Karthikeyan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.10.2009C O R A M:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAandTHE HONOURABLE MR.JUSTICE RAJA ELANGOW.A.No.303 of 2001 Karthikeyan ... Appellant/Petitioner vs.

The State of Tamil Nadu rep. by the Secretary to Government. Adi Dravidar and Tribal Welfare, Fort St. George, Madras-9.

The Special Tahsildar, Polur Taluk, Thiruvannamalai District. ... Respondents/RespondentsWrit Appeal filed under Clause 15 of the Letters Patent Actagainst the order passed by the learned single Judge of this Courtin W.P.No.4359 of 1993, dated 07.12.2000. Writ Petition under Article 226 of the constitution of India to issue a writ ofcertiorari or any other appropriate writ or direction to call for the records on the file of the 1st respondent in G.O.Ms.329 AdiDravidar and Tribunal Welfare (ADM-6) and dt. 12.3.91 issued undersec.6 of the Land Acquisition Act and in G.O.Ms.No.204 anddt.13.3.92 issued under sec.6 of the Land Acquisition Act and quash the proceedings therein as illegal, incompleted, otherwise and without jurisdiction. For Appellant : Mr.V.Raghavachari For respondents : Mr.D.Sreenivasan, AGP. J U D G M E N TRAJA ELANGO, J.The present Writ Appeal has been preferred by theappellant/writ petitioner against the order dated 07.12.2000 passed by the learned Single Judge of this Court in W.P.No.4359 of 1993,wherein the appellant/writ petitioner challenged Section 4(1) https://hcservices.ecourts.gov.in/hcservices/ Notification issued under the Land Acquisition proceedings and also challenged the Declaration issued under Section 6 of the LandAcquisition Act by the respondents herein. The Writ Petition was filed by the appellant/writ petitioner invoking Article 226 of the Constitution of India for setting aside the G.O.(3-D).No.329, AdiDravidar and Tribal Welfare Department, dated 11.03.1991 passed by the first respondent herein and to set aside G.O.(3-D).No.204, AdiDravidar and Tribal Welfare Department, dated 13.03.1992. The saidWrit Petition was dismissed by the learned single Judge on the ground that the suit in O.S.No.8 of 1989 was pending before the District Munsif Court, Polur, and that the petitioner could agitate the grievance raised in the Writ Petition before the said CivilCourt for the relief sought.2. The learned counsel for the appellant wants to assail the impugned order on the ground that the pendency of Original suit cannot be a ground to dismiss the Writ Petition, and also on the ground that Notification issued under Land Acquisition Act by the respondents herein can be challenged only by way of invoking Article226 of Constitution of India.

We are of the view that the learned Single Judge erred in deciding the matter without considering the factual aspects and the legality of the said G.Os. and dismissed the writ petition on the sole ground that the same can be agitated before the civil Court.

Hence, the order passed by the learned single Judge can beset aside on this ground alone and the matter can be remitted back to the learned Single Judge for disposal of the same, but considering the fact that the pendency of the dispute from the year1993, and in view of the fact that the Writ Appeal is pending from the year 2001, this Court is of the view that the Writ Appeal can be decided on the available materials, facts and based on the submissions made by both sides.

Brief facts of the case are as follows:-The writ petitioner's land situated in Padavedu Village, PolurTaluk, Thiruvannamalai District was under acquisition for the purpose of creating pathway to the near-by residential area of Harijans of the locality for which Notification in G.O.(3-D).No.329,dated 11.03.1991, was issued by the Adi Dravidar and Tribal Welfare(ADW-6), under Section 4(1) of the Land Acquisition Act and after due enquiry under Section 5 (A), G.O.(3-D).No.204, dated 13.03.1992was issued under Section 6 of the Land Acquisition Act. As against which the Writ Petition was filed by the Writ Petitioner/Appellant.

The learned counsel for the appellant raised one or other grounds challenging the Notification under Section 4(1) of the Land https://hcservices.ecourts.gov.in/hcservices/ Acquisition Act was not published in the newspaper; (ii) the objections raised by the writ petitioner dated 25.07.1991 was not forwarded to the requisitioning authority; (iii) inquiry under Section 5-A of the Land Acquisition Act was not made available to the writ petitioner and (iv) the Declaration under Section 6 of the Land Acquisition Act was not published in the locality as required under the Act. According to the learned counsel for the appellant, the appellant was not aware of the Award and also the proceedings by the respondents herein.

