Madras High Court
Miss. Asiya Mariyan D/O. Late. ... vs The Secretary To Government Of Tamil ... on 28 July, 2000
Equivalent citations: 2000(4)CTC125
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1.Aggrieved by the land acquisition proceedings initiated by the respondents under the provisions of the Land Acquisition Act (Central Act), the petitioner has filed the present writ petition on various grounds.
2. It is seen that an extent of 1.37.5 hectares of land in Survey No.459/2A of Kodangipatti village. Uthama-palayam Taluk was selected for acquisition for the provision of house-sites to 87 houseless Adi-dravidar families of Kodangipatty village. Accordingly, Notification under Section 4(1) of the Act was published in the Gazette dated 24.2.1993; in Tamil dailies dated 25.2.1993. in the locality on 26.2.1993 and individual notice in Form 3A was served on the land owners on 30.3.1993 fixing Enquiry under Section 5(A) of the Act on 27.4.1993.
3. According to the petitioner, even though she is the owner of the land in question, she was not given notice to submit her objection in the 5(A) Enquiry. It is further stated that without affording an opportunity to the petitioner. Declaration under Section 6 of the Act was made and published in the Gazette on 10.12.1993. At the stage of taking steps to measure the land with a view to take possession, according to her, she came to know about the land acquisition proceedings and filed the above writ petition.
4. Mr.V.Ayyadurai, learned counsel for the petitioner, after taking me through the various averments in the affidavit filed In support of the petition, has raised the following contentions:-
(1) Though the petitioner is the owner of 7/8th share of property under acquisition, by Inheritance and has been In actual possession and enjoyment of the same, the name of the petitioner has been mentioned In Section 4(1) Notification without proper description,
(ii) The petitioner was not served with Individual notice for enquiry under Section 5A of the Act. Even -In the Declaration under Section 6 of the Act, published In the Gazette, petitioner was not properly described.
(iii) In the absence of any errata In the Gazette, the entire land acquisition proceedings are liable to be set aside on the ground that the same had been passed mechanically without application of mind."
5. On the other hand, Mr.Selvanayagam, learned Government Advocate, by taking me through the various averments In the counter affidavit as well as the records would contend that the notice was served on the mother of the petitioner and inspite of granting sufficient time, she failed to submit any objection. According to him, the name of the petitioner and her mother were shown correctly in the Notifications and accordingly prayed for the dismissal of the writ petition.
6. I have carefully considered the rival submissions.
7. There is no dispute that one Meera Hussain owned the land in question and after his death in the year 1981, the petitioner and her mother are entitled to 7/8th share and 1/8th share respectively as per Muslim Law. Now the question is whether the petitioner was properly described in the Notification published under Section 4(1) of the Act and Declaration- under Section 6 of the Act and whether she was given individual notice to submit her objection, if any, and to participate in the Enquiry under Section 5A of the Act.
8. First, I shall consider the second point in the light of the specific assertion made by the petitioner in her affidavit. The perusal of the counter affidavit filed by the Special Tahsildar (Land Acquisition), second respondent herein, does not show any details regarding service of notice on the petitioner for enquiry under Section 5A of the Act, I have already stated that there Is no dispute with regard to right, title of the petitioner as well as her mother. As a matter of fact, In para 8 of the counter affidavit of the second respondent, it is stated as follows:-
" ..... As the Pattadar was no more and the writ petitioner and her mother Nain ammal were the legal heirs to the deceased Pattadar, the writ petitioner and her mother were adopted as the Interested persons. Both of them can very well share the compensation amount deposited In "Revenue Deposit."
In the light of their own admission, It is but proper on the part of the respondents to serve notice to the petitioner for enquiry under Section 5A of the Act.
9. Neither in the counter affidavit nor In the records, there Is - evidence to show that the petitioner was served with Individual notice for enquiry under Section 5A of the Act. In such circumstances, I accept the contention raised by the learned counsel for the petitioner.
10. Regarding the other aspects, namely, wrong description both In Section 4(1) Notification and Section 6 Declaration, it is worthwhile to extract the description of the land acquisition in both the Notifications, in 4 (1) Notification dated 12.12.1992, published in the Tamil Nadu Government Gazette dated 24.2.1993, it is described as follows:-
" Madurai district, Uthamapalayam taluk, Kodangipatty village, (The extent given is approximate) Government, dry, S.No.459-2 A, belonging to Nainammal and Aysha; wife of Meera Husain Rowther, bounded on the north by Kottagudi river, east by S.No.460-.2A, south by S.No.457-2 B and west by S.No.459-1 (cart tract)- 1.375 hectare."
It is clear, that the respondents have rightly referred to the name of the. petitioner as owner of the land under acquisition. However, in the very same paragraph, "Aysha" is described as wife of Meera Husain Rowther. This is factually incorrect since her mother Nainammal. Is the wife of Meera Husain Rowther and not as described.
11. Coming to the notification under Section 6 of the Act, it is relevant to note the description in the Section 6 Declaration dated 6.12.1993 and published in the Tamil Nadu Gazette dated 10.12.1993.
SCHEDULE Madurai district, Uthamapalayam taluk, Kodangipatti village. Government, dry. S. No.4 59-2 A belonging to Nainammal alias Ayisha Mariammal, bounded on the north by S.No.- Kottagudi River east by S.No.460-1 A south by S.No. 457-2B and Them-Bodi Road and west by S.No.459-1 cart tract) - 1.37.5 hectare."
Here, it is wrongly described as-Nain animal alias Ayisha Mariammal".
12. The perusal of both the Notifications show that the respondents have not applied their mind and published the same hurriedly and mechanically.
13. In a matter like this, particularly, when the Government wants to acquire the land of citizen for public purpose, it is expected that details regarding ownership, extent. Survey Number etc. are to be furnished in clear terms in all the notifications. I have already demonstrated as to how the name of the petitioner is wrongly described both in 4 (1) Notification and Section 6 Declaration.
14. I hold that misdescription of material particulars in the Notifications would go to show that acquisition proceedings suffer from total non-application of mind and the petitioner was denied her opportunity to make effective objection as required.
15. In the light of what is stated above, the entire land acquisition proceedings insofar as the petitioner is concerned are liable to be quashed.
16. No doubt, the learned Government Advocate, by pointing out that possession was taken on 15.3.1994 and the petitioner has filed the above writ petitions on 24.3.1994 i.e., after passing award and taking possession, contended that the writ petition is liable to be dismissed. The said contention is also liable to be rejected since on the basis of the averments made by the petitioner in W.M.P. No. 8531 of 1994, this Court even on 30.3.1994 granted stay of dispossession. The respondents have not chosen to file a petition to vacate the stay order till date. If the respondents have taken possession as claimed, they could have got the stay petition dismissed by pointing out the same to this Court. They have not taken such a recourse till this date.
17. Under these circumstances, the land acquisition proceedings insofar as the petitioner herein is concerned are quashed and the writ petition is allowed. No costs. Consequently, W.M.P. No.8531 of 1994 is closed.