Madras High Court
D. Annalakshmi Ammal (Since Deceased) ... vs State Of Madras Rep. By Commissioner And ... on 17 October, 1997
Equivalent citations: 1997(3)CTC593
ORDER K. Sampath, J.
1. The writ petition is for the issue of a writ of certiorari to call for the records relating to the issue of notification under Section 9(3) and 10 of the Land Acquisition Act dated 14-8-1986 issued by the second respondent and to quash the proposed acquisition commencing from issue of 4(1) Notification and ending with Sections 9(3) and 10 notice of the Act in respect of R.S.No. 3918/7 newly sub-divided as R.S.NO. 3918/16 on Chamiers Road, Madras-28, alleging as follows:
The first writ petitioner, since deceased, was the owner of the land and building old No. 42, new No. 77 on Chamiers Road, Madras- 28. She received a notice under Sections 9(3) and 10 of the Land Acquisition Act, hereinafter referred to as the Act, in respect of an extent of 1237 sq. ft. near the built area of her bungalow. There was not enquiry under Section 5-A. Her husband late Doraiswamy Nadar came to know that Section 4(1) Notification had been issued for the purpose of widening the road and for that purpose the extent of 1237 sq.ft. was sought to be acquired. He sent his objections in writing dated 24.3.1980 by registered post. He pointed out the hardship that would be caused to him and also the availability of vacant land on the northern side. He sent a reminder dated 31-3-1980 to the second respondent asking him to drop the proposed acquisition setting out his objections in detail. He did not receive any notice of any enquiry under Section 5-A of the Act. He died on 21.1.1985. He was under the impression that the objections had been accepted and proceedings dropped. However, after his death the first petitioner received the notice under Section 9(3) and 10 dated 14.8.1986 already referred to. Aggrieved the present writ petition had been filed.
2. Pending the writ petition the first writ petitioner died. Her legal representative D. Gunaseela Rajan filed petition W.M.P.No. 22228 of 1996 for substitution and the same was ordered on 15.9.1997.
3. Though no counter was filed, the entire records were made available. From the records, it is seen that the husband of the first petitioner was indeed served with notice of Section 5-A enquiry and he sent in his objections on 24.3.1980. In the said objections he had stated that if any part of his land on the southern side of Chamiers Road had to be acquired, it should be limited to six feet only as was proposed originally and nothing more and if that was done, the damage proposed to be caused to his building would be minimized. In his objection letter he had specifically stated that he was not in a position to appear in person and adduce evidence in support of his objections on 2.4.1980 at 11 a.m. at the office of the Land Acquisition Officer as he had been advised to go to a hill station and take rest on account of his indifferent health. He requested the Officer to adjourn the hearing, so that he could appear before him after his return. This was followed by another letter dated 31.3.1980. It is further seen from the records that the Land Acquisition Officer did not grant any time, and he went ahead with the enquiry under Section 5-A and Rule 3(b) of the Rules framed under Section 55 of the Act and for none of which the first petitioner's husband got any notice or intimation.
4. No doubt, it is stated in the affidavit in support of the writ petition that the first petitioner's husband did not have notice of the 5-A enquiry. This allegation does not appear to be correct. However, the first petitioner might not have been in the know of things. There is some justification in the contention of the learned counsel for the petitioners that neither the first petitioner nor her husband earlier had any notice of Section 5-A enquiry subsequent to the latter's letters dated 24.3.1980 and 31.3.1980 . The learned Counsel relies on the following judgments in support of his contention as regards the mandatory nature of the enquiry under Section 5-A:
(1) Kadirvelu Mudaliar v. State of Tamil Nadu and Anr., 1987 W.L.R. 182; (2) Kannammal (deceased) V.N, Devadoss v. State of Tamil Nadu and two others, 1990 W.L.R. 439; (3) C. Ponnusamy and 62 others v. Government of Tamil Nadu represented by the Commissioner and Secretary, Housing and Urban Development Department, Fort George, Madras-9 and Anr., ; (4) Balkis Ammal by Power of Attorney Agent K.PM. Abdul Gafor v. The State of Tamil Nadu and Anr., and (5) Tube Suppliers Ltd. v. Government of Tamil Nadu and Anr., .
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., , 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.PM. Abdul Kafor v. The State of Tamil Nadu and Anr., 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., N.V. Balasubramanian, J. held that.
"the requistioning 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."
9. In the present case, as already seen there was no notice of the proceedings after the letter from the first petitioner's husband to the Land Acquisition Officer on 24.3.1980. The Acquisition Officer ought to have adjourned the matter to another date and heard the first petitioner's husband. I am supported in my view by two decisions of the Supreme Court, one in Rambhai Lakhabai Bhakt v. State of Gujarat and Ors., and the other in Aircraft Employee's Housing Co-operative Society Ltd. v. Secretary, Rural Development and Panchayat Raj etc., 1996 (2) SCC 475. The Supreme Court held that in case a request for adjournment is made by the owner for the Section 5-A enquiry, such a request should be granted.
10. From the records it does not appear that the then owner of the property was offered an opportunity to appear before the Land Acquisition Officer and state his objection to the proceedings. The proceedings having regard to the mandatory nature of the enquiry under Section 5-A of the Act are therefore vitiated.
11. It is unnecessary to refer to the developments subsequent to the letter of the first petitioner's husband bearing date 24.3.1980.
12. The writ petition therefore succeeds and the Section 6 declaration will stand quashed. However, the notification under Section 4(1) will stand and the Rule NISI is made absolute to the extent indicated above. No costs.