B.Subbiah Naidu v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE:22-1-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.4903 of 1998 1.B.Subbiah Naidu2.R.Subbiah Naidu petitioners 1 and 2 are rep. By their Power of Attorney Mr.R.Marichamy...Petitionersvs.1. The State of Tamil Nadu rep. By Secretary to Government Housing and Urban Development Department, Fort St.George Madras 9.2. The Special Tahsildar (Land Acquisition) Housing Scheme Unit – I Collectorate, Coimbatore 641 018.... Respondents Writ petition filed under Article 226 of the Constitution ofIndia for the issue of a writ of Certiorari as stated therein tocalling for the proceedings of the first respondent made inG.O.Ms.No.540 Housing and Urban Development Department dated 06.06.1995which has been published in the News Papers on 09.06.1995 and quash thesaid proceedings of the Government dated 06.06.1995 in so far as itrelates to the lands belonging to the petitioenrs in survey No.444extent 0.60 cents (1.48.0 Hectares) of Velankuridhi Village, CoimbatoreTaluk and District.For petitioners: Mr. AR.L.Sundaresan,Sr.Counsel for Mr.S.ThangavelFor respondents : Mrs.D.Geetha,AGP(W) https://hcservices.ecourts.gov.in/hcservices/ ORDERThis writ petition is filed challenging the land acquisitionproceedings in so far as it relates to the land belonging to thepetitioners in Survey No.444 to the extent of 0.60 cents (1.48.0hectares) of Velankurichi Village, Coimbatore Taluk.2. According to the petitioners, the said property has beenpurchased for family purpose, being the agricultural lands under saledeed dated 14.03.1988 and the petitioners are small farmers. TheGovernment has issued Section 4(1) notification under the LandAcquisition Act,1894 which was published in the Government gazette on20.04.1994, proposing to acquire the above said lands for providinghouse sites to public by the Tamil Nadu Housing Board. The saidnotification was published in the newspapers on 23.04.1994 and accordingto the petitioners, the substance of the the said notification was notpublished. A notice under Section 5-A of the Land Acquisition Act,1894was issued on 21.11.1994 to the petitioners, besides various otherowners comprised in the above survey number and other adjacentproperties. Section 5-A enquiry was directed to take place on12.12.1994 and the petitioners have submitted detailed objections.Notwithstanding the said objections, the Land Acquisition Officer passedan order on 20.01.1995, rejecting the objections of the petitioners.The proceedings by the Land Acquisition Officer were questioned on theground that the Land Acquisition Officer has not followed the procedurecontemplated under Rule 4(b) of the Tamil Nadu Land Acquisition Rulesframed as per the said Act. Thereafter, Section 6 declaration wasissued in G.O.Ms.No.540 Housing dated 06.06.1995 and the petitionerswere not aware of the same till they were served with notice underSections 9 (3) and 10 of the Land Acquisition Act,1894 on 28.02.1997. 3. The land acquisition proceedings are challenged on variousgrounds, viz., (i) Between Section 4(1) notification and Section 6 declaration, thereis more than one year and therefore, the same is illegal;(ii) The enquiry under Section 5-A of the Land Acquisition Act,1894 wasnot conducted by the Land Acquisition Officer properly in accordancewith the Act and the Rules. When the petitioners have submitted theirobjections and the Land Acquisition Officer has forwarded the same andobtained remarks from the requisitioning body and after obtaining suchremarks only, enquiry should be conducted and as per Rule 4(b) of theTamil Nadu Land Acquisition Rules and in the absence of following suchprocedure, acquisition of land is liable to be set aside;(iii) The lands in question are required for the livelihood of thefamily of the petitioners. https://hcservices.ecourts.gov.in/hcservices/

4. It is seen in Section 4(1) notification as well as in Section 6declaration that the land acquisition proceedings were initiated by theGovernment for the purpose of providing house sites to the public by theTamil Nadu Housing Board relating to various properties comprised inSurvey Nos.442, 444 and 445. The subject matter of the properties inthis writ petition is forming part of Survey No.444, which are owned bynearly 23 owners and Section 6 declaration issued under the LandAcquisition Act,1894 in G.O.Ms.No.540 Housing and Urban DevelopmentDepartment dated 06.06.1995, relates to all the above said three surveynumbers including the property of the petitioners comprised in SurveyNo.444 of Velankurichi Village, Coimbatore Taluk. The said declarationwas challenged by one of the owners by filing W.P.No.7267 of 1997 onsimilar grounds, which are raised in this writ petition. Whiledisposing of the said writ petition which was filed by a