Madras High Court
Jayarama Naidu And Ors. vs The State Of Tamil Nadu And Anr. on 9 November, 1992
Equivalent citations: (1993)1MLJ634
ORDER Mishra, J.
1. First and second petitioners (two brothers), third petitioner (son of the first petitioner) and 4th and 5th (minor daughters of the first petitioner) have filed the instant petition praying to quash the proceedings for acquisition of lands to provide house sites to Adi Dravidas of Irumbai village in South Arcot District. They have stated that their lands in R.S. Nos. 64/3B and 64/4B in Irumbai village have been notified in G.O.Ms. No. 2556, Social Welfare, dated 13.10.1983 and published in Part 3, Section 2 of Tamil Nadu Government Gazette, dated 9.11.1983. In the said notification, Government only mentioned names of the first petitioner and third petitioner, that the names of the other petitioners have been omitted and not mentioned and, There was no proper publication of Section 4 notification in the village or in the vicinity of lands sought to be acquired. There was no issue of notice under Rule 38 of the Land Acquisition Rules framed under Land Acquisition Act to the Social Welfare Department at the time of Section 5-A enquiry. In the issue of Section 5-A notice, the name of Sundaramoorthy has been omitted and it is incumbent upon the Tahsildar and it is statutory obligation cast on him under Section 5-A of Land Acquisition Act, to issue notice on each and every person interested in the lands and invite their objections and the failure or omission to do renders Section 6 notification invalid and void ab initio.
2. There are several other facts stated in the affidavit, since, however, learned Counsel for the petitioners has attached the acquisition mainly on the ground of (1) non-compliance of the mandatory requirement of the publication of the substance of the notification under Section 4(1) of the Land Acquisition Act, for short 'the Act' at convenient places in the locality and (2) non-compliance of the requirement of Rule 38 of the Rules framed under the Act upon the third petitioner, I have not referred to other facts.
3. The above, however, has been replied to in the counter-affidavit filed on behalf of the respondents in these words:
I state that proposals for the requisition of the following lands in Irumbai village for provision of house sites to Adi-Dravidars was sent to District Adi Dravidar Welfare Officer.
S. No. 64/3 Govt. Dry 0.22.0 Hectares out of 0.70
S. No. 64/4 Govt. Dry 0.40.0 Hectares out of 0.44
S. No. 64/5 Govt. Dry 0.89.5 Hectares
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Total 1.85.5 Hectares
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The proposals were initiated after inspection by the then Special Tahsildar (ADW), Tindivanam on 20.6.1983. The abovesaid lands were selected for acquisition after examining the merits and demerits of the lands surrounding the colony. The proposals approved by the Collector, South Arcot District and authorised the Special Tahsildar (ADW), Tindivanam for acquiring the lands and proposals were sent by the Collector to the Government for approval in Collector's ref. W/16/194111/83, dated 21.7.1983. The same was approved by the Government in G.O.Ms. No. 2656, SWD, dated 13.10.1983 and it was published in the Tamil Nadu Government Gazette, dated 9.11.1983, Part II, Section 2, Page 47. Accordingly notice in Form I under Rule 3, under Section 5-A was issued on 21.11.1983 fixing the date of enquiry on 16.12.1983 after allowing a clear interval of 15 days after the date of service of the notices. The following persons appeared for enquiry and given their statements: 1. Jayarama Naidu, S/o. Devarjulu, 2. Subbarayalu, S/o. Devarajulu, 3. Poongavanam, S/o. Rangan, 4. Natesan, S/o. Poongavanam, 5. Subramanian, S/o. Poongavanam. The land owners of R.S. No. 64/5 have given their consent to acquire their land for providing house sites to Adi Dravidars. The land owners in R.S. No. 64/3 have protested for the acquisition on the following grounds:
1. It is undivided property among them and if it is partitioned each will get a share of one acre of land which will not suffice their needs.
2. That sufficient poramboke lands are available for the provision of house sites to Adi Dravidars.
3. That a main electric line passes through the proposal field.
4. That he has formed about 1400 feet cement pipeline to irrigate water to the lands now proposed for acquisition.
These objections were considered and held baseless.
