Madras High Court
Smt. Pown Ammal And Ors. vs State Of Tamil Nadu Represented By Its ... on 22 December, 1998
Equivalent citations: (1999)2MLJ283
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. Heard.
2. In the above writ petition, the petitioners seek for issue of a writ of certiorarified mandamus, to call for the records relating to Section 4(1) of the Land Acquisition Act, made in G.O.Ms.No. 466, Adi Dravida Welfare Department, dated 15.3.1988 and published in dailies on 17.3.1988 and Section 6(1) declaration under the act made in G.O.Ms.(3D) No. 566, Adi Dravida Welfare Department, dated 20.8.1992, published in dailies on 21.8.1992 in so far as the land of the petitioners are concerned in S.No. 37/20B of an extent' of 4.31 acres of land situated in Mangadu village, Arcot Taluk, North Arcot District and quash G.O.Ms.No. 3(D) 566, dated 21.8.1992 and to forbear the respondent from proceeding further in pursuance of the Section 6(1) Declaration of the Land Acquisition Act.
3. In brief, under the impugned acquisition proceedings the respondents proposed to acquire an extent of 4.31 acres, located in S.No. 37/20B in Mangadu village, Arcot Taluk, North Arcot District for providing housing plots to Adi Dravidars. it is not in dispute that the respondents issued a notification under Section 4(1) dated 15.3.1988, publishing the same in the Government Gazette dated 20.4.1988 in two Tamil dailies, namely, Dhinathandhi and Dinamani on 22.4.1988 and in the locality on 26.6.1988, and thereafter, held an enquiry contemplated under Section 5-A on 25.8.1988. However, the petitioners did not appear in the said enquiry.
4. In pursuance of the said enquiry, an award was passed, but, however, possession was not taken due to the pendency of the above writ petition. But the acquisition proceedings was challenged in W.P.No. 10159 of 1988, which was dismissed by this Court on 31.10.1991, as the same was premature, and subsequently, a fresh enquiry under Section 5-A of the Act was held on 13.3.1992, and the petitioners objected the acquisition However, the objections were overruled. A Declaration under Section 6 of the Act was passed by G.O.Ms.3(D) No. 566, dated 20.8.1992 and thereafter, an enquiry for passing of the award was conducted, and the award was also passed, but however, possession of the impugned lands were not taken, due to the pendency of the above writ petition.
5. Mr. R. Krishanmurthy, learned senior counsel appearing for the petitioner, challenges the impugned acquisition proceedings on two grounds, namely,
(i) there was a gap of 66 days between the date of notification under Section 4(1) of the Act published in the Government Gazette and the date of publication in the locality;
(ii) the notification published in the newspapers did not authorise the second respondent to hold an enquiry after receiving the objection under Section 5-A of the Act;
and therefore, the rejection of the petition is per se illegal, for want of authority and jurisdiction, as the notification under Section 4(1) of the Act issued in the locality, does not authorise the second respondent to perform the obligation of the Collector, within the meaning of Section 3(c) of the Act, In this regard, he places reliance on the decisions in:
(i) Nutakki Sesharatanam v. Sub Collector, Land Acquisition, Vijaywada (1992)1 M.L.J. (S.C.J26.
(ii) Thirumathi Reeta v. The State of Tamil Nadu 1990 W.L.R. 2 77 and
(iii) The Government of Tamil Nadu, represented by its Secretary, Home Department, Fort St. George, Madras-9 and another v. Natarajan (1997)2 M.L.J. 604.
