Madras High Court
Narayana Rajoo And Ors. vs The State Of Tamil Nadu And Anr. on 11 July, 1990
Equivalent citations: (1991)181MLJ1
ORDER Kanakaraj, J.
1. The petitioners purchased different parcels of land in Silayaneri village, Madurai Taluk for construction of residential houses for them. Only when the petitioners were served with notice under Sections 9(3) and 10 of the Land Acquisition Act, they became aware of the Land Acquisition proceedings in respect of their lands. The award enquiry was conducted on 17.6.1982 and the petitioners submitted their objections. It is the case of the petitioners that they had not been served with notices for the enquiry under Section 5-A of the Act. On enquiry, the petitioners came to know that the notification under Section 4(1) of the Act was published in the Gazette on 25.5.1977 and declaration under Section 6 was published on 21.5.1980. The writ petition is for the issue of a writ of mandamus, forbearing the respondents to proceed with the acquisition of their lands under Section 4(1) and the Declaration under Section 6.
2. A counter affidavit has been filed by the respondents. It is stated that the Notification under Section 4(1) was published in the Gazette on 25.5.1977. The names of the petitioners did not find a place in the notification because their names were not shown in the Revenue Records. The enquiry under Section 5-A of the Act was conducted on 10.8.1977 and 12.8.1977. The land owners did not turn up for the enquiry. The declaration under Section 6 was published in the Gazette dated 14.8.1980. The award enquiry was conducted on 13.3.1982. One Tmt. Muthulakshmiammal appeared at the enquiry and stated that the lands had been divided into 52 house-sites and sold to several persons, retaining for herself Plot Nos. 24, 25 and 26. It was stated by her that Plot Nos. 34 to 36 and 44 to 52 were sold to the petitioners on 20.6.1968. Therefore, there was a second award enquiry on 16.6.1982 and 17.6.1982 giving notices to the purchasers. On the complaint of the petitioners that notices had not been sent to them for the Enquiry under Section 5-A, it is stated that their names had not been shown in the Revenue Records and oh the question of publication of the notice under Section 4(1) of the Act in the locality, it is stated that the same had been published in the Taluk Office, the Collector's Office and the local Police Station on 14.7.1977. The petitioners having failed to take advantage of the publication of the notification in the Gazette and the locality and not having filed objections at the enquiry under Section 5-A, cannot maintain the writ petition.
3. Mr. S. Elamurugan, learned Counsel appearing for the petitioner, raises the following points on the aforesaid pleadings : (1) The publication of the notification under Section 4(1) in the locality is long after the publication in the Gazette and therefore the acquisition proceedings are vitiated. (2) The purpose of the acquisition, as seen from the notification under Section 4(1) and the declaration under Section 6 of the Act, is not very clear and therefore the said notification and declaration are vitiated for vagueness. (3) The declaration under Section 6 is not in accordance with law because, it is stated that the compensation is to be paid out of public revenue, whereas in respect of an acquisition for the Housing Board, it should be stated that the compensation is to be paid out of a fund controlled by the local authority. I am inclined to accept all the points raised by the petitioner because they are supported by binding authorities. On the first question, the notification under Section 4(1) was published in the Gazette on 29.4.1977, whereas the publication in the locality was on 14.7.1977. There is a long gap of 76 days between the two dates. The question is whether this long gap of time vitiates the acquisition proceedings. In Deepak Pahwa etc. v. Lt. Governor of Delhi and Ors. , the following passage lays down the law on the point:
3. It may be noticed at once that Section 4(1) does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the Official Gazelle or immediately thereafter. Publication in the Official Gazette and public notice in the locality are two vital steps required to be taken under Section 4(1) before proceeding to take the next step of entering upon the land under Section 4(2). The time factor is not a vital element of Section 4(1) and there is no warrant for reading the words "simultaneously' or immediately thereafter' into Section 4(1). Publication in the Official Gazette and public notice in the locality are the essential elements of Section 4(1) and not the simultaneity or immediacy of the publication and the Public Notice. But since the steps contemplated by Section 4(2) cannot be undertaken unless publication is made and public notice given as contemplated by Section 4(1), it is implicit that the publication and the public notice must be contemporaneous though not simultaneous or immediately after one another. Naturally, contemporaneity may involve a gap of time and by the very nature of the things, the publication in the Official Gazette and the public notice in the locality must necessarily be separately by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary, is that the continuity of action should not appear to be broken by a deep gap. If there is publication in the Gazette and if there is public notice in the locality, the requirements of Section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition. If the notification and the public notice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone.
