Skip to content


A. Soundarapandian Vs. State of Tamil Nadu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberW.A. No. 1193 of 1982
Judge
Reported inAIR1984Mad246
ActsLand Acquisition Act, 1894 - Sections 4 (1), 5-A and 6; Constitution of India, 1950 - Article 226
AppellantA. Soundarapandian
RespondentState of Tamil Nadu and ors.
Appellant AdvocateD. Raju, Adv.
Respondent AdvocateJ. Kanakaraj, Addl. Govt. Pleader and ;K. Doraiswami, Adv.
Cases ReferredBharna Ramamorthy v. State of Tamil Nadu
Excerpt:
.....under section 6 is illegal.;the petitioner's land was acquired by proceedings under the land acquisition act. the notice under rule 3 of the rules framed under section 55(1) of the act did not contain the name of the petitioner. the petitioner requested the exemption of his plot. he had also stated that patta had been issued to him earlier. the draft declaration under section 6 was issued. section 6 declaration contained the name of the petitioner. the petitioner filed a writ petition to quash the declaration under section 6 and also the notification under section 4(1) of the act.;the question that arose for consideration was whether section 6 declaration is illegal due to failure to issue notice under section 5-a and hear the objection of the petitioner.;held, when the power..........fact, the petitioner produced the patta issued in his favour for fasli 1386. proceedings under the land acquisition act (hereinafter referred to as the act) were taken to acquire an extent of 96.92 acres in thiruvanmiyur village, including the petitioner's land.2. the notification under section 4(1) of the act, was made in g. 0, ms. no. 1096 housing and urban development, dated 17-7-1978. it was published in the tamil nadu government gazette, supplement to part ii-s. 2, at pages 5 to 9 dated 9-8-1978. the purpose of acquisition as stated under section 4(1) notification was for a public purpose, to wit, for development of the area as besant nagar phase 11 scheme. the name of the interested persons relating to 5 to 84/6-a measuring 6.45 acres was published as k. t. stephen. the notice.....
Judgment:
1. The facts leading to the writ petition are as follows: The petitioner is the owner of 21 cents of land comprised in survey No. 84/6AIA 2 situated at No. 140 Thiruvanmiyur village, presently Mylapore Triplicane taluk, and Madras district. This plot of land forms part of an approved lay out sanctioned in LPDM/DTP, 75/1964. D/4-8-1964 by the Director of Town Planning which also forms part of the plan approved by the Thiruvanmiyur Town Panchayat in its reference No. 96 of 1964, dated 27-8-1964 as plots Nos. 3 and 4. The petitioner became the owner by purchase under a registered sale deed dated 5th Dec., 1966 from one G. Seth Jesudasan, son of GnanaPrakasa Achariar who in his turn purchased the same forming part of the large extent from his brother G. Bernard under a registered sale deed dated 5-1-1969. The patta concerning this land came to be transferred in favour of the petitioner on 11-6-1977. As a matter of fact, the petitioner produced the patta issued in his favour for fasli 1386. Proceedings under the Land Acquisition Act (hereinafter referred to as the Act) were taken to acquire an extent of 96.92 acres in Thiruvanmiyur village, including the petitioner's land.

2. The notification under Section 4(1) of the Act, was made in G. 0, Ms. No. 1096 Housing and Urban Development, dated 17-7-1978. It was published in the Tamil Nadu Government Gazette, Supplement to Part II-S. 2, at pages 5 to 9 dated 9-8-1978. The purpose of acquisition as stated under Section 4(1) notification was for a public purpose, to wit, for development of the area as Besant Nagar Phase 11 Scheme. The name of the interested Persons relating to 5 to 84/6-A measuring 6.45 acres was published as K. T. Stephen. The notice under Rule 3 of the Rules framed under S. 55(1) of the Act, dated 2-2-1979, was published at the Corporation Middle School, Thiruvanmiyur, and in the office notice boards of the Taluk Office, Saidapet, Police Station at Thiruvanmiyur and the village munsif of Thiruvanmiyur on 9-2-1979, 10-2-1979 and 11-2-1979, respectively. The individual notice relating to Thiru Stephen was served by affixture on the land by way of tying it in the stick planted on the land in question by the village munsif on 10-2-1979. This has because the whereabouts of the said Stephen were not known to the revenue officials. Several persons who had purchased plots in this survey No. 84/6 preferred their objections during the enquiry under Section 5-A of the Act, which took place on 26-2-1979 and they were duly enquired, The objections were forwarded to the Tamil Nadu State Housing Board for remarks on 15-31979. A Committee consisting of the Chief Engineer, Tamil Nadu Housing Board, Madras, the Director of Town and Country Planning, Madras, and the Member Secretary, Madras Metropolitan Development Authority, Madras, inspected the lands notified for acquisition to consider the objections raised by the land owners at the time of enquiry under Section 5-A. Pursuant to recommendations of the said committee, it was resolved by the Tamil Nadu Housing Board in its resolution No. 500, dated 12-121979 to exclude the built up portion only and the monument in S. No. 82 part and to acquire the remaining vacant land area,9 including those in survey No. 84/6 (part). As a result, an extent of 2.69-1/2 acres in S. No. 84/6-A was excluded. The cancellation notification was duly published on 8-81981. It was found that at the time of the submission of the draft declaration that some plot owners had not sub divided their plots subsequent to the submission of the notification under Section 4(1) and got separate pattas in S. No. 84/6-A. At the stage, the petitioner by a letter dated 4-12-1979, addressed to the 4th respondent, represented by its Chairman, with a copy marked to the second respondent, the Special Deputy Collector (Land Acquisition) Neighborhood Scheme, Saidapet, Madras, requested the exemption of his plot measuring 21 cents in S. No. 84/6AIA2. He had also stated that patta had been issued to him earlier under patta No. 1115. However, nothing was done concerning this. Therefore, the draft declaration under Section 6 was issued for an extent of 1.32 acres including the subject matter of this writ petition viz., 21 cents owned by the petitioner. The declaration was approved in G. 0. Ms. 667 Housing and Urban Development, dated 6-8-1981, and the same was published at pages 4 and 5 of the Tamil Nadu Government Gazette Extraordinary Part 11 S. 2 dated 8-8-1981. It may be stated at this stage that Section 6 declaration contained the name of the petitioner presumably because of the petitioner's petition dated 4-12-1979. The petitioner came up to this Court by means of this writ petition for petitioner Mandamus to quash the declaration under Section 6 and also the notification under Section 4(1) of the Act.

