Madras High Court
Sakunthala And Anr. vs The Government Of Tamil Nadu And Ors. on 16 April, 1998
Equivalent citations: (1998)2MLJ453, AIR 1998 MADRAS 256, (1999) WRITLR 512, (1998) 2 MAD LJ 453, (1999) 1 LACC 168
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the land acquisition proceedings initiated by the respondents, the petitioners have filed the above writ petitions on various grounds.
2. In both the writ petitions the total extent involved in the acquisition proceedings is 12 cents. The lands in Survey Nos. 17/13 and 17/16 an extent of 6 cents owned by the petitioner in W.P. No. 3969 of 1991 and another 6 cents owned by the petitioner in W.P. No. 3976 of 1991 were sought to be acquired by Madras, Metropolitan Development Authority for widening Nesapakkam Road. In both the writ petitions even though the petitioners have raised several contentions, on the basis of various averments in the counter affidavit filed by the respondents, learned Counsel for the petitioner confined his submissions and raised the following points:
(i) There is no proper enquiry as per Section 5-A of the Land Acquisition Act, 1894 since Rule 3(b) of Land Acquisition (Tamil Nadu) Rules has not been followed.
(ii) The entire acquisition proceedings initiated against both the petitioners are liable to be quashed on the ground of mala fide action of the respondents.
3. On the other hand, learned senior counsel appearing for the third respondent has submitted that inasmuch as the petitioner did not submit their objections within 30 days as per Section 5-A(1) of the Land Acquisition Act, it is not open to the petitioners to contend that there is violation of Rule 3(b). He also submitted that the Land Acquisition Officer, 2nd respondent has conducted fair enquiry after giving proper opportunity to the petitioners.
4. I have carefully considered the rival submissions.
5. Since the main question is whether there was a proper enquiry under Section 5-A of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") and whether Rule 3(b) of Land Acquisition (Tamil Nadu) Rules (hereinafter referred to as "the Rules") has been followed or not, the other factual aspects are unnecessary; hence there is no need for me to refer the same.
6. The substance of Section 4(1) Notification was published in the Tamil Nadu Government Gazette on 16.8.1989. The same was published in Dhinamalar Newspaper on 17.8.1989 and local publication was effected on 2.9.1989. Section 5-A enquiry notice was served on the petitioner in person on 29.9.1989 fixing the date of 5-A enquiry as 26.10.1989. The Land Acquisition Officer received objection of the petitioner by registered post on 20.10.1989. The petitioner's objection was communicated to the requisitioning body on 23.10.1989. According to the respondents, the petitioner attended enquiry and gave statement on 16.9.1989. The petitioner's statement was communicated to Madras Metropolitan Development Authority for remarks on 18.11.1989. The requisitioning body, namely, Madras Metropolitan Development Authority, furnished their remarks on the objection on 5.12.1989. The same was acknowledged by the petitioner on 27.12.19?9. Petitioner submitted further objection on 29.1.1990 and thereafter orders were passed on 12.6.1990 and the petitioners received final order on 15.6.1990. As stated earlier, we are concerned with Section 5-A enquiry. The subsequent action of the respondents are irrelevant; hence there is no need to refer the same.
7. It is the contention of Mr. N. Jothi, learned Counsel for the petitioners that even though the petitioners did not submit their objections within 30 days from the date of publication of the notification as per Section 5-A(1) of the Act, inasmuch as the petitioners have submitted their objections on 20.10.1989 i.e., prior to the date fixed for 5-A enquiry, the Land Acquisition Officer ought to have fully complied with the provisions adumberated in Section 5-A of the Act as well as Rule 3(b) of the Rules. On the other hand, Mr. A.L. Somayaji, learned senior counsel for the third respondent, contended that inasmuch as the last date of publication being 2.9.1989, the petitioners ought to have submitted their objections if any within 30 days i.e., on or before 1.10.1989 and having filed the objection beyond 30 days i.e., on 20.10.1989, it is not open to the petitioners to contend that there is violation of Rule 3(b).
8. In order to appreciate the rival contentions, it is useful to refer the relevant provisions of the Land Acquisition Act, which run as follows:
5-A Hearing of objections: (1) Any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall after, hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, Sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.
Before considering the case of both the parties with reference to the above provision, I shall consider the various decisions referred to by both the counsel.