4. In the instant case, the counter-affidavit says that the enquiry under Section 5-A of the Act was conducted on 10.8.1977 and on 12.8.1977. If the local publication was on 14.7.1977, the period of thirty days for filing objections expires only on 14.8.1977. In other words, even before the expiry of the time fixed for filing objections, the enquiry under Section 5-A had been conducted. Therefore, the proceedings are directly hit by the above observations of the Supreme Court of India.
5. The second contention is, the notification under Section 4(1) and the declaration under Section 6 of the Act are vague. I will quote the declaration which is more material for the purpose of acquisition proceedings.
Declaration: Under Section 6 of Land Acquisition Act, 1894 (Central Act I of 1894) the Governor of Tamil Nadu hereby declares that the lands specified in the schedule below and measuring 12.03 acres all the same a little more or less are needed for a public purpose to wit for the formation of Madurai North Neighbourhood Project in Madurai North Taluk, Madurai District. A plan of the lands is kept in the Office of the Special Tahsildar (L.A.), Madurai North, Neighbourhood Project, Madurai and may be inspected at any time during the office hours.
The notification under Section 4(1) is also in similar terms. It is seen from the said declaration that the purpose is mentioned as formation of Madurai North Neighbourhood Project. It is not even stated that the lands are needed for providing house-sites to the members of the public or for the formation of a residential colony. The Madurai North Neighbourhood Project may mean anything. It is now well-settled that the Land Acquisition Act being expropriatory should not only conform to the procedure prescribed under the Act but also be specific and afford reasonable opportunity to the landowners to submit their objections. From the above notification and declaration, it will not be possible for the land owners to submit their objections because they do not know for what purpose, the land is sought to be acquired. In Periaswamy v. The Special Tahsildar (Adi Dravidas Welfare), Virudhachalam and Anr. 1984 T.L.N.J. 21. Mohan, J. (as he then was) invalidated a notification because the word "Harijan" was omitted while describing the purpose of acquisition. The learned Judge has given adequate reasons why such small omissions in acquisition proceedings should be considered as fatal to the acquisition itself. For the third and the last submission made by the learned Counsel for the petitioner, he relies on the judgment of Mohan, J., (as he then was) in a batch of writ petitions in Madan Sundararaj v. The Government of Tamil Nadu represented by the Commissioner and Secretary to Housing and Urban Development Department, Madras-9 and Ors. W.P. No. 1326 of 1982 etc. The following passage clearly supports the argument of the learned Counsel for the petitioner:
It is no consolation to say that public revenue would mean either the revenue of the State or the revenue of a local authority. Such an argument ignores the well-settled position in law that a local authority is a local self-government being the creature of statute having its own seal and perpetual succession. In other words, the State revenues cannot be equated to the revenues of the local authority. That is why the Parliament in its wisdom created a sub-division in the case of an acquisition under Part II and categorically stated (i) wholly or partly out of public revenues: and (ii) or some fund controlled or managed by a local authority. If the argument of the learned Advocate-General is accepted, it will render the second limb of the Second Proviso to Section 6(1) of the Act, namely, "or some fund controlled or managed by a local authority" otiose. In other words, such an unwisdom cannot be attributed to the Parliament.
Again the learned Judge says as follows:
If, in law there is a clear distinction between the revenues of the State as opposed to the revenue of a local authority, it is that which should form part of the declaration in view of the legal requirement under the second proviso to Section 6(1) of the Act. That certainly is not the position here and, therefore, the declaration is not in accordance with the proviso to Section 6(1) of the Act.
6. For all the above reasons, I am constrained to allow the writ petition and invalidate the acquisition proceedings. The writ petition is allowed and the rule nisi is made absolute. There will be no order as to costs. It will be open to the respondents to initiate fresh proceedings in accordance with law.