I state that after conducting 5-A enquiry D.D. under Sections 6 and 7 of the Land Acquisition Act were submitted to the District Adi Dravidar Welfare Officer and it was sent to the Government by the Collector in the Ref. W16/194111/83, dated 11.1.1984 through the Commissioner, Land Administration, Madras-5. The Government approved to the DD proposals in G.O.Ms. No. 920, SWD, dated 7.3.1984 and published in the Tamil Nadu Government Gazette dated 12.3.1984. After observing usual formalities, "notice under Sections 9(1) and 10 of the Land Acquisition Act I of 1894 were issued on 12.3.1984 fixing the date for award enquiry on 28.3.1984. After completion of award enquiry, to award was passed by the then Special Tahsildar (ADW), Tindivanam. Due to the non-appearance of the land owners for the award enquiry the entire compensation of the above lands under acquisition is ordered to be deposited in the Court under Section 31(2) of the Land Acquisition Act of 1894. The compensation amount of Rs. 8,825, Rs. 5,550 & Rs. 3,013.29, for the lands in R.S. No. 64/3B, 64/4B and 64/5 respectively was deposited in the Sub Court, Tindvanam under Section 31(2) in this office Ref.A. 2686/83, dated 7.4.1984 (in 3 references) and O.P. Nos. are awarded from the Sub Court, Tindivanam.
With reference to the averments made in paras 5 and 6 of the affidavit, I submit that the lands in R.S. No. 64/3 stands registered in the name of Venkatasamy Naidu in R.S. No. 706. But the land is under possession and enjoyment of Jayarama Naidu, S/o. Devaraja Naidu. Local enquiry reveals he has a son named by Sundaram. Hence the name of Jayarama Naidu and his sons have been included in the Schedule of 4(1) Notification and published. But at the time of 5-A enquiry the above persons and his borth Subbarayalu Naidu were enquired and obtained statements. The names of the above persons and other interested persons have been included in the "Schedule under Sections 6 & 7 of the Land Acquisition Act (sic.) not published. Hence, the petitioner's plea that non-publishing the name of the 3rd petitioner Sundaramoorthy in the 4(1) notification is not correct.
4. It is thus to be seen that R.S. Nos. 64/3-B and 64/4-B appear to fall in S. Nos. 64/3, 64/4 and 64/5 totalling 1.85.5 hectares of land are sought to be acquired for providing house-sites to Adi Dravaidars. After the publication in the Government Gazette, dated 9.11.1983 and notice in Form I under Rule 3, under Section 5-A of the Act issued on 21.11.1983 fixing the date of enquiry on 16.12.1983, when enquiry commenced the first petitioner Jayarama Naidu and his brother the second petitioner appeared besides others and the objections that were raised were confined to R.S. No. 64/3-B only in which undivided property belonging to the petitioner is said to fall.
5. It has indeed been settled by now and there is no amiguity of any kind in the principle that publication of Primary Notification under Section 4(1) of the Act, is mandatory and not only the publication in the Official Gazette but publication of the substance of such notification at convenient places in the locality is also mandatory. It is conceded that petitioners 1 and 2 were fully represented in the enquiry under Section 5-A of the Act. They could not be present in the said enquiry unless they were given notice of the notification under Section 4(1) of the Act involving their lands. The first petitioner Jayarama Naidu alone was competent to represent Padmajothi and Geetha, his minor daughters and thus when Jayaraman Naidu has participated in the enquiry he has participated for self as well as Padmajothi and Geetha, fourth and fifth petitioners. It is shown that the name of the first petitioner is included in the Schedule to 4(1) notification and his name has been published accordingly. If there has been such publication of the notification so as to reach Jayarama Naidu the first petitioner and his brother Subbarayalu Naidu, the second petitioner, in the absence of a case that Sundaramurthy (third petitioner) lived separately from Jayarama Naidu, it is not possible to give any credit to the allegation that he had no notice of the notification under Section 4(1) of the Act and he thus got no adequate opportunity to participate in the enquiry under Section 5-A. It is also shown that the land in R.S. No. 64/3 stood in the name of Venkataswamy Niaud. The revenue records thus did not show the names of any of the petitioners. When, however, it was found that the land was in possession and enjoyment of the first petitioner and his family members and local enquiries revealed he had a son named Sundaramoorthy the third petitioner, their names were also included in the Schedule to 4(1) notification. Thus, there is no gainsaying if it is said that Sundaramurthy, his son had no notice and he was prejudiced because he could not as a person interested, file objections and participate in the enquiry under Section 5-A of the Act. It is needless here to say that the petitioner's attempt to show any prejudice to Sundaramurthy is ignoring the fact that a joint family of several owners is represented by one of them, who is called 'kartha' and knowledge to him, of the proceedings under Section 5-A must be deemed to be knowledge to all of them.