9. Mr. N. Jothi has very much relied on the decision of K.S. Palaniswamy, J., reported in Sinnaiyan v. Union Territory of Pondicherry . There is no dispute that this is the earliest judgment on this point. The learned Judge, after considering Section 5-A of the Act and 3(b) of the Rules has concluded thus:
6. From this Rule, it would be seen that the objector gets an opportunity to know, at the time of the enquiry, what answer if any, the company or the department, for whom the acquisition is proposed to be made, has given with regard to his objections. On coming to know at the time of enquiry how the objections are sought to be met by the company or the concerned department, the objector gets an opportunity to adduce evidence in support of the objections. If the company or the concerned department has nothing to say in answer to the objections, the objector might urge before the Acquisition Officer that the objections should be accepted as they are not controverted, though it would be open to the Acquisition Officer on an appreciation of all the facts, either to accept or reject the objections. Such a procedure is laid down with a view to giving the owner of the land every reasonable opportunity to urge his objection against the proposed compulsory acquisition. In the instant case, the petitioner had no opportunity to know the answer given by the concerned department which is referred to by the Acquisition Officer in his report sent to the Government. As already pointed out, the time given to the petitioner to file their objections expired on 10th May, 1969, on which date the enquiry itself was posted. The records do not show that the enquiry was adjourned from 10th May, 1969 to some other date and that on the adjourned date the objections were examined in the light of the answer of the concerned department. On the other hand, the records show that the enquiry was concluded on 10th May, 1969, itself. Therefore, it was impossible for the Acquisition Officer to have known on that date what the concerned department had to say in answer to the objections of the petitioners. Thus, the mandatory provisions contained in Rule 3 were violated as the enquiry was not conducted in accordance with the said Rule. The gravemen of the charge of the petitioners is that they had no reasonable opportunity of making their representations. No doubt, they did appear before the Acquisition Officer on 10th May, 1969, and gave a statement reiterating their objections already filed. But the enquiry was not conducted in the manner laid down in the rules. The acquisition proceedings is, therefore, vitiated and is liable to be quashed.
10. The other decision cited by him in the judgment of Nainarsundaram, J., (as he then was) reported in Kadirvelu Mudaliar v. State of Tamil Nadu 1987 Writ L.R. 182. In respect of the very same provisions, His Lordships after considering earlier decisions of this Court has concluded thus:
Rule 3(b) and (c) read as hereunder:
(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 of hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not the Revenue Department. 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 his pleader and the representative, if any, of the department or company and record any evidence that may be produced in support of the objections.
4. Compliance with the said rule has been held to be mandatory by this Court in a number of pronouncement and on the ground of non-compliance, acquisition proceedings have been struck down. In Krishna Iyer v. State of Madras , Ramakrishnan, J., appreciated the significance of compliance with this Rule and among other grounds, finding that the requisitioning authority was not informed of the enquiry struck down the acquisition proceedings. 4. In Sinnaiyan v. Union Territory of Pondicherry , K.S. Palaniswamy, J., also stressed upon the significance of compliance with this Rule and held the provision to be mandatory, violation of which will lead to the court holding the acquisition proceedings as vitiated and liable to be quashed.
5. In Krishnaswami Gounder v. State of Tamil Nadu W.P. No. 3386 of 1971, order dated 10th August, 1973, Ramaprasada Rao, J., as he then was, dealt with a case where the copy of the remarks of the requistioning body was not furnished to the owner and the learned Judge opined that the copy of the remarks of the requisitioning body should be furnished to the owners of land and failure to do so vitiated the acquisition proceedings, which in that case had come up to the stage of holding at the Award Enquiry. This is what the learned Judge said:
In the instant case under consideration also the Land Acquisition Officer, after having obtained the remarks by the body interested in the acquisition did not make them known to the person interested; nor did he serve him with a copy of the remarks made in the instant case by the Municipality. Such a latch in the procedure is in the teeth of the prescriptions which are mandatory, and which are provided for in Rule 3 of the Rules made under the Land Acquisition Act. As the enquiry was not undertaken in accordance with the mandates in the Rule, read with Section 5-A of the Act, I am inclined to accept the contention of the learned Counsel for the petitioner that the peculiar circumstances of this case, the process of acquisition cannot be said to have been properly and regularly set in motion. There is an error apparent in record as stated above. Without noticing this error, the process was furthered, resulting in a declaration being made under Section 6 and an award enquiry also held for the purpose under Sections 9 and 10 of the Act. But as I am of the view that the enquiry under Section 5-A is by itself vitiated, in that the Officer did not follow the prescribed intent of Rule 3 of the Rules, the furthering of the process by the statutory authorities under the Land Acquisition Act cannot be availed of to sustain an activity the course of which is not in accordance with the law. In these circumstances, all those proceedings including the declaration under Section 6 of the Act made by the State Government are struck down. If the State is inclined to further the Land Acquisition in the instant case on the ground that the petitioner's land is still needed for a public purpose, they may start, a fresh enquiry under Section 5-A of the Act and thereafter conduct the enquiry in accordance with the Rules, to wit, Rule 3 and other Rules and proceed thereafter, if they are satisfied, to issued a declaration under Section 6.
