Madras High Court
The State Of Tamil Nadu, Represented By ... vs N. Nagarjuna Chettiar And Anr. on 12 August, 1997
Equivalent citations: (1998)1MLJ390, 1998 A I H C 2131, (1997) WRITLR 714, (1998) 3 CIVLJ 116, (1998) 1 LACC 552, (1999) 2 LANDLR 94, (1998) 1 MAD LJ 390, (1997) 3 MAD LW 343
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
JUDGMENT A.R. Lakshmanan, J.
1. Heard Mr. R. Nagarajan, Government Advocate for appellants and Mr. A. Elango for respondents 1 and 2. The above writ appeal is directed against the order of Bhakthavatsalam, J., dated 16.7.1992 made in W.P. No. 865 of 1991 on the file of this Court.
2. The respondents are the owners of the lands in question which is the subject-matter of the land acquisition under the present writ petition. The State of Tamil Nadu, Adi Dravidar and tribal welfare Department issued notification under Sub-section (1) of Section 4 of Land Acquisition Act, 1894 in G.O. Ms. No. 1786, dated 14.9.1989 and the same was published in the Tamil daily 'Dinamalar' on 10.11.89 proposing to acquire the lands of the petitioners herein. After the notification under Section 4(1) was published the Special Tahsildar, Adi Dravidar and Tribal Welfare Department issued notice to the respondents for conducting an enquiry as contemplated in Section 5-A of the Land Acquisition Act. The respondents submitted their objections contending that they are small farmers and the agricultural land of the small farmers cannot be acquired as per the directions which we are not at present concerned in this case. The objections raised by the respondents were overruled and the Special Tahsildar, Adi Dravidar Welfare Scheme after overruling the objections had recommended to the Government to proceed further to acquire the lands.
3. The Section 6 declaration in G.O. Ms. No. 2021, dated 3.12.1990 was also published in the Tamil daily 'Makkal Rural' on 5.12.1990. The declaration was also challenged on the ground that the same was passed after the lapse of one year from the date of publication of notification under Section 4(1) of the Act. In the case, the notification under Section 4(1) was passed on 14.9.1989 and the same was published in the daily on 10.11.1989, but the declaration under Section 6 was passed on 3.12.1990 in G.O. Ms. No. 2021 and as such the impugned G.O. Ms. No. 2021 dated 3.12.1990 issued under Section 6 of the Land Acquisition Act is illegal and erroneous as it has been issued after the expiry of one year from the date of publication of the notification under Section 4(1) of the Act. The appellants filed a counter affidavit through the Special Tahsildar, Adi Dravidar Welfare Scheme, Dharmapuri. The averments made in paras 3 and 4 are relevant to the notice in the present context.
I submit that the proposals under Section 3(1) of the Land Acquisition Act, 1894, to acquire the above lands have been approved in G.O. Ms. No. 1786, (AD & Welfare Dept.) dated 14.9.1989 and the notification has been published in the Tamil Nadu Government Gazette, dated 15.11.89 Part II, section II page 3. The same has also been published in the Tamil Dailies "Dinasari" dated 10.11.1989 at page 2 and in notification has been published in the village on 5.12.1989 by beat of torn torn. Enquiry under Section 5-A of the Land Acquisition Act, was conducted on 25.1.1990 after due publication and service of notices as required under rules. The land owners have extended the 5A enquiry and objected to the acquisition of lands filing petitions. These objections have been examined in detail and were recommended to be rejected as they were not valid. Hence D.D. under Section 6 of the Land Acquisition Act was submitted to the Government.
I submit that Government in their orders No. 2021 (AD & TW) Dept., dated 3.12.1990 have approved the D. D and it is published in Tamil Nadu Government Gazette, dated 4.12.1990 (suppl), dated Part II section II at Page 2. It is also published in two Tamil dailies 'Makkal Rural' dated 5,12.1990 at page 6 in Dina Thuthu' dated 5.12.1990 at page 6 it is at this stage, the land owners have filed the above writ petition and also obtained stay in W.M.P. No. 1306 of 1991 against the lands alone pursuant to G.O. Ms. No. 2021 (A.D. & T.W. Dept), dated 3.12.1990'.
