Madras High Court
State Of Madras By The Secretary To ... vs Deivasigamani Pillai on 11 September, 1975
Equivalent citations: (1976)1MLJ278, AIR 1976 MADRAS 245, 1989 MADLW 170 (1976) 1 MADLJ278, (1976) 1 MADLJ278
JUDGMENT K. Veeraswami, C.J.
1. These appeals are from the orders of Palaniswamy, J., and Ramaprasada Rao, J. By a notification under Section 4 (1) of the Land Acquisition Act certain pieces of land were sought to be acquired for a public purpose, to wit, for the construction of a mutton and vegetable market. One of the survey numbers sought to be acquired, which both the appeals cover, is R.S. No. 238/IA-IA-IA/1. The description in the notification is as follows:
Natham Poramboke, R.S. No. 238-IA-I-A-IA/1, present enjoyers and interested persons: (1) Balakrishna Pillai, son of Andi Pillai, (2) Dhanammal, aged 10, (3) Rajeswari aged 7, (4) Sivapragasam aged 3, (Nos. 2 to 4 minors by guardian father No. 1)-0.13 acre (a thatched tea hotel and one well).
Objections were filed by the respondent that the land was not natham poramboke, but belonged to them. But these objections were overruled. There was a declaration under Section 6 on 30th August, 1967 which was published. Thereafter, on 28th May, 1968 an erratum to the declaration was published to the effect that what was sought to be acquired on the survey number was not the land itself but the thatched tea hotel and also well. It is this notification that was quashed by Palaniswamy, J. He found:
On the facts proved by the petitioner and found by the acquisition officer, it follows that the petitioner and his predecessors in title have been in possession of the land, upon which the present superstructure stands, for over the prescriptive period. The petitioner is thus entitled to both the land and the superstructure. What is sought to be acquired is only a part of his interest which is not contemplated under the Act. In this view, the entire acquisition proceedings including the notification under Section 4 have to be struck down as being incompetent.
In the appeals filed by the Government it is rightly contended that the learned Judge went outside the purview of the petition under Article 226 of the Constitution to decide a question of title as to land. From the excerpt from the judgment, it is obvious that the learned Judge did go into the question of title and gave a declaration that the land belonged to the respondent. This is entirely outside the purview of the petition. The question of title will have to be decided in the light of evidence, especially the question of possession, which could not be satisfactorily decided only on the basis of affidavits in support of the petition asserting or denying title. It is no doubt true that the Government sought to decide the objections and overrule the same after Section 4(1) notification and before the declaration under Section 6. We are not called upon to say whether this Was proper or not. But the erratum was only to the declaration. That would be wrong. What was sought to be acquired must normally find a place in the notification under Section 4 (1) and it not having been made clear in the notification that what was sought to be acquired was only the superstructure on the view that the land was natham poramboke, the notification itself Was bad and the mere erratum to the declaration will not cure this defect. On that ground we agree with the learned Judge that both the notification under Section 4 (1) and the declaration under Section 6 will have to be quashed. But the appeals are well-founded inasmuch as the learned Judge went outside the purview of the writ petitions and gave a declaration as to the ownership of the land. That is set aside. To that limited extent the appeals are allowed. No costs.