6. In Balasubramaniam v. State of Tamil Nadu, W.P. Nos. 2876 to 2880 of 1975, etc., Batch order dated 29th June, 1976, Ramanujam, J., dealt with a case where the remarks of the requisitioning body were obtained after the enquiry under Section 5-A and the owner was not offered an opportunity to make his representations over these remarks and the learned Judge held the rule to be mandatory and since there was a violation of the same, struck down the acquisition proceedings. The learned Judge took note of the pronouncement of the Supreme Court in State of Mysore v. V.K. Kangan and Ors. 1976 S.C.W.R. 15 to hold the rule to be mandatory.
7. In Alagammal v. State of Tamil Nadu W.R. No. 2732 of 1983 etc., Batch Order dated 1st September, 1983, Mohan, J., followed the ratio of K.S. Palaniswamy, J., in Sinnaiyan and Ors. v. The Union of Pondicherry and Anr. and quashed the acquisition proceedings. The very same learned Judge in Bangarusamy Reddy v. State of Tamil Nadu W.P. No. 2339 of 1981, Order dated 5th December, 1983 upheld a similar contention and quashed the acquisition proceedings up to the stage of the notification under Section 4(1) of the Act. Coming to the facts of the present case, on the date when the enquiry under Section 5-A was held, namely, 12th December, 1975, the remarks of the requisitioning body were not obtained, much less furnished to the petitioner to afford him an opportunity to make his representation over the same and the remarks of the requisitioning body were obtained on 25th March, 1978 long after the enquiry under Section 5-A and even though these remarks were communicated to the petitioner, there was no fresh enquiry held to find out the tenability or otherwise of the prosecution of the acquisition proceedings on the basis and consideration of the objections of the petitioner, the remarks of the requisitioning body and the further representations of the petitioner over the remarks. Hence, it has got to be held that the mandate of the Rule stood violated. This obliges this Court to discountenance the prosecution of the acquisition proceedings after the stage of notification under Section 4(1).
11. The other decision referred to by the learned Counsel for the petitioners is the decision of Govindasamy, J., reported in Lakshmiammal v. State of Tamil Nadu (1991) 1 M.L.J. 549. The conclusion of the learned Judge is in the following manner:
With reference to the contention put forward by the learned Counsel for the petitioner that he was not given sufficient opportunity to participate in the enquiry held under Section 5-A of the Act by reason of the fact that there was no notice to the petitioner, it is stated that the petitioner is the owner of the land in question and that his name appears in Section 4(1) Notification and consequently there won't be any difficulty in causing the notice for enquiry being served on the petitioner. In this behalf learned government Advocate contended that by reason of the failure to raise objections with reference to the acquisition, the petitioner was not given due notice. Section 5-A enquiry is a statutory enquiry and the petitioner has got every right to participate in the enquiry and he should be given adequate opportunity so as to enable him to participate in the enquiry. There is no dispute in the instant case that the petitioner has not been given adequate opportunity to participate in the enquiry held under Section 5-A of the Act by the Land Acquisition Officer. The fact that the petitioner who has got every right to participate in Section 5-A enquiry has been deprived of such opportunity vitiates the entire proceedings. The explanation offered by the Government Advocate in the stated circumstances cannot be adequate to satisfy the requirement of principles of natural justice.