6. But the thrust of the argument of the learned Counsel for the petitioners with respect to the requirement of the publication of the substance of the notification under Section 4(1) of the Act is that since this requirement is mandatory and it is not shown by the respondents that there has been a publication of the substance of the notification under Section 4(1) in the locality the proceedings for acquisition must fall to the ground. This he has submitted ignoring the statement in the counter-affidavit that notice in Form I in Rule 3 under Section 5-A was issued on 21.11.1983 only days after the gazette notification under Section 4(1) of the Act on 9.11.1983 and if this notice contained the substance of the notification it did stand in compliance with the mandatory requirement of the publication of the substance of the notification.
7. Courts have held that the requirements of simultaneous publication of the notification in the Official Gazette as well as public notice of substance of such notification are the essential elements of Section 4(1) and explained that simultaneous publication does not mean publication at the same time but also not at such distance of time that the very purpose of the public notice is defeated. For, unless full notice of the intention to acquire the land is given to the person interested in the land he is likely to suffer and could not in the case of ordinary acquisition file his objections within the prescribed period of limitation under Section 5-A of the Act and in the case of acquisition after invoking the urgency clause the opportunity to make representations to persons concerned. The principle in this behalf has been fully stated in the judgments of the Supreme Court including in the case of Deepak Patwa v. Lt. Governor of Delhi , in these words:
It may be noticed at once that Section 4(1) does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the Official Gazette or immediately thereafter. Publication in the Official Gazette and public notice in the locality are two vital steps required to be taken under Section 4(1) before proceeding to take the next step of entering upon the land under Section 4(2). The time factor is not a vital element of Section 4(1) and there is no warrant for reading the words 'simultaneously' or 'immediately thereafter' into Section 4(1). "Publication in the Official Gazette and public notice in the locality are the essential elements of Section 4(1) and not the simultaneity or immediacy of the publication and the public notice. But since the steps contemplated by Section 4(1) cannot be undertaken unless publication is made and public notice given as contemplated by Section 4(1), it is implicit that the publication and the public notice must be contemporaneous though not simultaneous or immediately after one another. Naturally contemporaneity may involve a gap of time and by the very nature of the things, the publication in the Official Gazette and the public notice in the locality must necessarily be separated by a gap of time. This does not mean that the publication and the public notice may be separated by a long interval of time. What is necessary is that the continuity of action should not appear to be broken by a deep gap. If there is publication in the Gazette and if there is public notice in the locality, the requirements of Section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition.
If the notification and the public notice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone.
We may consider here an argument which is usually advanced against any time gap between the publication in the Official Gazette and the public notice in the locality. Section 5-A provides that any person interested in the land which has been notified under Section 4(1) may object to the acquisition of the land or of any land in the locality within 30 days after the issue of the notification. It is, therefore, suggested that if the publication of the notification in the Gazette is not immediately followed by a public notice in the locality, it may lead to a denial to the person interested of an opportunity to object to the acquisition. We think, that this is too narrow an interpretation of Section 5-A. Notice to interested persons of a proposed acquisition of land is given by publishing a notification to the effect that land in any locality is needed or is likely to be needed for any public purpose in two ways-first, by causing publication of the substance of the notification to be given at convenient places in the locality. There is no reason to confine the period of 30 days prescribed by Section 5-A to one mode. The period of 30 days may be reckoned from either the date of publication in the Gazette or the date of the public notice of the substance of the notification in the locality, whichever is later. In our view, that is the only reasonable and practical way of construing Section 5-A, so as to advance the object of the provision, which is to provide a reasonable opportunity to interested persons to oppose the acquisition. We particularly notice that Section 5-A does not refer either to the date of public notice of the substance of the notification in the locality. It speaks of the issue of the notification. This we consider is significant and in the context, the words 'the issue of the notification' can only signify the completion of the prescribed process-rather the twin process that of notifying the interested public of the proposed acquisition in the manner provided for by Section 4(1), that is by publication in the Official Gazette and giving public notice in the locality.
