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2000 DIGILAW 425 (MAD)

P. Jayadevan and others v. The State of Tamil Nadu and others

2000-04-12

K.SAMPATH

body2000
ORDER: The prayer in the writ petition is for a certiorari to call for the records of the respondents pursuant to the Notification issued under Sec.4(1) in G.O.Ms.No.850, Housing and Urban Development Department, dated 21.5.1991 and published in Tamil Nadu Government Gazette on 19.6.1991 and Sec.6 declaration issued in G.O.Ms.No.528, Housing and Urban Development Department dated 12.8.1992 and published in Tamil Nadu Government Gazette on 12.8.1992 in respect of Survey No.889/1-B of an extent of 0.49.0 hectares and Survey No.890/1-B of an extent of 0.62.0 hectares in Hosur Village, Hosur Taluk, Dharmapuri District and quash the said proceedings in so far as the lands of the petitioners are concerned. 2. Petitioners 1 to 4 are brothers and the fifth petitioner is their sister-in-law. The petitioners are joint owners of land in S.No.889/1-B of an extent of 0.49.0 hectares and S.No.890/1-B of an extent of 0.62.0 hectares situate at Hosur village in Dharmapuri District. Sec.4(1) Notification in GO.Ms.850, Housing and Urban Development Department, was issued on 21.5.1991. Gazette Publication was on 19.6.1991. Notice under Rule 3 of the Rules framed under Sec.55(1) of the Land Acquisition Act under Form No.3-A was issued in R.O.C.No.1008/90-A, dated 20-9-1991 and the same was served on the petitioners on 28-9-1991. The petitioners filed their objection on 7.10.1991. Sec.6 Declaration was issued by respondents in G.O. Ms.No.528, Housing and Urban Development Department, dated 12.8.1992. 3. The counsel for the petitioners submitted as follows: The aforesaid lands are covered by layouts duly approved by the Director of Town and Country Planning Department prior to the date of Sec.4(1) Notification on 29.8.1990. The acquisition proceedings for Housing Scheme were quashed in W.P.No.10351 of 1982 dated 8.1.1988 on the ground that the lands intended for acquisition were approved layouts by the Town Planning Authorities before the date of Sec.4(1) Notification. On the same principle the present acquisition also is liable to be quashed. The substance of the Notification had not been published in the locality. It had not also been published in various public places as required under the Act and the Rules. Again, Rules 3 (b) and 3 (c) of the Tamil Nadu Rules formulated under Sec.55(1) of the Land Acquisition Act have not been followed. There is also no mention of the class of persons to whom the houses are to be constructed by Tamil Nadu Housing Board. Again, Rules 3 (b) and 3 (c) of the Tamil Nadu Rules formulated under Sec.55(1) of the Land Acquisition Act have not been followed. There is also no mention of the class of persons to whom the houses are to be constructed by Tamil Nadu Housing Board. The acquisition proceedings had been initiated before ever any scheme was finalised by the Housing Board. There is a delay of more than one year from the date of publication of the preliminary Notification under Sec.4(1) and Sec.6 of Declaration. 4. The learned Government Advocate Mr. Thirumaran submitted that in respect of the same Notification W.P.Nos.13569 of 1994, 13570 of 1994 and 13572 of 1994 have been dismissed by this Court and the same fate should follow in the present writ petition as well. The learned Government Advocate further submitted that the Rules framed under Sec.55(1) of the Act have also been scrupulously followed. As regards the vagueness of the scheme, the learned Government Advocate submitted that the public purpose for which the lands were sought to be acquired has been notified and the alleged non-framing of a specific scheme cannot be put against the respondents. As regards the contention relating to the lands being part of an approved layout, the learned Government Advocate submitted that the G.Os. exempting lands covered by layouts had been withdrawn and that the Supreme Court also has now held that such an objection is not available to the owners of the lands. As regards the dates of publication of the various notifications, notices and declarations, the learned Government Advocate submitted that the department has been carrying out the requirements within the period provided under the Act and the Rules. 5. The learned counsel for the writ petitioners relied on a number of decisions, which will all be noticed in the course of the order, and submitted that the Land Acquisition Authorities have not complied with the requirements relating to publication of the notification and declarations and therefore the proceedings are vitiated. 5. The learned counsel for the writ petitioners relied on a number of decisions, which will all be noticed in the course of the order, and submitted that the Land Acquisition Authorities have not complied with the requirements relating to publication of the notification and declarations and therefore the proceedings are vitiated. The learned counsel further submitted that the dismissal of the earlier writ petitions cannot be put against the present writ petitioner as the contention in those writ petitions was confined to the question relating to whether the notifications, publications and declarations had been done within the time stipulated under the Act and the Rules and the learned Judge gave a ruling only with regard to that question. As regards the other questions raised in the present writ petition, they were not urged or raised before the learned Judge who decided the other two writ petitions. The learned counsel particularly submitted that the remarks from the requisitioning body, viz, the Housing Board were not forwarded to the writ petitioners to enable them to put forward their objections and the proceedings have therefore to go. 6. The questions relating to the period within which the relevant notifications and declarations have to be made, having been decided by the learned single Judge in the other two writ petitions referred to, it is not therefore open to the writ petitioners to put forward such objection. As a fact, it is also found that the publications, notifications and declarations had been made within the period set out in the Act and the Rules. The contention on this aspect by the learned counsel for the petitioners is therefore rejected. 