3. The contention of the learned counsel for the petitioner, Mr. D. Raju, is that the petitioner did not have any notice whatever of the acquisition proceedings. When the power of eminent domain is exercised for compulsorily acquiring the land belonging to the petitioner, the least that one could expect will be the notice, but such a notice was not given. The Revenue records disclose that long before Section 4(1) notification came to be issued, the petitioner had been given a patta on 11-6-1977. Where, therefore, the revenue records bore the name of the petitioner under patta No. 1115, there is absolutely no justification f or excluding him under Section 4(1) notification. The Supreme Court and this Court have taken the Jew that the right to make representation during the inquiry under S. 5-A is very valuable right. No person can be deprived of such a valuable right. If it is so done, there is clear violation of the principles of natural justice and the petitioner is being deprived of his property without he having any say in the matter. It is no consolation to say that Section 6 declaration contained the name of the petitioner. It is well settled that such a declaration crystallizes the rights of the parties more so in view of the presumption contained to such a declaration as stated in Section 6 sub-sec. (3) of the Act. Therefore, the proceedings are liable to be quashed. In support of his contention, the learned counsel for the petitioner relies on the ruling of mine reported in Bhama Ramamoorthy v. State of Tamil Nadu, .

4. The learned Government Pleader would submit in opposition that there was a preliminary investigation and the Collector under the Act submitted the draft notification for approval, He went by the revenue records as it existed at the time of submission of Section 4(1) notification. Therefore, if patta had come to be issued after the submission of the draft S. 4(1) notification for the approval of the Government there is no obligation on the part of the Collector (Special Tahsildar) to further enquire into the ownership and find out the whereabouts of the owners on the date of the approval of Section 4(1) notification or on the date of publication of such a notification. The further submission of the learned Government Pleader is that the extent that is sought to be acquired is about 96.92 acres. The petitioner's land constitutes a small pocket in the middle. Therefore, regard must be had to this important fact before any relief is granted as otherwise an avowedly published scheme will be set at naught by a person who owns a small parcel of land measuring 21 cents.

5. The Petitioner undoubtedly earn to purchase the Property forming the subject matter of this writ petition viz.. 21 cents in survey No. 81/6AIA2 at No. 140 ThiruvaamiYur village, Madras district, as early as 5-12-1966. He had applied for transfer of patta and he came to be issued patta No. 1115 on 11-6-1977 itself. S. 4(1) notification, which is really a preliminary notification and which is the starting point for all the proceedings under the Act, was issued only on 17-7-1978 in G. 0. Ms.1096 Housing and Urban Development. Normally speaking. the owner ship of the petitioner ought to have been notified, That was not done. The reason given is that there was a preliminary investigation while the report was made by the Collector as to the fitness of the properties for acquisition a draft notification to be published under Section 4(1) of the Act was submitted to the Government. At that time, whoever were the owners. Their names alone came to be mentioned in Sec. 4(1), notification. First of all, I am totally unable to accept this argument because invariably it happens that there is a long delay for the approval of the draft notification. In the mean while, if there has been change of ownership either by devolution or by sale, it is the duty of the concerned officer to verify the ownership, up-to-date and then publish the notification with the names of the relevant owners at the time of the issue of the notification. That course has not been adopted at alia. The failure to adopt the course has resulted in the Government landing in an awkward situation because the counter-affidavit itself states that the name of the interested person as stated in S. 4(1) notification was one K. 'T. Stephen. It is true that the revenue department is not obliged to conduct an enquiry as to the ownership. It is equally true that the Government goes by the revenue records or the chitta extracts. But here, what is the use of publishing the name of K. T. Stephen?