And when urgency clause under Section 17(4) of the Act is invoked in these words:
The other ground of attack is that if regard is had to the considerable length of time spent on inter-departmental discussion before the notification under Section 4(1) was published, it would be apparent that there was no justification for invoking the urgency clause under Section 17(4) and dispensing with the enquiry under Section 5-A We are afraid, we cannot agree with this contention. Very often persons interested in the land proposed to be acquired make various representations to the concerned authority against the proposed acquisition. This is bound ' to result in a multiplicity of enquiries, communication and discussions leading to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-notification delay would render the invocation of the urgency provisions void. We, however, wish to say nothing about post-notification delay. In Jagat Ram v. State of Haryana , this Court pointed out "the fact that the State Government or the party concerned was lethargic at an early stage is not very relevant for deciding the question whether on the date on which" the notification was issued there was urgency or not". In Kasi Reddy Papaiah v. Government of Andhra Pradesh , it was held, "delay on the part of the tardy officials to take further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that there was never any urgency." In the result, both the submissions of the learned Counsel for the petitioners rejected....
8. If publication of the substance of the notification is a ritual there is no reason to think that it has not been complied with by the notice in Form I under Rule 3 issued by the respondent on 2.11.1983, fixing the date of enquiry on 16.12.1983. If it is a provision of substance in the sense that as noticed by the Supreme Court it has been introduced to ensure that persons know well in time that the Government has intended to acquire the land and for that reason the requirement of public notice is mandatory, can it be said in the instant case that for want of such notice the petitioners have suffered any legal injury. The answer is that the petitioners have suffered no legal injury at all. They participated in the enquiry through the first petitioner and the second petitioner and their objections have been fully taken into account.
9. In the instant case, I have not found any defect in the publication of the notification. I intend, however, to observe that in case where there is some defect in the notice of a sort that a court may think that the mandatory requirement of the publication of the substance of the notification under Section 4(1) has not been complied with the court shall not for the reason of non-compliance of this requirement alone nullify any acquisition proceedings unless it is shown that the petitioners have suffered for want of notice, in the sense that they lost the opportunity to participate in the enquiry under Section 5(1) of the Act for the reason of want of notice or could not make any representation in the case of urgency acquisition to the proper authorities to show that it was not a case for the acquisition of their lands. No remedy is extended unless it is required to redress an injury. Unless such injury is substained no remedy is required. The court may not for the reason of a mere non-compliance with the requirement of a mandatory provision like to interfere with a concluded proceeding unless the petitioners without such interference have suffered any legal injury. 10. Learned Counsel for the petitioners however, has drawn my attention to some Government Orders, one among them being G.O.Ms. No. 620, Housing and Urban Development Department, Madras dated 29.6.1990 which has quoted several Government Orders previously issued. They appear to intend to convey to the officers proceeding to acquire lands that the temple lands should not be acquired for any purpose except in cases where it is accepted by the H.R. & C.E. Department that the temples do not derive any benefit from such lands and land belonging to poor persons with meagre land holdings need not generally be acquired unless otherwise inevitable for the purpose of maintaining proximity and vicinity to the main village, that the lands belonging to scheduled castes/tribes should not be acquired except where it becomes absolutely inevitable, and that the wet lands should not be acquired for housing scheme, except in unavoidable circumstances etc. It has not been shown by learned Counsel for the petitioners as to whether these Government Orders have any force of a statute. It is also not shown by learned Counsel for the petitioners that these Government Orders are in the form of executive instructions in lieu of a statute. In the absence of anything showing that these Government Orders do not interfere in the field occupied by the Land Acquisition Act and the Rules, framed thereunder, it is not possible to take any judicial notice of these Government Orders. Even assuming that these Government Orders have a legal sanction they do not appear to show that the Government ever intended to make these instructions mandatory or binding on all concerned. There is nothing in the writ petition to show that necessary precautions were not taken by the concerned authorities and that they just pounced upon the lands of the petitioners although there were other lands available, except in general terms stating that they were/are other lands available which the respondents could acquire for the public purpose of house sites for the Adi Dravidars. In my opinion, the writ petition has no merit and it must fail for the reasons aforementioned. Accordingly, it is dismissed. On the facts of this case, I am inclined to award costs. Hearing fee Rs. 250.