Public Trust,by order dated 20.04.2004, this Court has called upon the respondents toproduce the file and after verification of the entire files, hasrejected the first contention that there is a lapse of more than oneyear between the date of Section 4(1) notification and 6 declaration onthe ground that Section 4(1) notification was published on 23.04.1994and the substance of the said notification was effected in the localityon 10.06.1994, Section 6 declaration was published on 06.06.1995 andtherefore, between the local publication which was on 10.06.1994 and thedate of publication of 6 declaration which was on 06.06.1995, the sameis within the time prescribed under law. 5. However, in respect of the second contention of not followingRule 4(b) of the Tamil Nadu Land Acquisition Rules, on referring to thefile, this Court has found that the objections were filed by the landowners and on referring the objections, oral statements were recorded on12.12.1994. The requisitioning body, viz., the Tamil Nadu Housing Boardhas replied to the objections of the land owners on 06.01.1995 statingthat the Scheme must be implemented soon and on 20.01.1995, the SpecialTahsildar, who was authorised by the Collector has considered theobjections of the land owners and the statements of the requisitioningbody and recommended publication of Section 6 declaration under the LandAcquisition Act,1894. On the said factual finding, a reference was madeby this Court to Rule 4(a) and 4(b) of the Tamil Nadu Land AcquisitionRules, which reads thus:"Rule 4(a): If a statement of objections is filed by person whois not interested in the land, it shall be summarily rejected.Rule 4(b): If any objections are received from a personinterested in the land and within the time prescribed in sub-section (1) of the Section 5-A the Collector shall fix date forhearing the objections and give notice thereof in Form "B" tothe objector as well as to the Department or Company requiringthe land. Copies of the objections shall also be forwarded tosuch Department or Company. The Department or Company may file https://hcservices.ecourts.gov.in/hcservices/ on or before the date fixed by the Collector a statement by wayof answer to the objections and may also depute arepresentative to attend the enquiry."6. As per Rule 4(b), when objections are received from theinterested persons within the time prescribed, the Collector or personsauthorised by him shall give notice to the objector Department orCompany requiring the land by sending the copies of objection to therequisitioning authority, directing the Department or Company requiringthe land to file statement by way of answer and may also depute arepresentative to attend the enquiry. It is on the said date ofenquiry, the authority is expected to hear the objector as well as therequisitioning body and record the evidence produced by both in supportof the objection and in support of need for acquiring the land. In thesaid case, this Court has clearly found on records that on the date ofenquiry, viz., on 12.12.1994, the procedure under Rule 4(b) was notfollowed and no opportunity was given to both the objector to object tothe land acquisition proposal and the requisitioning body or theDepartment supporting the acquisition and no evidence was recorded. Itwas on that basis alone Section 6 declaration was quashed. Theoperative portion of the order passed by this Court is as follows:"5. In this case, the only date on which enquiry was heldwas 12.12.1994. There was no enquiry as contemplated underrule 4(b) in which, an opportunity is given both to theobjector and to the land owner to support their case. On thisground, the impugned order is quashed. The writ petition isallowed. No costs."Therefore, it is clear that the same notification which is impugned inthis writ petition was considered by this Court earlier and set asidethe Section 6 declaration.7. Even though no counter affidavit has been filed by therespondent, learned Additional Government Pleader, on verification hasinformed this Court that the said order of this Court in W.P.No.7267 of1997 dated 20.04.2004 has become final and no appeal has been filed fromthe said order.8. In view of the above said factual position that the GovernmentOrder which is impugned in this writ petition has already been quashedby this Court in the other writ petition stated above, and following thesame, this writ petition stands allowed and the impugned order isquashed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ khTo1. The Secretary to Government State of Tamil Nadu Housing and Urban Development Department, Fort St.George Madras 9.2. The Special Tahsildar (Land Acquisition) Housing Scheme Unit – I Collectorate, Coimbatore 641 018.1 cc To Mr.S.Thangavel, Advocate, SR.2729. W.P.No.4903 of 1998 SA(CO)RVL 01.02.2008