Madras High Court
Tmt.G.Saroja vs The Government Of Tamil Nadu on 2 December, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 2.12.2010
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
W.P. Nos.761,762,763,764 and 765 of 2010, W.P.Nos.13287,13288 and 13289 of 2009, W.P.Nos.29223,29224,29225,29226,29227 and 29228 of 2007, W.P.No.29315 of 2007, W.P.No.27926 of 2007,
W.P.No.28522 of 2007, W.P.No.4362 of 2010,
W.P.Nos.2940,2941,2942,2943,2944,2945,2946,2947
and 2948 of 2010, W.P.No.3924 of 2010, W.P.No.3925 of 2010, W.P.Nos.11383, 11384, 11385,11386,11387 and 11388 of 2008,
W.P.Nos.11389,11390,11391,11392,11393 and 11394 of 2008, W.P.Nos.7641,7642,7643,7644,7645,7646,7647,7648, 7649,7650,7651,7652 and 7653 of 2008, W.P.No.7495 of 2010, W.P.No.19482 of 2009, W.P.No.14496 of 2010, W.P.Nos.11395,11396,11397,11398,11399,11400 of 2008, W.P.Nos.11401,11402,11403,11404 and 11405 of 2008, and W.P.No.18374 of 2010
and
M.P.Nos.1 to 1 of 2010,M.P.Nos.2 to 2 of 2010,
M.P.Nos.1 to 1 of 2009, M.P.Nos.1 to 1 of 2010
M.P.Nos.1 to 1 of 2007, M.P.Nos.1 to 1 of 2008, M.P.No.1 of 2007, M.P.No.1 of 2007, M.P.No.1 of 2007, M.P.No.1 of 2010 and M.P.No.2 of 2010, M.P.Nos.1 to 1 of 2010, M.P.No.2 to 2 of 2010, M.P.No.2 of 2010, M.P.Nos.1 and 2 of 2010, M.P.Nos.1 to 1 of 2008, M.P.Nos.2 to 2 of 2008, M.P.No.3 of 2008 and M.P.No.4 of 2008 and M.P.Nos.3 to 3 of 2010, M.P.Nos.1 to 1 of 2008, M.P.Nos.2 to 2 of 2008, M.P.Nos.3 to 3 of 2010, M.P.Nos.1 to 1 of 2008, M.P.Nos.3 to 3 of 2010, M.P.No.2 of 2010, M.P.No.1 of 2009, M.P.No.2 of 2009, and M.P.No.2 of 2010, and M.P.Nos.2 to 2 of 2008, M.P.Nos.2 to 2 of 2008 and M.P.No.2 of 2010
W.P.No.761 of 2010:
Tmt.G.Saroja .. Petitioner
vs.
1. The Government of Tamil Nadu
rep. By its Secretary
Housing and Urban Development
Fort St. George, Chennai 9
2. The Chennai Metropolitan Development Authority
Rep. by its Member Secretary
No.8, Gandhi Irwin Road, Egmore
Chennai 8
3. The Special Commissioner
and Commissioner of Land Administration
Chepauk, Chennai 600 005
4. The District Collector
Thiruvallore District
Thiruvallore
5. The Special Tahsildar (LA)
Plan-IV, Outer Ring Road
CMDA, No.8, Gandhi Irwin Road
Egmore, Chennai -8
6. The Pallavan Consultancy Services Ltd.,
rep. by its Managing Director
CMDA Building, Egmore,
Chennai-6 .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the entire records on the files of the fourth and third respondents respectively pertaining to notification issued by the fourth respondent under Section 4(1-A) of the Land Acquisition Act, 1894, published in Thiruvallur District Gazette on 24.1.2007, and the notification issued by the 3rd respondent published under Section 6 of the Land Acquisition Act, 1894 published in the Tamilnadu Government Gazette Part-VI Section-1 on 15.3.2008 and quash the same in so far as the lands of the petitioner comprised in survey No.8/7 of Thiruninravur Village, Poonamallee Taluk and Thiruvallur District is concerned and to direct the respondents 1 and 2 to form the Outer Ring Road through the alternate alignment passing through the M.G.R.Nagar, Uzhaippalar Nagar and Srivignarajan Nagar etc., situate in Survey Nos.3, 4, 6, 18, 198, 484, 485, 541, 542, and 308 etc., of the said Thiruninravur Village as alternatively proposed by the sixth respondent.
For petitioner : Mr.N.Subramaniyan
For respondents : Mr.P.S.Raman
Advocate General assisted by
Mr.M.Dhandapani
Special Government Pleader (W)
Land Acquisition for R1, R3 to R6 Mr.D.Veerasekaran for R2
(CMDA)
C O M M O N O R D E R
Since, the issues arising for consideration and the facts and circumstances of all the writ petitions are similar in nature, a common order is passed.
2. The main challenge in the above writ petitions relates to the notifications issued by the District Collector, Thiruvallur District, under Section 4(1) of the Land Acquisition Act, 1894, published in the Thiruvallur District Gazette, and the notifications issued by the Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai, under Section 6 of the Land Acquisition Act, 1894, published in the Tamil Nadu Government Gazette, Part-VI-Section 1, to acquire the lands of the petitioners for the public purpose of forming the Outer Ring Road, under the Outer Ring Road Project, proposed by the Government of Tamil Nadu. Some of the petitioners have also prayed for a direction to direct the respondents to form the Outer Ring Road by opting for the alignment passing through the lands in survey numbers, including S.Nos.3,4,6,18,198,308,484,485,541 and 542, of M.G.R.Nagar, Uzhaippalar Nagar and Srivignarajan Nagar etc., and other adjoining areas of Thirunindravur Village, as proposed by the Pallavan Consultancy Services Ltd., Egmore, Chennai.
3. It has been stated that the lands comprised in S.Nos.2, 3, 5, 7, 8, 9, 16, 17, 20, 21 and 22 are classified as residential areas. Several residential buildings had been constructed in the said areas and they have been in existence for several decades. Based on the approval obtained from the Chennai Metropolitan Development Authority, a large number of residents have been living in the said buildings for a number of years. The website of the Registration Department reveals that the areas in question have been classified as 'residential zone' and the guide line values for the lands therein, during the relevant period, prior to 1.8.2007, had varied from Rs.52/- to Rs.128/- per sq.ft. While so, the petitioners had come to know, from the newspaper reports, that the Government of Tamil Nadu has proposed to construct the Outer Ring Road between Vandalur and Minjur.
4. As per the report, it had been learnt that the Government of Tamil Nadu had proposed to form the Outer Ring Road, between the Vandalur and Minjur, having a length of about 63.2 kilometers, for the purpose of reducing the traffic congestion in the city of Chennai and for facilitating the heavy vehicles to by-pass the city of Chennai. It had been gathered that the width of the road would be 400 feet out of which 100 feet at the centre would be earmarked for the railway lines. 60 feet width, on either side of the railway lines had been earmarked to accommodate the roads. The remaining 90 feet, on either side, would be earmarked for the construction of shops and other commercial buildings, in order to reduce the quantum of toll on the vehicles, proposed to be collected for the purpose of constructing the Outer Ring Road. The proposed project is to be executed by private partnership.
5. It has also been stated that the residents of the area concerned were of the belief that the Outer Ring Road would be aligned through poramboke lands available on the eastern side of Prakash Nagar and Lakshmi Nagar and therefore, only a few houses, situated in Sri Vignarajan Nagar, would be affected. However, due to the agitation, caused by some of the local residents, the alignment of the road had been shifted, marginally. However, in view of the fact that a large number of residents were being affected, the Association of the residents of Prakash Nagar had sent several representations to the authorities concerned. In reply to the said representations, the authorities concerned had informed that the Pallavan Consultancy Services Limited, Chennai, would examine the feasibility of shifting the alignment of the road. The Pallavan Consultancy Services Limited had submitted a report, on 6.10.1997, to the Chennai Metropolitan Development Authority, Chennai, expressing its opinion that, by introducing two curves at the starting point, with adequate radius, the alignment of the road could be shifted to the eastern side of Lakshmi Nagar. However, the Chennai Metropolitan Development Authority had rejected the said proposal. In such circumstances, the Lakshmi Nagar Residents' Welfare Association had filed a writ petition before this Court, in W.P.No.2000 of 1998, challenging the rejection of the proposed realignment. This Court, by its order, dated 22.11.1998, had allowed the writ petition. However, the writ appeal filed by the Chennai Metropolitan Development Authority, in W.A.No.603 of 1999, (CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECRETARY, CHENNAI 600 008 Vs. LAKSHMI NAGAR RESIDENTS WELFARE ASSOCIATION, REP. BY ITS PRESIDENT, THIRUNINDRAVUR) had been allowed, by an order, dated 19.9.2000, dismissing the writ petition filed by the Association. The review petition filed in R.A.No.20 of 2001, in W.A.No.603 of 1999, had also been dismissed by this Court, by its order, dated 31.7.2001.
6. It has also been stated that, in the meantime, the residents of Morai village, situated in the line alignment of the road, as originally planned, had submitted similar representations, as that of the residents of Lakshmi Nagar and Prakash Nagar. The said representations had been rejected by the Chennai Metropolitan Development Authority stating that the shifting of the alignment to the western side of Morai village, as requested by its residents association, would raise a new problem and that the costs of the project would increase. However, the alignment, passing through Morai village, had been shifted, based on the request of two of the members of the legislative assembly. Thereafter, a writ petition had been filed by the East Prakash Nagar Residents' Welfare Association, challenging the alignment passing through Lakshmi Nagar and Prakash Nagar, in W.P.No.2090 of 2001. The said writ petition had been dismissed by this Court, by its order, dated 23.2.2007, stating that the said public interest litigation was not maintainable. However, it was made clear that it would be open to the affected parties to agitate the issues in question by appropriate proceedings.
7. It has been stated that notifications under Section 4(1) of the Land Acquisition Act, 1894, had been published in the Government Gazette calling for objections, if any, against the acquisition proceedings. In some cases, such intimations had not been received. Those, who had the knowledge of the notifications, had submitted their objections during the 5-A enquiry proceedings stating that the proposed alignment through the patta lands, ignoring the Government Poramboke lands, on the eastern side of the alignment, is illegal, arbitrary, contrary to the public interest and based on the extraneous considerations. However, the objections raised by the petitioners had been rejected, without proper reasons being assigned. The rejection of the objections raised by the petitioners had been based only on the reason that the Chennai Metropolitan Development Authority had not accepted the shifting of the alignment of the Outer Ring Road. Thereafter, the declaration, under Section 6 of the Land Acquisition Act, 1894, had also been published in the Tamil Nadu Government Gazette. In such circumstances, the petitioners had preferred the present writ petitions before this Court, under Article 226 of the Constitution of India.
8. In the counter affidavit filed by the respondents, it has been stated that the Government had approved the proposal of the Chennai Metropolitan Development Authority for the development of the Outer Ring Road, between Thiruvallur Road and Thiruvottiyur Ponneri Panjetty Road, for a distance of 33.1. kilo meters, under Phase II of the project, in G.O.Ms.No.303, Housing and Urban Development Department, dated 2.7.1996. The Government had sanctioned the creation of four land acquisition units, comprising of a Special Tahsildar (Land Acquisition) and one supervisory unit headed by a District Revenue Officer (Land Acquisition), with the necessary supporting staff.
9. The District Revenue Officer (Land Acquisition) Outer Ring Road Project, Chennai Metropolitan Development Authority, Chennai, had divided the entire extent of lands proposed to be acquired, into 4 units. The lands located in Poonamallee Taluk, including those in Thiruninravur Village, had been allotted to the Special Tahsildar (Land Acquisition) Unit IV.
10. It has also been stated that the member secretary, Chennai Metropolitan Development Authority, Chennai, had given a requisition for the acquisition of 10.49.5 hectares of land, in Thirunindravur village, Poonamallee Taluk, Thiruvallur District. The acquisition of 10.49.5 hectares of land, in Thiruninravur village, had been split into eight blocks. The notifications, under Section 4(1) of the Act had been approved by the District Collector, Thiruvallur District and it had been published in the Thiruvallur District gazette, as well as in the locality concerned. It had also been published in the local Tamil newspapers and announcement had also been made by way of tom tom. Thereafter, an enquiry, under Section 5-A of the Land Acquisition Act, 1894, had also been conducted. The objections raised by the land owners had been forwarded to the requisitioning body, namely, the Chennai Metropolitan Development Authority, for obtaining its remarks. The objections raised by the land owners had also been duly considered before a final decision had been taken.
11. It had also been submitted that the Government of Tamil Nadu had approved the Outer Ring Road Scheme, in the year, 1993, in G.O.Ms.No.381, Housing and Urban Development Department, dated 25.5.1993. Thereafter, the first phase of the project had been completed. The lands, said to be belonging to the petitioners, had been acquired for the purpose of phase II of the Outer Ring Road Project. Even though some of the lands, acquired for the said purpose, may form a part of the approved layout, they had been acquired, due to the necessity that had arisen for the acquisition of the lands, for the said public purpose.
12. It had also been stated that the District Collector had been given the power to issue the notifications for the acquisition of the lands, having the value upto Rs.25,00,000/- by the Government of Tamil Nadu, by its communication, vide letter No.59440/LAI/1/1997 Revenue Department, dated 31.8.2000, and by the Circular of the Special Commissioner of Land Administration, Chennai, in letter No.Rc.50942/2000, dated 11.4.2001. Since, the lands sought to be acquired had been divided into units and blocks for the sake of administrative convenience, each of the notifications pertains to lands, the value of which does not exceed Rs.25,00,000/-.
13. The contention raised on behalf of the petitioners that the lands notified under the impugned notifications are in respect of the lands having a value of more than 25,00,000/- cannot be held to be correct. Therefore, the impugned notifications and the proceedings of the respondents, based on such notifications, are legal and valid.
14. It had also been stated that all the prescribed modes of publications had been made, within a period of 30 days, as mandated, under Section 4(1-A) of the Land Acquisition Act, 1894. The land owners had been given a reasonable opportunity to raise their objections. The objections raised by the land owners had been considered and only thereafter, the awards had been passed. If the land owners have any grievance with regard to the fixation of the amount of compensation, it is open to them to seek a reference to the concerned Subordinate Court or the Fast Track Court concerned, under section 18 of the land acquisition Act, 1894.