6. Per contra, Mr. V.N. Rajavelu, learned Special Government Pleader, appearing on behalf of the respondents, placing reliance on the decisions in:
(i) Mar a Naicker v. Special Tahsildar (1997)1 M.L.J. 347,
(ii) 'Maria Rosal De Rose v. State of Tamilnadu
(iii) K.R. Ammasai Gounder v. State of Tamil Nadu .
contents that the mere non-compliance of any part of Section 4(1), by itself will not vitiate the entire acquisition proceedings, as the petitioners were not prejudiced by such non-compliance, or omission as the case may be, authorising the second respondent to perform the duties of the Collector within the meaning of Section 3(c) of the Act, Inasmuch as, in the notification issued under Section 4(1) and published in the gazette, the second respondent was clearly authorised to perform the duties of the Collector for the purpose of Section 3(c) of the Act, He further contends that the mere omission in the publication of the notification in the newspaper authorising the second respondent to perform the duties of the Collector under Section 3(c), will not, by itself, vitiate the entire acquisition proceedings, as the petitioners, in fact had also submitted their objections before the respondents.
7. I have given a careful consideration to the submissions of both sides.
8. In this connection, I am obliged to refer Secs.3(c) and 4 of the Land Acquisition Act, which read as follows:
Section 3(c): In this Act, unless there is something repugnant in the subject or context:
(a)...
(b)...
(c) the expression "Collector" means the Collector of a district, and include a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act.
Section 4: "Publication of preliminary notification and powers of officers thereupon:
(1) whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification).
(2) Thereupon it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen.
to enter upon and survey and take levels of any land in such locality ;
to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked to cut down and clear away any part of any standing crop, fence or jungle;
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.
9. A reading of Section 4 makes it clear that it is mandatory on the part of the respondents to publish the notification issued under Section 4(1) in the Official Gazette and also to publish the very same notification in two daily newspapers circulating in the locality, of which it shall be in the regional language, and that the Collector shall cause public notice of the substance of such notification, to be given at convenient places in the said locality.
10. The explanation added by the amendment Act 16 of 1997 to Section 4(1) of the Act, makes it clear that the publication of the notification in two dailies and the giving of public notice shall be completed within a period of sixty days and the period of sixty days shall be reckoned from the date of publication of the notification in the Official Gazette or the date of publication of such notification in two daily newspapers or the date of giving public notice, whichever is earlier.
11. Even though the said amendment was not in force on the date of passing of the impugned Section 4(1) notification, it is implied that there should not be any undue delay in making such publications. That apart, as per Section 4(1) of the Act, the notification issued in the Official Gazette and issued in the two daily newspapers, and the gazette published in the locality, shall be identical, and the same is therefore, mandatory.
12. Of course, as pointed out by Mr. V.M. Rajavelu, learned Special Government Pleader, Mr. M.M. Ismail. J., as he then was, in Mara Naicker v. Special Tahsildar (1970)1 M.L.J. 347, has held as follows:
The second point urged by the learned Counsel is that the provisions of Section 4(1) of the Act have not been complied with, in that the substance of the notification under that Section has not been published at convenient places in the locality. For this purpose, the learned Counsel relies on an averment contained in paragraph 6 of the counter-affidavit filed on behalf of the respondent, wherein, it is stated that the copy of the Section 4(1) notification published in the Fort St. George Gazette, dated 27th October, 1965, was served by affixure on the survey stone of the fields under acquisition on 26th January, 1966 and the substance of the notification was published in the village by beat of tom tom on 26th January, 1966. By relying on this passage the learned Counsel contends that the publication in the village by beat of tom tom is not enough and there must be affixure of the notice at certain convenient places in the locality. Whether this contention is sound or not, does not arise for consideration in this writ petition in view of one peculiar fact. Notice under Section 4(1) of the Act was served on the petitioner himself and in a petition presented by him to the Minister concerned on 4th March, 1966, the petitioner admitted that he had been served with a notice under Section 4(1) of the Act, So long as a notice under Section 4(1) of the Act has actually been served on the petitioner himself and in a petition presented by him to the Minister concerned on 4th March, 1966, the petitioner admitted that he had been served with a notice under Section 4(1) of the Act. So long as a notice under Section 4(1) of the Act has actually been served on the petitioner, it cannot be said that the petitioner was prejudiced or hurt by the non-publication of the substance of the notification at convenient places in the locality as contemplated by Section 4(1) of the Act. For this reason, 1 hold that there is no substance in the second contention as well.
