Madras High Court
Mrs.Goundathal vs Government Of Tamil Nadu Rep on 17 March, 2008
Equivalent citations: 2008 (6) ABR (NOC) 1207 (MAD.) = 2008 A I H C 2375, 2008 A I H C 2375 (2008) 3 MAD LJ 1339, (2008) 3 MAD LJ 1339
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17-3-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.18272 of 1998 ..... 1.Mrs.Goundathal 2.A.Kuppusami 3.Mrs.Palaniammal 4.Mrs.Meenakshi ... Petitioners vs. 1.Government of Tamil Nadu rep. By its Secretary Housing & Urban Development Department Fort St.George, Chennai 9. 2.Tamil Nadu Housing Board rep. By its Managing Director Nandanam, Chennai 600 035. 3.The Special Tahsildar (LA-I) Housing Scheme, Coimbatore 18. ... Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioners: Mr. Su.Srinivasan For respondents: Ms. D.Geetha Addl.Govt. Pleader .. ORDER
The writ petitioners challenge the notification issued under Section 4(1) of the Land Acquisition Act,1894 (Central Act I of 1894) (in short, "the Act") in G.O.Ms.No.670, Housing and Urban Development Department (LA 2), dated 31.7.1995 and also the declaration under section 6 of the said Act in G.O.Ms.No.422, Housing and Urban Development Department (LA 3-2) dated 26.9.1996 in respect of their lands measuring 0.90.5 hectares in S.F.No.15/2 situate in 19, Vellakinar village, Coimbatore North taluk, Coimbatore District.
2. According to the petitioners, the notification under section 4(1) of the Act was published on 31.7.1995 on the basis that the properties were required for public purpose of formation of Thudiyalur Neighbourhood Scheme. It was published in the Government Gazette on 13.9.1995. Thereafter, section 6 declaration was issued and published on 27.9.1996. The Tamil Nadu Housing Board is the requisitioning body for the Scheme. The names of the petitioners were found registered in the land records. In 5A enquiry, the petitioners filed their objections. However, according to the petitioners, there was no enquiry conducted as per section 5A of the Act and the objections raised by the petitioners were not forwarded to the requisitioning authority and the reply from the requisitioning authority has not been communicated to the petitioners and considered. Therefore, according to the petitioners, the enquiry conducted without notice under section 5A of the Act is not valid in law.
2(a). It is the further case of the petitioners that 4(1) notification has been issued in the name of Arukutti Gounder, who is the husband of the first petitioner and father of other petitioners, while section 6 declaration has been issued in the names of the petitioners as Legal Representatives of the said Arukutti Gounder. It is also the case of the petitioners that 4(1) notification was issued on 13.9.1995 while section 6 declaration was made on 26.9.1996 and therefore, it is beyond the period of one year and on that score also, the land acquisition proceedings are liable to be set aside.
2(b). In short, it is the case of the petitioners, as submitted by the learned counsel for the petitioners, that the properties originally belonged to Arukutti Gounder, husband of the first petitioner and father of other petitioners who died on 15.7.1988 and the fact of death was brought to the notice of revenue authorities when the mutation of records was made as early as on 11.2.1994 and therefore, the notification issued under section 4(1) of the Act in the Gazette dated 13.9.1995 which is in the name of a dead person is void ab initio.
2(c). The next contention is that the notice for enquiry under section 5A of the Act was also issued in the name of Arukutti Gounder, but served only on one of his legal representatives, viz., Kuppusamy on 10.11.1995, wherein he has made an endorsement to the effect that he received the notice as his father died. However, even thereafter, the respondents have not taken any steps to issue a modified notice under section 4(1) of the Act.
2(d). On the date of 5A enquiry, viz., 29.11.1995, the Village Administrative Officer has given the details about the land owners in the chart containing entries relating to mutation of records and even thereafter, no attempt was made to serve notice on all the petitioners who are the interested persons. Therefore, 5A enquiry without due notice which is a mandatory requirement and the consequential declaration under section 6 of the Act are not valid in law.
2(e). The participation of the second petitioner in 5A enquiry will not validate the initial illegality of section 4(1) notification and therefore, any award passed will also become invalid. The learned counsel for the petitioners would also rely upon various judgements viz.,
(i) Bhama Ramamoorthy vs. State of Tamil Nadu (AIR 1977 Madras 272);
(ii) State of Madras vs. Deivasigamani Pillai (AIR 1976 Madras 245);
(iii) P.C.Thanikavelu vs. Special Deputy Collector for Land Acquisition, Madras (AIR 1989 Madras 222);
(iv) Mrs.Chinthamani vs. Special Tahsildar for Land Acquisition (2000 (2) CTC 21); and
(v) Savithiriammal vs. State of Tamil Nadu (2006 (3) MLJ 389), to substantiate his contentions.