12. The last decision referred to by the learned Counsel for petitioner is Ramanujam, N.D. v. Collector of Madras and two others 1994 Writ L.R. 326. In that decision, the Division Bench consisting of Srinivasan, J., (as he then was) and Abdul Hadi, J., with regard to Rule 3(b) has concluded thus:
One other submission made by learned Counsel for the petitioners in both the writ petitions is that the mandatory requirements of Rule 3(b) framed by the Government of Tamil Nadu under Section 55(1) of the Act, have not been complied with. In this regard, both the counsel rely on Kadirvelu Mudaliar v. State of Tamil Nadu 1987 Writ L.R. 182. The said Rule 3(6) provides as follows:
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 of hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not the Revenue Department. 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.
The said decision of this Court also held, following earlier decisions, as follows:
Coming to the facts of the present case, on the date when the enquiry under Section 5-A was held, namely, 12th December, 1975, the remarks of the requisitioning body were not obtained much less furnished to the petitioner to afford him an opportunity to make his representation over the same and the remarks of the requisitioning body were obtained on 25th March, 1978 long after the enquiry under Section 5-A and even though these remarks were communicated to the petitioner, there was no fresh enquiry held to find out the tenability or otherwise of the prosecution of the acquisition proceedings of the basis and consideration of the objections of the petitioner, the remarks of the requisitioning body and the further representations of the petitioner over the remarks. Hence, it has got to be held that the mandate of the Rule stood violated. This obliges this Court to discountenance the prosecution of the acquisition proceedings after the stage of notifications under Section 4(1).
In the present case, in the counter that has been filed in W.P. No. 10420 of 1985 it has been averred as follows:
Regarding paras 6 and 7 of the affidavit it is submitted that the 5-A enquiry which was posed to 30.10.1982 was adjourned to 10.11.1982 on the request of the advocate for the writ petitioner. No representative or the writ petitioner has appeared for enquiry on 10.11.1982 as contended in the writ petition. But the writ petitioner has sent his objections in writing by a letter dated 8.11.1982 which was sent to the Commissioner, Corporation of Madras for remarks and the reply obtained.
It has also been averred subsequently in para. 22 thus:
Regarding ground (1) it is submitted that the objections of the writ petitioner during 5-A enquiry were examined and the opinion of the Commissioner, Corporation of Madras was also obtained. The objections were overruled vide this office proceedings K1.114/82 dated 8.2.1983 and then only further action taken to send Draft Declaration to Government.
From this, what can be gathered is only that the objections of the petitioner in W.P. No. 10420 of 1985 by his letter dated 8.11.1982 were sent to the Commissioner of Corporation of Madras for remarks and that reply was obtained from the Commissioner. But, it is not mentioned in the counter-affidavit when actually the said objections were sent to the Commissioner of Corporation of Madras and when actually the abovesaid reply was obtained. That apart it is also not averred whether the said reply was communicated to the petitioner and whether there was continuation of Section 5-A enquiry pursuant to the abovesaid reply received from the Commissioner. The only allegation is that after the enquiry on 30.10.1982 when the matter was adjourned to 10.11.1982, the petitioner did not appear for enquiry on 10.11.1982. There is no record to show that the reply of the requesting authority was communicated to the petitioners. That there was no Section 5-A enquiry after the abovesaid reply was received from the Commissioner, Corporation of Madras. Therefore, it is clear that the requirements of Rule 3(b) have not been fully complied with. This finding applies in W.P. No. 4836 of 1987 also. As already noted, there also, in the affidavit in support of the said writ petition, the petitioner raised specifically the contention thus:
The mandatory requirement of Rule 3(b) has not been followed in that on the objections raised by the petitioner, the remarks offered either by the Corporation or by M.M.W.S.S. Board has not been communicated to the petitioner nor an enquiry has been conducted giving an opportunity of personal hearing to the petitioner.
In this, and in fact to the other factual contention raised in the said supporting affidavit, there is no counter-affidavit at all filed by the respondents, nor learned Counsel for the respondents could demonstrate to us through the relevant files that the abovesaid requirements have been strictly followed as stated above. As noted already, this Court has repeatedly observed that after the remarks of the requisitioning body were obtained, they should be communicated to the petitioner and there should, thereafter, be an enquiry under Section 5-A to find out the tenability or otherwise of prosecution of acquisition proceedings on the basis of the consideration of the objections of the petitioner, the remarks of the requisitioning body and further representations of the petitioner over the remarks. Therefore, we have necessarily to hold that the mandate of the abovesaid rule stood violated in the present case also.