13. Similarly, Mr. Ramaprasada Rao, J., as he then was, in Maria Rosal De Rose v. State of Tamil Nadu , while dealing with the simultaneous publication required under Section 4(1) of the Act, has held as follows:
Section 4(1) of the Land Acquisition Act, (I of 1894), imposes two obligations before the Government could enter upon the land, survey, take level and do all such other acts necessary to ascertain whether the land is adapted for the public purpose. The first thing that has to be done is that the Government should publish a notification in the Official Gazette that the land proposed to be acquired in any locality is needed or is likely to be needed for any purpose, Secondly, the Collector or the Land Acquisition Officer, as the case may be, shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The entire purpose of this sub-section is to give public notice of the proposal, and if, therefore, it is published in the locality and particularly persons affected by the proposal are aware that such an activity is afoot, then it is sufficient, Hence, it is not correct to say that any defect in the notification under Section 4 is fatal to the validity of the proceedings Barkva Thakur v. State of Bombay . Not only that, notification under Section 4(1) and under Section 6 of the Land Acquisition Act can contemporaneously be made in a case where the enquiry under Section 5-A has been dispensed with Somawanti v. State of Punjab . If this is possible, then the second prescription in Sub-section (1) of Section 4 sinks into insignificance and it becomes impossible of observance in certain cases where the Government chooses to publish both the notifications under Sections 4 and 6 simultaneously. Obviously, therefore, in such circumstances the publication of the extract of the notification in a conspicuous place and also by beat of tom-tom can only be after the notification under Section 6, This has been done in the instant case.
14. Recently, a Division Bench of this Court in K.R. Ammsai Gounder v. State of Tamil Nadu , while dealing with the time gap namely three months as contemplated under Section 4(1) of the Act, between the publication of the notification in the Gazette and the publication of the notification in the two newspapers, has held as follows:
13. At the hearing the learned Additional Government Pleader submitted that the Award was passed long back and even the beneficiaries were given patta. It is for the competent authorities to decide as to the suitability of the land. Unless there are compelling reasons to say otherwise, such as mala fides etc. in selecting a particular land, exercising jurisdiction under Article 226 of the Constitution of India, it is not for this Court to decide about the suitability of a particular piece of land. In this view, we reject the contention of the appellant in so far it relates to the offer of alternative lands.
14. Now, we take up for consideration, the contention that the acquisition proceedings are vitiated on account of gap in the publication of 4(1) Notification in the Official Gazette, newspapers and in the locality. The purpose of the acquisition is not disputed viz., that the land was sought to be acquired for the purpose of providing house sites to Adi Dravidas under a welfare scheme. In the affidavit filed in support of the writ petition, no mala fides were attributed, and no prejudice was pleaded on account of the long gap between the dates of publications of 4(1) Notification. Even before us there was no argument that there were any mala fide on the part of the respondents in acquiring the land. It was also not shown as to how any prejudice was caused on account of the gap between the dates of different modes of publications under Section 4(1) of the Act.
15. On the other hand, the appellant filed objections, participated in the 5A enquiry, and after holding enquiry and after consideration of the objections the Collector recommenced for rejecting the objections, and the State Government accepted the same, and took a final decision to issue a declaration under Section 6 of the Act. We are also told that even the Award is passed, and pattas are issued to the beneficiaries.