3. On the other hand, the learned Additional Government Pleader, by producing the files relating to the land acquisition proceedings, would submit that locality publication of notification under section 4(1) of the Act was effected on 6.10.1995 and declaration under section 6 of the Act was published on 27.9.1996 and therefore, the acquisition is well within the time. It is also her contention that the second petitioner has participated in 5A enquiry on behalf of the family of the petitioners and he is not a stranger and therefore, it cannot be stated that the enquiry is vitiated. It is also the case of the learned counsel for the respondents that the writ petition came to be filed on 16.11.1998, which is much after the award which was passed on 28.9.1998 and therefore, on the ground of laches, the writ petition is liable to be dismissed. She has produced the necessary files.
4. The learned counsel appearing for the Tamil Nadu Housing Board would also rely upon various judgements, viz.,
(i) Star Wire (India) Ltd., vs. State of Haryana (1996 (11) SCC 698);
(ii) The Municipal Council, Ahmednagar vs. Shah Hyder Beig (2000 (1) Supreme 146);
(iii) Urban Improvement Trust, Udaipur vs. Bheru Lal (2002 (7) SCC 712);
(iv) Ramalingam vs. The State of Tamil Nadu rep. By the Secretary to the Industries Department (2005 (3) CTC 1); (v) The Secretary, Tamil Nadu Housing Board, Nandanam, Madras-35 vs. State of Tamil Nadu rep. By the Commissioner and Secretary to Government, Housing and Urban Development Department, Chennai (2005 (3) CTC 666); and
(vi) S.Harshavardhan and another vs. State of Tamil Nadu rep. By the Secretary to Government, Industry Department, Chennai (2005 (3) CTC 691), to substantiate his contention that the writ petition filed after the award passed has to be dismissed on the ground of laches.
5. I have heard learned counsel for the petitioners and the respondents as well as perused the files.
6. In this case, it is seen that 4(1) notification was published in the Government Gazette on 13.9.1995. That apart, the same has been published in two newspapers, viz., 'Malai Murasu' and 'Pirpagal' on 15.9.1995 and 16.9.1995 respectively. The local publication has been effected on 6.10.1995. As it is seen from the certificates issued by the Executive Officer, Vellakinar Town Panchayat and also the Revenue Officer, Sub Registrar dated 6.10.1995, apart from the signatures of the residents obtained by the Village Administrative Officer on 6.10.1995, who has also signed, that 4(1) notification has been published by tom-tom and signatures have been obtained from the residents. Section 6 declaration was published on 26.9.1996. In view of the above said factual position as found in the files, the contention of the petitioners that the duration between 4(1) notification and section 6 declaration is more than one year is not sustainable.
7. In respect of the next contention regarding notice given for 5A enquiry, it is seen that 5A enquiry has been fixed on 28.11.1995 and 5A enquiry notice has been issued in the name of Arukutti Gounder. It is seen in page No.95 of the file that the second petitioner, A.Kuppusamy has received the notice for 5A enquiry with an endorsement that he is receiving the same since his father Arukutti Gounder died. The endorsement has been countersigned by the official of the Department on 10.11.1995. Page No.102 of the file which are the particulars furnished by the Village Administrative Officer contains an endorsement to the effect that since Arukutti Gounder died, his name was removed and the names of his legal heirs were included in reference No.MTR-2284/94-95 dated 11.2.1994. Therefore, as per the endorsement of the Village Administrative Officer which forms part of the records, the revenue records have been changed by removing the name of Arukutti Gounder and incorporating the names of his legal heirs as early as on 11.2.1994 which is much before 4(1) notification dated 13.9.1995. Therefore, on the face of the records produced by the respondents, it is clear that on the date of 4(1) notification, the factum of death of the owner of the lands viz., Arukutti Gounder was very much available on record and mutation of records by incorporating his legal heirs had been effected even on 11.2.1994 and in spite of the same, it is not known as to why the 4(1) notification was issued in the name of a dead person.
8. That apart, even while receiving 5A enquiry notice, as certified by the officials of the respondents on 10.11.1995, the second petitioner has himself informed the respondents about the death of original owner, Arukutti Gounder and in spite of the same, the respondents have not taken steps to issue any modified notification under section 4(1) of the Act. The contention that the second petitioner being the son has received notice for 5(A) enquiry in November,1995 and participated in the proceedings thereafter and waited till the award is passed on 28.09.1998 and moved this Court in November,1998 and therefore, he having knowledge about the acquisition proceedings even in 1995, which would make the writ petition liable to be dismissed on laches is not tenable on the facts of the case stated above regarding the death of the original owner and entry in the revenue records about his legal heirs.
9. It is no doubt true that the second petitioner has appeared for the award enquiry and made a statement on his behalf and on behalf of other petitioners and subsequently, the award came to be passed on 28.9.1998, but the issue to be decided in this case is, on the factual situation as stated above, whether the issuance of 4(1) notification in the name of a dead person, even after having knowledge about the death much before 4(1) notification is valid in law.