13. On the other hand, Mr. Somayaji, learned senior counsel has very much relied on the decision of this Court reported in Government of Tamil Nadu v. Ramaswami I.L.R. (1996) 2 Mad. 299. Their Lordships in that Division Bench decision have concluded thus:
Therefore, we are of the view that in cases other than those wherein the objections received from the person interested were beyond the time stipulated in Section 5-A(1) of the Act, conducting of an enquiry with an opportunity to the person interested alone to substantiate his objections would constitute sufficient compliance and the failure to follow the special procedure and method of enquiry visualised in Rule 4(b) of the Rules will not vitiate the Section 5-A enquiry or the declaration which followed the enquiry held otherwise than in accordance with Rule 4(b) of the Rules.
14. The other decision referred by him is the decision of the Supreme Court reported in Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors. . He very much relied on the following passage which reads as follows:
...The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
15. Now in the light of the above mentioned legal decision, I shall consider the merits of both parties. There is no dispute that 5-A enquiry was fixed on 26.10.1989. Admittedly the said enquiry did not take place. Likewise, even at the beginning the learned Government Advocate appearing for respondents 1 and 2 and learned senior counsel for third respondent fairly conceded that no further 5-A enquiry after 26.10.1989. It is true that as per Section 5-A(1) any person interested in any land which has been notified under Section 4(1) may raise an objection within 30 days from the date of publication of the Notification. In our case, the last mode of publication is the local publication which took place on 2.9.1989. Admittedly the petitioners submitted their objections on 20.10.1989, i.e., beyond 30 days period fixed in Section 5-A(1) of the Act. By relying on Sub-section 2, it is contended on the side of the respondents that inasmuch as the petitioners failed to submit their objections within 30 days as per Sub-section (1), there is no need to comply with Rule 3(b) of the Rules or any further enquiry as stated therein. I have already extracted Rule 3 (b) and (c) of the Rules framed under Section 55(1) of the Land Acquisition Act. It is true that in the Division Bench decision, viz. I.L.R. (1996) 2 Mad. 299, their Lordships have categorically held that if the person interested failed to submit his/her objection within 30 days the Land Acquisition Officer is expected to conduct an enquiry under Section 5-A only and it is not open to the interested person to contend that there is a violation of Rule 3(b). With respect I am in agreement with the said proposition of the Division Bench and I am bound by the same. However, had the Land Acquisition Officer by pointing out Section 5-A(1) of the Act, rejected the objection of the petitioners or conducted an enquiry without forwarding the same to the requisitioning body as per Rule 3(b), the result would have been different. In other words, if such procedure is followed by the Land Acquisition Officer, the contention of the learned Counsel for the petitioner has to be rejected even at the threshold. Here, after receiving the objection of the petitioners on 20.10.1989, the said objection was communicated to the requisitioning body on 23.10.1989. After getting another statement on 16.11.1989, the same was forwarded to the Madras Metropolitan Development Authority for their remarks on 18.11.1989. The Madras Metropolitan Development Authority have furnished their remarks on the objections of the petitioners on 5.12.1989. On receipt of the remarks of the Madras Metropolitan Development Authority on 27.12.1989, the petitioners submitted further objections on 29.1.90. Thereafter, the Land Acquisition Officer failed to conduct further enquiry i.e., 3(b) enquiry. I have already observed that admittedly there is no such enquiry in terms of Rule 3(b) or any enquiry after 2.9.1989. If that is so, the law laid down by the Division Bench of this Court reported in 1994 Writ L.R. 326 is directly applicable to the facts of this case, hence Section 5-A enquiry cannot be sustained. Inasmuch as the Land Acquisition Officer accepted and acted on the objections of the petitioner submitted on 20.10.1989 and forwarded the same to the requisitioning body for remarks and again communicated the remarks to the petitioners, I am of the view that in the light of the scheme of the Act and Rules, it is presumed that the Land Acquisition Officer has waived the default if any in submitting objection as per 5-A(1) of the Act. As a matter of fact, Form B which is a notice issued under Section 5-A of the Land Acquisition Act enables the land owner to submit his objection within a prescribed time (in our case 30 days) and it is also open to the land owner to appear in person or by a person authorised in this behalf or by a pleader and he can adduce any oral or documentary evidence in support of the said objections. A perusal of Notice under Form B under Section 5-A of the Act shows the intention of the Legislature. Even at the time of 5-A enquiry if the land owner has any further objection, it is open to him to raise the same, or file it in the form of written representation or it is open to the pleader to represent the land owner and also place relevant documents in support of the objections. When such opportunity is there, coupled with the conduct of the Land Acquisition Officer in our case in accepting the objection of the petitioner and forwarding the same to the requisitioning body for remarks and again communicated the remarks to the petitioner, their objections cannot be rejected on the sole ground that they were not filed within 30 days as per 5-A (1) of the Act. In view of the peculiar factual position, the conduct of the Land Acquisition Officer, it is not open to the respondents to take advantage of the decision of the Division Bench rendered in I.L.R. 1996 Mad. 299. The observation of their Lordships in is with reference to interim orders in land acquisition matters. No doubt, Their Lordships have cautioned the courts in interfering the land acquisition matters liberally by exercising powers under Article 226 of the Constitution. However, when there is a violation of statutory provisions which are also mandatory one it is always open to this Court to interfere and set right the position. Hence, the observation in the decision of the Supreme Court would not preclude this Court from interfering in the present case. Further, I have already extracted the decision of their Lordships Palaniswamy, J., Nainarsundaram, J., (as he then was) and Govindaswamy, J., with regard to Section 5-A enquiry and Rule 3(b) of the Rules.