16. A decision is cited by the learned Counsel for the appellant viz., State of Tamil Nadu and Anr. v. Rajendran and 23 Ors. (1993)2 L, W. 352, in which reference is also made to another case in Government of Tamil Nadu v. S. Jayaraman 1992 W.L.R. 332, on which judgment also the learned Counsel for the petitioner placed reliance. Paragraph 11 of the judgment in State of Tamilnadu and Anr. v. Rajendran and 23 Ors. (1993)2 L. W. 352 aforementioned, reads:
In the instant case, there is a time gap as already pointed out, between the Gazette publication of the Notification and the public notice of the substance of the notification in the locality. There is an explanation offered for the delay which, as already referred to, was accepted in Vijayaraghavan's case by a Division Bench of this Court, We have also found that there is explanation upto 8.5.1985, and the explanation from 8.5.1985 till 13.11.1985 is not specific it is only general. If the gap of time is long as laid down by the Supreme Court in Deepak Pahwa 's case, by itself it does not lead to invalidity of the notification and the court is required to find out whether such a delay is due to lack of bonafides in the proceedings and has caused prejudice to anyone. In this regard, it may be pointed out that the petitioners have not pleaded lack of bona fides on the part of the acquiring authority and even before us the purpose for which the acquisition is made has not been questioned. Therefore, we proceed on the basis that it is not a case in which there is lack of bona fide on the part of the acquiring authority. As far as causing prejudice to any one is concerned there is no plea in that regard. It is not the petitioner's case that this delay has caused prejudice to them in any manner. We are of the view that in the absence of any attack by the petitioners on the motive of the acquiring authority so as to lead to lack of bona fides in the proceedings for acquisition of the lands in question and in the absence of any plea of prejudice being caused to them on account of the time-gap between the publication of the notification in the Official Gazette and the publication of substance of the same in the locality, we find it very difficult to hold, in the light of the decision of the Supreme Court in Deepak Pahwa's case, that the acquisition is vitiated by reason of this time-gap.
17. A careful reading of the said judgment, in particular paragraph 11 extract above makes it clear that in the absence of pleading of lack of bona fides on the part of the acquiring authority, and not showing any prejudice on account of the gap in the dates of publication of 4(1) Notification by different modes the acquisition proceedings are not vitiated, particularly when the purpose of acquisition is not disputed. As already stated above, the appellant did not dispute the purpose of acquisition, did not plead lack of bona fides on the part of the acquiring authorities in acquiring the land, and it was not shown how any prejudice was caused by the gap in the publication of 4(1) Notification in the Gazette, newspapers and in the locality, Hence the contention of the appellant cannot be accepted.
15. However, Mr. S. Ramalingam., in Thirumathi Reeta v. The State of Tamilnadu 1998 W.L.R. 277, following the decision of the Apex Court in Collector (District Magistrate), Allahabad v. Raja Ram , has held as follows:
6. The provisions of Section 4(1) have been held to be mandatory in more than one decision. No part of it can be dispensed with. Therefore, there is a duty cast on the authority not only to publish a notification in the Official Gazette but also to cause public notice of the substance of such notification to be given at convenient places in the locality. The contention of the petitioner is that there was no publication of the substance of 4(1) notification in the locality. On this aspect, after verification of the records, the learned Additional Government Pleader, on instructions, states that the substance of the notification was not published in the locality. The explanation of the learned Additional Government Pleader is that the said publication would serve no purpose when an enquiry under Section 5-A has been decided to be dispensed with. According to the learned Additional Government Pleader, the object of publishing the substance of the notification at convenient places is to be enable the public to state their respective view points in an enquiry to be held under Section 5-A of the Act and when such an enquiry is not contemplated and has been dispensed with, no useful purpose would be served by publishing the substance of the notification in the locality. This argument of the learned Additional Government Pleader, though attractive, has not been accepted by the Supreme Court.
