Tmt. Leelavathi v. The State of Tamil Nadu

petitioner was not served with the notice and no opportunity was given to her and therefore, it is in violation of the principles of natural justice; that after coming to know about the notice dated24.12.1996, affixed near her lands, the petitioner submitted her objection on 15.01.1997 and the same has not been considered; that 4(1) notification was published in a Tamil daily "Pirpagal" which was not actually having wide circulation and therefore, the mandatory requirements of Section 4(1) of the Act are not complied with; that according to the petitioner, as per G.O.Ms.No.620 Housing and UrbanDevelopment Department, dated 29.06.1990, it was informed that the Tamil Nadu Housing Board should avoid acquisition proposal in respect of lands where lay-out was approved by the Director of Town and Country Planning and the layout was approved in respect of thepetitioner's lands as early as on 30.10.1995 and the petitioner has gifted the lands of an extent of 1.75 acres to the Panchayat Unionfor public purposes by gift deed dated 17.12.1996 and therefore, it cannot be said that the respondents are not aware of the fact that the petitioner is the owner of the property; and that the mandatory requirement under the Act to effect service of personal notice has not been fulfilled.3.

The Tamil Nadu Housing Board has subsequently filed apetition to implead itself as a party and ultimately it was impleadedas third respondent as per the order dated 23.03.2007 and thereafter, the Housing Board has filed a counter affidavit. As per the counteraffidavit, notification under Section 4(1) of the Act was approved inG.O.Ms.No.385 Housing and Urban Development dated 06.09.1996 and published in the gazette on 23.10.1996 and the substance of the notification was published in "Murasoli" and "Pirpagal" on 31.10.1996and in the locality on 08.11.1996. Enquiry under Section 5-A of the Act was conducted on 17.06.1997 after observing usual formalities and after publication and service of the required notice as per the rules framed under Section 55(1) of the Act. The objections filed by the interested persons were forwarded to the Executive Engineer and Administrative Officer, Coimbatore Housing Unit, Coimbatore and theremarks of the said Executive Engineer were also communicated to the interested persons and thereafter, the declaration under Section 6was approved in G.O.Ms.No.390 Housing and Urban DevelopmentDepartment dated 04.11.1997 and published in the gazette on05.11.1997.

It was at that stage, the petitioner has filed the above writ petition against the acquisition. 3(a). It is the case of the third respondent that while issuing notification under Section 4(1), names of the pattadars were furnished as per village chitta and in respect of the lands in question, the name of pattadar found in the revenue records was Karamadai Naicker. It is also stated that Form-B for enquiry under Section 5-A was duly published in the vicinity and the petitioner has also sent her objections on 15.1.1997. It is also stated that section 6 declaration has been published within one year from the https://hcservices.ecourts.gov.in/hcservices/ date of 4(1) notification. In respect of the locality publication it was effected on 08.11.1996 and therefore, there is no procedural irregularity.3(b). The approval of lay-out by the Director of Town and Country Planning on 30.10.1995 was after the original proposal for acquisition started in 1988, but prior to Section 4(1) notification, which was on 06.09.1996.

The mere approval of lay-out is not a bar for proceeding with acquisition. According to the third respondent, the interested persons were enquired and notice intended to the owners have been served as per Section 45 of the Act.3(c). According to the third respondent, the persons whose names find place in the revenue records alone will be given notice.G.O.Ms.No.620 dated 29.06.1990 is not applicable to the case of the petitioner since the land acquisition proposal was started in the year 1988, that is prior to publication of 4(1) notification, and thelay-out has been approved by the Director of Town and CountryPlanning only on 30.10.1995.4. Even though the first and second respondents have not filed any counter affidavit, the learned Government Advocate has produced the files relating to the acquisition proceedings.5. Mr.AR.L.Sundaresan, learned senior counsel appearing for the petitioner would submit that the Director of Town and CountryPlanning has approved the lay-out presented by the petitioner, as admitted by the third respondent, Housing Board itself on 30.10.1995and it was after that approval the petitioner has earmarked various portions as per the lay-out for public purposes by registered gift deed dated 17.12.1990.

