Jayalakshmi v. The District Collector, Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.7.2009CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOWrit Appeal No.550 of 2009& M.P.No.1 of 2009Jayalakshmi .. Appellant/Petitionervs.1. The District Collector, Dharmapuri District, Collectorate Buildings, Dharmapuri.2. The Special Tahsildar, (Adi Dravidar Welfare), Sri Ram Colony, Dharmapuri.3. Government of Tamil Nadu, rep. by its Secretary, Backward Classes and Most Backward Classes Welfare Dept., Fort St.George, Chennai-600 009... RespondentsWrit Appeal filed under Clause 15 of the Letters Patent againstthe order dated 3.12.2008 passed by the learned single Judge in WritPetition No.4449 of 1998 on the file of this Court.WP.No.4449/98 : Writ Petition filed under Article 226 of theConstitution of India to issue a Writ of Certiorari calling for therecords of the third respondent in G.O.(3D)No.37, Backward Classesand Most Backward Classes Welfare Department, dated 22.08.1997published in Tamil Nadu Gazette No.437, dated 22.8.1997 and quash thesame in so far as the lands of the petitioner is concerned situatedin Dharmapuri District, Laligam Village S.No.318/6, extent 0.46.5hectare ; S.No.339/1, extent 0.32.0 hectare, S.No.339/2 extent 0.18.0hectare and S.No.339/4 extent 0.55.0 hectare (prayer amended as perorder of Court dated 02.04.1998 in WMP.7401/98). https://hcservices.ecourts.gov.in/hcservices/ For appellant : Mr.J.Saravana VelFor respondents: Mr.D.Srinivasan, Addl.G.P. JUDGMENTS.J.MUKHOPADHAYA,JThe appellant-writ petitioner having unsuccessfully challengedthe land acquisition proceedings, has preferred this Writ Appeal.2. It appears that the second respondent-Special Tahsildar, AdiDravidar Welfare, Sri Ram Colony, Dharmapuri, initiated proposal foracquisition of land(s) for the welfare schemes of backward class andsubmitted a proposal on 11.9.1995. A Draft Notification under Section4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') wasapproved on 11.1.1996 and published in the Government Gazette on28.2.1996. Publication was also made in two leading dailies on19.8.1996 and also in the locality on 28.8.1996. Notices in Form 3/3-A were also issued to the concerned person(s) including theappellant-writ petitioner. Enquiry under Section 5-A of the Act wasconducted on 15.10.1996. The appellant-writ petitioner made agrievance that the Notification under Section 4(1) of the Act wasissued in the name of her husband, i.e. the Notification was issuedagainst a dead person. Section 4(1) Notification having been issuedagainst a dead person, the same is liable to be set aside.3. Learned counsel appearing for the appellant-writ petitionerrelied on a decision of a Division Bench of this Court in the case of"Savithiriammal vs. State of Tamil Nadu" reported in 2006 (3) M.L.J.389, wherein, it was held that the Land Acquisition Officer shouldrectify the mistake in all the proceedings including the Notificationunder Section 4(1) of the Act. 4. On the other hand, according to the learned counsel appearingon behalf of the respondents-State, the name of the husband of thewrit petitioner has been shown as land-holder in the records/filesand the Notification under Section 4(1) of the Act was rightly issuedin his name. On receipt of the objections, the moment it came to thenotice of the authorities that the husband of the writ petitioner isdead and his legal heir is the appellant herein, the Declarationunder Section 6 of the Act was issued in her name.5. We have heard the learned counsel appearing for the partiesand perused the records.6. It will be evident that the Enquiry under Section 5-A of theAct was fixed/conducted on 15.10.1996. On receipt of the notice forEnquiry under Section 5-A of the Act, the appellant-writ petitionersubmitted her objections. It is for the first time, at this stage, https://hcservices.ecourts.gov.in/hcservices/ she informed that her husband died. But it was accepted that the landwas not transferred in any other person's name and no mutation wasmade to reflect the name of any other person. Her other objectionswere considered