Madras High Court
Thiruvaleeswarar Temple, Represented ... vs The State Of Tamil Nadu Represented By ... on 26 February, 1990
Equivalent citations: (1990)1MLJ142
JUDGMENT Nainar Sundaram, J.
1. The lands of the appellant were the subject matter of acquisition under the Land Acquisition Act 1 of 1984, hereinafter referred to as the Act. Certain dates and factual details have got to be set down. The notification under Section 4(1) of the Act was dated 8.5.1975. It was published in the Gazette on 11.6.1975. The declaration under Section 6 of the Act was made on 7.6.1978. According to the appellant, it was in the dark with reference to the details of the acquisition proceedings until a notice regarding award enquiry on 30.3.1983 was received by it. The appellant filed W.P. No. 2816 of 1983 challenging the acquisition proceedings from the notification under Section 4(1) of the Act. The learned single Judge, who heard the Writ petition, took note of the infirmity with reference to the conduct of the enquiry under Section 5-A of the Act in that the remarks obtained from the requisitioning body, namely, the Housing Board were not at all forwarded to the appellant, and in this view the learned single Judge deemed fit to quash the acquisition proceedings, leaving the notification under Section 4(1) of the Act in tact. The learned single Judge did not accept the contention of the respondents that the appellant must be denied reliefs on the ground of laches. The learned single Judge observed that the respondents should they so desire could continue the acquisition proceedings from the stage of the enquiry under Section 5-A of the Act. This writ appeal is directed against the order of the learned single Judge. It must be noted here that the Writ Appeal No. 1708 of 1987 filed by the respondents as against the above decision of the learned single Judge has been dismissed by a Bench of this Court.
2. 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 purpose, 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. A 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 cared 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 this 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 coveted through its learned Counsel.
3. However, Mr. K. Ravi Rajapandian, learned Additional Government Pleader (Writs), contends that the appellant is guilty of laches and even if it has made out a case on merits, this Court, exercising powers under Article 226 of the Constitution of India, should not show the appellant any indulgence, as now asked for. In support of this submission of his, learned Additional Government Pleader (Writs) relies on a pronouncement of a Bench of this Court in Tamil Nadu State Housing Board v. Shanmugha Sundara Nadar . In answer Mr. A. Sivaji learned Counsel for the appellant, says that the facts of that case deal with by the Bench warranted the application of the principle of laches to deny the party concerned therein the relief asked for by him and in the present case laches cannot be put against the appellant. Learned Counsel for the appellant points out that no counter affidavit was filed by the respondents and only if the respondents had raised the question of delay or laches, the appellant would have had an opportunity to explain as to why it could not approach this Court earlier. Putting in the forefront the facts of the present case, learned Counsel for the appellant cites the decision in Nandakumar v. State of Tamil Nadu (1986) Writ.L.R. 164 to say that on the facts, the reliefs asked for by the appellant should not be denied to it on the ground of laches.
4. Our assessment of the facts of the present case obliges us to countenance the line of thinking on the part of the learned Counsel for the appellant. As already adverted to, the respondents have not cared to file any counter affidavit at any point of time, putting forth any objection of theirs to the contention of the appellant. They have not whispered any protest on the ground of laches on the part of the appellant, so as to oblige the appellant to make its say of explanation. Further, it is not demonstrated before us by production of the material records relating to the acquisition that the appellant had knowledge of the positive details of the acquisition at any point of time anterior to the issuance of the notice for the award enquiry, which happened in March, 1983. Learned Additional Government Pleader (Writs) however points out the averment in the affidavit of the appellant that an objection was sent on 14.4.1976. That sentence cannot be culled out of context. That sentence is preceded by a declaration that the appellant was not aware of any relevant detail of the acquisition proceedings and only hearing about the acquisition proceedings objections were sent. This could only be an act of desperation, born out of apprehension over losing rights in property. It is not possible to say that the appellant was fully posted with the relevant details of the acquisition proceedings at that juncture, so as to enable it it take steps to challenge the acquisition proceedings. Here again, the said objections are not placed before us by the respondents to show that the appellant stood possessed of the relevant details of the acquisition so that it could be commented that the appellant ought to have acted with the diligence immediately. It must be noted here that even according to the appellant, the objections were sent only after the enquiry under Section 5-A of the Act held in August, 1975. The learned single Judge himself declined to put laches against the appellant, as contended by the respondents, in the appellant getting that much reliefs as granted by the learned single Judge. As already noted, the Writ Appeal No. 1708 of 1987, preferred by the respondents, as against the decision of the learned single Judge, has been dismissed by a Bench of this Court.
5. The learned Judges of the latter Bench in Tamil Nadu State Housing Board v. Shanmugha Sundara Nadar A.I.R. 1989 Mad. 20 on the facts of that case, were not prepared to follow the ratio of the earlier Bench in Nandakumar v. State of Tamil Nadu 1986 Writ.L.R. 164 because they were of the opinion that on the facts of the case dealt with by the earlier Bench, there was no warrant for throwing of the Writ petition on the ground of laches in contrast to the facts of the case dealt with by the latter Bench. The facts which were taken note of by the latter Bench, as we could gather from the pronouncement, to put laches against the party getting the reliefs, ran as follows: The notification under Section 4(1) was made on 8.5.1975. The enquiry under Section 5-A was completed. The Declaration under Section 6 was made on 9.6.1978. Proceedings for determination of compensation were prosecuted and an award was passed on 30.4.1983. The Writ petition was filed in February, 1984. The party allowed all the proceedings for acquisition to go on and the acquisition proceedings culminated in an award and the party had no explanation as to why he could not have challenged the acquisition proceedings earlier. Such are not the facts of the present case. Here we find that the appellant could not be attributed with positive knowledge of the relevant details of the acquisition proceedings prior to the issuance of the notice for award enquiry in March, 1983. The respondents have not filed any counter affidavit, making any say of theirs with regard to any laches on the part of the appellant. Hence, it will not be proper to throw out the present prayer to quash the notification under Section 4(1) of the Act on the ground of laches, especially when there is a violation of the mandatory 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. This is sufficient for the appellant to get the relief asked for by it. However, Mr. A. Shivaji, learned Counsel for the appellant, urges two more points, namely, that there has been an inordinate delay in prosecuting the land acquisition proceedings, much to the prejudice of the appellant, and further there has been a change of the original purpose of acquisition. We have not gone into these contentions because we are inclined to grant the appellant the relief asked for by it sustaining the point relating to violation of the mandatory provisions referred to above. Thus, we are obliged to countenance grievance of the appellant and accordingly this Writ Appeal is allowed as follows. In modification of the order of the learned single Judge in W.P. No. 2816 of 1983, the Notification under Section 4(1) of the Act in so far as the lands of the appellant are concerned, will stand quashed and that writ petition will stand allowed to the above effect. There will be no order as to costs.