He would also submit that the second respondent himself has issued a certificate on 25.01.1995 to the effect that there was no 4(1) notification published in respect ofS.Nos.366, 378 and 381. The learned senior counsel fairly admits that as per the counter affidavit of the third respondent, the locality publication of Section 4(1) notification was made on08.11.1996 and 6 declaration was on 04.11.1997, and hence, the time between the said 4(1) notification and 6 declaration is in time.5(a). He would submit that inasmuch as the partition deed was effected on 28.09.1992, by which the property got in her name was gifted to the Panchayat Union on 17.12.1996 after getting the lay-outapproved by the Director of Town and Country Planning in 1995 and inspite of it Section 4(1) notification was issued in the name of adead person which is not valid. He would also submit that in respect of S.No.367, the Tahsildar has issued a letter addressed to the petitioner dated 12.06.1996 stating that the said Survey Number is not involved in any land acquisition proceedings. https://hcservices.ecourts.gov.in/hcservices/ 5(b).

He would also submit that the Director of Town and countryPlanning in his letter dated 04.11.1996 addressed to the petitioner after the 4(1) notification, directed the petitioner to pay some charges regarding the approval of layout and even in that, there was no whisper about 4(1) notification. He would also submit that the acquisition regarding neighbouring lands under the same Scheme has been quashed by this court. The learned senior counsel would rely upon various judgements, including (i) 1989 WLR 89 (FB) [P.C.Thanikavelu vs. The Special DeputyCollector for Land Acquisition, Madras.](ii) 1993 (1) MLJ 217 [Muthuswamy vs. State of Tamil Nadu]; and(iii) 2000 (4) CTC 125 [Asiya Mariyan vs. The Secretary to Governmentof Tamil Nadu],to substantiate his contention that 5-A enquiry is invalid, since persons interested were not heard. 5(c). He would also rely upon the judgement of the DivisionBench of this Court in Savithiriammal vs.

State of Tamil Nadu [2006(3) MLJ 389], wherein the Division Bench has held that notice against the dead person vitiates the entire acquisition proceedings. Further, he would rely upon the judgement in M.Velayutham and othersvs. State of Tamil Nadu [2006 (5) CTC 585] and in The Secretary to Government of Tamil Nadu, Housing and Urban Development, FortSt.George, Chennai 9 and another vs. J.Sivaprakasam and others [2005(2) MLJ 106], to substantiate his contention that the publication in this case is not proper.6. On the other hand, it is the contention of the learned counsel for the respondents that Section 5-A notice was not sent to the petitioner because the mutation of records was not effected in the name of the petitioner. It is his contention that the notice sent to the petitioner's father was received by one of his daughters, Kuttiammal and notice sent to the petitioner – Leelavathi and Kuttiammal for 5-A enquiry was returned as left.

Therefore, the respondents have taken steps to serve on the legal heirs. At the time when the enquiry was conducted under Section 5-A of the Act on17.06.1997, the petitioner had knowledge about the acquisition proceedings. It is also his further contention that the newspaper"Pirpagal" in which the publication was made is also a registered newspaper. 6(a). The learned counsel for the third respondent would vehemently contend that while conducting enquiry under Section 5-A of the Act, a roving enquiry is not contemplated, by relying upon the judgement of the Supreme Court in W.B.Housing Board and Others vs. Brijendra Prasad Gupta and Others [1997 (6) SCC 207].7. I have heard learned counsel appearing for the petitioner and learned counsel for respondents and perused the file produced by the learned Government Advocate. https://hcservices.ecourts.gov.in/hcservices/

Admittedly, Section 4(1) notification was published in the gazette on 23.10.1996 and the newspaper publication was effected in two newspapers on 31.10.1996 and the locality publication of 4(1)notification was made on 08.11.1996, duly certified by the SpecialTahsildar with the signature of residents of local people. However, the said 4(1) notification in respect of the property in question was issued in the name of Karamadai Naicker. In the light of the local publication effected in the manner known to law regarding 4(1)notification dated 06.09.1996; 6 declaration was issued on 04.11.1997and published in the gazette on 05.11.1997; newspaper publication was made on 06.11.1997 and locality publication was made on 07.11.1997and as fairly admitted by the learned senior counsel for the petitioner, the point regarding the period of one year from the date of 4(1) notification to the date of section 6 declaration need not bebe considered in this case, since the declaration under section 6 has been made within the time as per law.

