Mrs.Goundathal v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17-3-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.18272 of 19981.Mrs.Goundathal2.A.Kuppusami3.Mrs.Palaniammal4.Mrs.Meenakshi... Petitionersvs.1.Government of Tamil Nadu rep. By its Secretary Housing & Urban Development Department Fort St.George, Chennai 9.2.Tamil Nadu Housing Board rep. By its Managing Director Nandanam, Chennai 600 035.3.The Special Tahsildar (LA-I) Housing Scheme, Coimbatore 18.... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorari as stated therein.For petitioners: Mr. Su.SrinivasanFor respondents: Ms. D.Geetha Addl.Govt. Pleader..ORDERThe writ petitioners challenge the notification issued underSection 4(1) of the Land Acquisition Act,1894 (Central Act I of 1894)(in short, "the Act") in G.O.Ms.No.670, Housing and UrbanDevelopment Department (LA 2), dated 31.7.1995 and also thedeclaration under section 6 of the said Act in G.O.Ms.No.422, Housingand Urban Development Department (LA 3-2) dated 26.9.1996 in respectof their lands measuring 0.90.5 hectares in S.F.No.15/2 situate in19, Vellakinar village, Coimbatore North taluk, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/

2. According to the petitioners, the notification under section 4(1) of the Act was published on 31.7.1995 on the basis that theproperties were required for public purpose of formation ofThudiyalur Neighbourhood Scheme. It was published in the GovernmentGazette on 13.9.1995. Thereafter, section 6 declaration was issuedand published on 27.9.1996. The Tamil Nadu Housing Board is therequisitioning body for the Scheme. The names of the petitionerswere found registered in the land records. In 5A enquiry, thepetitioners filed their objections. However, according to thepetitioners, there was no enquiry conducted as per section 5A of theAct and the objections raised by the petitioners were not forwardedto the requisitioning authority and the reply from the requisitioningauthority has not been communicated to the petitioners andconsidered. Therefore, according to the petitioners, the enquiryconducted without notice under section 5A of the Act is not valid inlaw. 2(a). It is the further case of the petitioners that 4(1)notification has been issued in the name of Arukutti Gounder, who isthe husband of the first petitioner and father of other petitioners,while section 6 declaration has been issued in the names of thepetitioners as Legal Representatives of the said Arukutti Gounder.It is also the case of the petitioners that 4(1) notification wasissued on 13.9.1995 while section 6 declaration was made on 26.9.1996and therefore, it is beyond the period of one year and on that scorealso, the land acquisition proceedings are liable to be set aside.2(b). In short, it is the case of the petitioners, as submittedby the learned counsel for the petitioners, that the propertiesoriginally belonged to Arukutti Gounder, husband of the firstpetitioner and father of other petitioners who died on 15.7.1988 andthe fact of death was brought to the notice of revenue authoritieswhen the mutation of records was made as early as on 11.2.1994 andtherefore, the notification issued under section 4(1) of the Act inthe Gazette dated 13.9.1995 which is in the name of a dead person isvoid ab initio. 2(c). The next contention is that the notice for enquiry undersection 5A of the Act was also issued in the name of ArukuttiGounder, but served only on one of his legal representatives, viz.,Kuppusamy on 10.11.1995, wherein he has made an endorsement to theeffect that he received the notice as his father died. However,even thereafter, the respondents have not taken any steps to issue amodified notice under section 4(1) of the Act.2(d). On the date of 5A enquiry, viz., 29.11.1995, the VillageAdministrative Officer has given the details about the land owners inthe chart containing entries relating to mutation of records andeven thereafter, no attempt was made to serve notice on all thepetitioners who are the interested persons. Therefore, 5A enquiry https://hcservices.ecourts.gov.in/hcservices/ without due notice which is a mandatory requirement and theconsequential declaration under section 6 of the Act are not valid inlaw. 