Madras High Court
E.Balu vs The Special Tahsildar on 5 March, 2008
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.03.2008 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.19443 of 1998 1. E.Balu 2. E.Ramu 3. E.Vijayan 4. E.Palanivel 5. E.Karnan 6. E.Krishnan .. Petitioners -vs- 1. The Special Tahsildar, (Land Acquisition) Salem Neighbourhood Scheme Iyanthirumaligai, Salem 8. 2. The State of Tamil Nadu rep. By its Commissioner and Secretary to Government, Housing and Urban Development Dept., Chennai 9. 3. The Executive Engineer/ Administrative Officer, Salem Housing Unit, Tamil Nadu Housing Board, Iyanthirumaligai Road, Salem 8. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for the issue a writ of Certiorari to call for the records relating to the notification issued under Sec.4(1) of the Land Acquisition Act in G.O.Ms.No.223, Housing and Urban Development dated 18.06.1997 and the declaration under section 6 of the Act issued in G.O.Ms.No.312, dated 07.08.1998 and quash the same in so far as the lands of the petitioners measuring 0.72 acres (0.29.0 Hecs) in R.S.No.118/1, 53, Ayyamperumalpatti Village, Salem Taluk. For petitioner : Mr.P.Jagadeesan For respondents : Mr.L.S.M.Hasan Fizal,GA O R D E R
In this writ petition, the petitioner has challenged the notification under section 4(1) of the Land Acquisition Act issued in G.O.Ms.No.223, Housing and Urban Development dated 18.06.1997 and the declaration under Section (6) of the Act issued in G.O.Ms.No.312, dated 07.08.1998, in so far as it relates to the petitioners land measuring 0.72 Acres in R.S.No.118/1, 53, Ayyamperumalpatti Village, Salem Taluk.
2. The challenge in respect of the acquisition is on various legal grounds including that 4(1) notification was not notified in the locality or other convenient places as per the mandatory requirement under Section 4(1) of the Act. The requisition is for the Housing Board. When the petitioner appeared for enquiry under Section 5(A) of the Act on 16.10.1997 and submitted their objections dated 15.10.1997, which was served to the Housing Board for offering the remarks and the remarks received from the Tamil Nadu Housing Board dated 02.04.1998 was received and no enquiry was conducted as per Rule 3(b) on 04.05.1998 and the first respondent has simply received the objections and sent the petitioners out and that the objections raised by the petitioners have not been considered in the light of the remarks given by the Housing Board dated 02.04.1998, that the samathi of the petitioners father is situated in the said land and also there is a temple, which has not been considered. That apart, it is also stated that the property belonged to small farmers like petitioners should not be acquired is the policy of the Government. It is also further stated that the award was passed beyond the time prescribed under Section 11(A) of the Act.
3. In the counter affidavit, it is the case of the respondents that the land to an extent of 42.69 acres of land in Survey No.81/1 etc. of Ayyamperumalpatti Village, Salem Taluk was proposed to be acquired for construction of houses in the year 1979-80 originally. The 4(1) Notification was issued on 23.06.1981 and published in the Gazette on 22.07.1981. 5(A) enquiry was conducted on 21.02.1982 and 6 declaration was approved on 07.07.1984. It was at that time the father of the present petitioners has filed W.P.No.9493 of 1986 challenging the acquisition proceedings in respect of 0.81 acres in Survey No.118/1 and there was an interim stay and therefore, the property was not included while passing the award. Later, it was found that in respect of the petitioners property, the land acquisition officer has not passed award within the stipulated time under Section 11(a) and therefore, no further proceedings were effected. It was subsequently, on the basis of a fresh requisition of land from the Housing Board that the land is required for the compact block. 4(1) notice under the Land Acquisition Act was approved by the Government on 18.06.1997, published on 09.07.1997. It was also published in two tamil dailies i.e. in Malaimurasu on 02.08.1997 and in Thinathoothu on 03.08.2007. That apart, the substance of the notification was published in the locality on 10.08.1997. 5(A) enquiry was conducted and notice issued on 08.09.1997 posting the enquiry on 16.10.1997 after service. The objections of the land owners were communicated to the Housing Board on 13.10.1997. Remarks received from the Housing Board dated 06.04.1998 was communicated to the land owners on 07.04.1998, posting the enquiry, under rule 3(b) on 04.05.1998. The objections of the land owners were considered on 04.05.1998 and the draft declaration under Section 6 was recommended to the Government, which has approved the same in G.O.Ms.No.312, Housing and Urban Development Department, dated 07.08.1998. It was published in the Gazette on the same date. The substance of the 6 declaration was also published in the locality on 08.08.1998. Therefore, according to the respondents, since the local publication of 4(1) Notification was issued on 10.08.1997 and publication of 6 declaration was on 08.08.1998, the same is within one year and in accordance with law. Subsequently, the award enquiry was conducted on 26.07.2000 and on enquiry, it was found that there was no temple situated in Survey No.118/1. But there are two 'Vel", under a neem tree, erected within a compound measuring east to west 12 metre and north south 9.2 metres. According to the respondents, all other lands surrounding lands on either side have already been acquired in award No.12/86-87 dated 19.09.1986 and constructions have come up. There is no temple on the land. It is also stated that in respect of the said Vel, there is no regular pooja going on.
