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Krishna Chettiar and ors. Vs. Secretary, Harijan Welfare Dept., Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberW.A. No. 469 of 1979
Judge
Reported inAIR1986Mad239
ActsLand Acquisition Act, 1894 - Sections 9(3) ; Tamil Nadu Act, 1969
AppellantKrishna Chettiar and ors.
RespondentSecretary, Harijan Welfare Dept., Madras and ors.
Cases ReferredIn V. K. Durga v. Dt. Collector
Excerpt:
property - compensation - section 9 (3) of land acquisition act, 1894 and sections 4 (1) and 5a of tamil nadu land acquisition act, 1969 - appellant is cultivating tenant for long time having made his name published in distt. gazette - according to act, of 1969 once notification published in gazette compensation already paid to owner of land recognising appellant as cultivating tenant of land in question in eye of law his legal status cannot be anything differently taken - cultivating tenant cannot be deprived of his right to compensation because land owner had already taken compensation amount. - - the appellants claim that he notification recognising them as cultivating tenants was published in the district gazette on 20-9-1972 and this was well to the knowledge of the third..........held that the notice under s. 9(3) is mandatory, and forms an integral and essential part of the land acquisition proceeding, and that occupier requires to be served. this mandatory requirement is with reference to apportionment of compensation between the owner and occupier having certain rights as against them. once by such an enactment the legal status of a tenant is recognised and notified in the gazette, the land acquisition officer being a public authority is bound to take into account such notification in the gazette. under s. 15 of act x of 1969, any entry in the approved record of tenancy rights shall be presumed to be true and correct, until the contrary is proved or a new entry is lawfully substituted therefore. this being a legal presumption, pertaining to such entries, the.....
Judgment:

Sathiadev, J.

1. The appellants claim to be cultivating tenants in respect of the lands acquired under Award No. 7 of 1975 dt. 20-5-1975 of the Special Tahsildar, Harijan welfare, Coimbatore. The appellants state that they have been the cultivating tenants under the fourth respondent for more than six decades and that they applied to the constituted authorities under Act X of 1969 to register themselves as cultivating tenants and it was published in the District Gazette on 20-9-1972 and in Tamil Nadu Gazette on 27-9-1972. They also rely upon the adangals issued from 1973 onwards to show that they have been cultivating the lands.

2. Learned counsel for the appellants submits that being cultivating tenants, the appellants are interested in the acquisition proceedings and therefore, they ought to have been issued notices of S. 4(l) notification and they ought to have been heard in the S. 5-A enquiry, which was held on 19-2-1972; and when notices were issued under Ss. 9 and 10 they were never intimated and they were in total dark about the passing of the award and therefore, the entire acquisition proceedings are illegal and not binding on them. On coming to know that at the instance of the fourth respondent, the proceedings have gone through, they filed a petition on 23-8-1976, claiming that they are entitled to be heard in the acquisition proceedings. There was a reply to the effect that since the acquisition proceedings have already been concluded, resulting in possession being taken on 25-6-1975, such a petition cannot be entertained. Aggrieved against that, they filed W.P. 665 of 1977 and on its dismissal, this writ appeal is preferred.

3. Mr. V. Natarajan, learned counsel for the appellants, submits that when the appellants have been in physical possession of the land and when they have also moved for registration of their name under Act X of 1969, the public authorities ought to have taken note of the said proceedings, and looked into these registers also to find out whether they are interested persons or not. He relies upon adangals issued from 1973 onwards, but is unable to produce any earlier adangal wherein the names of his clients are shown as the cultivating tenants. In the records produced by the State, the adangals for the years 1971, 1972, and 1973, do not show the names of the appellants as those cultivating the lands. Therefore, on 29-12-1971, when S. 4(l) notification was published, the authorities, being bound to look into the revenue records and having found only the names of the landowners, have not issued any notice to the appellants for the S. 5-A enquiry held on 19-2-1972. It is in or about that period, the appellants have sought for registration of their names as tenants, but the same was published in the District Gazette only on 20-9-1972. By that time, S, 5-A enquiry having been completed on 19-2-1972, it cannot be said that there was any error committed in not issuing notices to the appellant. Therefore, the subsequent declaration under S. 6 is not in any way vitiated.

4. On behalf of the State, it is claimed that they have taken possession of the lands on 25-6-1975. This, they could achieve only by taking such possession as could have been given by the land-owners. It is claimed by the appellants that they continue to be in possession, and for this purpose they rely upon a communication issued by authorities in 1980, calling upon them to deliver possession, consequent to the interim orders passed pending the writ appeal having been vacated. It is this factor of appellants continuing to be in possession, which enables Mr. V. Natarajan, their counsel, to contend that they ought to have been served with notices under Ss. 9 and 10 of the Act, with reference to the apportionment of compensation, so that they could have claimed their share of compensation.