7. In Collector (District Magistrate), Allahabad v. Raja Ram, the Supreme Court has held as follows:
It could not be urged that since the underlying purpose behind publication of a notice in the locality is to be given an opportunity to the person interested in the land to object to the acquisition, wherein a case, the purpose is achieved as in the instant case the petitioner having filed his objections, the failure to publish the substance of the notification in the locality need not be treated fatal and cannot invalidate the proceedings. The submission as presented is very persuasive and but for binding precedents, the Supreme Court would have accorded considerable attention to it. But the Supreme Court would not whittle down a mandate of legislation recognised by a long line of decisions solely depending on the facts of a given case. Further the submission is predicted upon an assumption that the sole purpose behind publication of substance of notification in locality is to make requirement of Section 5-A functionally effective. The assumption is not well founded.
Assuming that a notification in the Official Gazette is a formal expression of the decision of the Government. The decision of the Government is hardly relevant, unless it takes the concrete shape and form by publication in the Official Gazette. Where a decision of the Government to be effective and valid has to be notified in the Government Gazette, the decision itself does not become effective unless a notification in the Official Gazette follows. Therefore, assuming that notification is a formal expression of a decision of the Government to acquire land, unless the decision is notified in the Government Gazette by an appropriate notification, the proceedings for acquisition cannot be said to have been initiated and the decisions would remain a paper decision. Section 4(1) further requires that, "the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality". The expression "such notification" in the latter part of Section 4(1) and sequence of events therein enumerated would clearly spell out that first the Government should reach a decision to acquire land, then publish a notification under Section 4(1) and simultaneously or within a reasonable time from the date of the publication of the notification cause a notice to be published containing substance of such notification meaning thereby that notification which is published. Obviously therefore, there cannot be a publication in the locality prior to the issuance of the notification.
8. In the instant case when the admitted facts show that the substances of the notification had not been published at convenient places in the locality, the very notification made under Section 4(1), dated 28.10.1981 loses its efficacy for non-compliance with the mandatory provisions of that section. The resultant position is that the petitioner is entitled to succeed and consequently all proceedings taken for acquiring the petitioner's land of an extend of 7 cents in S.No. 15/382 in Salamedu village, Villupuram Taluk, will stand quashed.
16. Following the decision in Inglewood Pulp and Paper Company Limited v. New Brunswick Electric Power Commission A.I.R. 1928 P.C, 287 and Khub Chand and Ors. v. State of Rajasthan and Ors., a Division Bench of this Court in Kannaka Gruha Nirmana v. Kota Srinivasa Murthy (1998)1 LACC. 81, has held as follows:
There is, therefore, force in the submissions of the learned Counsel for the appellant-landowners that after the applicability of the Central Act, the powers of acquisition were to be exercised strictly in accordance with the Central Act by the authorities specified therein and by none else. Realising such a settled position of law, the learned Counsel appearing for the respondents have relied upon Annexure R-1 to submit that in effect and essence, the appropriate Government had exercised the powers and that the Deputy Commissioner, the Collector, had only performed his duties as cast upon him under Part II of the Act. It is contended that the satisfaction recorded is that of the Government and not of the Collector or the Deputy Commissioner. Presumably, having in his mind Annexure R-1, the learned single Judge also held.
...In view of the direction of the Government to the Deputy Commissioner to initiate acquisition proceedings for the benefit of the 4th respondent-society, I do not think that there is any substance in the contention of Sri Ramachandra and accordingly it is rejected.
7. It is acknowledged position of law that the statutes which' encroached on the rights of the citizens, whether as regards person or property, are subject to strict constructions and are required to be interpreted, if possible, so as to respect such rights, In case of any ambiguity, the construction which is in favour of the citizen should be adopted. The Privy Council in Inglewood Pulp and Paper Company Limited v. New Brunswick Electric Power Commission A.I.R. 1928 P.C. 287, held that the accepted rule of interpretation of the statute is that the law should not be interpreted to result in deprivation of the property to the owners without adequate compensation unless the intention to do so is made clear. The case of acquisition for a purpose contemplated under Article 39(b) of the Constitution may be different. As the land Acquisition Act is of expropriatory character depriving the citizen of his property, the provisions of the statute conferring power to compulsorily acquire lands, are required to be strictly construed. The Supreme Court in Khub Chand and Ors. v. State of Rajasthan and Ors. , held the provisions of Section 40 of the Act being mandatory, the violation of the same rendered the acquisition proceedings void.
