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A. Soundarapandian Vs. the State of Tamil Nadu, Represented by Its Commissioner and Secretary to Government, Housing and Urban Development Department and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1984)1MLJ281
AppellantA. Soundarapandian
RespondentThe State of Tamil Nadu, Represented by Its Commissioner and Secretary to Government, Housing and Ur
Cases ReferredBhama Ramamovrthy v. The State of Tamil Nadu and Anr.
Excerpt:
- .....the petitioner produced the patta issued in. his favour for falsi 1386. proceedings under the land acquisition act (hereinafter referred to as the act) were taken to acquire an extent of 96.92 acres in tiruvanmiyur village including petitioner's land.2. the notification under section 4(1) of the act was made in g.o. ms. no. 1096, housing and urban development, dated 17th july, 1978. it was published in the tamil nadu government gazette, supplement to part it, section 2 at pages 5 to 9, dated 9th august, 1978. the purpose of acquisition as stated under section 4(1) notification was a public purpose, to wit, for development of the area as besant nagar phase ii 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.....
Judgment:
ORDER

S. Mohan, J.

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. 84/6A/A2, situated at No. 140, Tiruvanmiyur Village, presently Mylapore-Triplicane Taluk and Madras District. This plot of land forms part of an approved layout sanctioned in LPDM|DTP No. 75 of 1964, dated 4th August, 1964, by the Director of Town Planning which also forms part of the plan approved by Tiruvanmiyur Town Panchayat in its reference No. 94 of 1964, dated 27th August, 1964, as . Plot Nos 3 and 4. The petitioner became the owner by purchase under a registered sale deed dated 5th December, 1966, from one G. Seth Jesudasan, son of Gnanaprakasam Achariar, who in his turn purchased the same forming part of a large extent from his brother G. Bernard under a registered sale deed dated 5th January, 1959. The patta concerning this land dame to be transferred in favour of the petitioner on 11th June, 1977. As a matter of Fact, the petitioner produced the patta issued in. his favour for falsi 1386. Proceedings under the Land Acquisition Act (hereinafter referred to as the Act) were taken to acquire an extent of 96.92 acres in Tiruvanmiyur Village including petitioner's land.

2. The notification under Section 4(1) of the Act was made in G.O. Ms. No. 1096, Housing and Urban Development, dated 17th July, 1978. It was published in the Tamil Nadu Government Gazette, Supplement to Part IT, Section 2 at pages 5 to 9, dated 9th August, 1978. The purpose of acquisition as stated under Section 4(1) notification was a public purpose, to wit, for development of the area as Besant Nagar Phase II 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 Section 55 (1) of the Act, dated 2nd February, 1979, was published at the Corporation Middle School, Tiruvanimiyur, and in the office notice boards of the Taluk Office, Saidapet, Police Station Thiruvanmiyur and the Village Munsif of Thiruvanmiyur on 9th February, 1979, 10th February, 1979 and 10th February, 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 tire land in question by the Village Munsif on 10th February, 1979. This was 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 26th February, 1979, and they were duly enquired. The objections were forwarded to the Tamil Nadu State Housing Board for remarks on 15th March, 1979. 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 landowners at the time of enquiry under Section 5-A. Pursuant to the recommendations of the said Committee, it was resolved by the Tamil Nadu Housing Board in its Resolution No. 500, dated 12th December, 1979, to exclude the built up portion only and the monument in S. No. 82 Part and to acquire the remaining vacant areas 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 8th August, 1981. It was found 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 this stage, the petitioner by a letter, dated 4th December, 1979, addressed to the 4th respondent represented by its Chairman, with a copy marked to the second respondent, the Special Deputy Collector (Land Acquisition) Neighbourhood Schemes, Saidapet, Madras, requested the exemption of his plot measuring 21 cents in S. No. 84|6-A 1A-2. 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 this writ petition viz., 21 cents owned by the petitioner.. The declaration was approved in G.O.Ms.. No. 667, Housing and Urban Development, dated 6th August, 1981, and the same wag published at pages 4 and 5 of the Tamil Nadu Government Gazette, Extraordinary, Part II. Section 2, dated 8th August, 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 4th December, 1979. The petitioner came up to this Court by means of this writ petition for certiorarified mandamus to quash the declaration under Section 6 and also the notification under sec-lion 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 4'o be issued, the petitioner had been given a patta on 11th June, '1977. Where, therefore, the revenue record's bore the name of the petitioner under Patta No. 1115, there is absolutely no justification for excluding him under Section 4(1) notification. The Supreme Court and this Court have taken the view that the right to make representation during the enquiry under Section 5-A is a 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 crystallises the rights of the parties more so in view of the presumption contained to such a declaration as stated in Section 6, Sub-section (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. The State of Tamil Nadu and Anr. : AIR1977Mad272 .