10. In a similar circumstance, a Division Bench of this Court consisting of P.Sathasivam,J. (as He then was) and V.Dhanapalan.J. in Savithri v. State of Tamil Nadu represented by Secretary to Government, Housing and Urban Development Department (2006 (3) MLJ 389), by referring to various case laws on the subject held that, in such circumstances, the entire acquisition proceedings are vitiated. The operative portion of the judgement is as follows:
" 4. We verified the Section 4(1) Notification, Section 5-A enquiry proceedings and Section 6 Declaration. As rightly pointed out, in the Notification and Declaration, it is stated that Thiruvenkatasamy is the owner of the lands in S.Nos.267/5 and 268/3. We have already referred to the written objection filed by the petitioner, who is none else than the daughter of the said Thiruvenkatasamy, to the effect that her father died on 6.3.1987. In such circumstances, it is but proper on the part of the Land Acquisition Officer to rectify the mistake in all the proceedings including Section 4(1) Notification. The Notification issued in the name of dead person is a nullity and the proceedings cannot be continued based on the said Notification.
5. This Court, in Muthusamy v. State of Tamil Nadu 1993 (1) MLJ 217; Devaraj v. State of Tamil Nadu 2003 (4) CTC 134; Asiya Mariyan v. Secretary to Government of Tamil Nadu 2000 (4) CTC 125; and in series of other decisions, held that Notice/Notification issued in the name of dead person and the proceedings with respect to the said lands cannot be sustained. By applying the said principle, we accept the contention of the learned counsel for the appellant and quash the Notification issued under Section 4(1), dated 14.6.1995. Consequently, Writ Appeal is allowed. No costs. Connected Miscellaneous Petitions are closed. It is made clear that the respondents are free to proceed with the acquisition if they so desire, by initiating fresh proceedings in accordance with law."
11. A Full Bench of this Court in P.C.Thanikavelu v. The Special Deputy Collector for Land Acquisition, Madras and another (AIR 1989 Mad 222) has held that in 5A enquiry if the enquiry officer is informed that the ownership of the land vests in a person not shown in the revenue records, the enquiry officer is bound to issue notice and hear such person, holding that such non-compliance would invalidate the proceedings, the principles of natural justice which is in-built in any law. The Full Bench has held as follows:
6. ........ In such cases, the statutory enquiry under S.5-A of the Act which has not been dispensed with, would be completed without affording a reasonable opportunity to the persons who have an existing right in the land under acquisition. Though it is incumbent upon the Revenue to keep their records up to date by effecting mutation of names reflecting the actual state of affairs by showing the persons really interested in the land in their records, yet in a few cases it may so happen that the revenue records are not made up to date and the person who is really interested in the land may not receive any notice from the Collector for the enquiry under S.5-A of the Act. In such cases, if it is brought to the notice of the Collector by the erstwhile land owner or by any other person including the present owner thereof, of the names of interested persons, the Collector as a statutory functionary cannot decline to afford an opportunity to the person who is really interested in the land and close the enquiry. When such information it brought to the notice of the Collector, it is needless to say that the principles of natural justice enjoin upon him an obligation to issue notice to the person who is found to be really interested in the land even though his name may not be found entered in the revenue records. It is true that the Government has the prerogative to acquire lands belonging to individuals for a public purpose sanctioned under the theory of 'eminent domain'. But the rule of law which governs and controls the executive functions in the thread that runs through the fabric of constitutional democracy, the rule of law behoves the Government to act fairly and reasonably and the principles of natural justice are the quintessence of such fair play and reasonableness. The decision reported in Padmavathi v. State of Tamil Nadu, (1978) 91 Mad LW 80 does not reflect the true statement of law. The Supreme Court has held in Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 that even in the absence of express reference to observance of principles of natural justice, such principles should be followed whenever it affects the rights of parties. It cannot be gainsaid that when the lands of an individual are acquired, albeit he may be paid compensation, his civil rights may be affected. It is therefore elementary that, to be consistent with the principles of natural justice, such a person should be put on notice before his lands are acquired and his objection heard and considered. The enquiry contemplated under S.5-A of the Act would be full and complete only when the person who is really interested in the land is put on notice. But, at the same time, it is made clear that individual notice is mandatory only to those persons whose names are found in the revenue records or who are found by the Collector as persons interested on information received through reliable source."
12. That was also the view taken by this Court in Mrs.Chinthamani and 2 others v. The Special Tahsildar for Land Acquisition and another (2000 (2) CTC 21). In such circumstances, on the factual situation, the reliance placed by the learned counsel for the Tamil Nadu Housing Board on the judgements of the Supreme Court regarding laches have no application, even though it is true that the award was passed on 28.9.1998 and the writ petition came to be filed in November, 1998 and the second petitioner was having knowledge about the proceedings even in November, 1995.
In such circumstances, necessary conclusion which one can come to is to hold that 4(1) notification which has been issued in the name of dead person even after having the knowledge about the death of owner of the lands, as found in the revenue records, has to be set aside and accordingly, the 4(1) notification as well as the consequential section 6 declaration are set aside and the writ petition stands allowed, however, with liberty to the respondents to initiate fresh acquisition proceedings, if so advised, in accordance with law. No costs.
kh To
1.The Secretary Government of Tamil Nadu Housing & Urban Development Department Fort St.George, Chennai 9.
2.Tamil Nadu Housing Board rep.
By its Managing Director Nandanam, Chennai 600 035.
3.The Special Tahsildar (LA-I) Housing Scheme, Coimbatore 18.