The next contention of the learned senior counsel for the petitioner is that the Revenue Tahsildar, Coimbatore North has issueda certificate to the petitioner on 12.06.1996 stating that the property comprised in S.No.367 to the extent of 0.95.5 hectares does not include any poramboke land and as on that date, there was no 4(1)notification issued. By letter dated 25.01.1995, the second respondent himself has stated that S.Nos.366 and 378 to 381 were not subject matter of any 4(1) notification. His submission is that asper the layout approved, the petitioner has in fact executed aregistered gift deed on 17.12.1996 in favour of the Executive Officerof the Kalapatti Panchayat and if really 4(1) notification was issued on 06.09.1996, the gift deed would not have been registered.

On the other hand, it is the case of the third respondent, Housing Board, which is the requisitioning body in this case that therevenue records stood in the name of the petitioner's fatherKaramadai Naicker, in whose name 4(1) notification was issued. Insuch circumstances, the contention of the learned senior counsel asto its legality as stated above cannot be sustained. It is seen that the notice under Section 5-A enquiry, which was addressed to Karamadai Naicker has been received by Kuttiammal, as the daughter of the said Karamadai Naicker. That was the notice fixing the enquiry on 21.01.1997 and subsequently the enquiry was adjourned to17.06.1997. Another notice in Form-B as per Section 5A of the Act, which was addressed to Karamadai Naicker was received by Kuttiammalagain on 14.05.1997 with an endorsement that Karamadai Naicker died and the same has been served to Kuttiammal, being his daughter. Inaddition to that, another copy of Form-B notice dated 14.05.1997, has been sent to Kuttiammal by registered post, which has been returned. Likewise, similar notice posting the 5-A enquiry on 17.06.1997 wassent to the petitioner also by registered post, which has been returned. It is in the file that (as it is seen from page Nos.37 and https://hcservices.ecourts.gov.in/hcservices/ 43) Kuttiammal, having received the notice has informed the authorities for the first time on 14.05.1997 that her father died and having received the notice on two occasions, she has failed to appear for the enquiry.

It is also seen that after hearing all other neighbouring owners who have participated in the enquiry, the Special Tahsildar(LA) in his proceedings dated 04.08.1997 recommended that the declaration to be published under Section 6 of the Act on the basis that the properties are situated in the middle of the larger Schemeand thereafter, 6 declaration was published in the gazette dated04.11.1997 and it is also seen that the said declaration stands in the name of the petitioner Mrs. Leelavathi Ammal and her sisterMrs. Kuttiammal. It is also seen from the file that notice under Section 9(3) of the Act for the purpose of award enquiry dated20.09.1999 has been received by the daughter-in-law of Mrs. Kuttiammal, viz., S.Sarveswari, who has endorsed that, "this land is sold". However, the said notice to the petitioner was affixed on the place of the petitioner, where she has resided last with an endorsement by the Village Administrative Officer and thereafter, award has been passed on 28.10.1999 and the amount has been deposited in the Sub-Court. However, the present writ petition has been filed before passing of the award.

It is in the light of the factual situation in the files which has been perused, we have to consider the next contention of the learned senior counsel for the petitioner that Section 4(1)notification has been issued in the name of Karamadai Naicker and on the said date of 4(1) notification, the said Karamadai Naicker died and therefore, the entire proceedings should be vitiated. InSavithiri Ammal vs. State of Tamil Nadu [2006 (3) MLJ 389], the Division Bench of this Court consisting of P.Sathasivam,J.(as he then was) and V.Dhanapalan,J., dealt with almost a similar circumstance wherein the daughter of deceased father has specifically raised an objection that 4(1) notification is illegal since her father died even on 06.03.1987 whereas 4(1) notification was issued on14.06.1995. In spite of the objection raised, the authorities have not taken steps to rectify the 4(1) notification and also issued 6declaration in the name of the deceased person. It was in those circumstances, the Division Bench, applying series of judgements on the issue, viz., Muthusamy vs. State of Tamil Nadu (1993 (1) MLJ217); Devaraj vs. State of Tamil Nadu (2003 (4) CTC 134); AsiyaMariyan vs. Secretary to Government of Tamil Nadu (2000 (4) CTC 125),has quashed the notification issued under Section 4(1) of the Act in the following operative words: "5. This Court, in Muthusamy vs. State of Tamil Nadu(1993 (1) MLJ 217); Devaraj vs. State of Tamil Nadu (2003(4) CTC 134); Asiya Mariyan vs. Secretary to Government of Tamil Nadu (2000 (4) CTC 125); and in series of other https://hcservices.ecourts.gov.in/hcservices/ decisions, h held that Notice/Notification issued in the name of the dead person and the proceedings with respect to the said lands cannot sustained. By applying the said principle, we accept the contention of the learned counselfor the appellant and quash the Notification issued under Section 4(1), dated 14.6.1995. Consequent, the writ appealis allowed. "