15. It had also been stated that the alignment of the road had been drawn up, after verification of the physical feasibility, with the support of aerial photographs, field survey and satellite spot imagery carried out in association with the expertise available in the Institute of Remote Sensing of the Anna University, Chennai. The alignment had been proposed, after taking into consideration the various factors, including the speed of the vehicles using the road, the safety of the buses using the road, and other such relevant aspects. The proposed alignment had been finalised by avoiding the agricultural lands, built up area, major water bodies, reserved forests etc. The proposed alignment had also been approved by the Government.
16. The main points raised by the learned counsels appearing for the petitioners are as follows:
The impugned notifications under Section 4(1) of the Land Acquisition Act, 1894, had been issued by the District Collector, Thiruvallur District, even though he does not have the authority or the jurisdiction to issue the said notifications. As per Section 4(1-A) of the Act, as mandated by the State Government, the District Collector concerned would have the authority or power to issue the notifications under Section 4(1-A) of the Act, only when the extent of the lands proposed to be acquired, does not exceed an extent of 40 acres and its value should not exceed Rs.25,00,000/-. In the absence of a decision taken by the state Government, in approving the notifications, the said notifications are void ab initio. The impugned notifications had been issued by the District Collector, Thiruvallur District, as a result of fraudulent and colourable exercise of the power, attracting penal provisions. Further, it has been provided that the decision of the State Government shall be issued in the name of the Governor, as mandated under Article 166 of the Constitution of India. They should also be duly signed by the Secretaries to the Government, as authorised under the Business Rules of the Government, under Article 166(3) of the Constitution of India. However, in the present case, the District Collector had issued the impugned notifications without such authorisation. As such, the impugned notifications ought to be quashed by this Court, without considering the technical pleas raised by the respondents in the defence of the notifications, as per the following decisions of the Supreme Court:
16.1. In DEVINDER SINGH Vs. STATE OF PUNJAB ((2008) 1 SCC 728, it has been held as follows:
"17. The Land Acquisition (Companies) Rules, 1963 for acquisition of land for the companies have been framed by the Central Government in exercise of its power under Section 55 of the Act. It is not in dispute that the guidelines provided thereunder are followed by the State Government. Concept of constitution of a Land Acquisition Committee appears only from the Companies Rules; no other provision in respect thereof has been made either under the Act or the Rules framed thereunder. A bare perusal of sub-rule (1) of Rule 4 of the said Rules categorically states that the same shall be applicable where acquisition of land is to be made for the company envisaged under Part VII. The State, as indicated hereinbefore, before this Court has categorically stated that advice rendered by a sub-committee of the Land Acquisition Committee had been taken into consideration by it with a view to proceed further in the matter. Rule 4 mandates the appropriate Government to arrive at a satisfaction in regard to the factors enumerated therein. Rule 4 of the Rules reads as under:
4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings.(1) Whenever a company makes an application to the appropriate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namely
(i) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition;
(ii) that the company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed;
(iii) that the land proposed to be acquired is suitable for the purpose;
(iv) that the area of land proposed to be acquired is not excessive;
(v) that the company is in a position to utilise the land expeditiously; and
(vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the company a reasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall,
(i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such land is good agricultural land;
(ii) determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which, in the opinion of the Collector, should be acquired for the company; and
(iii) ascertain whether the company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired.
Explanation.For the purpose of this rule good agricultural land means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by that Government to the Committee.
(4) No declaration shall be made by the appropriate Government under Section 6 of the Act unless
(i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under Section 5-A of the Act; and
(ii) the agreement under Section 41 of the Act has been executed by the company.
30. We would proceed on the said assumption but it is a well-settled principle of law that where an action taken is without jurisdiction, even an order which is conclusive may be subject to judicial review. Jurisdictional errors, as is well known, are divided in two broad categories (i) an order passed which is wholly without jurisdiction; and (ii) although the action is not ultra vires, the jurisdictional error has been committed while exercising jurisdiction. (See John v. Rees (1969) 2 ALL ER 274)
31. In R.L. Arora v. State of U.P. (AIR 1962 SC 764) this Court held: (AIR p.773, para 18) 18. Then it was urged on behalf of the respondents that Section 6(3) makes the purpose noted in the notification under Section 6(1) not justiciable. We have not been able to understand how that provision helps the respondents. All that Section 6(3) says is that the declaration shall be conclusive evidence that the land is needed for a public purpose or for a company. In this case the declaration was that the land was needed for a company and that according to Section 6(3) is conclusive evidence that the land is so needed. Now it is not the case of the appellant that the land was not needed for the Works in the present case, nor does the appellant say that though the land was needed for some other purpose, the notification falsely declares that it was needed for the Works. In the circumstances the conclusiveness envisaged by Section 6(3) is of no assistance to the solving of the problem with which we are concerned in the present case.
32. Mr Sorabjee has strongly relied upon a decision of this Court in Somawanti v. State of Punjab (AIR 1963 SC 151). In Somawanti this Court opined:
"40. Though we are of the opinion that the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose we must emphasise that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may well arise whether in making the declaration there has been, on the part of the Government a fraud on the power conferred upon it by the Act. In other words the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, and, therefore, the declaration is open to challenge at the instance of the party aggrieved. To such a declaration the protection of Section 6(3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as Section 6(3) notwithstanding. (emphasis supplied)
33. When an order is passed without jurisdiction, it amounts to colourable exercise of power. Formation of opinion must precede application of mind. Such application of mind must be on the materials brought on record. The materials should be such which are required to be collected by the authorities entitled therefor. The authorities must act within the four corners of the statute. An opinion formed even on the basis of an advice by an authority which is not contemplated under the statute renders the decision bad in law. A statutory authority is bound by the procedure laid down in the statute and must act within the four corners thereof.
34. The effect of contribution of a sum of Rs 100 by the State purported to be towards the amount of compensation, may not be noticed.
35. In Somawanti Vs State of Punjab (AIR 1963 SC 151) although this Court while upholding that contribution of a sum of Rs 100 as a part of the cost of acquisition may subserve the requirement of law, proceeded to opine: (AIR p. 169, para 52) 52. We would like to add that the view taken in Senga Naicken Vs. Secy. of State (AIR 1927 MAD 245) has been followed by the various High Courts in India. On the basis of the correctness of that view the State Governments have been acquiring private properties all over the country by contributing only token amounts towards the cost of acquisition. Titles to many such properties would be unsettled if we were now to take the view that partly at public expense means substantially at public expense. Therefore, on the principle of stare decisis the view taken in Senga Naicken case should not be disturbed. We would, however, guard ourselves against being understood to say that a token contribution by the State towards the cost of acquisition will be sufficient compliance with the law in each and every case. Whether such contribution meets the requirements of the law would depend upon the facts of every case. Indeed the fact that the States contribution is nominal may well indicate, in particular circumstances, that the action of the State was a colourable exercise of power. In our opinion part does not necessarily mean a substantial part and that it will be open to the Court in every case which comes up before it to examine whether the contribution made by the State satisfies the requirement of the law. In this case we are satisfied that it satisfies the requirement of law. What is next to be considered is whether the acquisition was only for a company because the compensation was to come almost entirely out of its coffers and, therefore, it was in reality for a private purpose as opposed to public purpose. In other words, the question is whether there was on the part of the Government a colourable exercise of power. Elaborating the point it is said that the establishment of a factory for manufacturing refrigeration equipment is nothing but an ordinary commercial venture and can by no stretch of imagination fall within the well-accepted meaning of the expression public purpose, that even if it were to fall within that expression the factory is to be established not by the Government, nor by Government participation but solely by Respondent 6, a public limited concern and that, therefore, the concern could acquire land for such a purpose only after complying with the provisions of Part VII and that the use of the provisions of Section 6(1) is merely a colourable device to enable Respondent 6 to do something, which, under terms of Section 6(1), could not be done.
55. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperative one.
56. In this case admittedly there has been no compliance with Rule 4. If Rule 4 has not been complied with, the exercise of jurisdiction under Part VII must be held to have been erroneous."
16.2. In HINDUSTAN PETROLEUM CORPN. LTD Vs. DARIUS SHAPUR CHENNAI ((2005) 7 SCC 627), it has been held as follows:
6. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of eminent domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.
7. Indisputably, the definition of public purpose is of wide amplitude and takes within its sweep the acquisition of land for a corporation owned or controlled by the State, as envisaged under sub-clause (iv) of clause (f) of Section 3 of the Act. But the same would not mean that the State is the sole judge therefor and no judicial review shall lie. (See Jilubhai Nanbhai Khachar v. State of Gujarat (1995 SUPP (1) SCC 596).
8. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also to the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance with the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision-making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well-known principles viz. illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.
9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right.
18. In view of the fact that the action required to be taken by the State Government is distinct and different from the action required to be taken by the Collector; when the ultimate order is in question it was for the State to satisfy the court about the validity thereof and for the said purpose the counter-affidavit filed on behalf of a Collector cannot be held to be sufficient compliance with the requirements of law. The job of the Collector in terms of Section 5-A would be over once he submits his report. The Land Acquisition Collector would not know the contents of the proceedings before the State and, therefore, he would be incompetent to affirm an affidavit on its behalf.
19. Furthermore, the State is required to apply its mind not only on the objections filed by the owner of the land but also on the report which is submitted by the Collector upon making other and further enquiries therefor as also the recommendations made by him in that behalf. The State Government may further inquire into the matter, if any case is made out therefor, for arriving at its own satisfaction that it is necessary to deprive a citizen of his right to property. It is in that situation that production of records by the State is necessary.
20. In Gurdip Singh Uban (2000) 7 SCC 296) whereupon Mr Ramamoorthy placed strong reliance, this Court observed: (SCC p. 318, para 50) 50. No reasons or other facts need be mentioned in the Section 6 declaration on its face. If the satisfaction is challenged in the court, the Government can show the record upon which the Government acted and justify the satisfaction expressed in the Section 6 declaration. It was, thus, for the State to justify its action by production of record or otherwise.
21. The counter-affidavit filed on 30-10-2003 was also affirmed by a Special Deputy Collector. A presumption having regard to the passage of time can be raised that he was not the Collector who had made enquiry under Section 5-A of the Act and given an opportunity of hearing to the owner of the land. It has not been averred by him as to who had authorised him to affirm the affidavit on behalf of the State or how he was acquainted with the fact of the matter. In terms of the rules of executive business, he is not authorised to act on behalf of the State. We have noticed hereinbefore, that only when the High Court directed production of records, that a Principal Secretary to the Government affirmed an affidavit wherein it was not stated that the records are lost but it was merely stated that they were not readily traceable.
22. The Court in a situation of this nature expects that the authorities of the State would take due care and caution in preserving the records in relation whereto a lis is pending before a court of law.
29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma (AIR 1966 SC 1593) observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of RajasthaN (AIR 1967 SC 1074) and CCE v. Orient Fabrics (P) Ltd. (2004) 1 SCC 597).
There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative."
16.3. In VYALIKAVAL HOUSEBUILDING COOP.SOCIETY Vs. V.CHANDRAPPA ((2007) 9 SCC 304), it has been held as follows:
4. In view of the aforesaid observation, their Lordships of the Division Bench held that since the acquisition was colourable exercise of the power, therefore, delay cannot be a good ground to dismiss the writ petition. The said judgment of the Division Bench of the High Court of Karnataka was affirmed by this Court in Special Leave Petitions (C) Nos. ... CCs Nos. 525-32 of 1999 and Special Leave Petitions (C) Nos. ... CCs 504-22 of 1999 decided on 14-7-1999 and it was held that the appellant Society is a bogus housebuilding society and accordingly, the order passed by the learned Single Judge was set aside by the Division Bench. Against the order of the Division Bench passed in Writ Appeal No. 2294 of 1999 a review petition was filed which was dismissed on 22-3-2002. Hence both these appeals.
5. Learned counsel for the appellant urged before us that the view taken by the Division Bench of the High Court is not correct as the Division Bench should not have condoned the inordinate delay of 14 years and secondly, learned counsel further submitted that the respondents herein being the beneficiary had entered into an agreement of sale and had accepted the whole amount not to file objections under Section 5-A of the Act for acquiring the aforesaid land. Learned counsel for the appellant has emphasised that the Division Bench has gone wrong in setting aside the order of the learned Single Judge as the learned Single Judge has discussed the factual controversy in greater detail.
9. Learned counsel for the respondents has also invited our attention that same notification was set aside by the High Court and the said order of the High Court was also upheld by this Court by dismissing SLP (C) No. 6196 of 1998 on 7-4-1998 and SLPs (C) Nos. ... CCs Nos. 495-98 of 1999 on 14-7-1999 concerning the very same appellant Society. In this background, when the acquisition has been found to be totally mala fide and not for bona fide purpose, the ground of delay and acquiescence in the present case has no substance. Learned counsel for the appellant tried to persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement. It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes no benefit could be derived by the appellant. We are satisfied that issue of notification was mala fide and it was not for public purpose, as has been observed by this Court, nothing turns on the question of delay and acquiescence. Learned counsel for the respondents raised other pleas like decree for partition was granted among brothers and they were not made parties, we are not going into those questions when we are satisfied that when acquisition stands vitiated on account of mala fide, nothing remains further.
16.4. In A.V.PAPAYYA SASTRY Vs. GOVT. OF A.P. ((2007) 4 SCC 221), it has been held as follows:
21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:
Fraud avoids all judicial acts, ecclesiastical or temporal.
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or orderby the first court or by the final courthas to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley (1956) 1 ALL ER 341 Lord Denning observed: (All ER p.345 C) No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.
24. In Duchess of Kingstone, Smiths Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was mistaken, it might be shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order."