4. Bakthavatsalam, J. passed an order dated 16th July, 1992, as follows:
The petitioners challenge certain acquisition proceedings made with regard to 0.33 cents of land in survey No. 82/3 and 0.53 cents of land in Survey No. 83/1 situate in Kariamangalam village, Dharmapuri District for providing housesites for Adi-Dravidars of Kariamangalam village. One of the points taken in the writ petition is that the publication in the local dailies has preceded the publication of the Notification under Section 4(1) of the Land Acquisition Act in the Gazette.
2. Notice of motion has been ordered by this Court on 23.1.1991 respondents filed their counter affidavit.
3. After considering the arguments of the learned Counsel for the petitioners and the learned Additional Government Pleader (A.D.W.) appearing for the State, and view of my decision in M. Rajagopal v. Government of Tamil Nadu, Agricultural Department, Madras and Anr. W.P. No. 9163 of 1990 orders dated 29.4.1992, the acquisition proceedings so far as against the petitioners lands are concerned are set aside. The writ petition stands allowed. No costs.
5. Though other points have been raised in the writ petition, the learned single judge has disposed of the writ petition on the short ground that the publication in the local dailies has proceeded the publication of the notification under Section 4(1) of the Act in the gazette and, therefore, allowed the writ petition in view of his earlier decision in M. Rajagopal v. Government of Tamil Nadu and set aside the acquisition proceedings so far as against writ petitioners lands are concerned.
6. Aggrieved by the said decision of the learned single Judge the State of Tamil Nadu preferred the above writ appeal. It is contended that there is nothing to indicate that a newspaper publication of the notification cannot precede the Gazetting of the Notification, which are the two modes of publications preceding the giving of public notices of the substance of such notification, in the locality. The learned Government Advocate further contended that the import of the words in Section 4(1) "the last of the dates of such publication and the giving of such public notice being here-in-after referred to as the date of the publication of the Notification". This is clear proof that chronological distinction was not made between Gazetting or newspaper publication but only a cataloging of the processes was intended.
7. It is also contended that the order relied on by Bhakthavatsalam,J in M. Rajagopal's case (1992) 2 M.L.J. 404, has been appealed against by this State (now disposed of by a Division Bench of this Court reported in Sundara Naicker v. State of Tamil Nadu .
8. In this context we may usefully and beneficially referred to few judgments of the Division Bench of our High Court and also of the Supreme Court in order to arrive at the correct conclusion. (K.A. Swami, Chief Justice and J. Kanakaraj, J. in Sundara Naicker v. State of Tamil Nadu was preferred against the order dated 15th October, 1990 passed by a learned single judge of this Court in W.P. No. 7133 of 1990. In that writ petition, the petitioner sought for quashing the acquisition proceedings started with the notification issued under Section 4(1) of the Land Acquisition Act dated 29.4.1988 published in the Tamil Nadu Government Gazette on 25.5.1988 and also a declaration made under Section 6, dated 1.6.1988 and published in the Gazette dated 2.6.1988. Before the Division Bench it was contended that the substance of the notification issued under Section 4(1) of the Act was not published in the locality that the requirements of Rule 3(b) were also not pomplied with, that the declaration made under Section 6 was also not published, as per the provisions contained in Section 6 of the Act and that 4(1) Notification had been published in the newspaper earlier to the publication of the same in the Official Gazette. The other contentions are also raised before the Bench.