on merits and after due enquiry, her other objectionswere rejected. The appellant-writ petitioner is a wealthy person andthe other land(s) are available to her in Boodanahalli Village. ADraft Declaration under Section 6 of the Act was issued on 22.8.1996.Though such a Draft Declaration was published on 22.8.1996, followedby an Award, the Writ Petition was filed only in the year 1998,wherein, curiously, the Declaration under Section 6 of the Act hasnot been originally challenged in the Writ Petition, butsubsequently, the prayer in the Writ Petition was amended challengingthe Declaration under Section 6 of the Act.7. In the case of "G.S.Gopalakrishnana vs. Government of TamilNadu" reported in 2006 (4) M.L.J. 65, similar question was raisedbefore a Division Bench of this Court. In the said case, havingnoticed the facts, the Court observed that the normal principle thatthe proceedings against a dead person is a nullity, cannot beimported into the proceedings under the Land Acquisition Act, 1894,unless it is established that the factum of death was not brought tothe notice of the acquiring authority at the appropriate stage.8. In the present case, the proposal for acquisition of land(s)was submitted on 11.9.1995 and it was forwarded by the DistrictRevenue Officer to the State Government on 9.11.1995. The husband ofthe appellant-writ petitioner being alive by that date, the proposalfor acquisition was rightly made in his name. The said proposal wasapproved on 11.1.1996 and Gazetted on 28.2.1996. But, in themeantime, the husband of the appellant-writ petitioner died on13.11.1995. The appellant-writ petitioner having not intimated thefact relating to the death of her husband, and/or having not mutatedher name in the records by that time, we find no illegality in theNotification issued under Section 4(1) of the Act issued in the nameof her husband and there was no occasion for the State Government torectify the Notification issued under Section 4(1) of the Act, in theabsence of any such mistake. For the first time, the appellantbrought to the notice of the respondents the fact that her husbanddied only when she filed her objections under Section 5-A Enquiry,which was held on 15.10.1996. Having come to know of the same afterenquiry and after hearing the appellant-writ petitioner, theDeclaration under Section 6 of the Act having been properly issued inthe name of the appellant-writ petitioner, she cannot derive theadvantage of the judgment rendered in the case of "Savithiriammal vs.State of Tamil Nadu" (2006 (3) M.L.J. 389 (supra).9. The respondents having come to know of the death of the landowner after Section 5-A Enquiry and having issued the Declarationunder Section 6 of the Act in the name of the appellant, thus, they https://hcservices.ecourts.gov.in/hcservices/ having corrected the proceedings from that stage, the appellantcannot challenge the proceedings on such ground. 10. In the case of "Satendra Prasad Jain vs. State of U.P."reported in 1993 (4) SCC 369, the Supreme Court held that thevalidity of Section 4(1) Notification and Section 6 Declaration ofthe Act, cannot be gone into, when once the possession is taken.11. That being the position, the Declaration under Section 6 ofthe Act, having been issued and the Award having been passed, afternecessary possession, it was not open for the appellant-writpetitioner to raise the question of acquisition before this Court inthe year 1998 and the learned single Judge, having not entertainedsuch a prayer, we find no ground made out to interfere with the same.12. There being no merits, the Writ Appeal is dismissed. Nocosts. The Miscellaneous Petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The District Collector, Dharmapuri District, Collectorate Buildings, Dharmapuri.2. The Special Tahsildar, (Adi Dravidar Welfare), Sri Ram Colony, Dharmapuri.3. The Secretary, Backward Classes and Most Backward Classes Welfare Dept., Fort St.George, Chennai-600 009.2 cc To Mr.J.Saravanavel, Advocate, SR.34791 & 33351.1 cc To The Government Pleader, SR.32935.Writ Appeal No.550 of 2009 VSV(CO)RVL 07.08.2009