17. In the instant case, admittedly, there is a gap of 66 days between the date of Gazette publication and the publication of notification in the locality.
18. Mr. R. Krishnamurthy, learned senior counsel, strongly places reliance on the decision in Nutakki Sesharatanam v. Sub Collector, Land Acquisition, Vijayawada , wherein, it is held as follows:
The acquisitions of the land is bad in law because the substance of the notification under Section 4(1) of the said Act was not published in the locality within forty days of the publication of the notification in the Government Gazette. The time limit of forty days for such publication in the locality has been made mandatory by Section 4(1) of the said Act by Andhra Pradesh (Amendment) Act. It is well-settled that such non-compliance renders acquisition bad in law.
19. In view of the decision of this Court in K.R. Ammasai Gounder v. State of Tamil Nadu , the time gap pointed out by Mr. R. Krishnamurthy, learned senior counsel, appearing for the respondents, would not, by itself seriously vitiate the entire acquisition proceedings, as the petitioner has not established any serious prejudice due to the above time gap. However, I am convinced to accept the argument of Mr. R. Krishnamurthy, learned senior counsel that the notification published in the gazette, in the newspaper and in the locality are to be identical. Even though the gap of 66 days between the date of notification under Section 4(1) of the Act published in the Government Gazette and the date of publication in the locality could be overlooked for want of prejudice caused to the petitioner, to hold an enquiry under Section 5-A of the Act, but for a proper notification under Section 4(1) of the Act the second respondent has no authority under law to hold an enquiry under Section 5-A of the Act which reads as follows:
Section 5-A of the Land Acquisition Act:
Hearing of objection.
(1) Any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall after, hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, Sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
20. In this regard, it is relevant to refer the decision in The Government, of Tamil Nadu, represented By its Secretary, Home Department, Fort St. George, Madras-9 and Anr. v. Natarajan (1997)2 M.L.J. 604, wherein it is held as follows:
2. A Division Bench of this Court in Government of Tamil Nadu represented by its Secretary and Anr. v. S. Jayaraman 1992 L W. 332, has held that the delay between the publication of Section 4(1) notification in the Official Gazette and the public notice of the substance at convenient places of the locality should not exceed two months. If it exceeds two moths, it is liable to be questioned.
3. The contention of the learned Government Pleader is that there is no statutory rule of limitation regarding the publication of notice provided under Section 4(1) of the Land Acquisition Act (hereinafter referred to as 'the Act') and, therefore, discretion should have been exercised only in favour of the validity of the notification. There must be continuity of action in the publication of Section 4(1) notification in the Official Gazette and in the newspapers, and also in giving public notice of the substance at convenient places in the locality. If there is any long delay or break in the continuity, in any individual case, it may defeat the scheme and it may create an uncertainty in putting the land for the required use and may also prevent the development of such land by the land owner and many such consequences. The provisions being mandatory and the law of acquisition being one of depriving the citizens of their right to property to which some of them are sentimentally attached, strict compliance of the provisions of law is required, at least within the minimum possible time after notification. The officials concerned have to act sincerely and in a most diligent manner because any unavoidable delay would render the publicity contemplated under Section 4(1) of the Act effectless. Therefore, in order to prevent the deep gap between the publication of the notification and public notice of the substance at convenient places of the locality should not exceed the minimum possible time.
4. Though there is nothing like stipulating a time in Section 4 of the Act, but a reading of the section and the expedition with which the notice has to be published, as contemplated in the Act, would make it clear that the Act prevents any delay which can take in its ambit a deep gap between the date of publication and the date of public notice of the substance of such notification at convenient places in the locality. Therefore, in order to prevent any undue delay and even consequences on the land owners and also to keep the effect of the notice intact, a reasonable time has to be read or presumed to a provision as has been done by this Court, with which we respectfully concur, There is no substance in the contention raised by the Government Pleader.