9. Learned Counsel for the appellants relied on the decision reported in M. Rajagopal's case , (Bhakthavatsalam, J.) and Muthukaruppan v. State of Tamil Nadu represented by its Commissioner and Secretary, Adi Dravidar and Tribal Welfare Department, Madras and Anr. (1994) 1 M.L.J. 303, (AR. Lakshmanan, J.). since the judgment of the Supreme Court in Collector (District Magistrate), Allahabad v. Raja Ram Jaiswal , was relied on before the learned single judge and also before the Division Bench, the Division Bench in para 8 of its judgment observed as follows:
We find it very difficult to agree with the aforesaid decisions, consequently, to agree with the contention of the learned Counsel for the appellant. It has to be remembered that literal construction of a statute should always be avoided, if it leads to defeat the very object of the provision whether the notification is published first in the newspaper or in the Gazette, it is a notification issued under the statue by the State Government proposing to acquire the land. In addition to that, the provisions contained in Section 4(1) would make it clear that the last of the dates of the publication shall be deemed to be the date of publication of shall be deemed to be the date of publication of such notification viz., the notification issued under Section 4(1) of the Act. That being so, as long as the publication in the newspapers and in the gazette have taken place whether the newspaper publication in the gazette is later, matters very little, as long as those publications have been made, without an unduly long gap between the two publications, it is not possible to hold that a publication of the notification in the newspaper preceding the publication of the same in the official gazette, would lead to non-compliance with the Act and thereby it would lead to nullifying the acquisition. It may be pointed out here that the decision of the Supreme Court in Collector (District Magistrate), Allahabad v. Raja Ram Jaiswal on which reliance is placed in M. Rajagopal's case , did not concern with Section 4(1) as it stands today. It was concerned with Section 4(1) as it stood before the amendment and it did not provide for publication of the notification in two newspapers published in the locality. Not only this, the unamended Section 4 also did not contain a provision to the effect that the last of the date of such publication and giying of such public notice as the date the publication of the notification. Therefore, the decision in Collector (District Magistrate), Allahabad v. Raja Ram Jaiswal and cannot have any bearing in construing the provisions of Section 4(1) as amended. Whether the notification in the Official Gazette proceed the notification in the newspaper of the publication of the notification in the newspaper precede the gazette notification, matters very little as long as it is the last of the dates of such publication and the giving of such public notice being referred to as the date of publication of the notification which alone would determine the date of publication of the Notification. That being so, the aforesaid two decisions in M. Rajagopal v. Government of Tamil Nadu . and Muthukaruppan v. State of Tamil Nadu represented by its Commissioner and Secretary, Adi Dravidar and Tribal Welfare Department, Madras and Anr. (1994) 1 M.L.J. 303, in our view do not bay down the law correctly.
10. Venkataswamappa v. Special Deputy Commissioner (Revenue) rendered by two Hon'ble Judges of the Supreme Court. Those appeals by special leave arise from the order of the Division Bench of the Karnataka High Court. In that case the appellants have challenged the validity of the notification published under Section 4(1) of the Act 1 of 1894. It was also contended that while the notification under Section 4(1) of the Act was published on February 23, 1989 the newspaper publication thereof had come to be made prior there i.e., on February 1, 1989 and, therefore the mandatory requirement under Sub-section (1) of Section 4 has not been complied with. The Supreme Court in paras. 5 and 6 of the judgment observed as follows:
5. It is true that normally publication in the newspapers would be preceded by a publication in the Gazette notification. It would appear that in this case while sending the notification, which was approved by the Government for publication in the Gazette simultaneously direction was issued to have it published in the Gazette. Therefore, it would appear that before publication in the gazette was made, it was published in one of the newspapers. This is only an irregularity" in the procedural steps required to be taken under the Act. It does not vitiate the validity of the notification published in the Gazette on January (sic).