2(e). The participation of the second petitioner in 5A enquirywill not validate the initial illegality of section 4(1) notificationand therefore, any award passed will also become invalid. Thelearned counsel for the petitioners would also rely upon variousjudgements viz., (i) Bhama Ramamoorthy vs. State of Tamil Nadu (AIR 1977 Madras 272);(ii) State of Madras vs. Deivasigamani Pillai (AIR 1976 Madras 245); (iii) P.C.Thanikavelu vs. Special Deputy Collector for LandAcquisition, Madras (AIR 1989 Madras 222);(iv) Mrs.Chinthamani vs. Special Tahsildar for Land Acquisition (2000(2) CTC 21); and(v) Savithiriammal vs. State of Tamil Nadu (2006 (3) MLJ 389), tosubstantiate his contentions.3. On the other hand, the learned Additional Government Pleader,by producing the files relating to the land acquisition proceedings,would submit that locality publication of notification under section4(1) of the Act was effected on 6.10.1995 and declaration undersection 6 of the Act was published on 27.9.1996 and therefore, theacquisition is well within the time. It is also her contention thatthe second petitioner has participated in 5A enquiry on behalf of thefamily of the petitioners and he is not a stranger and therefore, itcannot be stated that the enquiry is vitiated. It is also the caseof the learned counsel for the respondents that the writ petitioncame to be filed on 16.11.1998, which is much after the award whichwas passed on 28.9.1998 and therefore, on the ground of laches, thewrit petition is liable to be dismissed. She has produced thenecessary files.4. The learned counsel appearing for the Tamil Nadu Housing Boardwould also rely upon various judgements, viz.,(i) Star Wire (India) Ltd., vs. State of Haryana (1996 (11) SCC 698); (ii) The Municipal Council, Ahmednagar vs. Shah Hyder Beig (2000 (1)Supreme 146); (iii) Urban Improvement Trust, Udaipur vs. Bheru Lal (2002 (7) SCC712);(iv) Ramalingam vs. The State of Tamil Nadu rep. By the Secretary tothe Industries Department (2005 (3) CTC 1); (v) The Secretary, TamilNadu Housing Board, Nandanam, Madras-35 vs. State of Tamil Nadu rep.By the Commissioner and Secretary to Government, Housing and UrbanDevelopment Department, Chennai (2005 (3) CTC 666); and (vi) S.Harshavardhan and another vs. State of Tamil Nadu rep. By theSecretary to Government, Industry Department, Chennai (2005 (3) CTC691), https://hcservices.ecourts.gov.in/hcservices/ to substantiate his contention that the writ petition filed after theaward passed has to be dismissed on the ground of laches.5. I have heard learned counsel for the petitioners and therespondents as well as perused the files.6. In this case, it is seen that 4(1) notification was publishedin the Government Gazette on 13.9.1995. That apart, the same hasbeen published in two newspapers, viz., 'Malai Murasu' and 'Pirpagal'on 15.9.1995 and 16.9.1995 respectively. The local publication hasbeen effected on 6.10.1995. As it is seen from the certificatesissued by the Executive Officer, Vellakinar Town Panchayat and alsothe Revenue Officer, Sub Registrar dated 6.10.1995, apart from thesignatures of the residents obtained by the Village AdministrativeOfficer on 6.10.1995, who has also signed, that 4(1) notification hasbeen published by tom-tom and signatures have been obtained from theresidents. Section 6 declaration was published on 26.9.1996. In viewof the above said factual position as found in the files, thecontention of the petitioners that the duration between 4(1)notification and section 6 declaration is more than one year is notsustainable.7. In respect of the next contention regarding notice given for5A enquiry, it is seen that 5A enquiry has been fixed on 28.11.1995and 5A enquiry notice has been issued in the name of ArukuttiGounder. It is seen in page No.95 of the file that the secondpetitioner, A.Kuppusamy has received the notice for 5A enquiry withan endorsement that he is receiving the same since his fatherArukutti Gounder died. The endorsement has been countersigned bythe official of the Department on 10.11.1995. Page No.102 of the filewhich are the particulars furnished by the Village AdministrativeOfficer contains an endorsement to the effect that since ArukuttiGounder died, his name was removed and the names of his legal heirswere included in reference No.MTR-2284/94-95 dated 11.2.1994.Therefore, as per the endorsement of the Village AdministrativeOfficer which forms part of the records, the revenue records havebeen changed by removing the name of Arukutti Gounder andincorporating the names of his legal heirs as early as on 11.2.1994which is much before 4(1) notification dated 13.9.1995. Therefore,on the face of the records produced by the respondents, it is clearthat on the date of 4(1) notification, the factum of death of theowner of the lands viz., Arukutti Gounder was very much available onrecord and mutation of records by incorporating his legal heirs hadbeen effected even on 11.2.1994 and in spite of the same, it is notknown as to why the 4(1) notification was issued in the name of adead person. 