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Maria Rosal De Rose and anr. Vs. the State of Tamil Nadu, Represented by Secretary (Harijan Welfare Department) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Reported in(1970)2MLJ471
AppellantMaria Rosal De Rose and anr.
RespondentThe State of Tamil Nadu, Represented by Secretary (Harijan Welfare Department) and anr.
Cases ReferredSomawanti v. State of Punjab
Excerpt:
.....to be acquired. the argument is that the act takes away from a person his inherent right to hold and enjoy that property and, therefore, the exercise of the statutory power by the state to take away such property for a public purpose by paying compensation must be subject to the meticulous observance of every provision of law titling it to make the acquisition......is illegal and without observance of the prescribed procedure under the provisions of the land acquisition act (i of 1894). the case of the petitioners is that they never knew anything about the proposal for the acquisition or the later proceedings pursuant thereto, until they received a notice from the sub-court, tuticorin informing them about a reference having been made to the state government by the land acquisition officer. the petitioners' further contention is that they made further enquiries thereafter and ascertained that the acquisition was for the purpose of providing house-sites for the harijans in the village. their case is that they were not served with any notice either of the proposal to acquire, notice of enquiry under section 5-a or notice under section 9 (3)......
Judgment:
ORDER

Ramaprasada Rao, J.

1. The petitioners claiming to be jointly interested in S. Nos. 51/2 and 52/2 in Kila Tiruchendur Village, Tirunelveli District have filed this writ petition stating that the compulsory acquisition of their land as above to the extent of 3.12 acres therein comprised, is illegal and without observance of the prescribed procedure under the provisions of the Land Acquisition Act (I of 1894). The case of the petitioners is that they never knew anything about the proposal for the acquisition or the later proceedings pursuant thereto, until they received a notice from the Sub-Court, Tuticorin informing them about a reference having been made to the State Government by the Land Acquisition Officer. The petitioners' further contention is that they made further enquiries thereafter and ascertained that the acquisition was for the purpose of providing house-sites for the Harijans in the village. Their case is that they were not served with any notice either of the proposal to acquire, notice of enquiry under Section 5-A or notice under Section 9 (3). They would also say that at no time was there any publication in the village nor was any notice affixed at any public place regarding the proposed acquisition. They learned, however, that the Harijan Welfare Department were about to take proceedings to evict them from the land consequent upon the compulsory acquisition and therefore they have come to this Court under Article 226 of the Constitution for a writ of mandamus directing the State of Tamil Nadu and the Special Tahsildar (Harijan Welfare), Tuticorin, not to proceed any further with the illegal acquisition of the lands in S. Nos. 51/2 and 5?/2 in Kila Tiruchendur Village belonging to the petitioners.

2. The State has filed its counter affidavit through the Deputy Secretary to Government, Social Welfare Department. It is stated that the acquisition proceedings are valid and they do not suffer from any error whatsoever and the writ petitioners having openly suppressed relevant material and further for having uttered falsehoods the writ petition has to be dismissed in limine on that score. Factually the 1st respondent would state that the notification under Section 4 (1.) was published in the Fort St. George Gazette, on 27th February, 1965, and, as the acquisition was felt to be urgent, the enquiry under Section 5-A was dispensed with under Section 17 (4) of the Act and this is in accordance with the memo. issued by the Government on 19th January, 1965. The declaration under Section 6 was finally published in the Gazette on 17th March, 1965. But it is stated that, though the notification was published on 17th February, 1965, the extract of the notification was published in a conspicuous place and also by beat of torn torn in March, 1965. The 1st respondent's further case is that the petitioners have suppressed the fact that they knew about the acquisition ever since the proposal stage and that the 2nd petitioner never had any interest or right over the lands as disclosed in the public records and therefore there was no occasion to serve any notice on the 2nd petitioner. In so far as the 1st petitioner is concerned, the 1st respondent would state that the notice under Section 9 (3) and 10 of the Act was served on the 1st petitioner and that was acknowledge by her in her petitions dated 9th and 23rd August, 1965 submitted to the Land Acquisition Officer. From the records it is seen that even as early as 1962 or 1963 the 1st petitioner objected to the acquisition and this was followed up after she was served with the notice under Sections 9 and 10 of the Act. It is also common ground that the 2nd petitioner, who had expressly no interest or right in the lands, also pursued the matter as is seen from two independent petitions sent by him to the Land Acquisition Officer in connection with the acquisition. Thus the case of the 1st respondent is that there was no obligation on the part of the Land Acquisition Officer to enquire under Section 5-A, that the notification under Section 6, was duly published and the notice under Sections 9 and 10 were duly served on the 1st petitioner, that the 2nd petitioner was equally aware of such service and that the mere fact that an extract of the notification under Section 4 (1) was published on 25th March, 1965 does not go to the root of the question and cannot vitiate the entire land acquisition proceedings. Even otherwise, the legal contention that such irregularity, even if it is to be considered as one, cannot in any way vitiate the proceedings, because the law permits the notification under sections 4 and 6 of the Land Acquisition Act being published simultaneously and concurrently. Above all it is contended that the petitioners not having come with clean hands and having suppressed the material which was available with them and which was to their knowledge, this writ petition ought to be dismissed.