21. Therefore, the notification under Section 4(1) forms the basis for the enquiry contemplated under Section 5-A of the Act. In the instant case, the notification issued under Section 4(1) published in the Gazette, reads as follows:
G.O.Ms.No. 466, Social Welfare, 15th March, 1988.
No. II (2)/ SW/2118/88. Whereas it appears to the Government of Tamil Nadu that the land specified below and situated in Mangadu village, Arcot Taluk, North Arcot District, is needed for a public purpose, to wit, for the provision of house-sites to Adi-dravidars, notice to the effect is hereby given, to all to whom it may concern in accordance with the provisions of Sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (Central Act 1 of 1894):
Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 4 of the said Act, the Governor of Tamil Nadu hereby authorises the Special Tahsildar (Land Acquisition), Adi-Dravidars Welfare, Vellore, his staff and workmen, to exercise the powers conferred by the said sub-section; and, under Clause (c) of Section 3 of the said Act, the Governor of Tamil Nadu hereby appoints the Special Tahsildar (Land Acquisition), Adi-Dravidars Welfare, Vellore, to perform the functions of a Collector under Section 5-A of the said Act.
North Arcot District, Arcot, Taluk Mangadu village.
(The extent given is approximate,) Government, dry, S.No. 37-2 (Provision), belonging to T.G. Moorthy, Pownammal, G. Malliga and D. Gowri, bounded on the north by S.No. 37-3 (Provision) east by S.No. 37-3 (Provision), south by S.Nos.37-1 (Provision) and 34 and west by S.No. 39-4.32 acres.
22. However, the notification published in the two daily newspapers, in the regional language, reads as follows:
23. The comparison of the above publications would show that both are not identical inasmuch as the notification published in the Gazette authorised the second respondent for the purpose of Section 4(2) as well as Section 3(c) of the Act, whereas, the notification published in the two newspapers in the regional language, authorises the second respondent only for the purpose of Section 4(2), which enables the second respondent only:
(i) to enter upon and survey and take levels of any land in such locality;
(ii) to dig or bore into the sub-soil;
(iii) to do all other acts necessary to ascertain whether the land is adapted for such purpose;
(iv) to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
(v) to mark such levels, boundaries and line by placing marks and cutting trenches; and (vi) where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked to cut down and clear away any part of any standing crop, fence or jungle;
24. But, to hold an enquiry in pursuance of the notification under Section 4(1) the second respondent also ought to have been authorised under Section 3(c) of the Act, to discharge the duties of the Collector, for conducting the enquiry, as contemplated under Section 5-A of the Act.
25. In the absence of any delegation or authorisation by the Government, authorising the second respondent to discharge the duties of the Collector, any act done or purported to be done by the second respondent on behalf of the Collector is, per se, illegal, and without jurisdiction, and therefore, it shakes down the very basis of the acquisition proceedings, assuming, said to have been built carefully at every stage.
26. Once the second respondent has no jurisdiction even to hold an enquiry under Section 5-A of the Act, the finding arrived thereon, the declaration made, and the award passed thereafter are all held to be without jurisdiction, and are liable to be set aside. When the proceedings are attracted for want of power and jurisdiction, the mere want of prejudice caused to the petitioner cannot be a ground to cure the defect in law, as it deprives the right of the petitioner over the impugned property, and therefore, following the decisions laid down in:
(i) Nutakki Sesharatanam v. Sub Collector, Land Acquisition, Vijayawada ; and
(ii) Thirumathi Reeta v. The State of Tamil Nadu 1990 W.L.R. 277;
I am obliged to interfere with the impugned acquisition proceedings and quash the same. Consequently, the writ petition is allowed as prayed for. No costs.