6. In support of the contention that it is mandatory that the procedure prescribed under Section 4(1) should be strictly complied with, the learned Counsel has placed strong reliance on the ratio of this Court in Collector (District Magistrate), Allahabad v. Raja Ram Jaiswal . There is no dispute on the proposition that publication of the notification under Section 4(1) in the Gazette is a mandatory requirement. In fact, in that case, that was not done. The contention raised in Jaiswal's case, was that it is only an intention and not mandatory, this Court has rightly rejected that contention. As noted earlier, since the publication of the notification under Section 4(1) was made on February 23, 1989, the intention of the Government to acquire the land for public purpose. had been set in motion and it was directed to take the procedural steps in that behalf as mandated under Seb-section (1) of Section 4 of the Act. What transpires, therefore, is that (sic) of the notification was made in one of the newspapers publication earlier to the actual publication in the Gazette. As stated earlier, it was only an irregularity in the procedural steps to be taken under the Act. It is to be seen that the object of the publication of Section 4(1) is to put a notice to the owners that the land is proposed to be acquired for a public purpose and that they are prevented to deal with the lands in any manner detrimental to the public purpose. Obviously, therefore, the publication in the newspapers would put the owners on notice of the proposed acquisition even prior to the actual publication. Admittedly, in one of the newspapers notification was published after the publication in proceedings of the Land Acquisition Officer conducted under Section 5-A on March 20, 1989 the last of the dates was taken for the purpose of notification under Section 4(1). In that view we hold that there was no infraction of the Compliance of the requirement under Section 4(1) of the Act.
11. The very recent decision of the Division Bench of our High Court comprising of Shivappa and Akbar Basha Khadiri, JJ. reported in The State of Tamil Nadu v. S. Parvathi (1997) 2 C.T.C. 121, can also be conveniently noticed in the present context. The identical contentions raised in other cases were also raised before the Divisions Bench. The Division Bench, following the decision in Sundara Naicker v. State of Tamil Nadu . (K.A. Swami, C.J., and Kanakaraj, J.) and Venkataswamappa's case , in its concluding remarks has observed as follows:
In view of the decision of the Apex Court and that of this Court cited supra, we hold that the error, it at all, in the newspapers earlier to the gazette notification, since no prejudice is caused to the person interested and he will have reasonable time to put forth his grievance, at best, it can be termed purely a formal defect or an irregularity which is not mandatory and does not invalidate under Section 4(1) of the Act. In the view we have taken in conformity with the ratio set out earlier, the appeal is liable to be allowed. Accordingly, it is allowed and the order of the learned single Judge is set aside.
12. We are in respectful agreement with the opinion expressed by the Division Bench in Sundara Naicker v. State of Tamil Nadu . We are also of the view that the formal defect in the publication is a mere irregularity and it has not vitiated the validity of the notification and the person interested in land will have sufficient time to put forth his objection even if notification is published in the news-paper earlier to the Gazette notification. As pointed out by the Supreme Court, the publication of the notification under Section 4(1) in the newspapers prior to the publication of the 4(1) notification in the Official Gazette is only an irregularity in the procedural steps required to be taken under the Act and, therefore, it does not vitiate validity of the notification published in the Gazette.
13. Section 4 of the Land Acquisition Act, 1894 relates to the publication of preliminary notification and powers of officers thereupon. Section 4 provides the initial stage of the procedure which is to be followed in the Land Acquisition proceedings. Thus, the first stage is the issue of the notification under Section 4 stating that the land is likely to be needed for the public purpose. Notification under Section 4 is purely preliminary in character without affecting the rights of the parties. The issue of the notification under Section 4(1) is a condition precedent to the exercise of any further power under the Act. The word' notification' has been used in its precincts of being the formal declaration, proclamation and publication of an order in the manner prescribed. By publication of the notification under Section 4, the intention of the Government to acquire the land for public purpose has been set in motion and it was directed to take the procedural steps in that behalf as mandated under Sub-section (1) of Section 4 of the Act. Therefore the publication of Section 4(1) notification in one of the newspapers earlier to the actual publication in the Gazette can only be construed as an irregularity in the procedural steps to be taken under the provisions of the Act. The object of the publication of Section 4(1) is to put a notice of the publication of Section 4(1) is to put a notice to the land owners and also other persons interested in the land and also to the general public that the land is proposed to be acquired for the public purpose and that they are prevented to deal with the lands in any manner detrimental to the public purpose. Therefore, the publication of the notification in the Government gazette can only be treated as an irregularity which can always be cured. As pointed out by the Division Bench in Sundara Naicker v. State of Tamil Nadu , as long as the publication in the newspapers and in the Gazette have taken place, whether the newspaper publication is earlier and the publication in the gazette is later, matters very little, as long as those publications have been made, without an unduly long gap between the two publication of the notification in the news paper preceding the publication of the same in the official gazette, would lead to non-compliance with the provisions Of Section 4(1) of the Act. Therefore, in our opinion, such a publication in the newspaper preceding the publication in the official gazette would not nullify the acquisition proceedings as such.