The respondents filed detailed counter affidavit before the Writ Court and also produced the entire files relating to the said acquisition before this Court.

This Court perused the materials placed by the respondents herein, which reveal the following facts:-Section 4(1) NotificationG.O.(3-D)No. & Date : G.O.Ms.No.329, Dt:11.03.1991 T.N.G.G. Publication : 27.03.1991News Paper Publication : a)Malai Murasu : 30.03.1991 b)Theekhadir : 30.03.1991Locality Publication : 08.04.1991Date of 5(A) enquiry : 10.06.1991 enquiry NoticeDate of Service of 5(A) enquiry Notice on the Writ Petitioner : 10.06.1991Date of Objection Notice by the Writ petitioner : 25.07.1991Date of Receipt of Objections: 27.07.1991Date of Enquiry under Section 5 (A) of the Act: 26.08.1991Date of 5(A) enquiry report Section 5(A) (2) Proceedings: 27.08.1991 https://hcservices.ecourts.gov.in/hcservices/ Award enquiry dated participated by the Writ Petitioner: 22.02.1992Section 6 Declaration G.O.Ms.No. & Date: G.O.Ms.No.206 AD&TWT.N.G.G. : 16.03.1992Newspaper Publication a) Athirstam : 19.03.1992 b) Namathu MGR : 19.03.1992Locality Publication : 23.03.1992Draft Declaration under Section 7 details9(1) and 10 Notice date : 10.02.1993 9(3) and 10 Notice date : 10.02.1993Date of Award : 26.02.1993Land Possession taken on: 07.04.19939. The learned counsel for the appellant relied on various judgments, which relate to procedural lapses on the part of the authorities, while passing Notification under Section 4(1) of the Land Acquisition Act and Enquiry under Section 5-A and also on Section 6 Declaration of the Land Acquisition Act. Those judgments deal with the procedural laches by the authorities in acquiring the land under the Act. However in this case on perusal of the entire records pertaining to the Acquisition Proceedings, it is evident that the authorities concerned have followed the due procedure while issuing Notification under Section 4(1) of the Land Acquisition Act. Further the appellant has raised objections by way of Legal notice through his counsel dated 25.07.1991 which shows he has participated in the 5 (A) enquiry and also in the Award Enquiry dated 22.02.1992,he is also aware of the Section 6 Declaration under the Act. Fromthe above it is very clear that the appellant cannot raise the contention of procedural laches and lack of knowledge of the above proceedings. In view of the above fact this Court is unable to accept the contention of the appellant concerning the Acquisitionproceedings.

In the Judgment in TEJ KAUR AND OTHERS VS. STATE OF PUNJABAND OTHERS reported in (2003) 4 SUPREME COURT CASES 485, the ApexCourt held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "It is true that Section 5-A inquiry is an important stage in the acquisition proceedings and a person who is aware of Section 4(1) notification can raise objection to the effect that his property is not required for acquisition and he is also at liberty to raise the contention that the property is not required for any public purpose. it is also true, that the objector must also be given a reasonable opportunity of being heard and any violation of the procedure prescribed under Section 5-A would seriously prejudice the rights of the owner of the property whose land is sought to be acquired. In the instant case, however, it is pertinent to note that the Collector had, in fact, conducted the Section 5-Ainquiry, though there is no material on record to show that the appellants in Civil Appeal No.66 of 1998 were heard in person. The facts and circumstances of CivilAppeal No.66 of 1998 clearly show that the objection raised by the appellants was considered and partly allowed by the Collector. About eight acres of land was sought tobe acquired from the appellants as per the notification, but out of that, an extent of six acres was excluded from acquisition and only one-and-a-half acres of land was actually acquired by the authorities. This would clearly show that the objection filed by the appellants was considered by the Collector. Moreover, Section 6declaration was made on 18.03.1992 and the award was passed on 15.03.1994. The appellants filed the writ petition only on 12.04.1994. In spite of the Section 6declaration having been made on 18.03.1992, the appellants allowed the acquisition proceedings to go on until the award was passed. This fact clearly indicates that the appellants did not have a genuine grievance against Section 5-A inquiry held by the Collector. Therefore, weare not inclined to interfere with the judgment on the grounds now advanced by the appellants. "This above case Law would be squarely applicable in this case.