Madras High Court
Mohamed Sultan Maraicar vs The Special Secretary on 19 July, 2016
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2016
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
W.P.No.33245 of 2013
M.P.No.1 of 2013
Mohamed Sultan Maraicar .. Petitioner
versus
1. The Special Secretary,
Government of Puducherry,
Department of Revenue and Disaster Management,
No.505, Revenue Complex,
Kamaraj Salai, Saram, Puducherry.
2. The Collector,
District Collectorate,
Karaikal District,
Karaikal 609 602.
3. The Land Acquisition Officer-cum-
Deputy Collector (Revenue),
Office of the Deputy Collector,
Karaikal 609 602. .. Respondents
PRAYER: This writ petition filed under Article 226 of the Constitution of India, praying for a writ of certiorarified mandamus, calling for the records of the 3rd respondent culminated in G.O.Ms. No.36 Department of Revenue and Disaster Management dt on 5.10.2010 in the Gazette of Puducherry and the consequent G.O.Ms. No.62 Department of Revenue and Disaster Management dt 2.3.2011 in the Gazette of Puducherry in so far as the schedule mentioned property and quash the entire acquisition proceedings and to pass suitable orders
For Petitioner : Mr.K.M.Aasim Shehzad
For Respondents : Ms.N.Mala
Government Advocate (Pondy)
O R D E R
The petitioner has sought for a certiorarified mandamus, calling for the records of the 3rd respondent culminated in G.O.Ms. No.36, Department of Revenue and Disaster Management dt on 5.10.2010 in the Gazette of Puducherry and the consequent G.O.Ms. No.62 Department of Revenue and Disaster Management dt 2.3.2011 in the Gazette of Puducherry, insofar as the schedule mentioned property is concerned and quash the entire acquisition proceedings.
2. According to the petitioner, he is the owner of the land measuring an extent of 23 Ares 50 centiares of Nanja land situated at No.31, Neravy Village and comprised in R.S.No.182/3B, having purchased the same from one Mr.Abdul Sukkur by way of a sale deed dated 08.09.2009 and registered as Doc. No.1139 of 2009 in the office of the Sub Registrar, Neravy. According to him, he is in possession and enjoyment of the property. By notification dated 05.10.2010 issued under the Land Acquisition Act, 1894, an extent of 11 Ares and 34 Centiares, out of the total extent of 23 Ares 34 centiares, was notified for acquisition for forming Western Bypass road. The land notified for acquisition was allotted a sub divided resurvey number 182/3B/2. In the said notification, the remaining extent of 12 Ares and 16 centiares was left out from acquisition. In the 4(1) notification, the name mentioned was Abdul Sukoor [minor] son of Mohammed Abubacker. After purchase, he has effected mutation in the revenue records. However, in declaration issued under Section 6 of the Act, published in Government Gazette dated 02.03.2011, the name of the petitioner was not included. It still contained the name of minor Abdul Sukkur. Section 6 declaration was not served on the petitioner. Proceedings under Section 5(A) had been dispensed with, by invoking Section 17(4) of the Land Acquisition Act. As the petitioner, is in possession, he sent a letter dated 14.10.2011 to R3, intimating the change in ownership of the property and requested him to give all intimations in respect of the acquisition of land at No.31, Neravy Village, comprised in Re.Survey No.182/3B admeasuring an extent of 23 Ares and 50 centiares.
3. Despite the Land Acquisition Office-cum-Deputy Collector (Revenue), Karaikal, being intimated, no information was given. Therefore, the petitioner sent another letter dated 29.06.2013, enclosing a photocopy of the earlier representation dated 14.10.2011 and the patta which stood in his name. Thereafter, a notice dated 13.09.2013 under Section 9(3) and Section 10 of the Land Acquisition Act, 1894, was served on 27.09.2013, by which the petitioner was informed that the Government have intended to take possession of the property. The petitioner was also directed to appear before the Land Acquisition Office-cum-Deputy Collector (Revenue), Karaikal, on 11.10.2013 at 10.00am and to give a statement in writing with all particulars, objections and claim for compensation.
4. Contending inter alia that when the petitioner was the owner of the subject lands, as on the date of declaration under Section 4(1) dated 05.11.2010 and Section 6 on 02.03.2011, respectively, and further contending that when mutation of revenue records had already been effected the respondents ought to have included the name of the petitioner in the abovesaid notifications and that he should have been given an opportunity of making his objections to the acquisition proceedings and that hearing under Section 5(A) of the Act, which is mandatory, Mr.K.M.Aasim Shehzad, learned counsel for the petitioner submitted that the respondents have failed to adhere to the mandate of Land Acquisition Act, thus violating the principles of natural justice, passed the award. He also submitted that though, Section 6 declaration was made on 02.03.2011 and published on 02.03.2011, award was not passed within two years, as mandated under the Act. Invocation of the urgency clause and dispensing with the enquiry under Section 5(A) has also been questioned. In support of the above contentions, learned counsel for the petitioner relied on the following decisions,
1.Narendrajet Singh v. State of U.P [1970 (1) SCC 125]
2.Sh Mehtab Chand v. The State of Punjab [1976 PLJ 104]
3.Bhama Ramamoorthy v. State of Tamilnadu [AIR 1977 Madras 272]
4.Nathe Singh v. State of Punjab [Manu/PH/0569/1983]
5.A.Soundarapandian v. State of Tamilnadu [AIR 1984 Madras 246]
6.Union of India v. Deepak Bhardwaj [AIR 2004 SC 3289]
7.Radhy Shyam v.State of Uttar Pradesh [2011 (5) SCC 553]
8.Darshan Lal Nagpal v. Government of NCT of Delhi [AIR 2012 SC 412]
9.Prabhawati and Ors v. State of Bihar and Ors [2013-12-SCALE-149]
5. Opposing the relief sought for in the writ petition, the Deputy Collector (Revenue), Land Acquisition Officer, Karaikal, in his counter affidavit, has stated that the lands in S.Nos.182/3B/2, measuring 0.11.34H in Neravy Revenue Village was acquired for the public purpose for formation of Western Bypass from Keelakasakudy through Thalatheru Kovilpatthu, Karaikal, Dharmapuram, Oduthurai, Akkaraivattam and Neravy revenue villages of Karaikal District vide notification in G.O.Ms.36, dated 22.9.2010, invoking urgency clause under Sec.17 of the Land Acquisition Act and dispensing with the 5A enquiry under Sec.17(4) of the Land Acquisition Act. Section 6 declaration was issued vide notification in G.O.Ms.62 dated 18.2.2011. He further submitted that the provision under section 17 of the Land Acquisition Act, was invoked in view of the necessity to have a bypass road which would facilitate diversion of vehicular traffic heading towards Thirunallar, Kumbakonam, Thiruvarur and Nagapattinam without touching the town. He has also stated that Site Selection Committee in the meeting convened on 02.09.2004, noticed that due to population growth and motors in Karaikal, which is the entry point of Velankanni, Chidambaram, Trichy, there is heavy flow of traffic, which resulted in traffic snarls, in view of the fact that the heave vehicles have to pass through Bharathiar Road, which is the centre of the town. The committee also felt that as Karaikal was developing commercially due to the arrival of big industries like ONGC, SPIC, Kothari, etc., raw materials were routed through the Bharathiar Road and therefore, it was absolutely necessary to have a bypass road to de-congest the traffice and also to minimize fatal accidents.
6. The Deputy Collector (Revenue), Land Acquisition Officer, Karaikal, has also submitted that 4(1) notification was issued in the name of Abdul Sukkur, for the reason that at the time of 4(1) notification the Revenue records stood in the name of Abdul Sukkur. Therefore, there is no infirmity in the 4(1) notification. Again at the time of Section (6) declaration, the revenue records reflected the name of Mr.Abdul Sukkur as pattadhar. Though, notification under Section 9(3) and 10 of the Land Acquisition Act, were served on the petitioner on 27.09.2013, directing him to appear for award enquiry, he did not appear.
7. Award under Section 17(3A) of the Land Acquisition Act for determining 80% of the compensation was passed on 31.10.1981 in Ref.No.10663/DC(R)/B1/2010. Thereafter, the compensation determined was directed to be deposited in the Civil Court under Section 31(2) of the Land Acquisition Act, by referring the matter under Section 30 of the said Act. According to the Deputy Collector (Revenue), Land Acquisition Officer, Karaikal, the four modes of publication of Section 6 declaration are as hereunder.
1.Tamil daily Dinakaran 02.03.2011
2.English daily Hindu 02.03.2011
3.Official Gazette No.24 02.03.2011
4.Affixture of Public notice - 31.10.2011, Within two years from the last mode of publication, award has been passed. Therefore, the respondent submitted that there is no manifest illegality in the impugned proceedings.
Heard the learned counsel for the parties and perused the materials available on record.
8. Material on record discloses that the petitioner has purchased the said property on 08.09.2009 under Document N0.1139 of 2009, registered on the file of Sub Registrar, Neravy. An officer, Settlement Branch, Karaikal, has effected mutation in the revenue records and accordingly issued patta bearing No.943 dated 12.02.2010 for the properties in S.No.182/3-B. Schedule of the property in Door No.31, is as follows:
brhj;J tptuk;
g[Jr;nrhp hpo/ eputp rg;o. eputp bfhk;a{d; g";rhaj;J. vz;/31. eputp fpuhkj;jpy; hPru;nt vz;/182-3gp. giHa ru;nt vz;/112. gl;lh vz;/526 gug;g[ 23 Mu; 50 rhe;jpahu; my;yJ 25286 rJu mo cila e";ir kl;Lk; fpuak;/ ,jw;F ehd;bfy;iy hPru;nt vz;/182-3V-2 nkw;F kw;Wk; bjw;F. tha;f;fhYf;Ff; fpHf;F. kw;Wk; tlf;F/ Patta bearing No.943, reads as follows:
gl;lh efy;
tl;lj;jpd; bgau; fhiuf;fhy; bfhk;a{d; eputp tUtha; fpuhkj;jpd; vz;Qqk; bgaUk; 31? eputp gjpthd epy chpikahshpd; bgau; KfkJ Ry;jhd; kiuffhu; j-bg/Kfk;kJ mg;Jy;yh kiuf;fhu; g[jpa epy msit vz; cl;gphpt[ vz;
juk;
vf;nlu; xd;Wf;Fj; jPu;it tPjk; gug;g[ jPu;it g[d;bra;
ed;bra;
U:/ ig/ v/M/rh/ v/M/rh/ U:/ ig/ 182 3-B 5 23/50 00?23?50 5/50 bkhj;jk;
00?23?50 5/50
9. 4(1) notification has been published in Government Gazette in G.O.Ms.No.36, Department of Revenue and Disaster management dated 22.09.2010. The notification, reads that lands are sought for public purpose viz., formation of western bypass from Keelakasakudy through Thalatheru Kovilpatthu, Karaikal, Dharmapuram, Oduthurai, Akkaraivattam and Neravy revenue villages of Karaikal District.
10. It is also stated that in exercise of the powers under sub-section 4 of Section 17 of the Land Acquisition Act, 1894, and in view of the urgency, the provisions of Section 5-A of the Act, would not apply. As pointed out, in so far as lands in S.No.182/3B/2, ryot wet, name of the owner is shown as Abdul Sukkur [Minor], S/o. Mohammed Abubackar, Guardian: mother Jainambukan. The extent of land mentioned in 4(1) notification is 11 Ares and 34 centiares.