4. Mr.P.Jagadesan, learned counsel appearing for the petitioners would submit that the gazette notification in respect of 4(1) under the Act was on 18.06.1997 and 6 declaration was on 07.08.1998 and there is no proof to show that any locality publication has been effected on 10.08.1997. He would also rely upon the Judgment in the case of C.Ponnusamy and 62 others vs The Commissioner and Secretary, Housing and Urban Development Department reported in 1997 1 CTC 212 and in the case of R.Thiruvengadam vs. The Secretary to Government, Housing Department reported in 1997 2 CTC 323 to substantiate his contention that the 5(A) enquiry was not properly conducted.
5. On the other hand, the learned Additional Government Pleader by producing the file would contend that the local publication was effected on 10.08.1997 and therefore, within the period of one year between 4(1) notification and 6 declaration, acquisition has been made and the proceedings are valid in law. She would also contend that the enquiry conducted under 5(A) of the Act on 04.05.1998 in which the remarks of the Housing Board dated 02.04.1998 was also considered and therefore there is no illegality in conducting the enquiry. She has also produced the entire file regarding the land acquisition.
6. I have heard the learned counsel for the petitioners and the respondent and also perused the records including the original file.
7. It is not in dispute that 4(1) notification was notified in the gazette dated 18.06.1997 in G.O.Ms.No.223 and the gazette publication was on 09.07.1997. There are two news papers publications on 02.08.1997 and 03.08.1997 in Malaimurasu and Thinathoodu. As far as the publication in the locality is concerned, a perusal of the record shows that except the proceedings of the Tahsildar dated 15.06.1998, wherein, in the narration he has stated that apart from publication in Malaimurasu on 02.08.1997 and Thinathoodu on 03.08.1997, there was publication by Dhandora on 10.08.1997, there is no record to show that necessary certificate from the concerned officials like Village Administrative Officer or any other authority obtained to substantiate that the local publication was made on 10.08.1997. This is particularly relevant because while effecting such local publication in respect of 6 declaration, the Tahsildar has followed the procedure not only by Dhandora, but also has affixed in public places as certified by the VAO apart form obtaining the signatures of various residents in the area numbering more than 11, as it is seen in page Nos.552 and 553 of the file. As the locality publication in respect of 4(1) notification, which is a legal requirement has not been made with any such certificate except narrating in the proceeding of the Tahsildar, wherein he has narrated stating that there was a local publication on 10.08.1997. Therefore, it has to be taken that there was no locality publication of Section 4(1) notification and the newspaper publication which was on 03.08.1997 in Thinathoodu has to be taken as a last date of publication. It is admitted that the 6 declaration itself was issued in the gazette in G.O.Ms.No.312 dated 07.08.1998. Therefore, by taking the last date of publication of 4(1) notification, with the said 6 declaration dated 07.08.1998 it is beyond the prescribed period of one year. It is on this score, it has to be held that the land acquisition proceedings viz., 4(1) notification as well as 6 declaration in this case are not in accordance with the provisions of the land acquisition Act.
8. Sec.4(1) of the Land Acquisition Act reads as follows:-
"4.Publication of preliminary notification and powers of officers thereupon - (1) Whenever it appears to the (appropriate Government) that land in any locality (is needed or) is likely to be needed for any public purpose (or for a company), a notification to that effect shall be published in the Official Gazette (and in two daily newspapers circulating in that locality of which at least one shall be in the regional language) and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)]".
9. Sec.4(1) of the Act makes it clear that apart from publication in two news papers circulating in the locality out of which one shall be in the regional language, it is the duty of the Collector to cause public notice of the substance of such notification published at convenient places in the said locality and that date is taken as the last date of publication of notification.
10. As per Section 6 of the Land Acquisition Act, in respect of 6 declaration published after the commencement of Land Acquisition (Amendment) Act, 1984, such declaration covered by a notification under Section 4(1) shall be published within one year after the publication under Section 4(1) of the Act.
"Sec.6(1) proviso, which reads as follows:-
"Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1) -
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:"
11. In view of the failure on the part of the respondent not proving the mandatory requirement of publication of the substance of 4(1) notification in convenient places in the locality and inasmuch as the last of the publication of 4(1) notification was on 03.08.1997 and 6 declaration itself is as per the Government order dated 07.08.1998, the land acquisition proceedings are clearly against the provisions of the Land Acquisition Act.
