Madras High Court
K. Ponnuswamy Gounder vs The State Of Tamil Nadu Rep. By Secretary ... on 26 April, 2001
Equivalent citations: 2002 A I H C 252
ORDER
1. The writ petition is for the issue of writ of Certiorari to call for the records relating to Notification under Section 4(1) of the Land Acquisition Act 1894 by G.O.3D, No.36 Adi Dravidar and Tribal Welfare, 23rd January 1992 published in the Tamil Nadu Government Gazette dated 26th February 1992 and the related Section 6 Declaration published in the Tamil Nadu Government Gazette on March 26, 1993 concerning the petitioner's lands measuring 0.29.0 Hectares comprised in R.S.No.279-2 A2 in Erode Village. Erode Taluk, Periyar District and quash the same.
2. Learned Senior Counsel for the petitioner submitted that the petitioner's lands situate at Veerappampatayam, Hamlet of Erode (A) Village, Erode Taluk were sought to, be acquired for providing house sites to Adi Dravidas. In this context, notification under Section 4(1) of the Tamil Nadu Land Acquisition Act was issued on 18.11.1989 and gazette publication was made on 13.12.1989. The substance of the notification in the local newspapers was made on 16.12.1989 and 17.12.1989. The enquiry notice under Section 5(A) of the Act was issued on 25.1.1990.The petitioner has filed the objections on 2.3.1990. The enquiry was held on 7.3.1990. Learned Senior Counsel for the petitioner has further submitted that after the enquiry was held under Section 5 of the Act, the petitioner was not informed of the further developments. While so, the respondents authorities have again issued the notification under Section 4(1) of the Act to the petitioner on 23.1.1992. The gazette publication of the said 4(1) notification was made on 26.2.1992. The substance of the notification was published in the news papers on 27.2.1992 and 29.2.1992. Again the enquiry notice under Section 5(1) of the Act was issued on 30.3.1992 and enquiry was held on 18.5.1992. The enquiry report was made ready on 22.5.1992. The Declaration under Section 6 of the ACE was made on 26.3.1992. The petitioner has made a representation to the Government on 14.8.1992 to delete the subject lands from the acquisition proceedings. Learned Senior Counsel for the petitioner has further contended that when the earlier notification issued under Section 4(1) of the Act on 18.11.1989 is in existence, the respondents authorities have no power to issue the successive notification under Section 4(1) of the Act on 26.2.1992. He has further submitted that without dropping the earlier notification issued under Section 4(1) of the Act, the respondents authorities should not have issued the second notification under Section 4(1) Act with regard to same lands, on 26.2.1992. The further contention of the learned Senior Counsel for the petitioner is that the respondents authorities have not come forward with the details of considerations available to them for issuing the successive notification under Section 4(1) of the Act, when the earlier notification issued under Section 4(1) of the Act is in existence. The other ground urged by the learned Senior Counsel for the petitioner is that the declaration under Section 6 of the Act has to be issued within one year from the date of issuance of the notification under Section 4(1) of the Act. In this case, the earlier notification under Section 4(1) of the Act was made on 18.11.1989 and the authorities have proceeded till the enquiry under Section 5A of the Act which was held on 7.3.1990 and the respondents have failed to make the declaration under Section 6 of the Act, within one year and instead they have chosen to restart the proceedings by issuing the successive notification under Section 4(1) of the Act on 26.2.1992 which vitiates the acquisition proceedings. For these reasons, learned Senior Counsel submitted that the impugned land acquisition proceedings are liable to be set aside.
3. The petitioner has filed Writ Miscellaneous Petition No.29235 of 2000 before this court for raising the additional ground and the same was allowed by this court by order dated 18.4.2001. The additional ground raised is if the State Government desires to provide house sites to the families of Adi Dravidar Community, the Government have to initiate proceedings under the Tamil Nadu Act 31 of 1978 and the proceedings initiated under the Central Act 1 of 1894 are invalid and liable to be set aside.