11. Thus, from the above said two documents, it could be seen that though, lands measuring 11 Ares and 34 centiares in S.No.182/3B/2, have been shown as owned by Abdul Sukkur, stated as minor (in the 4(1) notification), son of Mohammed Abubackar, he has sold the said property to the petitioner, under Document No.1139/2009 dated 08.09.2009.
12. During the hearing of the writ petition, Mrs.Mala, learned counsel for Pondicherry was directed to get clarifications, as to how, 4(1) Notification, dated 05.10.2010, has been issued in the name of the erstwhile owner, Abdul Sukkur, despite modification of revenue records incorporating the name of the petitioner, as owner of the land, as early as on 12.02.2010, vide Patta No.943.
13. On instructions, she submitted that 4(1) notification has been issued on the basis of entries in the settlement register of the year 2007 and she therefore submitted that there is no manifest illegality in 4(1) notification. Return of unserved notices on the land owners by the Village Administrative Officer, Neravy Village to the Tahsildar, Taluk Officer, Karaikal, in connection with the proposed western bypass road, shows that out of nearly 55 notices, handed to the said Village Administrative Officer, with instructions to serve the same to the land owners in R.S.No.182/3B/2 as Abdul Sukkur [Minor], S/o Mohammed Abubackar, Guardian mother Jainambukan. When the notice was sought to be served on him, Mr.Abdul Sukkur, has refused to accept the notice. He seems to have replied to the Village Administrative Officer, Revenue, Neravy Village that the property has been sold. Therefore, the Village Administrative Officer, has made the following remarks, pattadhar sold the property and refused to accept the notice and disclose the information. Accordingly, he has sent an intimation on 20.12.2010. At Sl.No.26 of the return endorsement, the Village Administrative Officer, Neravi in the remarks column has stated as refusing to accept and to furnish details.
14. Thus, it could be seen that as early as on 20.12.2010, the respondents were very much aware of the sale of the property, sought to be acquired. But, the vendor did not furnish further details. Even as per the version of learned counsel appearing for Government of Pondicherry, when the notification under Section 4(1) was issued, the authorities have verified the details of the owners of the subject lands sought to be acquired only with reference to the settlement register of the year 2007 and not the other registers viz., Patta register, which clearly reveals that as early as on 12.02.2010, mutation has been effected in patta and that the petitioner has also been recognised as owner of the property in patta No.943.
15. When mutation of revenue records has been made, well before the issuance of notification under Section 4(1) of the Act and more particularly, when in exercise of the powers under sub section 4 of Section 17 of the Act, enquiry under Section 5-A is dispensed with, there is nothing to indicate that the writ petitioner was put on notice. Even in the publication of notification dated 02.03.2011, issued under Section 6 of the Act in G.O.Ms.No.62, Department of Revenue and Disaster Management, dated 02.03.2011 in respect of lands in R.S.No.182/3B/2, measuring 11 Ares and 34 centiares, the owner's name has been mentioned as Abdul Sukkur [minor], S/o.Mohammed Abubackar, Guardian mother Jainambukan.
16. Two letters dated 14.10.2011 and 29.06.2013 have been sent to the Officer in-charge of land acquisition proceedings as if the petitioner was totally unaware of all the process of acquisition, which had already been completed. On 14.10.2011, the petitioner has requested the officer incharge of the Land Acquisition, Karaikal, to forward all intimation to his address. There is nothing to indicate as to why, the petitioner should write a letter to the Land Acquisition Officer, to forward any intimation to him. So also in the subsequent letter, dated 29.06.2013, addressed to the Land Acquisition Officer, the petitioner has stated that he has not received any notices in respect of the proposed acquisition and that therefore, requested the authority to forward all the notices, pertaining to the acquisition of his lands and the subsequent compensation and relief guidelines. For better understanding, letter dated 29.06.2013, is reproduced hereunder REGISTERED WITH A/D MOUGAMADOU SOULTANE MARECAR, S/o. Mohammed Abdulamaricar, 65, Mastan Palli Street, Karaikal 609 602.
