Madras High Court
J. Ramalingam And Ors. vs The Government Of Tamil Nadu And Ors. on 1 September, 1998
Equivalent citations: (1999)1MLJ42
JUDGMENT Mrs. T. Meenakumari, J.
1. The writ petitions are for the issue of writ of certiorari to call for the records relating to the land acquisition proceedings in G.O.Ms. No. 147 of 1986, dated 10.2.1986 initiated by the respondents 1 and 2 and quash the same.
2. As the facts are similar in nature in all the writ petitions, the following common order is passed.
3. The case of the petitioners is that they are the purchasers of the lands situate at Vadakal Village belonging to a particular family carved on 77 plots by means of an approved lay out as early as 1974., Notification under Section 4(1) has been published in the Tamil Nadu Government Gazette on 19.2.1986 and Section 6 declaration was published on 13.3.1986. Notice under Rule 3-A was issued on 2.2.1987 and objections were filed on 12.2.1987 and 5-A enquiry was conducted on 19.2.1987 and the objections were overruled on 24.2.1987 by the requisitioning body. Declaration under Section 6 was published in the locality on 14.3.1987. It is also averred that Secs.9 and 10 notices have been affixed which contained the following endorsement:
It is further argued on behalf of the petitioners that the action of the respondents in publishing the notice under Sections 9 and 10 is also questionable as they have resorted only to affixing the notice in a stick on the lands without resorting to any attempt to serve the party concerned. Basing on the above averments, the present writ petitions have been filed to quash the notification and declaration respectively under Sections 4(1) and 6 of the Land Acquisition Act.
4. It was argued on behalf of the petitioners that notification under Section 4(1) was issued on 19.2.1986 and publication in the locality was made on 13.3.1986. In pursuance of the notice under Rule 3 dated 2.2.1987, the petitioners herein have filed objections on 12.2.1987 and 5-A enquiry was conducted on 19.2.1987. As on the date of conducting 5-A enquiry, remarks of the requisitioning body was not available to the claimants whose lands were acquired. It is also contended that the objections were overruled by the requisitioning body only on 24.2.1987 that is, subsequent to the conducting 5-A enquiry. It is mainly contended by the learned Counsel for the petitioner that enquiry under Section 5-A has not been conducted properly and the provisions of Rule 3(b) of the Rules which are mandatory have not been complied with. According to the petitioners they have submitted their objections with respect to which they have received the notice of hearing under Section 5-A from the respondents and they have filed their objections on 12.2.1987. Enquiry under Section 5-A was conducted on 19.2.1987 and the objections were overruled by the requisitioning body on 24.2.1987. Hence it was vehemently argued that the provisions of Rule 3(b) of the Tamil Nadu Acquisition Rules which are mandatory, have not been complied with as the officer who conducted the 5-A enquiry did not have the remarks of the requisitioning body at the time of 5-A enquiry. It has also been contended that the publication of notice under Section 9(3) should also be held to be not in conformity with the provisions of the Act as the respondents have not resorted to any diligent attempts to serve the notice and they have affixed the notice in a stick and this also crippled the petitioners from participating in the award enquiry. Learned counsel for the petitioners has relied upon the decision of this Court in W.P.Nos. 3969 and 3976 of 1991 dated 16.4.1998 to substantiate his contention that the authorities must comply with the provisions of Rule 3(b) of the Rules.
5. It has been argued on behalf of the respondents that the notification: under Section 4(1) was published in the Tamil Nadu Government Gazette dated 19.2.1986. The; said notification was published in the dailies and also in the locality on 13.3.1986. Enquiry under Section 5-A was conducted on 19.2.1987 and declaration under Section 6 was published in the Tamil Nadu Government Gazette and the local dailies; on 13.3.1987. It has been argued that the notice regarding award enquiry was affixed on the petitioners lands as whereabouts of the petitioners could not be traced out and it was also submitted that the lands acquired were handed over to the requisitioning body on 10.4.1989. Therefore, it was contended on behalf of the respondents that the acquisition has been completed as per the provisions of the Land Acquisition Act and the Rules framed there under by the State. It is also contended that there is no illegality in the acquisition proceedings.