16. Before winding up regarding filing of objections by the aggrieved land owners before the Land Acquisition Officer, it is worth-while to mention the following observation of the Division Bench of Gujarat High Court in a decision reported in State v. D.F. Mukhi A.I.R. 1975 Guj. 68. Their Lordships considered Section 5-A of the Act. No doubt, one distinction is that there is a Rule framed by the Gujarat Government, for condonation of delay in filing objection within the prescribed period, In that case, the land owner did not submit his objection within 30 days. In this context, Their Lordships have concluded thus:
...The essence of the matter is giving of such opportunity, not giving it within a particular number of days. There is no conceivable virtue or merit in affording a hearing "within" thirty days. It is not as if the period of thirty days is of mystical significance and is surrounded by some magic halo. No principle or policy underlies the selection of the period. Some time-limit has to be provided for the sake of convenience and that is why the tenure of 30 days was hit upon. There is no rationale underlying the selection of this particular period. It is not as if the success or failure of the objections or the validity of the decision on this question turns on whether or not the objections are lodged within these 30 fateful days. We do not detect any "logos" or "etos", in investing a "now-or-never" significance to this period. The party whose lands are placed under acquisition, it is true, may not have an unrestricted right to lodge objections beyond the time limit of 30 days embodied in Section 5-A. But that time-limit operates as a limitation on the right of the party and not as a limitation on the power of the Collector to hear the objections. Surely, the party whose lands are under acquisition cannot question the power of the Collector to hear the objections on any conceivable rational ground notwithstanding the fact that they have not lodged any such objections? Surely a party cannot be reasonably expected to object to his being dealt with fairly and his being afforded an opportunity to show cause against the proposed acquisition notwithstanding the expiry of the dead line for filing objections? Even if the rules had not provided for extension of the time-limit, under no principle of law could it have been said that the Collector acted in violation of the principles of fair-play in affording him such an opportunity. All that the Collector does by extending the time-limit of 30 days is to pay homage to the principles of natural justice and no more. He does a good turn to the land owner, not an evil act. Even if the rules are silent, the courts usually read into the relevant provisions the principles of fair-play and natural justice and insist on compliance with such principles notwithstanding the fact that there is no positive command by the Legislature. Is it not therefore futile (it certainly is) to canvass that the Collector has no legal jurisdiction or competence to hear the person whose land is proposed to be acquired merely because the time-limit for lodging such objections has expired?
With respect I am in entire agreement with the view expressed by their Lordships. By giving such an opportunity to the land owner by applying the principles of fair-play and natural justice they must be provided with full opportunity and the provisions of the Act and Rules must be strictly and fully complied with.
17. I have already observed that there is no enquiry after 26.10.1989 (this position has already been conceded); hence in the light of what is stated above, I hold that the mandate of Rule 3(b) of the Rules stood violated in the present case, and there is no full-fledged enquiry in terms of Section 5-A of the Act. Inasmuch as I am accepting the first contention of the learned Counsel for the petitioners, there is no need to consider the second contention.
18. Therefore, in both the writ petitions the entire acquisition proceedings after the stage of 4(1) Notification is quashed and accordingly, these writ petitions are allowed in part. It is open to the respondents to conduct fresh enquiry under Section 5-A of the Act in accordance with law. No costs.