17. It has also been stated that Section 4(1) notification had been issued by the District Collector, Thiruvallur District, without having the jurisdiction to do so, as per Section 4(1-A) of the Act, as it is clear from the guideline values fixed by the Registration Department, for the lands notified by the Government, for the period from 1.4.2003 to 1.8.2007, and as per the rate adopted by the District Collector in passing the awards.
18. It has also been stated that even for each block of the lands, as formulated by the District Collector, the value of lands exceeds its pecuniary jurisdiction of Rs.25,00,000/-. The relevant records had not been produced by the respondents to substantiate their claims that the District Collector, Thiruvallur District, has the pecuniary jurisdiction to issue the impugned notifications. Therefore, the impugned notifications issued by the District Collector, Thiruvallur District, under Section 4(1) of the Land Acquisition Act, 1894, are illegal and void, as per the decision of this Court, in SUSHIL KUMAR MEHTA Vs. GOBIND RAM BOHRA ((1990) 1 SCC 193), wherein it has been held as follows:
10. In Kiran Singh v. Chaman Paswan (1955) 1 SCR 117 the facts were that the appellant had undervalued the suit at Rs 2950 and laid it in the Court of the Subordinate Judge, Monghyr for recovery of possession of the suit lands and mesne profits. The suit was dismissed and on appeal it was confirmed. In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11. The value of the appeal was fixed at Rs 9980. A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the decree of the District Court was a nullity. Alternatively, it was contended that it caused prejudice to the appellant. In considering that contention at page 121, a four judge bench of this Court speaking through Venkatarama Ayyar, J. held that:
It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities.
11. On merits it was held that since the appellant himself had invoked the jurisdiction of the civil court with undervaluation, the objection as to jurisdiction was not available by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of CPC; and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act.
12. This Court has held that it is a well established principle that a decree passed by a court without jurisdiction is a nullity and the plea can be set up whenever and wherever the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings."
19. It has also been stated that the act of the District Collector, Thiruvallur District, in issuing several section 4(1) notifications, for acquiring the lands for the same public purpose, in the same locality, during the same period is a fraudulent and mala fide exercise of powers. Section 4(1) of the Act, mandates that only a single notification should be issued for a single public purpose in respect of the same locality, during the same period. By issuing separate notifications, the District Collector, Thiruvallur District, had contravened the mandatory provisions of Section 4(1) of the Act.
20. It has also been stated that the Supreme Court in its decision, reported in THE STATE OF M.P. AND OTHERS Vs. VISHNU PRASAD SHARMA AND OTHERS (AIR 1966 SC 1593(1)), had declared that issuing of multiple Section 6 declarations for a single section 4(1) notification is illegal and void. Therefore, the Section 4(1) notifications issued, under Section 4(1) of the Land acquisition Act, 1894, and the declarations issued under Section 6 of the said Act are arbitrary and invalid. If issuing of multiple notifications, under Section 4(1) of the Act, are permitted, the enquiry to be conducted under Section 5-A of the said Act would be meaningless, as the authorities having confirmed their decisions during the initial enquiries would, automatically, reject the enquiries, that had been conducted at a later point of time in order to avoid reopening of the issues.
21. The relevant paragraphs of the decision, in STATE OF M.P. Vs. VISHNU PRASAD SHARMA (1966) 3 SCC 1593 (1), read as follows:
"3. It was said that the Government may have difficulty in making the plan of its project complete at a time, particularly where the project is large and, therefore, it is necessary that it should have power to make a number of declarations under Section 6. I am wholly unable to accept this argument. First, I do not think that a supposed difficulty would provide any justification for accepting an interpretation of a statute against the ordinary meaning of the language used in it. General considerations of the kind suggested cannot authorise a departure from the plain meaning of words. Secondly, I cannot imagine a Government, which has vast resources, not being able to make a complete plan of its project at a time. Indeed, I think when a plan is made, it is a complete plan. I should suppose that before the Government starts acquisition proceedings by the issue of a notification under Section 4, it has made its plan for otherwise it cannot state in the notification, as it has to do, that the land is likely to be needed. Even if it had not then completed its plan, it would have enough time before the making of a declaration under Section 6 to do so. I think, therefore, that the difficulty of the Government, even if there is one, does not lead to the conclusion that the Act contemplates the making of a number of declarations under Section 6. I would like to observe here to avoid confusion that we are not concerned now with extension of a completely planned project conceived later. The present contention is not based on any difficulty arising out of such a case. It was said that if the Government has not finalised its plan when it makes a declaration under Section 6, it would have to start fresh acquisition proceedings beginning with a notification under Section 4 to provide for the complete plan if it could not make any more declarations and in such a case, in conceivable circumstances, it may have to pay more for the land that it then sought to acquire. This argument concedes that even if the Government has not been able to make its plan when making a declaration under Section 6, the result is not that it cannot acquire any more land later when the plan is completed. The real point, therefore, of the present argument is that the Act should be so interpreted that the Government should not be put to extra cost when it has been unable to complete its plan at a time. This seems to me to be a strange argument. First, there is no reason why the Act should provide for the Governments failure to complete the plan. Secondly, the argument is hypothetical for one does not know for sure whether a later acquisition will cost more or less, arguments on hypothetical considerations can have little weight in interpreting statutes. But even otherwise, this view of the matter does not support the argument. After the issue of a notification under Section 4, an owner of land in the locality notified cannot have full beneficial enjoyment of his property; he cannot, for example, build on his land for if he does so and the land is acquired, he will get no compensation for the building put up and will lose the costs incurred for it. If it is a justification for saying that a number of declarations can be made under Section 6 because otherwise the Government may have to pay more, it seems to me that it is at least an equal justification for saying that such declarations cannot have been contemplated by the Act because that would mean an avoidable deprivation of the owners of their beneficial enjoyment of lands till such time as the Government is able to make its plan. As the Act is an expropriatory Act, that interpretation of it should be accepted which puts the least burden on the expropriated owner. The Government could, of course, always make a complete plan at a time and I am unable to hold that the Act contemplated that it need not do so and go on making declarations from time to time as its plan goes on taking shape even though the result might be to increase the hardship of persons whose lands are taken away.
16. Sections 4, 5-A and 6 in our opinion are integrally connected. Section 4 specifies the locality in which the land is acquired and provides for survey to decide what particular land out of the locality would be needed. Section 5-A provides for hearing of objections to the acquisition and after these objections are decided the Government has to make up its mind and declare what particular land out of the locality it will acquire. When it has so made up its mind it makes a declaration as to the particular land out of the locality notified in Section 4(1) which it will acquire. It is clear from this intimate connection between Sections 4, 5-A and 6 that as soon as the Government has made up its mind what particular land out of the locality it requires, it has to issue a declaration under Section 6 to that effect. The purpose of the notification under Section 4(1) is at this stage over and it may be said that it is exhausted after the notification under Section 6. If the Government requires more land in that locality besides that notified under Section 6, there is nothing to prevent it from issuing another notification under Section 4(1) making a further survey if necessary, hearing objections and then making another declaration under Section 6. The notification under Section 4(1) thus informs the public that land is required or would be required in a particular locality and thereafter the members of the public owning land in that locality have to make objections under Section 5-A; the Government then makes up its mind as to what particular land in that locality is required and makes a declaration under Section 6. It seems to us clear that once a declaration under Section 6 is made, the notification under Section 4(1) must be exhausted, for it has served its purpose. There is nothing in Sections 4, 5-A and 6 to suggest that Section 4(1) is a kind of reservoir from which the Government may from time to time draw out land and make declarations with respect to it successively. If that was the intention behind Sections 4, 5-A and 6 we would have found some indication of it in the language used therein. But as we read these three sections together we can only find that the scheme is that Section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government what particular land out of that locality it needs. This is followed by a declaration under Section 6 specifying the particular land needed and that in our opinion completes the process and the notification under Section 4(1) cannot be further used thereafter. At the stage of Section 4 the land is not particularised but only the locality is mentioned; at the stage of Section 6 the land in the locality is particularised and thereafter it seems to us that the notification under Section 4(1) having served its purpose exhausts itself. The sequence of events from a notification of the intention to acquire [Section 4(1)] to the declaration under Section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under Section 6 particularising the area out of the area in the locality specified in the notification under Section 4(1) is issued, the remaining non-particularised area stands automatically released. In effect the scheme of these three sections is that there should be first a notification under Section 4(1) followed by one notification under Section 6 after the Government has made up its mind which land out of the locality it requires.
22. It has also been stated that the impugned notifications issued under Section 4(1) of the Act had not been published in the official gazette, namely, the State Government gazette, as mandated under its provisions, as it had been published only in the district gazette. It has also been stated that the official gazette would mean the state gazette and not the district gazette, in which the notification had been published. Hence, there was no valid publication of the Section 4(1) notifications, as per the relevant provisions of law. As per the General clauses Act, 1897, the expression 'Official Gazette' means the gazette of the central or the state Government. In fact, Section 6 declaration had been duly published by the authorities concerned in the State Government gazette, even though the same expression 'Official Gazette' is used in section 6 of the Act. This Court in its decision, reported in A.S.PERIASAMY Vs. STATE OF TAMIL NADU ((2004) 1 M.L.J. 194) confirmed the said position of law holding that in the absence of any definition of 'Official Gazette' in the Land Acquisition Act, the meaning ascribed to such expression in the General Clauses Act, 1897, should be followed, wherein, it has been indicated that the expression 'Official Gazette' means the Gazette published by the Central Government or the Official Gazette of the State Government.
23. It has also been stated that there was no publication of the substance of the section 4(1) notifications in the convenient places of the locality, as mandated under Section 4(1) of the Land Acquisition Act, 1894, and Rule 2 of the Rules framed thereunder. The records produced by the respondents does not disclose the publication of the substance of section 4(1) notifications in Form-A, as mandated under Rule 2 of the Land Acquisition Rules. Public notices under Section 4(1) of the Act, said to have been issued in form-3, as found from the records made available by the respondents, had not been approved by the District Collector, as prescribed by the relevant provisions of the Act. The form-3 notices, alleged to have been issued by the Special Tahsildar (LA), Chennai, is vague, and they did not contain the schedule of the properties. The form-3 notices had been issued by the Special Tahsildar (LA) without the authority of law. Therefore, it is invalid in the eye of law, in view of decision of this Court reported in CHENNRAYAR PERUMAL TEMPLE Vs. THE DISTRICDT COLLECTOR, SALEM (2007 (4) CTC 84) wherein, it has been held as follows:
2. Para 6(3)(e) of the counter-affidavit, which is relevant to decide the present case reads as follows:
"6(e) The Personal Assistant to the Collector is empowered to pass orders on behalf of the Collector, Salem, so there is no violation of the procedure contemplated under Section 4(3)(a) and (b) of the Act.
and confirms the contention of the petitioner that the District Collector has not passed the order as contemplated under Section 4(3)(a) of the Act.
3. The District Collector has to exercise the power under the Act. The delegation of such power is not contemplated nor it has been shown that such power can be delegated for the aforesaid purpose and therefore the proceedings are vitiated. See Hukam Chand v. Union of India, AIR 1976 SC 789. Consequently, Notification under Section 4(1) of the Act is quashed with liberty to proceed with the matter, if so advised. The writ petition is allowed. No costs.
24. Thus, it is clear that there was no valid publication of the public notices, under Section 4(1) of the Land Acquisition Act, 1894. He had also submitted that when a statute prescribes a particular manner of publication, the Courts cannot modify the same for any reason. For the said proposition, he had relied on the decision, reported in PADMA SUNDARA RAO Vs. STATE OF T.N. ((2002) 3 SCC 533), wherein it has been held as follows:
4. Learned counsel for the appellants placed reliance on an unreported decision of this Court in A.S. Naidu v. State of T.N. (SLPs (C) Nos.11353-55 of 1988 wherein a Bench of three Judges held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 cannot be issued beyond the prescribed period of the notification under sub-section (1) of Section 4 of the Act. It has to be noted that there is another judgment of two learned Judges in Oxford English School v. Govt. of T.N.(1995) 5 SCC 206) which takes a view similar to that expressed in A.S. Naidu case. However, in State of Karnataka v. D.C. Nanjudaiah (1996) 10 SCC 619) view in Narasimhaiah case (1996) 3 SCC 88) was followed and it was held that the limitation of 3 years for publication of declaration would start running from the date of receipt of the order of the High Court and not from the date on which the original publication under Section 4(1) came to be made.
8. Learned counsel for the respondents referred to some observations in Pooran Mal case Director of Inspection of Income Tax (Investigation) Vs. Pooranmal and Sons (1975) 4 SCC 568) which form the foundation for decisions relied upon by him. It has to be noted that Pooran Mal case was decided on entirely different factual and legal backgrounds. The Court noticed that the assessee who wanted the Court to strike down the action of the Revenue Authorities on the ground of limitation had himself conceded to the passing of an order by the Authorities. The Court, therefore, held that the assessee cannot take undue advantage of his own action. Additionally, it was noticed that the time-limit was to be reckoned with reference to the period prescribed in respect of Section 132(5) of the IT Act. It was noticed that once the order has been made under Section 132(5) within ninety days, the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income Tax Officer to pass a fresh order. That is the distinctive feature vis-`-vis Section 6 of the Act. The Court applied the principle of waiver and inter alia held that the period of limitation prescribed therein was one intended for the benefit of the person whose property has been seized and it was open to that person to waive that benefit. It was further observed that if the specified period is held to be mandatory, it would cause more injury to the citizens than to the Revenue. A distinction was made with statutes providing periods of limitation for assessment. It was noticed that Section 132 does not deal with taxation of income. Considered in that background, ratio of the decision in Pooran Mal case5 has no application to the case at hand.
9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in British Railways Board v. Herrington (1972) 2 WLR 537). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. (2000) 5 SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case. In Nanjudaiah case the period was further stretched to have the time period run from date of service of the High Courts order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent."
25. It has also been stated that the substance of the notifications ought to have been published in the convenient places in the locality concerned. However, it would not be proper on the part of the respondents to publish the substance of the notifications in the office of the village administrative officer or the executive officer of the Thiruninravur Town Panchayat, as admitted by the respondents. The records produced before this Court does not disclose such publication in the locality concerned and no signature had been obtained from the residents of the locality to prove such publication. Further, publishing of form-3 notices in the office of the District Collector, Thiurvallur District and in the offices of the State Government would not mean that they are convenient places, as contemplated under the land Acquisition Act, 1894, and the rules framed thereunder. Even the records produced before this Court had not been maintained in the manner prescribed by the District Office Manual.