12. In the present case, the acquisition is for the purpose of the Housing Board, which is the requisitioning authority. Rule 4 of the Land Acquisition (Tamil Nadu) Rules contemplate the procedure for conducting enquiry under Section 5(A) of the Act. It is clear under Section 5(A) of the Act, that any person interested in respect of the land, can within 30 days from the date of publication of notification under section 4(1) of the Act can make objections to the acquisition. When such objections are made, the Collector shall give the objector an opportunity of being heard and after hearing all objections, and making further enquiry, if any, he has to make a report to the appropriate Government, containing his recommendations on the objections together with records in order to enable the appropriate Government to take a final decision.
13. Rule 4 of the Land Acquisition (Tamil Nadu) Rules contemplate the procedure as follows:-
"Rule 4.-(a) If a statement of objections is filed by a person who is not interested in the land, it shall be summarily rejected.
(b) If any objections are received from a person interested in the land and within the time prescribed in sub-section (1) of Section 5-A, the Collector shall fix a date for hearing the objections and give notice thereof in Form 'B' to the objector as well as to the department or company requiring the land. Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the Collector, a statement by way of answer to the objections and may also depute a representative to attend the enquiry.
(c) On the date fixed for enquiry or any other date to which the enquiry may be adjourned by the Collector, the Collector shall hear the objector, or a person authorised by him in this behalf, on his pleader and the representative, if any, of the department or company and record any evidence that may be produced by both in support of the objections and in support of the need for acquiring the land".
14. Therefore, when objections are received from an objector, the Collector has to conduct an enquiry and in case where the acquisition is for a request in the department, the objections received from the land owners must be sent to the department, which has a right to send answer to the objections and the objections as well as answers are to be considered while the Collector prepares a report.
15. In C.Ponnusamy and 62 others vs The Commissioner and Secretary, Housing and Urban Development Department reported in 1997 1 CTC 212 and in the case of R.Thiruvengadam vs. The Secretary to Government, Housing Department reported in 1997 2 CTC 323, while dealing with the necessity of sending the objections and remarks to the requisitioning body and thereafter conducting enquiry, E.Padmanabhan,J has held that on the facts of the said case when the enquiry itself was concluded on 23.02.1983, the remarks sent by the requisitioning body was only after 20.04.1993, and therefore, held that enquiry under Section 5(A) is not proper. Therefore, it is clear that before the Collector concludes the enquiry, in case where the acquisition is for the requisitioning body, the objections of the land owners must be sent to the requisitioning body and after the remarks received from the requisitioning body, the Collector, considering the objections as well as the remarks has to conclude the enquiry and submit his report to the Government.
16. On the facts of the present case, in respect of 5(A) enquiry, it is clear that the petitioners have given objections on 17.03.1998, while the remarks from the requisitioning body were received in respect of objections on 02.04.1998 and the enquiry was conducted by the Collector on 04.05.1998. The Tamil Nadu Housing Board in their letter dated 02.04.1998, after referring to the objections of the petitioners has reiterated that the lands are required for the purpose of the Housing Board. Therefore, the contention of Mr.Jagadesan, learned counsel appearing for the petitioners, that the Housing Board, being the requisitioning body, must consider each and every one of the objections and give its complete reply is not tenable, because what is required from the requisitioning body is only a statement by way of answer to the objections. As per Rule 4 referred to above, it is not necessary for the requisitioning body to deal with each and every one of the objections while it is only for the Collector while sending the report, who must consider both the objections as well as the answer given by the requisitioning body. It is also seen on a perusal of records that the objections of the petitioners as well as the answers given by the requisitioning body have been considered and therefore, the contentions raised by the learned counsel in that regard is not tenable.
17. As far as the objections relating to the temple and samadhi as stated by the petitioners are concerned, there is absolutely no ground since it is not seen in the record anywhere to prove the existence of such samadhi or temple. Therefore, the contentions in that regard is rejected.
18. However, considering that the mandatory requirement for issuing locality publication under Section 4(1) as well as the time limit between 4(1) notification and 6 declaration is more than the required period as per the Act, necessarily the land acquisition proceedings have to be quashed on that ground. In view of the same, the writ petition stands allowed and the 4(1) notification dated 18.06.1997 and 6 declaration dated 07.08.1998 in respect of the property of the petitioner measuring 0.72 acres in R.S.No.118/1 in Perumalpatti Village, Salem Taluk is set aside. No costs.
rg To
1. The Special Tahsildar, (Land Acquisition) Salem Neighbourhood Scheme Iyanthirumaligai, Salem 8.
2. The Commissioner and Secretary to Government, The State of Tamil Nadu Housing and Urban Development Dept., Chennai 9.
3. The Executive Engineer/ Administrative Officer, Salem Housing Unit, Tamil Nadu Housing Board, Iyanthirumaligai Road, Salem 8.