5. On behalf of the State, it is submitted that not only the award has been passed, but also the compensation amount had been disbursed. The owner of the land, impleaded as fourth respondent, had also stated that though the award was passed on 20-5-1975, since crops were in the lands, he sought for three months' time, and thereafter, actual possession had been taken, and the land in question was divided into buildings sites, and pattas have been issued to Harijan inhabitants on 14-6-1976, and, thereafter, the appellants have come forward with false claims.

6. Under Act X of 1969, once a notification is published in the Gazette, recognising the appellants herein as cultivating tenants of the land in question, in the eye of law, their legal status cannot be anything differently understood. In para 2 of the affidavit, appellants have claimed that their names have been recorded by the Record Officer under Act X of 1969. A copy of the publication made is also filed in page 2 of the typed set. The owner of the land refutes this claim on para 2 of the counter affidavit claiming that on verification of the records in the office of the Tahsildar, Coimbatore, for faslis 1380, 1381 and 1382, the names of the appellants are not included as tenants in tenancy records. He had not explained as to how the extract produced before Court could be disbelieved. He was not represented by counsel in the appeal. In the face of such an extract placed before court, the application made in the Gazette has to be necessarily acted upon, treating the appellants as tenants of the land. It is on this basis, appellants' counsel relies upon Soma Singh v. Jaigobind Pande AIR 1935 Pat 42, to state that an occupancy raiyat in possession of a holding is entitled to a notice under S. 9(3) and if not so served, he can question the correctness of the award. In Laxmanrao v. Govt. of Bombay, : AIR1950Bom334 , a Division Bench of Bombay High Court held that as far as occupiers are concerned, the Collector must serve a notice upon him and as far as persons interested concerned, the obligation is cast upon him only if he knows of such persons or believes that there are such persons. As for occupiers, the obligation is absolute. In V. K. Durga v. Dt. Collector, : AIR1971AP310 , it was held that the notice under S. 9(3) is mandatory, and forms an integral and essential part of the land acquisition proceeding, and that occupier requires to be served. This mandatory requirement is with reference to apportionment of compensation between the owner and occupier having certain rights as against them. Once by such an enactment the legal status of a tenant is recognised and notified in the Gazette, the Land Acquisition Officer being a public authority is bound to take into account such notification in the Gazette. Under S. 15 of Act X of 1969, any entry in the approved record of tenancy rights shall be presumed to be true and correct, until the contrary is proved or a new entry is lawfully substituted therefore. This being a legal presumption, pertaining to such entries, the Land Acquisition Officer is duty bound to look into the entries in such registers to find out whether such category of interested persons in relation to the land in question exists or not.

7. When even a member of the public cannot plead ignorance of publication of such notification in the Gazette, the Collector who conducts land acquisition proceedings can never be heard to claim that he was not aware of the contents either in the District Gazette or in the State Gazette. The appellants claim that he notification recognising them as cultivating tenants was published in the District Gazette on 20-9-1972 and this was well to the knowledge of the third respondent, who must be conversant with the notifications made in the Gazette of that district. He has no excuse to plead that the owner had not apprised him. Interested in depriving others who are entitled to share the compensation amount with him, he would never disclose such particulars. That is the reason why a gazette notification is made. The third respondent being a public authority, is duty bound to take into account such Gazette notifications. It is not answer to claim that already the award has been passed. An illegality having been committed in non-issue of notices to persons whose names have found a place in the District Gazette published under Act X of 1969, it results in the acquisition proceedings being reopened from the stage of issue of S. 9(3) notices. On issue of notices to the appellants and the owner, if it be established before the third respondent that there was no such notification or the notification made had ceased to exist, or that appellants are not cultivating tenants, depending up n the merits of the matter, the award has to be passed. If in law it is found that appellants are entitled to compensation in their capacity as cultivating tenants, merely because the landlord has already drawn out the amounts, appellants cannot then be prevented from securing their compensation from the State. If wrongly the owner had drawn out the compensation, it will have to be recovered by the State independently, and that would not be a ground to deprive the appellants of their compensation, provided, they prove that they are cultivating tenants as claimed. It is also made clear that the acquisition proceedings are not reopened to enable the appellants herein to question the correctness of S. 4(1) notification or S. 6 declaration. The relief granted herein is only confined for consideration as to whether they are entitled to payment of compensation in their capacity as cultivating tenants and no other.

8. On behalf of the State, no material is placed before Court that appellants have been dispossessed after the communication was passed in 1980. Hence, till the revised award is passed, which is confined for determination of their rights to compensation, they cannot be dispossessed. Now that Land Acquisition Act has been amended, and the time available for completion of award enquiry being short respondents 1 to 3 are to issue the necessary notice within one month from the date of the receipt of this order.

9. Hence, the order of the learned single Judge is set aside and the writ appeal is allowed. No costs.

10. Appeal allowed.


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