6. Obviously, he had lost all interest in the land: more than that his whereabouts were not known. 'Therefore even if the substance of Section 4(1) notice had been published at convenient place-, as required by Section 4. That will not improve the situation, I If a person happen to see the notification, he will merely 'find the name of K. T, Stephen as, against Survey No, 84/6A, The owner whose land is sought to be deprived like the petitioner could not, in the wildest of the imagination, link his land- to the notice, which he may happen to 'see*and it at all he sees. Therefore, the reason why I am referring to this is that a faint argument was advanced by the learned Government Pleader that the petitioner on seeing the notice which was, published in the Corporation Middle School and in the notice boards of the Taluk Office etc. could have come to know about his acquisition. This is a far-fetched argument. It cannot be gainsaid that the power of eminent domain can be exercised. For compulsory acquisition of land for a public purpose. However, no person can be denied the right to put forth his objections however worthy or unworthy they may~ be to such an acquisitions because either actuated by sentiments or by desire, he may cling on to the ownership of the land which he is legitimately entitled to hold. Where by compulsory process of law the ownership is sought to be displaced, it must be displaced only by exercising all care and caution that is attendant to such an acquisition. This is because still we are governed by rule of law. Certain corner stones of the principles of natural justice fight from the days of Magna Carta still are available to the citizens, in that no person can be deprived of his ownership except under due process of law and one such thing. The hearings of the objection of the owner. That right has come to be held the very valuable right. That is the least I mercy the Land Acquisition Act confers upon the owner. Even that is being denied to the petitioner in this case for no fault of his. On the contrary, the entire blame has to be attached to the second respondent (The Special Deputy Collector (Land Acquisition) Neighbourhood Schemes Saidap. He cannot assume for a moment that from the time he submitted a draft Section 4(1) notification up to the date it came to be approved by the Government in G. 0. Ms. 1096 Housing and Urban Development on l7th July 1978, the ownership will remain static perhaps because by the indifference to look into the revenue records has resulted in this position. This imperious attitude is to be deprecated. After all, what is wrong if a person objects to the acquisition let him to do so; le' him be heard and then acquire if need be. Therefore I am unable to accept the contention of be learned Government Pleader that because Patta came to be issued after the submission of the draft of Section 4(1) notification to the Government hence there was no need to include the name of the petitioner in Section 4(1) notification notwithstanding the fact that patta had come- to be issued long before the issue of Section 4(1) notification viz. on 11-6-1977 itself. If the argument of the learned Government Pleader is to be accepted, it would only mean deprivation of a man's property without the having any say in the matter. It is precisely under these circumstance I have held in Bharna Ramamorthy v. State of Tamil Nadu, AlR 1977 Mad 272 then such a procedure is opposed to the principle of natural justice and equally constitutes a violation of the provisions of the Act. Therefore, the learned counsel for the petitioner Mr. D. Raja is right in his reliance on this ruling.

7. Turning to the second argument, of course, the Courts are not to set aside the progressive measures- of the Government like the proceedings of, the land acquisition in this case which undoubtedly is, for public purpose in a sense of bravado. The Courts have always remembered that the night of a private individual must be subservient to public interest because it is that which constitutes the guiding star for land acquistion matters. It is true that by accepting the conception of the learned counsel for the petitioner the entire neighbourbood scheme which covers an extent of 96.92 acres may come to standstill or may come get baulked But who is to be blamed for this It is easy to point out 'the accusing finger to the Court. But where situation as a presented in this case been a brought about by the indifference of the officers concerned, the Court cannot but come to the rescue of the petitioner. This is eminently one such case where the Cowl must hold the acquisition on to be illegal, because it is in violation of the principles of natural justice as well as the provisions of the Act. The failure to do so will amount to shutting one's eyes to the hard realities. Thai is not the law as I am able to the failure to issue notice under Section 5-A, and hear the objection of the petitioner has deprived him of very valuable right As rightly contended by the learned co unset for the petitioner, Selection 6 declaration may contain the name of the petitioner. But by then all damage had been done because the rights of the parties both that of the Government as well as the individual owners become crystallized what declaration under Section 6 comes to be is used. Where, however, without hearing the petitioner and without he knowing about the acquisition, if he is sought to be deprived, the declaration under Section 6 containing his name cannot be put against him as an answer to the illegality attached to Section 4(1) notification.

8. If there is no valid Section 4(1) notification in that the petitioner had not been heard at all during Section 5-A enquiry, Section 6 declaration also would become illegal notwithstanding the fact that it contains the name of the petitioner, For all these reasons, I hereby set aside the both Section 6 declaration as well as See. 4 (1) notification. The rule nisi is made absolute. The writ petition is allowed. The petitioner will be entitled to costs. Counsels fee Rs. 300/-.

9. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //