Madras High Court
Balkis Ammal By Power Of Attorney Agent ... vs The State Of Tamil Nadu And Anr. on 12 February, 1997
Equivalent citations: 1997(1)CTC427
ORDER Kanakaraj, J.
1. The writ petition challenges the notification under Section 4(1) of the Land Acquisition Act issued in G.O. Ms. No. 1070, Public (Telephones II) Department dated 12.6.1985 and the declaration under Section 6 of the Act issued in G.O.Ms. No. 1643, Public (Telephones II) Department dated 28.8.1986. Under the said notification, the lands of the petitioner, to the extent of 28 cents in R.S. No. 124-2B in Thittacheri Village, Nannilam Taluk, are sought to be acquired.
2. According to the petitioner, she had purchased these lands on 19.6.1982. As already stated, the notification under Section 4(1) of the Act was issued on 12.6.1985 proposing to acquire the lands for the purpose of first respondent Department. The petitioner was served with a notice on 9.6.1983 inviting her to file objections, if any, to the proposed acquisition. The petitioner had filed her objections. Again, a notice was served proposing to hold an enquiry under Section 5A of the Act on 25.9.1985. The petitioner again sent her objection, which was a repetition of her earlier objections. Overruling the objections of the petitioner, the declaration under Section 6 of the Act was issued on 28.8.1986.
3. In challenging the above acquisition proceedings, learned counsel for the petitioner has projected only two points even though in the affidavit filed in support of the writ petition, several other points have also been raised.
4. The first point argued by the petitioner is that the notification under Section 4(1) of the Act has not been published in the locality in accordance with Section 4(1) of the Act and Rule 1 of the Rules framed under Section 55(1) of the Act. I will straightway deal with the said objection. In the affidavit, it is only stated that no such publication had been made and there was no beat of tom tom in the locality. Therefore, it is pointed out that there has been violation of the mandatory provisions of Section 4(1) of the Act. In the counter-affidavit filed by the respondents, it is stated that the substance of Section 4(1) notification was published in the locality on 2.9.1985. The argument of Mr. Chandramouli, learned senior counsel, is that Rule 1 above referred to, says that the notice should be published at convenient places in the locality and copies thereof fixed up in the office of the Collector, the Tahsildar and in the nearest police station. The counter- affidavit does not specifically state that such notices were fixed in those three offices. I am of the opinion that the contention of the petitioner cannot be countenanced because it is not stated in the affidavit of the petitioner that the affixture was not made in any of those offices. If the petitioner had stated that the affixture had not been made in any of those offices, the counter-affidavit can be expected to specify the offices in which the notices had been affixed. In the absence of any such categorical averment in the affidavit, the statement in the counter-affidavit that the substance of Section 4(1) notification was published in the locality, has to be accepted to be in conformity with the requirements of Section 4(1) of the Act and Rule 1 of the Rules. In this view of the matter, the first contention of the petitioner is rejected.
5. The second contention of the petitioner is that enquiry under Section 5(A) of the Act had not been conducted in accordance with law. On this, I will do well to refer to the admitted statements in the counter-affidavit. According to the counter-affidavit, the enquiry under Section 5(A) of the Act was fixed to take place on 15.10.1985. A notice in this regard was served on the petitioner on 25.09.1985. The objections of the petitioner were received by post on 10.10.1985. (sic) copy of the objections was forwarded to the requisitioning body, namely the Divisional Engineer, Telegraphs, Kumbakonam, on 15.10.1985. The remarks of the Department were furnished to the petitioner by registered post on 30.11.1985. The petitioner had acknowledged the remarks on 13.12.1985. Thereafter, it is stated that declaration under Section 6 was issued. What is lacking in the statement of facts, as disclosed in the counter-affidavit, is that the enquiry under Section 5(A) was not conducted after the service of the remarks of the Department on the petitioner (owner). That this is an essential requirement, can be seen from Rule 3(b) of the Rules. Indeed, it has also been laid by this Court in several decisions that such a requirement is absolutely necessary to comply with the requirements of law. The last sentence in the Rule 3(b) of the Rules is as follows :
".....The department or company may file on or before the date fixed by the Collector, a statement by way of answer to the objections and may also depute a representative to attend the enquiry."
The above sentence clearly indicates that after forwarding the objections of the Department to the owner, the enquiry should be conducted so that both the representative of the department and the owner could be present in the enquiry. To this extent the enquiry under Section 5(A) of the Act is defective in this case. I am, therefore, inclined to set aside the declaration under Section 6 of the Act and all subsequent proceedings but I uphold the notification under Section 4(1) of the Act. Liberty is reserved to the respondents to conduct a fresh Section 5(A) enquiry in accordance with law and in the light of the observations contained in this order.
6. The writ petition is allowed in the above manner. There will be no order as to costs.