Land Tax, Ezhilagam, Chepauk, Chennai-600 005.
2.The Assistant Commissioner, Urban Land Ceiling and Urban Land Tax, 169, Sannadhi Street, Adambakkam, Chennai 600 088