14. The writ appeal is therefore, allowed on this short ground. Though the State of Tamil Nadu have succeed in this writ appeal on the above ground, the entire land acquisition proceedings initiated by the state to acquire the lands belonging to the respondents have to be quashed on another ground. In this case, the notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (Central Act). In view of the judgment of the Supreme Court in State of Tamil Nadu v. Ananthi Ammal and Ors. (1995) 2 1 W. 819, the writ petition has to succeed. In the writ petition, the Special Tahsildar, Adi Dravidar Welfare, Dharmapuri has filed a counter affidavit. Para. 15 of the counter affidavit reads as follows:
As regards para. 10, I submit that the suit lands are under the occupation and possession of the petitioners and no steps have been taken to vacate them as stated by the petitioner and no award has been passed and compensation paid to the petitioners in this case. Therefore, there are no paddy crops, plain and mango trees in the lands under acquisition. There is only young coconut plants that too raised after the 4(1) proposals initiated". As seen from the 4(1) notification, the land in question was sought to be acquired for the purpose of providing house sites to 125 families of Adi Dravidars of Karimangalam village, Palacode taluk Dharmapuri District. The Supreme Court in the above decision while overruling the judgment dated 9.9.1981 by this Court in W.P. 797 of 1980 upheld the constitutional validity of the Act 31 of 1978. As already noticed from the averments in the counter affidavit, the possession is still with the writ petitioners and the award has not been passed in this case before the judgments of the Supreme Court dated 22.11.1994, the authorities cannot proceed to acquire the land under the notification issued under Section 4(1) of the Land Acquisition Act, 1894. The Supreme Court has clearly held that if the award is not passed before the judgments of the Supreme Court, the State Authorities cannot continue the land acquisition proceedings under the Central Act, but may proceed against the acquisition of the lands under Act 31 of 1978, if they so desire. In this case the award has not been passed at all. Therefore, the notification issued under Section 4(1) and the declaration under Section 6 issued under the Central Act are liable to be quashed. The Supreme Court has upheld the validity of the Act except in so far as they provide for payment of compensation amount in instalments, the said Act is being intra vires of the Constitution. The decision in S.P. Vedanayagam v. Secretary, Government of Tamil Nadu, 1996 Writ L.R. 348 to which one of us is a party (AR. Lakshmanan, J.) is also squarely applicable to the points raised in this writ petition.
15. Therefore the appellants, State of Tamil Nadu is precluded from acquiring the lands for Adi Dravidar Welfare Scheme under the Central Act. Hence, the proceedings initiated to acquire the land under the Central Act under Sections 4(1) and 6 are quashed and the writ petition shall stand allowed. The respondents are not entitled to continue the proceedings under the Central Act. However, the State is at liberty to initiate fresh proceedings to acquire the land in question for the Adi Dravidar Welfare Scheme under the provisions of Act 31 of 1978, if they so desire. 16. Both the writ appeal and the writ petition are disposed of. No costs.