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 Section 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 came to purchase the property forming the subject-matter of this writ petition viz., 21 cents in Survey No. 84|6A-1' A-2 at No. 140, Thiruvanmiyur Village, Madras District as early as 5th December, 1966. He had applied for transfer of patta and he came to be issued Patta No. 1115 on 11th June, 1977, itself. Section 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 17th July, 197S, in G.O.Ms. No. 1096, Housing and Urban Development. Normally speaking, the ownership 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 lie published under Section 4(1) of the Act was submitted to the Government. At that time, who were the owners, their names alone came to be mentioned in Section 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 meanwhile, 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 upto 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 all. 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 section 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 where abouts were not known. Therefore, even if the substance of Section 4(1) notice had been published at convenient places as required under Section 4 that will not improve the situation. If a person happens to see the notification, he will imerely find the name of K. T. Stephen as against Survey No. 84)6-A. The owner whose land is sought to be deprived like the petitioner could not, in his wildest imagination, ink his land to the notice which he may happen to see and if 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 the 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 acquisition 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 right 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 being, the hearings of the objection of the owner. That right has come to be held as a very valuable right. That is the least 'money' 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 Maine has to be attached to the second respondent (The Special Deputy Collector (Land Acquisition) Neighbourhood Schemes, Saidapet). He cannot assume for a moment that from the time he submitted the draft Section 4(1) notification upto the date it came to-be approved by the Government in G.O.Ms. No. 1096, Housing and Urban Development on 17th July, 1978., the ownership will remain static. Perhaps, because of his own indifference to look into the revenue records it 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, let him be heard and then acquire if need be. Therefore, I am unable to accept the contention of the learned Government Pleader that because patta tame 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 11th June, 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 his having any say in the matter. It is precisely under these circumstances I have held in Bhama Ramamovrthy v. The State of Tamil Nadu and Anr. : AIR1977Mad272 , that such a procedure is opposed to the principles of natural justice and equally constitutes; a violation of the provisions of the Act. Therefore, the learned' counsel for the petitioner Mr. D. 'Raju 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 right of a private individual must be subservient to public interest because it is that which constitutes the guiding star for land acquisition matters. It is true that by accepting the contention of the learned Counsel for the petitioner the neighbourhood scheme which covers an extent of 96.92 acres may come to standstill or may even get baulked. But who is to be blamed for this? It is easy to point out the accusing finger to the Court. But, where situations have as presented in this case, been 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 Court must hold the acquisition 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 ones eyes to the hard realities. That is not the law as I am able to see. The failure to issue notice under Section 5-A and bear the objection of the petitioner has deprived him of a very valuable right. As rightly contended by the learned Counsel for the petitioner, Section 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 when declaration under Section 6 comes to be issued. Where, however, without hearing the petitioner and without his 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 both Section 6 declaration as well as Section 4(1) notification. The ride nisi is made absolute. The writ petition is allowed. The petitioner will be entitled to costs. 'Counsel fee Rs. 300.


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