In a subsequent judgement of the Division Bench rendered inG.S.Gopalakrishnan & 2 Others vs. Government of Tamil Nadu and 2Others (2006 (3) Law Weekly 936), wherein after the death of the original owner, the property has gone to various persons and the subsequent purchasers have challenged the acquisition on the ground that 4(1) notification was issued in the name of dead personC.Kondappa Naidu. While it was admitted that when the original owner died, the property has been transferred to various persons, and at the instance of the subsequent purchasers, 4(1) notification was challenged, the Division Bench in the above said case has considered the earlier judgement reported in 2006 (3) MLJ 389 (cited supra) and distinguished it by saying that the earlier case was relating to the legal heir of the deceased father, who in fact informed during the time of 5-A enquiry that her father died and in spite of it 6declaration was issued in the name of dead person.

In a case arising under the Bombay LandRequisition Act, 1948, in SMT. LILA VATI BAI vs. STATE OF https://hcservices.ecourts.gov.in/hcservices/ BOMBAY (AIR 1957 SC 521), the Constitution Bench of the Supreme Court had an occasion to consider whether an order of requisition issued under the said Act in the name of adead person was enforceable or not. Over-ruling the contention of the petitioner that such a notice was unenforceable, the Apex Court held as follows:-"13. The only other contention which remains to be dealt with is that the order impugned in this case is not enforceable because it was directed against the petitioner'shusband, who was dead at the date of the order, besides the other two persons indicated in it who were not concerned with the premises. In our opinion, there is no substance in this contention either. An order like the one passed under Section 6(4)(a) of the Act is not in the nature of an orderin judicial proceedings between the Government on the one hand and other parties named.

Thus, it could be seen from the law laid down by the Apex Court that a distinction was always maintained between judicial/quasi-judicial proceedings and other proceedings. In so far as the scheme of the Land AcquisitionAct, 1894 is concerned, it envisages various types of notices at various stages. Section 4(1) notification is required to be gazetted followed by publication in two https://hcservices.ecourts.gov.in/hcservices/ dailies having circulation in the locality and a local publication. The opportunity provided under Section 5-A is actually for 'persons interested' and not necessarily the land owners. This enquiry is followed by a Section 6declaration and the Act thus provides innumerable opportunities to "persons interested" in objecting to the acquisition. The Land Acquisition Act does not limit its reach to "owners of land", but enables any person interested in the land to have a say. Moreover, the liability of the acquiring authorities to serve a notice of enquiry is also restricted only to persons whose names find a place in therevenue records. When the Act does not even make it obligatory for the acquiring authorities to conduct a roving enquiry to find out the actual owners, beyond the names reflected in the revenue records, it cannot be expected of the acquiring authorities to find out if the patta holder is alive or dead.

In any event, in the case on hand, the Awarditself was passed on 19.12.1991 and as per the counter-affidavit filed by the respondents in the writ petition, the possession was also taken on 13.8.1992. The appellants 1 to3 herein purchased the plots much after the Award enquiry under the sale deeds dated 26.10.1994, 28.9.1992 and24.2.1993 respectively. Therefore, the appellants, who are subsequent purchasers, are not entitled to maintain achallenge to the acquisition proceedings in view of the law laid down by the Supreme Court in U.P.JAL NIGAM vs. KALRAPROPERTIES (P) LTD (1996 (3) SCC 124)