To The Officer in Charge of Land Acquisition, cum The Deputy Collector (Revenue), Office of the Deputy Collector, Karaikal 609 602 Sir, Sub: Land Acquisition.
Ref: 113-182/3 13/2 Rayat Nanchai Extension 0.11R.34CA.
Herewith enclosed please find for your king perusal the photocopy of my previous letter dated 14.10.2011 as well as that of the PATT of my land, a part of which 0.11R.34CA refered above is in the process of acquisition. Although more than a year and half passed by, I have not received any notice in respect of the proposed acquisition of my above referred land. I therefore request you to forward to my above address all your intimation and notices pertinent to the acquisition of my above land and the subsequent compensation and relief guidelines in the corridor of the highest justice.
Thanking you in advance sd/-
29.06.2013 Encl:
1.Photocopy of my previous letter dated 14.10.2011.
2.Photocopy of PATTA transferred in my name 12/02/2010
17. Inference that could be gathered from the reading of the abovesaid letter is that the petitioner came to know of the land acquisition proceedings initiated for formation of the Western bye pass road, but admittedly, not served with any notice, under the Act. When he was aware of the process of acquisition, as stated in the letter dated 29.06.2013, there are no materials to indicate as to whether he had taken any steps to know the stage of the acquisition. All though, the petitioner has sought for the details of the acquisition and subsequent compensation and the relief guidelines, the letter dated 29.06.2013 also indicates that the petitioner has not made any serious objections, to the process of acquisition. On the contra, it indicates that the petitioner wanted to know the details of the compensation and the relief guidelines. Though, the petitioner has indicated that a part of his patta land is in the process of acquisition there is no specific objection to it. In the case on hand, enquiry under Section 5-A has been dispensed with invoking the urgency clause under Section 17(4) of the Act.
18. By invoking the urgency clause under Section 17(4) of the Land Acquisition Act, 1894, the Government of Puducherry has issued G.O.Ms.No.36, Department of Revenue and Disaster Management, dated 22.09.2010, for acquisition of lands, specified therein, for formation of western bye-pass from Keezhakasakudy through Thalatheru, Kovilpathu, Karaikal, Dharmapuram, Oduthurai, Akkaraivattam and Neravy Revenue Villages of Karaikal District. Section 6 declaration has been issued, vide G.O.Ms.No.62, Department of Revenue and Disaster Management, dated 18.02.2011, declaring that the above lands have been acquired for the abovesaid purpose.
19. Perusal of both the 4(1) notification in G.O.Ms.No.36, Department of Revenue and Disaster Management, dated 22.09.2010 as well as Section 6 Declaration in G.O.Ms.No.62, Department of Revenue and Disaster Management, dated 18.02.2011, makes it abundantly clear that even after mutation of records, ie., patta issued in the name of the petitioner, as early as on 12.02.2010, without issuance of any notice to the owner of the subject property, acquisition has been made. The impugned notifications are issued, without providing a reasonable opportunity, in violation of principles of natural justice. On the sole ground, the Writ Petition is allowed, setting aside both G.O.Ms.No.36, S.MANIKUMAR, J., skm Department of Revenue and Disaster Management, dated 5.10.2010, in the Gazette of Puducherry and G.O.Ms.No.62, Department of Revenue and Disaster Management, dated 2.3.2011, in the Gazette of Puducherry, insofar as the schedule mentioned property, is concerned. It is open to the respondents to initiate proceedings in accordance with law.
19.07.2016 Index: Yes/No Internet: Yes/No skm To
1. The Special Secretary, Government of Puducherry, Department of Revenue and Disaster Management, No.505, Revenue Complex, Kamaraj Salai, Saram, Puducherry.
2. The Collector, District Collectorate, Karaikal District, Karaikal 609 602.
3. The Land Acquisition Officer-cum-
Deputy Collector (Revenue), Office of the Deputy Collector, Karaikal 609 602.
W.P.No.33245 of 2013