6. The entire file has been placed before this court at the time of hearing. It could be seen from the file that the objections filed by the petitioners have been forwarded to the requisition department and enquiry under Section 5-A was conducted on 19.2.1987. From the file it is evident that the requisitioning body has overruled the objections filed by the petitioners herein on 24.2.1987. Hence it could be said that there was failure to comply with the mandatory provisions under Section 5-A and Rule 3-B of the Rules. In this context, it is pertinent to note that a Divisior Bench of this Court in Ramanujam v. Collector, Madras and two Ors. 1994 Writ 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. It was held in Kannammal (deceased) V.N. Devadoss v. State of Tamil Nadu and Ors. 1990 Writ L.R. 439, that the 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. In Kadirvelu Mudaliar State of Tamil Nadu and Anr. 1987 Writ L.R 182, Nainar Sundaram, J., as he then was, (sic) that if remarks of the requisitioning body (sic) not been obtained when the enquiry under Section (sic) A was held, much less furnished to the (sic) of the land, it would vitiate the proceedings (sic) the same effect, the following decisions are:
(1) C. Ponnusamy and 62 Ors. v. Govern ment of Tamil Nadu (2 Balkis Ammal By Power of Attorney Agen K.P.M. Abdul Gafar v. The State of Tamil Nadu and Anr. , (3; Tube Suppliers Ltd. v. Government of Tamil Nadu and Anr. , and also the unreported decision in W.P.Nos. 3969 and 3976 of 1991 dated 16.4.1998.
In view of the above decisions, it could be held that as the remarks of the requisitioning body was not made available to the owner/claimant whose lands were acquired at the time of enquiry under Section 5-A, it has to be held that the requirements of Rule 3(b) have not been complied with. Hence, the enquiry under Section 5-A is vitiated.
7. The next contention urged by the petitioner's counsel is with reference to the non-service of notice under Section 9(3) of the Act. From the files in Rc. No. 440 of 1986 of the respondents, it could be seen from page 35 that the respondents affixed the notice in a stick on the lands without resorting to any attempt to serve the party concerned. The above action of the respondents is assailed by the learned Counsel for the petitioners on the ground that there was no proper attempt resorted to by the respondents to serve the notice on the party concerned. Hence, he argued that the petitioners were crippled from participating in the award enquiry in the absence of notice. Hence, the proceedings are liable to be quashed on this ground also. Learned counsel for the petitioner has also relied upon the decision in Church of South India Trust Association v. The Government of Tamil Nadu 95 L. W. 87, wherein Nainar Sundaram, J., as he then was held that publication of notice under Section 9(3) by beat of Tom Tom and affixture at conspicuous place to be resorted to only after making diligent attempts to serve party concerned. It was also held that when two persons are shown as owners, temporary absence of one cannot be taken advantage of. In this case it could be seen that the authorities have resorted to affix the notice in a stick without making any diligent attempts to serve the party concerned. In this context, it could be said that the temporary absence cannot be taken advantage of to serve the notice in any other manner not strictly adhering to the provisions of the Act. It must be stated that the court must be satisfied that the person concerned could not be found even after diligent attempts were made. It is essential that the notice must be served as prescribed by the statute and it should be strictly followed. From the endorsement made on the reverse of the notice under Sections 9(3) and 10, it could be seen that the action of the respondents in affixing the notice under Section 9(3) in a stick is not in conformity with the procedure prescribed by the statute thereby crippling the petitioners from participating in the award enquiry. Thus, in the present case, Rule 3-B of the Rules have not been followed by the respondents. Following the decision of the Division Bench of this Court in Ramanujam v. Collector, Madras and two Ors. 1.994 Writ LR. 326, it is held that in the present case 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.
8. In view of the above, I am inclined to quash the acquisition proceedings impugned in the present writ petitions. The writ petitions are allowed. No costs.