26. It has also been stated that the particulars of the publication of the notices are not available. Even the particulars regarding the authenticity of the claims made on behalf of the respondents that there was publication regarding the land acquisition proceedings, in the locality concerned, by the beating of 'Tom Tom', have not been made available by the respondents. It is clear that the records produced by the respondents are false and fabricated in nature. Therefore, such public documents cannot be presumed to be genuine, as per Section 79 of the Indian Evidence Act, 1872. As such, the alleged publication of the impugned notices, under Section 4(1) of the Land Acquisition Act, 1894, have no legal sanction. Hence, they are liable to be rejected, as void. Hence, the land acquisition proceedings initiated under Section 4(1) of the Land Acquisition Act, 1894, are void ab initio. The learned counsel for the petitioners had relied on the following decisions in support of the said contentions:
26.1. In E.BALU Vs. SPECIAL TAHSILDAR ((2008) 4 MLJ 64), it has been held as follows:
"7. It is not in dispute that 4(1) notification was notified in the gazette dated 18.6.1997 in G.O.Ms.No.223 and the gazette publication was on 9.7.1997. There are two news papers publications on 2.8.1997 and 3.8.1997 in Malaimurasu and Thinathoodu. As far as the publication in the locality is concerned, a perusal of the record shows that except the proceedings of the Tahsildar dated 15.6.1998, wherein, in the narration he has stated that apart from publication in Malaimurasu on 2.8.1997 and Thinathoodu on 3.8.1997, there was publication by Dhandora on 10.8.1997. There is no record to show that necessary certificate from the concerned officials like Village Administrative Officer or any other authority obtained to substantiate that the local publication was made on 10.8.1997. This is particularly relevant because while effecting such local publication in respect of 6 declaration, the Tahsildar has followed the procedure not only by Dhandora, but also has affixed in public places as certified by the VAO apart from obtaining the signatures of various residents in the area numbering more than 11, as it is seen in page Nos.552 and 553 of the file. As the locality publication in respect of 4(1) notification, which is a legal requirement has not been made with any such certificate except narrating in the proceeding of the Tahsildar, wherein he has narrated stating that there was a local publication on 10.8.1997. Therefore, it has to be taken that there was no locality publication of Section 4(1) notification and the newspaper publication which was on 3.8.1997 in Thinathoodu has to be taken as a last date of publication. It is admitted that the 6 declaration itself was issued in the gazette in G.O.Ms.No.312, dated 7.8.1998. Therefore, by taking the last date of publication of 4(1) notification, with the said 6 declaration dated 7.8.1998, it is beyond the prescribed period of one year. It is on this score, it has to be held that the land acquisition proceedings viz., 4(1) notification as well as 6 declaration in this case are not in accordance with the provisions of the land acquisition Act.
11. In view of the failure on the part of the respondent not providing the mandatory requirement of publication of the substance of 4(1) notification in convenient places in the locality and inasmuch as the last of the publication of 4(1) notification was on 3.8.1997 and 6 declaration itself is as per the Government order dated 7.8.1998, the land acquisition proceedings are clearly against the provisions of the Land Acquisition Act."
26.2. In S.SARASWATHI Vs. STATE GOVERNMENT OF T.N. ((2008) 3 MLJ 200), this Court has held as follows:
"16. In the present case, Section 4(1) notification was issued under the impugned G.O.Ms. No. 73 Housing and Urban Development Department dated 19.02.1997; it was published in the official gazette on 19.03.1997; publication in two newspapers, viz., "Pirpagal" and "Malai Malar" was on 29.03.1997; and the locality publication as seen in the records is 16.06.1997. Therefore, by applying the said explanation (b) to Section 4(1) of the Land Acquisition (Tamil Nadu Amendment) Act, 1997, if the earliest date of publication in the notification under Section 4(1) in the official gazette is taken, viz., 19.03.1997, the local publication was effected on 16.06.1997, and therefore, the same is clearly beyond the period of 60 days. It is relevant to point out that even from the date of newspaper publication, which is stated to be on 29.03.1997, the local publication being on 16.06.1997, there are more than 60 days in between the same and therefore, it is clearly against the said explanation to Section 4(1) of the Land Acquisition Act."
26.3. In PETHU CHETTIAR Vs. SPECIAL TAHSILDAR, LAND ACQUISITION (2000 3 M.L.J. 430), it has been held as follows:
"6. It is not in dispute that subsequent to the amended Act No.16 of 1997 there is no amendment by the Parliament with respect to the provision in question. The decision relied on by the learned Government Advocate in Sanjeeva Kumar Medical and Health Employees Co-operative Housing Society Vs. Mohd. Abdul Wahab, A.I.R.1996 S.C.3360 will not apply to the facts of the present case. The said decision has considered the scope of Amendment Act 9 of 1983, prescribing the publication of the substance under Section 4(1) should be done within 40 days in the District Gazette, from the date of publication. The Apex Court taking into consideration the amendment made by the Parliament under the Amendment Act 68 of 1984, has come to the conclusion that in view of the said enactment made by the Parliament under the Amendment Act 68 of 1984, the earlier amendment by the State cannot operate inconsistent to the subsequent amendment of the Parliament.
7. In view of the above settled principles, and also in view of the fact that the respondents have not completed the acquisition proceedings within the said stipulated period, the entire proceedings are vitiated."
27. It is submitted that a perusal of the Act and the Rule 4(b) of the Rules and the guidelines issued by the Government for approving the Section 6 declaration would show that the District Collector shall receive the objections, within 30 days from the date of section 4(1) notifications. Thereafter, he shall send the objections to the requisitioning body, if any, and shall receive the remarks from the said body. The remarks obtained from the requisitioning body should be furnished to the objectors, for their reply and thereafter, he shall fix a date for the enquiry. However, none of the said mandatory provisions prescribed under Section 5-A of the Act had been followed in the present case. The following decisions had been relied on by the learned counsel for the petitioners in support of the said contentions.
27.1. In D.ANNALAKSHMI AMMAL (DIED) Vs. STATE OF MADRAS (1997(III) CTC 593), it has been held as follows:
"5. In the first of the decisions, Nainar Sundaram, J. as he then was, held that if remarks of the requisitioning body had not been obtained when the enquiry under Section 5-A was held, much less furnished to the owner of the land, it would vitiate the proceedings. In the second decision Kannammal (deceased) V.N. Devadoss v. State of Tamil Nadu and Ors. 1990 W.L.R. 439 Kanakaraj, J. held that remarks of the requisitioning authority should be available to the owner/claimant whose land is acquired at the time of the enquiry under Section 5-A. As the remarks of the Tamil Nadu Housing Board in that case had been communicated to the petitioners therein nearly two years after the enquiry under Section 5-A, it was held that it vitiated the entire enquiry under Section 5-A of the Act. The learned Judge held that in many cases, the Land Acquisition Officers held a second enquiry after the remarks were obtained by issuing notices to the land owners as well as to the requisitioning body and in the opinion of the learned Judge, such a procedure will alone conform to the requirements of Rule 3(b)/(c) of the Rules. The learned Judge held that the enquiry under Section 5-A of the Act was vitiated.
6. In C. Ponnusamy and 62 others v. Government of Tamil Nadu rep. by the Commissioner and Secretary, Housing and Urban Development Department and Anr., 1997(I)CTC 212, the remarks of the requisitioning body were communicated after the conclusion of the Section 5-A enquiry and the remarks were not also furnished to the writ petitioners after the Section 5-A enquiry got over and after the communication of the remarks, there was no further enquiry. The learned Judge E. Padmanabhan J. following the decision of or Division Bench of this Court in Ramajunam v. Collector Madras and two others 1994 W.L.R. 326 held that the mandatory Rule 3(b) had been violated and Section 5-A enquiry was vitiated for failure to comply with the requirements of Rule 3(b) as well as the principles of natural justice and the learned Judge quashed the proceedings.
7. In Balkis Ammal by Power of Attorney Agent K.P.M. Abdul Kafor v. The State of Tamil Nadu and Anr.,: 1997(I)CTC 427 Kanakaraj, J. held that not conducting an enquiry after service of remarks of the requisitioning body upon the owners was defective and set aside the declaration under Section 6 of the Act and all subsequent proceedings.
8. In Tube Suppliers Ltd. v. Government of Tamil Nadu and Anr.,: 1997(II)CTC213 N.V. Balasubramanian, J. held that "the requisitioning body should offer their remarks with reasons and unless remark are offered it would not be possible for the petitioner to make further representation over the remarks. Hence, it is incumbent on the requisitioning body to give reasons why the objections of the petitioner were over- ruled. Hence, I am of the view that though records disclose that there was compliance of Rule 3(b) of the Rules, the spirit behind Rule 3(b) of the Rules is not complies with. Mere communication from the requisitioning body, the objections were overruled would not be sufficient for the land owner to make his representation on the remarks made by the requisitioning body. Hence, the requisitioning body is duty bound to give reasons why the objections of the petitioner were overruled and only on the basis of such remarks, it would be possible for the land owner to make further representation over the remarks to find out the tenability of the prosecution of the acquisition proceedings. In the absence of any reason in the rejection report, even if any further enquiry is held, it would be an empty formality just to comply with the letter of law and would not achieve the object for which the further enquiry is held. Therefore, I hold that the enquiry held i without strict compliance of the provisions of Rule 3(b) of the Rules which is held to be mandatory, is not valid in law. Therefore, the declaration under Section 6 of the Act, which is challenged in this writ petition is liable to be quashed and accordingly, it is quashed."
27.2. In SAKUNTHALA Vs. THE GOVERNMENT OF TAMIL NADU (1998) II MLJ 453), it has been held as follows:
"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 (1997) 1 SCC 134 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."
27.3. In KUMAR NAICHER Vs. STATE OF TAMIL NADU ((1998) 2 MLJ 533), it has been held as follows:
"7. The next ground on which Govindaswami, J. quashed the notification related to want of public notice of the substance of the notification. The learned Judge in paragraph 6 of his judgment has stated as follows:
Insofar as the second contention that public notice of the substance of the 4(1) notification was not given in the locality as contemplated under Rule 1 of the Rules framed under Section 55 of the Act, learned Government Advocate represented that the public notice of the substance of the 4(1) Notification was given in the locality by. beat of tom-tom as required under the rules on 1.10.1985. In this context, it is relevant to consider the Rule 1 of the Rules which is as follows; 1. Issue and publication of notice by the Collector-Immediately after the publication of the notification under Section 4(1), the Collector shall issue a notice stating that the land is needed as the case way be, for a public purpose and requiring all persons interested in the land to lodge before the Collector within thirty days after the issue of the Notification, a statement in writing of their objection, if any, to the proposed acquisition. This notice should be published at convenient places in the said locality, and copies thereof fixed up in the Offices of the Collector, the Tahsildar, and in the nearest Police Station.
The above rule clearly prescribed that the notice should be published at convenient places in the said locality and copies thereof should be fixed up in the Offices of the Collector, the Tahsildar, and in the nearest Police Station. It is obligatory on the part of the respondents not only to see that the notice is published in the convenient places in the said locality but also to see that copies thereof are affixed in the Offices of the Collector, the Tahsildar and in the nearest Police Station. The learned Counsel for the writ petitioner contended that mere publication of the Notification would not suffice but notice should be published at convenient places in the locality and copies thereof should be fixed up in the Offices of the Collector, the Tahsildar and in the nearest Police Station and that is mandatory, and failure to do so vitiates the acquisition proceedings. In this context, the learned Counsel for the petitioner referred to the decision of a Division Bench of this Court in Valleswarar Temple, Nerkundram represented by sole trustee Kasiviswanathan v. The State of Tamil Nadu represented by the Secretary to Government Housing and Urban Development and Anr. (1990) 2 M.L.J. 142, in which it was held as under:
Mr. A. Sivaji, learned Counsel for the appellant, covets the quashing of the very notification under Section 4 (1) of the Act and for this purposes, he advances the point that as enjoined by Section 4(1) of the Act and Rule 1 of the Tamil Nadu Rules under The Act, there was no publication of the substance of the notification under Section 4(1) of the Act, point to the above effect has been taken in the affidavit filed in support of the writ petition. But, this point has not been adjudicated upon by the learned single Judge. That the provisions of Section 4(1) of the Act and Rule 1 of the Tamil Nadu Rules under the Act with regard to publication of the substance of the notification under Section 4(1) of the Act, are mandatory in nature and non-compliance with them will vitiate the entire acquisition proceedings, is a proposition well settled, which cannot permit any disputation. The respondents have not care to file any counter-affidavit rebutting the above contention of the appellant, based on violation of the mandatory provisions of law, either during the pendency of the writ petition or during the pendency of the writ appeal. Mr. K. Ravi Rajapandian, learned Additional Government Pleader (Writs), is also not in a position to put forth any voice of rebuttal supported by records in the course of his submissions, over this aspect. The result is, here we find a case where the mandate of law has been breached and the appellant must have the relief of quashing the Notification under Section 4(1) of the Act as converted through its learned Counsel.
It is clear from the above decision that the procedure prescribed under Rule 1 of its rules framed under Section 55 of the Act for giving public notice of the substance of the 4(1) Notification is mandatory and failure to follow the procedure will vitiate the entire proceedings. In the instant case, except the averments that public notice of the substance of the notification under Section 4(1) of the Act publication was given in the locality by beat of tom-tom under rules on 1.10.1985, there is nothing on record to show that the respondent has followed the prescribed procedure for giving notice of the substance of the Notification in the locality viz., publication of the notice at convenient places in the said locality, and affixing copies thereof in the Offices of the Collector, the Tahsildar, and in the nearest Police Station: Having regard to the aforesaid peculiar circumstances of the case, the impugned proceedings are liable to be quashed.