8. That apart, even while receiving 5A enquiry notice, ascertified by the officials of the respondents on 10.11.1995, thesecond petitioner has himself informed the respondents about the https://hcservices.ecourts.gov.in/hcservices/ death of original owner, Arukutti Gounder and in spite of the same,the respondents have not taken steps to issue any modifiednotification under section 4(1) of the Act. The contention that thesecond petitioner being the son has received notice for 5(A) enquiryin November,1995 and participated in the proceedings thereafter andwaited till the award is passed on 28.09.1998 and moved this Court inNovember,1998 and therefore, he having knowledge about theacquisition proceedings even in 1995, which would make the writpetition liable to be dismissed on laches is not tenable on the factsof the case stated above regarding the death of the original ownerand entry in the revenue records about his legal heirs.9. It is no doubt true that the second petitioner has appearedfor the award enquiry and made a statement on his behalf and onbehalf of other petitioners and subsequently, the award came to bepassed on 28.9.1998, but the issue to be decided in this case is, onthe factual situation as stated above, whether the issuance of 4(1)notification in the name of a dead person, even after havingknowledge about the death much before 4(1) notification is valid inlaw. 10. In a similar circumstance, a Division Bench of this Courtconsisting of P.Sathasivam,J. (as He then was) and V.Dhanapalan.J. inSavithri v. State of Tamil Nadu represented by Secretary toGovernment, Housing and Urban Development Department (2006 (3) MLJ389), by referring to various case laws on the subject held that, insuch circumstances, the entire acquisition proceedings are vitiated.The operative portion of the judgement is as follows:"4. We verified the Section 4(1) Notification, Section5-A enquiry proceedings and Section 6 Declaration. Asrightly pointed out, in the Notification and Declaration, itis stated that Thiruvenkatasamy is the owner of the lands inS.Nos.267/5 and 268/3. We have already referred to thewritten objection filed by the petitioner, who is none elsethan the daughter of the said Thiruvenkatasamy, to theeffect that her father died on 6.3.1987. In suchcircumstances, it is but proper on the part of the LandAcquisition Officer to rectify the mistake in all theproceedings including Section 4(1) Notification. TheNotification issued in the name of dead person is a nullityand the proceedings cannot be continued based on the saidNotification.5. This Court, in Muthusamy v. State of Tamil Nadu 1993(1) MLJ 217; Devaraj v. State of Tamil Nadu 2003 (4) CTC134; Asiya Mariyan v. Secretary to Government of Tamil Nadu2000 (4) CTC 125; and in series of other decisions, heldthat Notice/Notification issued in the name of dead personand the proceedings with respect to the said lands cannot besustained. By applying the said principle, we accept the https://hcservices.ecourts.gov.in/hcservices/ contention of the learned counsel for the appellant andquash the Notification issued under Section 4(1), dated14.6.1995. Consequently, Writ Appeal is allowed. No costs.Connected Miscellaneous Petitions are closed. It is madeclear that the respondents are free to proceed with theacquisition if they so desire, by initiating freshproceedings in accordance with law."11. A Full Bench of this Court in P.C.Thanikavelu v. The SpecialDeputy Collector for Land Acquisition, Madras and another (AIR 1989Mad 222) has held that in 5A enquiry if the enquiry officer isinformed that the ownership of the land vests in a person not shownin the revenue records, the enquiry officer is bound to issue noticeand hear such person, holding that such non-compliance wouldinvalidate the proceedings, the principles of natural justice whichis in-built in any law. The Full Bench has held as follows: 6. ........ In such cases, the statutory enquiry underS.5-A of the Act which has not been dispensed with, would becompleted without affording a reasonable opportunity to thepersons who have an existing right in the land underacquisition. Though it is incumbent upon the Revenue to keeptheir records up to date by effecting mutation of namesreflecting the actual state of affairs by showing thepersons really interested in the land in their records, yetin a few cases it may so happen that the revenue records arenot made up to date and the person who is really interestedin the land may not receive any notice from the Collectorfor the enquiry under S.5-A of the Act. In such cases, if itis brought to the notice of the Collector by the erstwhileland owner or by any other person including the presentowner thereof, of the names of interested persons, theCollector as a statutory functionary cannot decline toafford an opportunity to the person who is really interestedin the land and close the enquiry. When such information itbrought to the notice of the Collector, it is needless tosay that the principles of natural justice enjoin upon himan obligation to issue notice to the person who is found tobe really interested in the land even though his name maynot be found entered in the revenue records. It is true thatthe Government has the prerogative to acquire landsbelonging to individuals for a public purpose sanctionedunder the theory of 'eminent domain'. But the rule of lawwhich governs and controls the executive functions in thethread that runs through the fabric of constitutionaldemocracy, the rule of law behoves the Government to actfairly and reasonably and the principles of natural justiceare the quintessence of such fair play and reasonableness.The decision reported in Padmavathi v. State of Tamil Nadu,(1978) 91 Mad LW 80 does not reflect the true statement of https://hcservices.ecourts.gov.in/hcservices/ law. The Supreme Court has held in Swadeshi Cotton Mills v.Union of India, AIR 1981 SC 818 that even in the absence ofexpress reference to observance of principles of naturaljustice, such principles should be followed whenever itaffects the rights of parties. It cannot be gainsaid thatwhen the lands of an individual are acquired, albeit he maybe paid compensation, his civil rights may be affected. Itis therefore elementary that, to be consistent with theprinciples of natural justice, such a person should be puton notice before his lands are acquired and his objectionheard and considered. The enquiry contemplated under S.5-Aof the Act would be full and complete only when the personwho is really interested in the land is put on notice. But,at the same time, it is made clear that individual notice ismandatory only to those persons whose names are found in therevenue records or who are found by the Collector as personsinterested on information received through reliable source."12. That was also the view taken by this Court in Mrs.Chinthamaniand 2 others v. The Special Tahsildar for Land Acquisition andanother (2000 (2) CTC 21). In such circumstances, on the factualsituation, the reliance placed by the learned counsel for the TamilNadu Housing Board on the judgements of the Supreme Court regardinglaches have no application, even though it is true that the awardwas passed on 28.9.1998 and the writ petition came to be filed inNovember, 1998 and the second petitioner was having knowledge aboutthe proceedings even in November, 1995.In such circumstances, necessary conclusion which one can come tois to hold that 4(1) notification which has been issued in the nameof dead person even after having the knowledge about the death ofowner of the lands, as found in the revenue records, has to be setaside and accordingly, the 4(1) notification as well as theconsequential section 6 declaration are set aside and the writpetition stands allowed, however, with liberty to the respondents toinitiate fresh acquisition proceedings, if so advised, in accordancewith law. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kh https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary Government of Tamil Nadu Housing & Urban Development Department Fort St.George, Chennai 9.2. The Managing Director Tamil Nadu Housing Board, Nandanam, Chennai 600 035.3.The Special Tahsildar (LA-I) Housing Scheme, Coimbatore 18.+ 1 CC To Mr.R.Giridaran, Advocate SR NO.15441W.P.No.18272 of 1998cmp[co]gp/25.3.