3. On the last contention the respondents have to succeed, but, as the petition has been argued at length, I wish to record my conclusions on the other arguments addressed as well.

4. In so far as the contention that there has been no service of notice under Sections 9 and 10 is concerned, it is false as is seen from the counter affidavit filed in this case, the allegations in which have not been refuted. Factually, therefore, the petitioners were aware of the land acquisition proceedings and I do not believe that they were notified about it by the Sub-Court, Tuticorin, which gave him the first information about the land acquisition proceedings.

5. The only other legal contention that survives for consideration is whether the non-observance of the latter part of Section 4 (1) of the Land Acquisition Act would in any way vitiate the proceeding which has been initiated, conducted and concluded in accordance with the other part of Section 4 (1) and the other provisions of the Act. In fact it is not in dispute that the Government has taken possession of the lands for the public purpose concerned and pattas have been issued to the harijans, for whose benefit these lands were compulsorily acquired. Section 4 (1) imposes two obligations before the Government could enter upon the land, survey, take level and do all such other acts necessary to ascertain whether the land is adopted for the public purpose. The first thing that has to be done is that the Government should publish a notification in the official gazette that the land proposed to be acquired in any locality is needed or is likely to be needed for any public purpose. Secondly, the Collector or the Land Acquisition Officer, as the case may be, shall cause public notice of the substance of such notification to be given at convenient places in the said locality. It is on this second obligation prescribed in Section 4 (1) of the Act that reliance is placed by the learned Counsel for the petitioners to sustain his argument that the proceedings are irregular and tainted. The question, therefore, is whether non-compliance of the second part of Section 4 (1) of the Land Acquisition Act would totally vitiate the land acquisition proceedings, and in a case where substantially the prescription has been complied with whether still the proceedings would be void for non-observance of this mandate before they enter into the land for the purpose of survey etc.

6. I do not think that the non-observance of the second part of Section 4 (1) would so vitiate the compulsory acquisition proceedings. The main purpose of Section 4(1) and the sub-sections following is to have preliminary investigation to enable the Court to appraise itself first hand about the suitability of the land proposed to be acquired and to ascertain whether it is adaptable for the public purpose. Such being the primary intention of the notification under Section 4 (1) and the other mandates in it, it does not appear to me that the non-observance of the second obligation in Section 4 (1) of the Land Acquisition Act would in any way go to the root of the problem so as to set at naught the acquisition proceedings pursuant to a notification made in the official gazette under Section 4 (1). The entire purpose of this is to give public notice of the proposal, and if, therefore, it is published in the locality and particularly persons affected by the proposal are aware that such an activity is afoot, then it is sufficient. In Barkya Thakur v. State of Bombay : [1961]1SCR128 , Sinha, C. J., delivering the judgment laid down the effect and purport of Section 4 (1) in these terms:

The purpose of the notification under Section 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and if, necessary, digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired...what was a mere proposal under Section 4 becomes the subject-matter of a definite proceeding for acquisition under the Act. Hence it is not correct to say that any defect in the notification under Section 4 is fatal to, the validity of the proceedings....

7. Even otherwise significance of the second prescription in Section 4 has been considerably whittled down by later pronouncements of the Supreme Court which expressed the view that the notifications under Section 4 (1) and under Section 6 of the Land Acquisition Act can contemporaneously be made in a case where the enquiry under Section 5-A has been dispensed with. Mudholkar, J., speaking for the Bench in Somawanti v. State of Punjab : [1963]2SCR774 , while considering the contention that the notification under sections 4 and 6 cannot be made simultaneously, observed as follows:

The argument is that the Act takes away from a person his inherent right to hold and enjoy that property and, therefore, the exercise of the statutory power by the State to take away such property for a public purpose by paying compensation must be subject to the meticulous observance of every provision of law titling it to make the acquisition....A notification under Section 4 (1) is a condition precedent to the making of notification under Sub-section (1) of Section 6. If the Government, therefore, takes a decision to make such a notification and, thereafter, takes two further decisions, that is, to dispense with compliance with the provisions of Section 5-A and also to declare that the land comprised in the notification is in fact needed for a public purpose there is no departure from any provision of the law even though the two notifications are published on the same day.

If this is possible then the second prescription in Sub-section (l)of Section 4 sinks into insignificance and it becomes impossible of observance in certain cases where the Government chooses to publish both the notifications under sections 4 and 6 simultaneously. Obviously, therefore, in such circumstances the publication of the extract of the notification in a conspicuous place and also by beat of torn torn can only be after the notification under Section 6. This has been done in the instant case. On a survey of the legal position the petitioner's contention that the procedure prescribed has not been meticulously followed fails and has to be rejected. The writ petition, therefore, fails and is dismissed. The rule nisi is discharged. There will be no order as to costs.


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