So far as this point is concerned, the counter filed on behalf of the respondents does not advert to the giving of public notice of the substance of the notification as required under the section and the Rules framed thereunder. There is no specific answer in the counter though the writ petitioner has raised it as ground (a) in his writ affidavit. This point has therefore to be held in favour of the writ petitioner.
8. The third point urged before the learned Judge and considered by him is that while holding enquiry under Section 5-A, the petitioner had not received the views of the requisitioning department. The learned Judge found that in that case, the Government was not in a position to substantiate its stand that any detailed enquiry was conducted as contemplated under the Rules framed. J. Kanakaraj, J. In Kannammal (Deceased) v. N. Devaraj v. State of Tamil Naduand Ors. (1990), W L.R. 439 held that "remarks of the Requisitioning Authority should be available to the owner so called claimant whose land is acquired at the time of enquiry under Section 5-A. As the remarks of the Tamil Nadu Housing Board in that case had been communicated to the petitioner therein nearly two years after the enquiry under Section 5-A, it was held that it vitiated the entire enquiry under Section 5-A of the Act". The learned Judge held that in many cases, the Land Acquisition Officers held a second enquiry after the remarks were obtained by issuing notices to the land owners as well as to the Requisitioning Body and in the opinion of the learned Judge, such a procedure will alone conform to the requirements of Rule 3(b)(c) of the Rules. The learned Judge held that the enquiry under Section 5-A of the Act was vitiated. It does not appear in the present case, whether there was a further enquiry as required under Rule 3(b). On this ground also, the petitioner is entitled to succeed."
27.4. In ARUMUGHA MUDALIAR Vs. STATE OF TAMIL NADU (2002 (1) CTC 28), wherein it has been held as follows:
"8. That being the position, as regards the violation of mandatory Rule 3(b) as pointed out by the learned Senior counsel for the writ petitioners, it is not satisfactorily shown as to how the said stand of the writ petitioners cannot be sustained. As stated by me earlier, there are no details or information as to whether the objections raised on behalf of the petitioners was forwarded to the requisitioning body and whether any remark at all was received from them which was furnished to the writ petitioners who are undoubtedly the owners of the lands which were sought to be acquired. In such circumstances, when the said violation strikes at the root of the 5(A) enquiry, it will have to be held that the proceedings at the stage of 5-A enquiry cannot also be sustained. Consequently, the declaration made under Section 6 of the Act should also fall to the grounds."
28. It has also been submitted that Section 5-A enquiry had been conducted by an unauthorised person and therefore, all further proceedings issued pursuant to the said enquiry are void ab initio.
29. It has also been stated that according to Section 5-A of the Act, the District Collector should have conducted the enquiry. Section 3(c) of the Act defines the word collector, which means the Collector of a district or a Deputy Commissioner or any other officer specially appointed by the appropriate Government to perform the functions of the Collector under the Act. However, in the present case, the Special Tahsildar (LA), Plan IV, Outer Ring Road, Chennai, had not been appointed by the Government to act as the enquiry officer. There is nothing on record to show that he had been authorised by the Government to conduct the enquiry. The Special Tahsildar (LA) does not have the authority to conduct the enquiry, under Section 5-A of the Land Acquisition Act, 1894. Therefore, all subsequent proceedings based on the said enquiry are null and void. As such, the authorisation given to the Special Thasildar (LA), by the District collector, to conduct the enquiry, cannot be held to be valid. In support of the said contentions, the learned counsel for the petitioners had relied on the following decisions:
29.1. In MAYAPATI Vs. STATE OF HARYANA (AIR 1973 (P&H) 356, it has been held as follows:
"4. As regards contention (2) the plea has been taken up specifically in para 12 and again in para 18(h) of the writ petition. In the written statement filed by the Respondent-State, it is not specifically averred that the aforesaid General Assistant (Shri Jagbir Singh) was ever appointed to perform the functions of the collector under the Act. All that is stated, in reply to para 12 is "para 12 in so far as it concerns the Respondent No.3 is admitted. The rest of the para concerns Respondent No.2. It may, however, be added that the father of the petitioner or the petitioners never raised any point before the General Assistant, who is also the Land Acquisition Collector. Gurgaon with regard to his jurisdiction to hear objections under Section 5-A and hence they are estopped to challenge his jurisdiction. General Assistant to Respondent No. 2 is also the Land Acquisition Collector, Gurgaon as is evident from Annexure filed by Respondent No. 3.
5. Similar is the reply to para 18(h). It will be seen, while respondent 1 has evaded to answer the point of substance in para 12 of the writ petition by saying that it concerns Respondent 2 (Collector District Gurgaon), the latter has filed no return at all.
6. Mr. Ashok Bhan, learned counsel for the respondents has been unable to refer to any notification whereby the Government appointed the General Assistant to the Deputy Commissioner, Gurgaon, as a Collector for the purposes of the Act. The expression "collector" has been defined in Section 3(c) of the Act which says:--
"the expression "Collector" means the Collector of a district and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act." In Arjan Singh v. State of Punjab AIR 1959 PUNJ 538, the facts were that the Government Notification stated that a person was appointed as 'officiating Land Acquisition Officer' but it did not state that he was so appointed to perform the functions of a Collector under the Act and that person after taking proceedings under Section 9 and 10 gave an award under Section 11 of the Act. The proceedings were challenged by a writ petition in the Punjab High Court, Bishan Narain J. held:-"That the officer not having been appointed to perform the functions of a collector under the Act had no jurisdiction to take proceedings under Ss. 9 and 10 or give an award. Therefore, the proceedings as well as the award were invalid.
Similarly, in Civil Writ No. 1747 of 1964 (Punj) (Gajjan Singh v. Commr. Ambala Division). I had the occasion to consider the definition of the 'Collector' in Section 2(a) of the Punjab Premises and Land (Eviction and Rent Recovery) Act, 1959, which is substantially the same as the one given in Section 27 of the Punjab Land Revenue Act, 1887 and sub-section (1)(a) of Section 105 of the Punjab Tenancy Act, 1887 confers the powers of a collector to hear and determine appeals from the orders, and decrees of Assistant Collectors of the 1st and 2nd grades, falls within the definition of Collector given in the Punjab Act, 1959. It was held:- "all the powers of the Collector of the District were not conferred on him. He was not a full-fledged 'collector of the District' in the sense in which the expression is used in Section 2(a) of the Act.
7. In the result, the order of the officer concerned was struck down. In Gajjan Singh's case, Civil Writ No. 1747 of 1964 (punj) (supra) it was contended, as it has been done before me in the instant case, that this objection with regard to lack of jurisdiction was not taken before the officer concerned and consequently the petitioner was precluded from raising it for the first time in this Court. The contention was repelled in these terms:--
"this objection as to jurisdiction goes to the very root of the matter. It is purely a law point. It is, therefore, allowed to be raised now. It is well settled that even consent of the parties cannot cure inherent lack of jurisdiction in a tribunal"
If further authority is needed, the law on the point as expounded by the Supreme Court, Abdul Hussain Tayabali v. State of Gujarat AIR 1968 SC 432, may be studied with advantage. These observations are a complete answer to the plea raised by the Respondent State in reply to paras 12 and 18(h) of the writ petition.
8. For the foregoing reasons, I have no hesitation in holding that the proceedings conducted by the General Assistant to the Deputy Commissioner, Gurgaon, under Section 5A of the Act, were without jurisdiction. The making of a valid report after hearing objections of the persons interested in the land under Section 5-A, by a person who is duly constituted Collector within the meaning of Section 3(c) of the Act, being a sine qua non all further proceedings, the notification made under Section 6 on the basis of the illegal report of such an officer lacking inherent jurisdiction, will also be vitiated. In the result, I allow this writ petition and quash the impugned proceedings including the report made by the General Assistant to the Government and the impugned notification issued under Section 4(1), however, holds good and it is open to the collector of the District to rehear the objections filed by the petitioners under section 5-A and proceed further in accordance with law. The petitioners shall have their costs from Respondent 1. Counsel's fee: Rs. 50/-."
29.2. In STATE OF TAMIL NADU Vs. POWN AMMAL ((2004) 2 MLJ 726), this Court had held as follows:
"8. We have already referred to the fact that Notification under Section 4(1) is to be published in 3 modes, namely, (i) in the Gazette, (ii) in two dailies, and (iiii) in the locality. Even as per the said section, it is only a preliminary notification. The three modes of publications are intended to give an opportunity to the land owner to make effective representation and participate in the enquiry under Section 5-A of the Act. We have already held that without a specific authorization by the Government, no officer can enter upon, survey any land and perform the functions of the District Collector under Section 5-A of the Act. Accordingly, we are of the view that there must be a specific authorisation by the Government, authorising a particular officer to perform both the functions, as prescribed under Sub-Sec.(2) of Sec.4 and also under Clause (c) of Sec.3 of the Act. The notification published in the official gazette which is in English version, contains both authorization not only conferring powers upon the Special Tahsildar (Adi-dravidar Welfare), Vellore, his staff and workmen to do the acts, as provided under Sub-Sec.(2) of Sec.(4), but also conduct 5-A enquiry. One such mode was published in the official gazette without any ambiguity giving clear power to the officer concerned, here the Special Tahsildar to proceed with the acquisition. With this, he can enter upon survey any land and also conduct enquiry under Section 5-A of the Act. Merely because the exact contents of the gazette notification having not been reproduced in verbal in Tamil dailies, it cannot be construed that there is no specific authorisation on the Special Tahsildar by the Government. Though the notification published in the two dailies newspapers in the regional language did contain authorization under Sub-Sec.(2) of Sec.4, there is a omission in mentioning Clause (c) of Sec.3 authorising the Special Tahsildar to perform the functions of the Collector under Sec.5-A. Even if we accept that there is a omission, we hold that this is only an irregularity and it would not vitiate the acquisition proceedings. To put it clear, before initiation of proceedings, the Government should authorize any officer to perform the functions of a Collector both under Sec.4(2) and Sec.3(c) of the Act to enquiry under Sec.5-A of the Act. Since the Gazette Notification contained both the authorizations, we are of the view that the officer concerned, namely, Special Tahsildar can very well function and perform the duties of the District Collector. It is worthwhile to refer a decision of this Court in Maria Rosal DeRose Vs. State of Tamil Nadu, (1970) 2 M.L.J. 471, wherein it was held that Sec.4(1) of the Land Acquisition Act I of 1894, imposes two obligations before the Government could enter upon the land, survey, take level and do all such other acts necessary to ascertain whether the land is adapted for the public purpose. The first thing that has to be done is that the Government should publish a notification in the official gazette that the land proposed to be acquired in any locality is needed or is likely to be needed for any public purpose. Secondly, the Collector or the Land Acquisition Officer, as the case may be, shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The entire purpose of this Sub Section is to give public notice of the proposal, and if, therefore, it is published in the locality and particularly persons affected by the proposal are aware that such an activity is a foot, then it is sufficient. Hence, it is not correct to say that any defect in the notification under Sec.4 is fatal to the validity of the proceedings. We are in agreement with the said conclusion of the learned Judge. Therefore in our case we are unable to accept the contrary conclusion arrived at by the learned single Judge; hence the same is liable to be set aside."
29.3. In GULABRAO KESHAVRAO PATIL Vs. STATE OF GUJARAT ((1996) 2 SCC 26), it has been held as follows:
6. Under Article 163, the Council of Ministers with the Chief Minister at the head is to aid and advice the Governor in the exercise of his functions, except insofar as he is by or under the Constitution required to exercise his functions or any of them in his discretion. The Chief Minister should be appointed by the Governor and the other Ministers are appointed on his advice by the Governor. The Council of Ministers under Article 164 shall be collectively responsible to the Legislative Assembly of the State. Under Article 167, the Chief Minister shall hold the duty to communicate to the Governor all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation etc. It would, thus, be clear that the Chief Minister holds the ultimate responsibility to the Governor and is accountable to the people of the State for the good governance of the State with the assistance of his Council of Ministers. The executive power of the State is carried on by the Governor with the aid and advice of the Council of Ministers, Chief Minister being the head. In other words, the Cabinet transacts the business of the State and it is discharged by its Chief Minister to whom business of the State on specified subjects are allocated for convenient transaction of the business of the Government.
7. Article 166(1) and (2) of the Constitution state thus:
166. Conduct of business of the Government of a State. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. In other words, Article 166(1) and (2) expressly envisage authentication of all the executive actions and shall be expressed to be taken in the name of the Governor and shall be authenticated in such manner specified in the rules made by the Governor. Under Article 166(3), the Governor is authorised to make the rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In other words, except in cases when the Government in his individual discretion exercises his constitutional functions, the other business of the Government is required to be conveniently transacted as per the Business Rules made by Article 166(3) of the Constitution. If the action of the Government and the order is duly authenticated as per Article 166(2) and the Business Rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken according to Rules. The letter of the Section Officer is not in conformity with Rule 12 and Article 166(1) and (2), though under Rule 13 he is one of the authorised officers to communicate the decision of the Government. In Major E.G. Barsay v. State of Bombay (AIR 1961 SC 1762) this Court held that if an order is issued in the name of the President and is duly authenticated in the manner prescribed in Article 77(2), there is an irrebuttable presumption that the order is made by the President. Whereby the order does not comply with the provisions of Article 77(2), it is open to the party to question the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. Where the evidence establishes that the Dy.Secretary on behalf of the Central Government made the order a delegate the order cannot be questioned. Therefore, it is necessary to show whether decision of the Government is according to Business Rules.
8. Rule 15 of the Business Rules provides that these rules may, to such extent as may be necessary, be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister. Under the Business Rules 33 subjects were allotted to the Revenue Department of which Item 15 relates to acquisition of property, principles on which compensation for property acquired for the purpose of the State or for any other public purposes is to be determined and the form and manner in which such compensation is to be given; acquisition of immovable property for defence purpose etc.
9. The Urban Development and Urban Housing Department gets allotted 18 items of which Item 8 contemplates of Town Planning Scheme and Item 9 contemplates Town Planning and Valuation Department. It would thus be seen that the two departments are entitled to deal with the land acquisition and valuation thereof. Urban Planning Scheme in the urban area was allotted to the Urban Development Department and Urban Development and Urban Housing Department and the land acquisition, though part of the Town Planning Scheme, was equally an allotted subject to the Revenue Department under the subject referred to hereinbefore.
10. It is seen from the note file that when the proceedings have gone before the Secretary to the Revenue Department, by his note dated 3-7-1993 he stated thus:
(1) May be submitted to Government.
(2) Legal position being what it is, it would serve no useful purpose in discussing the issue in a survival meeting with UDD.
11. It would appear that initially in the note dated 2-7-1993, there was a suggestion to refer the matter to the Urban Development Department but later it was struck off and the above endorsement came to be made. On that basis, the Minister for Revenue had approved the suggestion made by the Secretary on 6-7-1993. It is also clear from the record placed before us that the Urban Development Department after finding that the Revenue Department is not proceeding with the acquisition had taken a decision to approach the Chief Minister who, on receipt thereof, sought legal opinion and the Law Department opined that the view of Revenue Department does not bind the Chief Minister. The question then is who would take the decision in that behalf. It would be appropriate to deal with the instructions issued in this behalf.
12. Instruction 4 in Part II says that:
4. (1) Except as otherwise provided in these instructions cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge, who may, by means of standing orders, give such directions as he thinks fit for the disposal of cases in the Department. Instructions 9 and 10 says that:
(9) When the subject of a case concerns more than one Department no order shall be issued nor shall the case be laid before the Council or the Cabinet until it has been considered by all the Departments concerned unless the case is one of extreme urgency.
(10) If the Departments concerned are not in agreement regarding a case dealt with under Instruction 9, the Minister-in-charge of the Department may, if he wishes to proceed with the case, direct that the case be submitted to the Chief Minister for orders for laying the case before the Council or the Cabinet.
13. The instructions are integral part of the scheme of the Business Rules and have constitutional flavour and force to supplement the rules. It would thus be seen that though the Minister-in-charge of the subject is empowered to have the subject disposed of in the manner laid down in the Business Rules and when two Ministers are not in agreement with the manner of the disposal of a matter or decision, then under Instruction 10 the subject concerned should be submitted to the Chief Minister for laying the same before the Council or the Cabinet.
14. The responsibility of Council of Ministers under Article 164(2) of the Constitution embodies the political responsibility of the Ministry headed by the Chief Minister. Collective responsibility makes each Minister responsible to the Legislature for the acts of himself and other members of the Council of Ministers. Since the Council of Ministers would stay in office as long as it commands the majority of the Legislative Assembly, the Council of Ministers is politically responsible as one entity. In case it loses its confidence the Ministry as a whole is required to resign. The responsibility to the Governor and accountability to the people collectively by the Council of Ministers is through and by the Chief Minister. It would, therefore, be clear that the decision of a Minister under the Business Rules is not final or conclusive until the requirements in terms of clauses (1) and (2) of Article 166 are complied with. Before the action or the decision is expressed in the name of the Governor in the manner prescribed under the Business Rules and communicated to the party concerned it would always be open by necessary implication, to the Chief Minister to send for the file and have it examined by himself and to take a decision, though the subject was allotted to a particular Minister for convenient transaction of the business of the Government. The subject, though exclusively allotted to the Minister, by reason of the responsibility of the Chief Minister to the Governor and accountability to the people, has implied power to call for the file relating to a decision taken by a Minister. The object of allotment of the subject to a Minister is for the convenient transaction of the business at various levels through designated officers. The ultimate object is to secure an impartial, pure and efficient administration as propounded by Dr Ambedkar in the Constituent Assembly vide Constituent Assembly Debates, Vol. VIII, p.546.
15. In Bachhittar Singh v. State of Punjab (1962 Supp (3) 713) a Constitution Bench of this Court was to consider whether the order of the Revenue Minister could not be reviewed and set aside by the Chief Minister. In that context it was held that the order must be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. Until such an order is drawn up by the State Government in accordance with Article 166(1), the State Government cannot be regarded as bound by what was stated in the file. The business of State is a complicated one and has necessarily to be conducted through the agency of large number of officials and authorities. The action must be taken by the authority concerned in the name of the Raj Pramukh. The Minister is no more than an advisor and as the head of the State the Governor or the Raj Pramukh has to act with the aid and advice of the Council of Ministers. Until the advice is accepted by the Governor, whatever the Minister or the Council of Ministers may say with regard to a particular matter, does not become the action of the State until the advice of the Council of Ministers is accepted by the head of the State. Until order is drawn up in the manner indicated by Article 166(1) and communicated to the person who would be affected by the order it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication, the order cannot be regarded as anything more than provisional in character. Even if the rule does not contemplate that the Chief Minister would be entitled to pass an order but when the rule envisages that he is entitled to call for the file for issue of order, it clearly implies that he has the right to interfere and make such order as he may deem appropriate. The Chief Minister may call any file and deal with it himself. The order passed by the Chief Minister even though it is a matter pertaining to the portfolio of the Revenue Minister will be deemed to be an order of Council of Ministers. So deemed, its contents would be the Chief Ministers advice to the Governor for which the Council of Ministers would be collectively responsible. This view was reiterated by a larger Bench of seven Judges of this Court in State of Karnataka v. Union of India (1977) 4 SCC 608. In para 46 this Court held that the object of collective responsibility is to make the whole body of persons holding ministerial office collectively or if one may so put it, vicariously responsible for such acts or the other as are referable to their collective volition so that even if an individual may not be responsible for it he will be deemed to share the responsibility with those who may have actually committed the wrongful act. In para 48 the Court observed that responsibility to Parliament only means that the Minister may be compelled by convention to resign. Out of this responsibility arose the principle of collective responsibility. The Government has to be carried on as a unity rather than by a number of advisers of the Sovereign acting separately."
30. It had also been stated that 30 days time had not been given to the land owners to submit their objections, as provided under the Act. Since, sufficient time had not been given to raise their objections, the petitioners were not in a position to make their effective representations, based on proper legal advise. From the records produced by the respondents, it is noted that the land owners had submitted their objections only on the date of the enquiry fixed by the respondents in their section 3-A notices. Thus, it is clear that the enquiry conducted by the respondents is in violation of Section 4(1) of the Act.
31. It has also been stated that the Special Tahsildar had failed to arrive at a decision and he had made no specific recommendation, as mandated under the relevant provisions of the Act. In fact, he had issued the Section 6 declaration, accepting the remarks of the requisitioning body, to acquire the lands of the petitioners without applying his mind, independently. Further, Section 6 declaration has been passed by the Special Commissioner and Commissioner of Land Administration, Chennai, without having the authority to do so, as the value of the lands notified is more than Rs.25,00,000/-. In such circumstances, it is only the State Government, which is empowered to issue such a declaration. Therefore, the Section 6 declarations made in respect of the lands in question are ultra vires and void.
32. It has also been stated that no public notice, containing the substance of the Section 6 declaration, had been published in the locality, by the District Collector, as mandated under Section 6(2) of the Act, within the period of 60 days, as contemplated in the explanation (b) of the State amendment issued to Section 6 of the Act. Since, no proper publication had been made, as prescribed by the relevant provisions of law, the declaration would be null and void. The learned counsel had relied on the decision of the Supreme Court, in KUNWAR PAL SINGH Vs. STATE OF U.P. ((2007) 5 SCC 85), wherein it has been held as follows:
"9. Shri Anil Raj Kumar, Officer on Special Duty, MDA, Respondent 4 herein, in his counter-affidavit states that the High Court has taken into consideration the award passed by the Collector specifically referring to 13-8-1985, the date of publication of notification under Section 6 of the Act and the fact that the stay order was in operation w.e.f. 2-8-1985 till 19-9-1996. It is also stated that the High Court has upheld the award having been passed on 18-9-1998 within the period of limitation as prescribed by Section 11-A of the Act and as such the land acquisition proceedings would not lapse as contended by the appellants. He reasserted that declaration under Section 6 of the Act was issued on 13-8-1985 and not on 25-7-1985 as alleged by the appellants.
16. Section 6(2), on a plain reading, deals with the various modes of publication and they are: (a) publication in the Official Gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and (c) causing public notice of the substance of such declaration to be given at convenient places in the said locality. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefor in the Act.
22. The statement of Smt Nisha Goel made in the counter-affidavit filed by her on behalf of Respondents 1, 2 and 3 that the declaration of public notice by last mode under Section 6(2) of the Act by beat of drums in the locality on 13-8-1985 manifestly is wrong and on the face of it contrary to the contents of the notice (Annexure R-2) filed by her with the affidavit. This notice dated 13-8-1985 was issued by the Land Record Inspector, Block Rohta, Tehsil Meerut, in response to the letter of MDA dated 9-8-1985 and that of the District Land Acquisition Officer, Meerut, dated 1-8-1985. The relevant substance of the notice reads as under:
The land described in the enclosed list situate in Village Dantal, Block Rohta, Tehsil Meerut has been acquired by Meerut Development Authority for its residential scheme and letter for obtaining its possession has been received on 12-8-1985 at 3 p.m. and intimation of which has been given today, 13-8-1985 in Village Dantal to all farmers and residents concerned of the village by beat of drums and in loud voice that notification had been published on 19-7-1985, 25-7-1985 in daily newspapers, Meerut Samachar, Janta Express and Hamara Yug and Government Gazette. Since the land has been acquired for the residential scheme of Meerut Development Authority, no farmer should change the nature of rights in the land and the possession of acquired land will be taken on 16-3-1985.
23. This notice appears to have been signed by marginal witnesses Har Pal Singh, Sudhir Kumar and Yash Vir Singh and thumb mark by Chhote on 13-8-1985. The language employed in this notice would not prove that it was the last mode of publication referred to in Section 6(2) of the Act. In substance, this notice appears to have been issued in purporting exercise of power under Section 9 of the Act for taking possession of the acquired land on 16-8-1985. Thus, this notification, in no circumstances, would prove that it was the last mode of publication referred to in Section 6(2) of the Act.
27. The ratio of the judgment in State of Haryana v. Raghubir Dayal (1995) 1 SCC 133 relied upon by the respondents, is of no assistance or help to them. In that case, while dealing with the provisions of Sections 4(1), 5-A and 6(2) of the Act, this Court held: (SCC pp.133-34) Since there is an opportunity already given to the owner of the land or persons having interest in the land to raise their objections during the inquiry under Section 5-A, or otherwise in case of dispensing with inquiry under Section 5-A unless they show any grave prejudice caused to them in non-publication of the substance of the declaration under Section 6(1), the omission to publish the substance of the declaration under Section 6(1) in the locality would not render the declaration of Section 6 invalid. However, this does not mean that the officers should not comply with the requirement of law. It is their duty to do it.
33. The learned counsels for the petitioners had also submitted that it cannot be said that the petitioners had waived their rights by participating in the enquiry and therefore, they would be barred from challenging the said proceedings, based on the principles of acquiescence and estoppel, as their participation in the enquiry was based on their belief that it was being conducted fairly and properly. Subsequently, they had learnt that the enquiry had not been conducted by the person authorized to do so, as per law.He had relied on the decision in DADU DAYALU MAHASABHA, JAIPUR (TRUST) Vs. MAHANT RAM NIWAS (2008 11 SCC 753), in support of the said contention, wherein it had been held as follows:
"22. The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out from the backdrop of the fact of each case. The court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.
26. We, however, are not unmindful of the principles of estoppel, waiver and res judicata are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play."
34. It has also been submitted that the acquisition of land is beyond the scope of the public purpose notified under Section 4(1) of the Act. When the Section 4(1) notifications state that the public purpose, for which the petitioners lands are being acquired, is for the formation of the Outer Ring Road, the acquiring of additional extent of lands for about 90 feet, on either side of the road, would be arbitrary and illegal, especially, when the additionally acquired lands are meant to be used for commercial and residential purposes, by developing them into plots, through private partners.
35. It has also been stated that the records produced by the respondents would not show the correct picture. In fact, some of the aspects stated in the counter affidavit are contrary to the facts available from the records. Thus, it is clear that the non consideration of the requests made on behalf of the land owners to shift the alignment to the eastern side, as proposed by the Pallavan Transport Consultancy Services Limited, Chennai, is arbitrary and illegal.
36. It has also been submitted that the respondents had played fraud on this Court by making false statements and by producing fabricated records. Further, they are liable to pay compensation to the petitioners and to pay the costs of the litigations, as the land acquisition proceedings are totally illegal and void. Thus, Section 5-A Enquiry conducted by the authorities concerned cannot be said to be valid in the eye of law.
37. The learned counsels for the petitioners, in W.P.Nos.13287, 13288 and 13289 of 2009, had submitted that the petitioners were not served with Section 4(1) notices, said to have been issued by the respondents. Since, the lands belonging to the petitioners, sought to be acquired by the respondents, are vacant lands, the petitioners are not residing in the said lands. Therefore, it would not be sufficient if the notifications, in respect of the land acquisition proceedings, are published in the district gazette. In fact, wide publicity ought to have been made to inform all the land owners, including, those who are residing far away from the lands.
38. It has also been submitted that the approval for the formation of the Outer Ring Road project had been granted in the year, 1993, vide G.O.Ms.No.381, Housing and Urban Development Department, (UD III-1) dated 25.5.1993. While so, a formal approval had been granted to Sri Vignarajan Nagar Layout, on 16.8.1994, vide L.O.No.85/1994. Thus, it is clear that the acquisition of lands belonging to the petitioners is arbitrary and illegal. It had also been stated that the District Collector has no jurisdiction to issue the notifications, as the value of the lands in respect of which the section 4(1) notifications had been issued exceeds Rs.50,00,000/-.
39. It had also been stated that the alignment of the Outer Ring Road, between the relevant points, is not based on valid scientific reasons. It is only based on the recommendations made by certain interested parties. The learned counsel had relied on the decision of this Court, dated 30.8.2010, made in W.P.No.16417 of 1998, wherein this Court had quashed the notification holding that some of the lands were excluded from the acquisition proceedings merely on the recommendations of the high level committee and hence, it is unlawful.
40. It has also been stated that Section 5-A enquiry had not been conducted by the proper persons authorised to do so as per law. The decision in KUMAR NAICKER K. Vs. STATE OF TAMIL NADU AND OTHER (1998 W.L.R.417) had been relied on in support of the said contention.
41. It had also been stated that no notice had been sent for giving an opportunity of personal hearing, as contemplated under the relevant provisions of law. In fact, the Section 5-A enquiry has only been an empty formality, as the petitioners had not been put on notice regarding such enquiry.
42. It had also been stated that the acquisition of the lands by the respondents was not only for public purpose but it was also for certain commercial purposes and for the construction of residential houses. Therefore, the acquisition is improper and invalid, as held in SHANMUGADURAI Vs. STATE OF TAMIL NADU (2001 (2) CTC 257). The relevant paragraphs of the said decisions are as follows:
"8. Of course, in order to get-over the objections based on vagueness of Section 4(1) notification, the respondents would contend (vide counter affidavit filed on behalf of the respondents in W.P.No.21355 of 1993) that in order to enlighten more about the project, it was mentioned in the declaration under Section 6 of the Acquisition Act that the lands are needed for commercial and residential neighbourhood schemes under the project known as "land assembly and development project". In other words, the contention is that failure to give detailed particulars of the public purpose in Section 4(1) notification could not vitiate it, more so, when sufficient particulars had been provided in the notification issued under Section 6(1) of the Acquisition Act. This is too untenable a contention to be accepted. In our considered opinion, the Government may not be justified in filling up the lacuna in Section notification by improving it further in Section 6 declaration. It is well settled that when a statutory functionary makes an order or issues a notification based on certain grounds, its validity must be Judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, any order bad in the beginning, may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J in Gordhandas Bhanji, AIR 1952 SC 16, which reads as follows:
"Public orders publicly made. In exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older. (See in this connection, the Constitution Bench decision of the Supreme Court in Mohinder Singh Vs. Chief Election Commr, AIR 1978 SC 851, at page 858, paragraph 8). The question arose more specifically before the Supreme Court in Madhya Pradesh Housing Board's Case, 1992 (2) SCC 168, wherein, the Apex Court, after noting the disparities in Section 4(1) notification and Section 6(1) declaration held as follows:
"17. That apart, this case also discloses non-application of mind by the authorities concerned and rather casual manner in dealing with the property of the citizens vitiating the acquisition proceedings. Whereas the letter of the Executive Engineer of the Housing Board to the Collector had indicated that the Chairman of the Board had found the land suitable for "construction of buildings and shops under the self-financing scheme", the notification issued under Section 4(1) makes no mention thereof and instead declares the "public purpose" to be "residential". Again, in the declaration issued under Section 4 (1) of the Act the "public purpose" has been state to be "housing scheme of Housing Board" and not "construction of buildings and shops under the self financing scheme. Admittedly, apart from the letter referred to above, there was no other material with the State Government and therefore, it is not under stand able on what material, did the State Government state the "public purpose" in different terms in the notifications issued under Section 4 and 6(1). No explanation has been furnished by the learned counsel as to why different public purposes were mentioned in the letter of the Board and the two notifications issued under Section 4 and 6 of the Act. (Italics supplied by us). These factors go to expose non-application of mind by the authorities while issuing the impugned notification and it appears that they were not even sure about the "public purpose" for which the land was sought to be acquired.
This position stands settled as per the decision of the Supreme Court rendered as early as in 1971 in Narendrajit Vs. State of U.P. AIR 1971 SC 306, wherein, it has been held that the defect in a notification under Section 4(1) cannot be cured by giving full particulars in notification under Section 6(1). In the light of the aforesaid discussion, we have no hesitation in holding that notification issued under Section 4(1) is vitiated by vagueness and the defect of vagueness cannot be cured by the subsequent declaration under Section 6(1) of the Acquisition Act.
9. The Government have a case that the appellants/petitioners are guilty of laches in so far as they failed to invoke the jurisdiction of the Court immediately after the issuance of notification under Section 4(1) of the Acquisition Act. This again is an untenable contention. Similar contention advanced in Narendrajit's case, AIR 1971 SC 306 was repelled by the Apex Court in the following terms:
"The fact that the petitioners (owners) did not go to Court immediately after the publication of the first notification is not a matter of any moment. The defects were not cured and cannot be glossed over by reason of the fact that the petitioners went to Court after the issue of the notification under Section 6(1)."
Accordingly, we reject the abovesaid contention of the Government as well.
16. At any rate, the facts of the cases on hand are clearly different from the facts of the above mentioned cases cited by the respondents. In the present batch of cases, the question of vagueness was raised by the appellants/land owner before the authorities by way of objections immediately after issuance of Section 4(1) notification. Before the Court, vagueness was pleaded and argued in the writ petitions, and this Court, considered the vagueness in the notification as an issue and answered the same in the common order. In all the abovesaid cases referred to by the respondents, the land owners did not take up the plea of vagueness before the Land Acquisition Officer with a contention that since the public purpose is vague, they are not in a position to file a meaning objection. In the cases on hand, the specific contention was taken by the appellants before the Land Acquisition Officer that since the public purpose in the notification under Section 4(1) is vague, and as the term: "land assembly and development project" is a very general term, they are not in a position to object specifically against the acquisition. The extent, of land in the cases referred to by the respondents comes to thousands of acres. On the other hand, the property acquired in the cases on hand is only 33.16 acres. The public purpose shown in Section 4(1) and Section 6 are entirely different. Even according to the Government, Section 4(1) does not contain the details of the public purpose which necessitated them to explain the public purpose in Section 6 declaration. In all the cases referred to by the respondents, the Apex Court declined to interfere in the land acquisition proceedings, as the land owners were found guilty of laches, whereas, the appellants in these batch of cases, are not guilty of laches."
43. It has also been stated that, when poramboke lands are available on the eastern side of the proposed lands, it would be improper on the part of the respondents to acquire the lands wherein a number of residential buildings had been constructed, based on the approval of the layouts, by spending huge amounts of money. Further, an extent of 3.5 kilo meters of lands, from Nemilicherry to Palavedu, belongs to the state Government.
44. The learned counsels had also submitted that no public notice, as contemplated under Section 6(2) of the Act, had been published, by the District collector, at the convenient places in the locality. Therefore, the declaration is invalid in the eye of law.
45. Per contra, Mr.P.S.Raman, the learned Advocate General, appearing for Mr.M.Dhandapani, the learned Special Government Pleader, appearing on behalf of the respondents 1, 3, 4 and 5 had submitted that the Government of Tamil Nadu had issued the necessary orders, vide G.O.Ms.No.381, Housing and Urban Development (UD III-1) Department, dated 25.5.1993, for the formation of the Outer Ring Road, between Thiruvallur Road and Thiruvotriyur Ponneri Panjetty Road, for a distance of 33.1 kilo meters, under phase II of the project. In the Government order, in G.O.Ms.No.303 Housing and Urban Development Department, dated 2.7.1996, the Government had sanctioned the creation of four land acquisition units. Eight notifications had been issued, in respect of blocks 1 to 8, under Section 4(1) of the Land Acquisition Act, 1894 for the purpose of the acquisition of lands. Since, the value of each of the eight blocks did not exceed Rs.25,00,000/-, the District Collector had issued the Section 4(1) notifications, which had been published in the district gazette, as well as in two Tamil Dailies, namely, 'Dina Thanthi' and 'Dina Malar'. Publication had also been done in the locality concerned.
46. It had also been submitted that the objections had been called for from the land owners and an enquiry, under Section 5-A of the Land Acquisition Act, 1894 had been held, in accordance with the procedures established by law. Thereafter, an award had also been passed in respect of the acquired lands.
47. It has also been submitted that the contentions raised on behalf of the petitioners that the District Collector, Thiurvallur District, does not have the jurisdiction to issue the impugned notifications, for acquiring the lands in question, are not acceptable. As per Section 4(1-A) of the Land Acquisition Act, introduced by the Tamil Nadu State Amendment the District collector is the authority to publish the 4(1) notification, in respect of the lands not exceeding 40 acres in extent, the value of which does not exceed Rs.25,00,000/-. It cannot be said that there should only be a single notification, under Section 4(1) of the Act, in respect of the lands proposed to be acquired. Nothing in law prevents the Government from splitting large extents of lands, which are needed for a public purpose, into different blocks for the purpose of administrative convenience in issuing the necessary notifications.
48. It has also been submitted that the value of the lands acquired for the Outer Ring Road Project had been ascertained by the concerned officers by taking the market value of the lands, located within an area of 1.6 kilo meters radius from the lands sought to be acquired, during the period of 3 years prior to the issuance of the Section 4(1) notifications. From the records available, it could be clearly seen that the value of the lands sought to be acquired by the respondents, in each of the blocks, would not exceed Rs.25,00,000/-. Thus, it is clear that the District collector concerned was having the jurisdiction to issue the impugned Section 4(1) notifications.
49. It had also been stated that, while passing the award, if the authorities concerned decides to give a higher compensation, or if the sub court concerned comes to the conclusion that the compensation given to the parties had to be enhanced, such higher or enhanced compensation, granted in favour of the land owners, would not, in any way, vitiate the notifications issued by the District Collector, whose decisions had been made, based on the materials available at the relevant point of time, as per law.
50. It had also been submitted that it is true that the publication of the impugned notifications had been made in the district gazette and not in the state gazette. However, the contention raised on behalf of the petitioners that the publication of the impugned notifications in the district gazette, instead of publishing them in the state gazette, would invalidate the land acquisition proceedings, is hyper technical in nature, as held by the Supreme Court, in WASTE PRODUCTS RECLAIMOR PRIVATE LTD Vs. BHARAT COKING COAL LTD. (1993 SUPP (2) SCC 358). In such circumstances, the decision of this Court in A.S.PERIASAMY Vs. STATE OF TAMIL NADU REP. BY ITS SECRETARY, SOCIAL WELFARE DEPARTMENT, FORT ST. GEORGE, CHENNAI 9 AND OTHERS (2004 (2) CTC 406) cannot be held to be laying the correct position of law.
51. It has also been stated that the petitioners had been given proper notice of the enquiry conducted, under Section 5-A of the Act. The records available with the respondents would show that the notices of section 5-A enquiry had been dispatched by the concerned authority to the land owners, by registered post, with acknowledgment due. The notices had been sent to their addresses, as recorded in the revenue records. In cases, where the notices had been returned unserved, they have been affixed in the concerned notice boards and in the lands in question. Apart from such steps having been taken to serve the notices, the necessary information had been announced, by way of tom tom, as contemplated under the Act.
52. It had also been submitted that the Supreme Court had held, in W.B.HOUSING BOARD Vs. BRIJENDRA PRASAD GUPTA (1997 6 SCC 207), that the concerned authority is not expected to make a roving enquiry into the ownership of the lands in question. If notices had been served at the addresses recorded in the revenue records, the procedure prescribed for such service of notices would have been satisfied. In the case of the petitioners, notices had been served, as per the procedures prescribed by law and most of them had participated in the enquiry proceedings.
53. It had also been submitted that the objections had been raised, regarding the alignment of the road, stating that poramboke lands were available on the eastern side of the proposed alignment. In JAYABHERI PROPERTIES (P) LTD., Vs. STATE OF A.P. (2010 (5) SCC 590), the Supreme Court had held that, in the facts and circumstances of a given case, public interest would outweigh the interest of individual plot owners, especially, with regard to the aspect of fixing of the alignment of the road concerned and therefore, the proposed alignment of the outer ring road project for Hyderabad and Secunderabad had been upheld. Further, the First Bench of this Court had held, in R.KUMAR Vs. STATE OF TAMIL NADU (2007 (2) MLJ 384), that the question of alignment is best left to the authorities concerned. The State always has the power to acquire any land for a public purpose, and once compensation is given, the power is complete. There being no deviation or violation of any procedure established by law, a party cannot have any legal grievance. In the present case, the alignment of the outer ring road project had been decided by the authorities concerned and the same had been approved by the state Government. Any change in the alignment would give rise to new technical problems. At this juncture it would be appropriate to note that a Division Bench of this Court, in CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECRETARY, CHENNAI 600 008 Vs. LAKSHMI NAGAR RESIDENTS WELFARE ASSOCIATION, REPL BY ITS PRESIDENT, THIRUNINDRAVUR (W.A.No.603 of 1999), by its order, dated 19.9.2000, had rejected similar contentions raised on behalf of the land owners. Thus, it is clear that the respondents had followed all the procedures prescribed for the acquisition of the lands in question. As such, the impugned notification, as well as the other procedures followed by the respondents, are valid in the eye of law.
54. It has also been submitted that the acquisition of the lands in question is for the public purpose of building the roads, in order to prevent the congestion of the traffic in the city. Even though Phase-I of the project had already been completed, the whole project had been delayed, in view of the pendency of the present litigations initiated by some of the owners of the lands. Most of the owners of the lands, acquired by the respondents for the Outer Ring Road Project, had accepted the compensation, without any protest.
55. It has also been stated that, in RAMNIKLAL N.BHUTTA Vs. STATE OF MAHARASHTRA (1997 1 SCC 134), it has been held that the courts have to weigh the public interest, as against the private interest, while exercising their power, under Article 226 of the Constitution of India, even if it is found that the acquisition proceedings are vitiated on account of the non-compliance of certain legal requirements. The persons interested may only be entitled to certain specified amounts to be awarded as damages. Therefore, when appropriate reliefs could be granted, by way of compensation, the quashing of the acquisition proceedings may not be the only solution to redress the grievance of such interested persons. The said decision had been reiterated by the supreme Court, in GIRIAS INVESTMENT (P) LTD., AND ANOTHER Vs. STATE OF KARNATAKA (2008) 7 SCC 53) holding that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. In such circumstances, the contentions raised on behalf of the petitioners are not sustainable in the eye of law. Hence, the writ petitions are liable to be dismissed, as they are devoid of merits.
56. It is seen that the main contentions raised on behalf of the petitioners are as follows:
56.1. It has been submitted that the government of Tamil Nadu had not taken the decision to notify the lands in question for the purpose of acquiring the said land for the Outer Ring Road Project, even though the notifications state that the Government had taken such a decision. The District Collector, Thiruvallur District, had misrepresented the facts stating that the Government had taken the decision for acquiring the lands in question. As such, it is a fraudulent and colourable exercise of power and therefore, it is invalid in the eye of law.
56.2. It has also been submitted that the District Collector concerned did not have the pecuniary jurisdiction to issue the impugned notifications, since, the impugned notifications are in respect of lands, the value of which exceeds Rs.25,00,000/-, even if it could be assumed that the division of the lands proposed to be acquired into units and blocks is correct and valid.
56.3. It had also been submitted that the respondents had not produced the necessary records to show that the District Collector concerned had applied his mind in fixing the rate for the lands. There is nothing on record to show the basis on which the rates had been fixed. Further, the value of the buildings in the lands sought to be acquired, by the respondents, exceeds the limit fixed for the determination of the pecuniary jurisdiction of the District Collector. When there are vacant lands available on the eastern side of the proposed alignment of the road, as poramboke lands, there is no proper explanation from the respondents to justify the acquisition of lands belonging to the petitioners, which are forming a part of the approved layouts concerned. Enormous amounts of money are being spent by the State Government for acquiring the lands, when poramboke lands, belonging to the Government, are available.
56.4. The right of the citizen available under Article 300-A of the Constitution of India cannot be taken away, except by the due procedures established by law. Even the splitting of the lands into units and blocks had been done in an arbitrary manner, there is no publication of the substance of the notifications in the locality concerned. There is no evidence of the announcement regarding the acquisition, by way of 'tom tom'.
56.5. It had also been claimed that form 3 notices should have been issued only by the District Collector, whereas, it is the Special Tahsildar (Land Acquisition), who had issued the said notices. The respondents have not been in a position to show the availability of form 3 notices in the schedule. Further, the records produced on behalf of the respondents should substantiate the procedures followed during the land acquisition proceedings, specifically. As per Section 79 of the Indian Evidence Act, 1872, no evidentiary value can be attached to the documents. The documents relied on by the respondents are not in the prescribed form. The improper maintenance by the respondents would go to show their lackadaisical attitude, in respect of the impugned land acquisition proceedings. While the Outer Ring Road project is said to be a public purpose, there is no proper reason shown by the respondents for the acquisition of larger extents of lands, which are meant for commercial purpose. No clear reasons had been given for the earlier realignment of the proposed road.
56.6. It had also been stated that the Chennai Metropolitan Development Authority had not filed a counter, denying the claims made on behalf of the petitioners. Hence, adverse inference had to be drawn against the land acquisition proceedings. It had also been stated that the order passed by this Court, on 19.9.2000, in the writ appeal, in W.A.No.603 of 1999, is not binding on the petitioners, based on the principle of res judicata, as it had been obtained by fraud. Further, the Division Bench order does not conclusively deal with the issue regarding the alignment. Since, the issues raised in the present writ petitions had not been raised in the earlier writ petition filed by the land owners, the principle of res judicata would not be applicable to the present case. Therefore, the State Government should be directed to consider the aspect of re-alignment of the proposed road. The State Government ought to have considered the technical, as well as the economic aspects of the land acquisition proceedings before arriving at a final conclusion. The decision making process of the respondents are totally arbitrary in nature, violating the wednesbury principle. Since, the acquisition of land is also for commercial purpose and for the construction of residential houses, as seen from the records available, the acquisition proceedings cannot be said to be purely for a public purpose. Since, Section 4(1) notifications had been issued by the authority concerned, without having the jurisdiction to do so and as the Section 5-A enquiry proceedings had not been conducted, as per the procedure established by law, the entire land acquisition proceedings in question would be invalid and void.
57. Mr.P.S.Raman, the learned Advocate General appearing for Mr.M.Dhandapani, the learned Special Government Pleader , appearing on behalf of the respondents 1, 3, 4 and 5 had submitted, in his reply, that the Government of Tamil Nadu is the authority empowered to acquire the lands necessary for a public purpose. The State Government had authorised the District Collector, Thiruvallur District, to acquire the lands in question for the purpose of phase II of the Outer Ring Road Project. The fixing of the value of the lands had been done, based on a valid valuation report. However, the claim made on behalf of the petitioners, for enhanced compensation, cannot vitiate the entire land acquisition proceedings. In fact, 90 percent of the land owners had accepted the award. Since, there is no mala fide intention on the part of the respondents, in the land acquisition proceedings under challenge, the said proceedings cannot be held to be invalid in the eye of law. The order of the Division Bench of this Court, in W.A.No.603 of 1999, operates as res judicata against the petitioners in the present writ petitions. All the pleas raised by the petitioners had already been rejected by this Court in the said order. No instructions had been given by the State Government for the acquisition of lands for commercial purpose. As the enquiry proceedings had been conducted by the authority concerned, as per Section 5-A of the Land Acquisition Act, 1894, by giving sufficient opportunity of representation to the petitioners, it cannot be said that such enquiry is invalid in the eye of law.
58. The learned Advocate General appearing on behalf of the respondents had relied on the decision in EXECUTIVE ENGINEER AND ADMINISTRATIVE OFFICER, TAMIL NADU HOUSING BOARD, VELLORE Vs. S.GOVINDARAJ (2004) 1 M.L.J.381), wherein it has been held that a plain reading of Sections 4(1) and 5-A of the Land Acquisition Act, 1894, make it clear that the Act itself provides the period of limitation of 30 days from the date of the publication of the Section 4(1) notification. As such, the land acquisition proceedings of the respondents, for the formation of phase II of the Outer Ring Road between Thiruvallur Road and Thiruvotriyur Ponneri Panjetty Road, for a distance of 33.1 kilo meters cannot be held to be contrary to the procedures established by law. As such, the writ petitions are devoid of merits and therefore, they are liable to be dismissed.
59. In view of the averments made in the affidavits filed in support of the writ petitions and in the counter affidavits filed on behalf of the respondents and in view of the submissions made by the learned counsels appearing on behalf of the petitioners, as well as the respondents, and in view of the decisions cited by them, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to grant the reliefs, as prayed for by them in the present writ petitions.
60. From the records placed before this Court, it is seen that the Government of Tamil Nadu had approved the proposal of the Chennai Metropolitan Development Authority, for the development of the Outer Ring Road, between Thiruvallur Road and Thiruvotriyur Ponneri Panjetty Road, for a distance of 33.1 kilo meters, in its order, in G.O.Ms.No.381, Housing and urban Development (UD III-1) Department, dated 25.5.1993. In its order, in G.O.Ms.No.303, Housing and Urban Development Department, dated 2.7.1996, the State Government had sanctioned the creation of four land acquisition units, comprising of the Special Tahsildar, (LA) and a supervisory unit headed by a District Revenue Officer, (LA), along with the necessary supporting staff. The District Revenue Officer (LA) had divided the entire extent of land, proposed to be acquired and allotted for the purpose of the Outer Ring Road project into four units. The lands in Poonamallee Taluk, including those in Thirunindravur village, had been allotted to Special Tahsildar (Land Acquisition) Unit IV. The acquisition of 10.49.5 hectares of land, in Thirunindravur Village, Poonamallee Taluk, Thiruvallur District, has been split into eight blocks. The necessary notifications, under Section 4(1) of the Land Acquisition Act, 1894, had been approved by the District Collector, Thiruvallur District. Thereafter, they had been published in the Thiruvallur District Gazette and in the locality concerned. The notification had been published in the local newspapers and had also been announced, by way of tom tom. Enquiries had been conducted, as per Section 5-A of the Land Acquisition Act, 1894. The objections of the land owners had been forwarded to the Chennai Metropolitan Development Authority, the requisitioning body, and their remarks had been received. The objections raised by the land owners had been duly considered. Thereafter, the awards had been passed, acquiring the lands in question.
61. It has also been noted that the necessary publication had been made, within the period of 30 days, as mandated under Section 4(1-A) of the Land Acquisition Act, 1894. The land owners had been given a reasonable opportunity to file their objections, if any, and necessary publication had been made. After considering the objections raised by the land owners, the awards had been passed. Therefore, it is not open to the petitioners to challenge the land acquisition proceedings, at this belated stage. However, it would be open to them to seek the relief of enhancement of the amount of compensation by approaching the concerned Court, under Section 18 of the Land Acquisition Act, 1894.
62. It is also seen that the issue regarding the realignment of the road, raised in W.A.No.603 of 1999, had already been rejected by a Division Bench of this Court, by its order, dated 19.9.2000.
63. It is also clear from the decisions of the First Bench of this Court, in R.KUMAR Vs. STATE OF TAMIL NADU (2007 (2) MLJ 384) and as held by the Supreme Court in its recent decision in JAYAPHERI (P) LTD., Vs. STATE OF A.P. (2010) 5 SCC 590), that the issue regarding the alignment of the road in question is to be decided by the experts, who are concerned with it and therefore, it is not for this Court to decide the issue raised by the petitioners relating to the alignment of the road in question, forming a part of the Outer Ring Road project. Further, the petitioners have not been in a position to substantiate their claim that they are residing in the lands sought to be acquired by the respondents said to be forming a part of the approved layouts concerned.
64. It is also seen that the State Government had granted its approval for the formation of the Outer Ring Road, in the year, 1993, whereas the approval of the layouts is said to have been given only in the year, 1994. However, in view of the well established concept of 'Eminent Domain', it is open to the appropriate Government to acquire the lands found to be necessary for public purposes, even if it is found to be in conflict with certain private interests.
65. It is also seen that the petitioners have not been in a position to sufficiently substantiate their claims that the District Collector, Thiruvallur District, does not have the jurisdiction to issue the notifications under section 4(1) of the Land Acquisition Act, 1894. The valuation of the lands, as given by the petitioners, cannot be the basis on which it could be held that the value of the acquired lands, which had been divided into units and blocks, is more than Rs.25,00,000/-. There is nothing shown on behalf of the petitioners for this Court to come to the conclusion that the division of the lands, into units and blocks, has been done in a mala fide manner. It is for the concerned Government to approve such divisions of the lands for the sake of administrative convenience.
66. Once it is found that the procedures prescribed under Section 5-A of the Land Acquisition Act, 1894, had been followed by the respondents, it cannot be said that sufficient opportunity had not been given to the petitioners to raise their objections. There is nothing to show that the respondents had not sent the necessary notices to the petitioners, asking them to raise their objections, if any, by way of registered post, with acknowledgment due. In respect of those notices, which had been returned unserved, the respondents had served the notices, by affixture. It is the claim of the respondents that the notices had been issued to their addresses, as found in the revenue records. In such circumstances, it cannot be held that the enquiry conducted by the authorised authority was improper, illegal and void.
67. The petitioners have not been in a position to establish their claim that the acquisition of the lands, said to be belonging to the petitioners, is not for a public purpose.
68. The allegation of the petitioner that a portion of the land had been acquired both for commercial, as well as for residential purposes, had not been established, by necessary evidence. It is relevant to cite the decision of the Supreme Court, in WASTE PRODUCTS RECLAIMOR PRIVATE LTD Vs. BHARAT COKING COAL LTD. (1993 SUPP (2) SCC 358), wherein, it has been held as follows:
"6. The main objection of the raiyats in the other appeal is that the notification under Section 6 has not been published in the Official Gazette and was published only in the District Gazette and since the same is not in accordance with the provisions of Section 6, the acquisition proceedings should be quashed. This is a highly technical objection. The raiyats never raised any objection for so many years but sought to intervene for the first time in the High Court."
69. As such, it cannot be said that the land acquisition proceedings initiated by the respondents, for the acquisition of the lands, for the Outer Ring Road project, is vitiated by procedural irregularities and in violation of the provisions of the Land Acquisition Act, 1894. Therefore, in the given facts and circumstances of the case, this Court is of the view that the procedures prescribed by the various provisions of the said Act has been shown to be complied with, by the respondents. In such circumstances, the contentions raised on behalf of the petitioners cannot be countenanced. As such, the writ petitions are devoid of merits and therefore, they are liable to be dismissed. Hence, they are dismissed. No costs. Consequently, connected M.Ps are closed.
2.12.2010
INDEX : YES
INTERNET : YES
lan
To:
1. The Secretary
The Government of Tamil Nadu
Housing and Urban Development
Fort St. George, Chennai 9
2. The Chennai Metropolitan Development Authority
Rep. by its Member Secretary
No.8, Gandhi Irwin Road, Egmore
Chennai 8
3. The Special Commissioner
and Commissioner of Land Administration
Chepauk, Chennai 600 005
4. The District Collector
Thiruvallore District
Thiruvallore
5. The Special Tahsildar (LA)
Plan-IV, Outer Ring Road
CMDA, No.8, Gandhi Irwin Road
Egmore, Chennai -8
6. The Pallavan Consultancy Services Ltd.,
rep. by its Managing Director
CMDA Building, Egmore, Chennai-6
M.JAICHANDREN J.,
lan
W.P. Nos.761,762,763,764 and 765 of 2010, W.P.Nos.13287,13288 and 13289 of 2009, W.P.Nos.29223,29224,29225,29226,29227 and 29228 of 2007, W.P.No.29315 of 2007, W.P.No.27926 of 2007, W.P.No.28522 of 2007, W.P.No.4362 of 2010, W.P.Nos.2940,2941,2942,2943,2944,2945,2946,2947 and 2948 of 2010, W.P.No.3924 of 2010, W.P.No.3925 of 2010, W.P.Nos.11383, 11384, 11385,11386,11387 and 11388 of 2008, W.P.Nos.11389,11390,11391,11392,11393 and 11394 of 2008, W.P.Nos.7641,7642,7643,7644,7645,7646,7647,7648, 7649,7650,7651,7652 and 7653 of 2008, W.P.No.7495 of 2010, W.P.No.19482 of 2009, W.P.No.14496 of 2010, W.P.Nos.11395,11396,11397,11398,11399,11400 of 2008, W.P.Nos.11401,11402,11403,11404 and 11405 of 2008, and W.P.No.18374 of 2010 2.12.2010