4. To substantiate his contention that unless the earlier notification issued under Section 4(1) of the Land Acquisition Act is withdrawn, the Government is not entitled to issue successive notification under Section 4(1) of the Act with respect to the same land in view of the different considerations prevailing at the time, learned Senior Counsel for the petitioner has relied upon the following decisions:
1. Brij Nath Sarin v. Uttar Pradesh Government, . 2. V. Harihara Prasad v. K.Jagannadhan, AIR 1975 Antlhra 184. 3. Sadar Anjuman Ahmediyya, Muslim Mission v. State of Andhra Pradesh, AIR 1980 A.P. 246. 4. M.J. Swamy v. Special Deputy Collector, Land Acquisition, Visakhapatnam 1986 (2) A.L.T. 427. 5. In S. Arjuman Ahmediyya, Muslim Missions's case, AIR 1980 A.P. 246, a Division Bench of the Andhra Pradesh High Court has held as follows:
" The notification under Sections 4 and 6 cannot also be deemed to have been cancelled by reason of a memo of the Government directing the Collector to drop further proceeding in this regard, by invoking S. 21, General Clauses Act. While S. 21, General Clauses Act empowers the Government to rescind a notification made by it under any Act or Regulation, it provides that the power to rescind must be exercised in the like manner and subject to the like sanction and condition as in the case of making a notification. It therefore follows that if the power to acquire the land is to be exercised by means of notification under Ss. 4 and 6 of the Land Acquisition Act which are to be published in the Gazette, the power to cancel or rescind that notification should also be exercised by the issue of a notification duly published in the Gazelle. Thus whether the previous notification has to be withdrawn under S. 48(1) of the Land Acquisition Act or cancelled under S. 21 of the General Clauses Act, it has to be done only by means of another notification published in the Gazette."
6. In M.J. Swamy's case, i986 (2) A.L.T. 427, the Andhra Pradesh High Court has held as follows:
The second notification published on 1.6.1984 under Section 4(1) is not a valid one in view of the fact that the first notification dated 5.1.1981 was still in subsistence and unless that was withdrawn which admittedly has not been done, the second notification cannot be issued."
In the above decision, the Andhra Pradesh High Court has followed its earlier decision in S. Anjuman Ahmedia Muslim Mission's case, AIR 1980 A.P. 246.
7. As the respondents have neither filed counter nor produced the records, it is not known whether the award has been passed. The petitioner has filed an affidavit before this court on 23.3.2001 to the effect that he is in possession and enjoyment of the land in Survey No.279/2A2 measuring 0.29.0 hectares together with the rest of the land measuring 1.42.5 hectares (subject lands). From the said averment, it is presumed that no award has been passed though interim stay was granted only with regard to dispossession, by order dated 19.4.1993 and the same was made absolute on 3.8.1993 and the respondents were not prevented from proceeding further with the acquisition proceedings in other respects. The respondents have not come out with any case for issuance of the subsequent notification under Section 4(1) for different considerations prevailing at that time, when the earlier notification under Section 4(1) of the Act was in existence. As there is no material to show that the earlier notification issued under Section 4(1) of the Act was withdrawn, following the decisions of the Division Bench of the Allahabad High Court and the Andhra Pradesh High Court cited above, it has to be held that the successive notification issued under Section 4(1) of the Act on 26.2.1992, without withdrawing the earlier notification, is not a valid one and the land acquisition proceedings vitiate. In State of Tamil Nadu vs. Ananthi Ammal, , it has been held by the Supreme Court that if no award has been passed on or before 22.11.1994 (the date of judgment of the Supreme Court in Ananthi Animal's case), the authorities have no power to proceed under the Central Land Acquisition Act and they have to proceed under the Acquisition of Land for Harijan Welfare Schemes Act (Act 31 of 1978), if they desire to acquire the lands. In this case, it is clear that no award has been passed on or before 22.11.1994. Following the decision of the Supreme Court in Ananthi Animal's case, , it has to be held that the respondents herein have no power to acquire the lands of the petitioner under the Central Land Acquisition Act and they have to proceed under the Act 31 of 1978 stated above, if they so desire. For the reasons stated above, the impugned land acquisition proceedings are quashed and the writ petition is allowed. No costs.