7. Equally, the contention relating to the lands being part of an approved layout is also to be rejected in view of the withdrawal of the exemptions granted to lands covered by approved layouts by the Government and also by reason of the decision of the Supreme Court in State of Tamil Nadu v. L.Krishnan and others, (1996)7 S.C.C. 450 . 8. The only question now available for discussion is the one relating to Rule 3 (b). In The Commissioner and Secretary to Government of Tamil Nadu, Housing and Urban Development Department, Madras, and another v. C.Ramaswami Chettiar and others, (1996)2 I.L.R. Mad. 8. The only question now available for discussion is the one relating to Rule 3 (b). In The Commissioner and Secretary to Government of Tamil Nadu, Housing and Urban Development Department, Madras, and another v. C.Ramaswami Chettiar and others, (1996)2 I.L.R. Mad. 229 a Division Bench of this Court dealing with the question has stated the law as follows: “We are of the view that in cases other than those wherein the objections received from the person interested were beyond the time stipulated in Sec.5-A(1) of the Act conducting of an enquiry with an opportunity to the person interested alone to substantiate his objections would constitute sufficient compliance and the failure to follow the special procedure and method of enquiry visualised in Rule 4(b) of the Rules will not vitiate the Sec.5-A enquiry or the declaration which followed the enquiry held otherwise than in accordance with Rule 4(b) of the Rules. The owner of the land under the Act and the Rules has to file his objections within 30 days from the date of publication of the Notification under Sec.4(1) of the Act in the Official Gazette as well as the publication of the substance of the same in the locality, whichever is later. No doubt, the objections received beyond that date can be enquired into, but failure to send a copy of such objections filed beyond 30 days to the acquiring body will not have the effect of vitiating the acquisition, as such objections filed beyond 30 days are not required to be sent to the acquiring body even according to Rule 4(b) of the Rules.” 9. In the instant case, Sec.4(1) Notification was issued on 21.5. 1991, Gazette publication was on 19.6.1991, but the petitioners filed their objections only on 7.1.1991, more than 30 days after the publication under Sec.4(1). The petitioners therefore cannot as of right seek compliance with Rule 3 (b). 10. The decision of the Bench has been distinguished by Sathasivam. J. in Sakunthala v. Government of Tamil Nadu and others, A.I.R. 1998 Mad. 256. In that case the land owner submitted his objections beyond 30 days period as fixed under Sec.5-A(1). The objections were, however, received by the Land Acquisition Officer and communicated to the requisitioning body. 10. The decision of the Bench has been distinguished by Sathasivam. J. in Sakunthala v. Government of Tamil Nadu and others, A.I.R. 1998 Mad. 256. In that case the land owner submitted his objections beyond 30 days period as fixed under Sec.5-A(1). The objections were, however, received by the Land Acquisition Officer and communicated to the requisitioning body. The learned Judge held that, “inasmuch as the Land Acquisition Officer forwarded the objections to the requisitioning body, in fairness the remarks from the requisitioning body ought to have been forwarded to the owner and there should have been a further enquiry as contemplated under the Act.” 11. In the present case it does not appear that the objections from the land owners were received by the Land Acquisition Officer and forwarded to the requisitioning body. The decision in Sakunthala v. Government of Tamil Nadu and others, A.I.R. 1998 Mad. 256 will not therefore apply to the facts of the present case. 12. The learned Counsel for the petitioner has relied on a number of decisions for the proposition that the procedure under Rule 3(b) is a mandatory requirement and the proceedings in the instant case are vitiated as admittedly, Rule 3(b) had not been followed. I am referring to the decisions relied on by the learned Counsel for the petitioners only for the purpose of completion. 13. In Muthu v. The Government of Tamil Nadu represented by the Secretary, Social Welfare Department, Madras, (1986) Writ L.R. 391 Nainar Sundaram, J. (as the learned Judge then was) held that: “the enquiry contemplated under Sec.5-A is not a mere empty formality and that strict adherence to the statutory mandate under Sec.45 of the Act is necessary.” 14. In Kadirvelu Mudaliar v. State of Tamil Nadu etc. and another, (1987) Writ L.R. 182 the same learned Judge deprecated the non-compliance with Rules 3(b) and (c) framed under the Land Acquisition Act and held that the absence of opportunity to make his representation to the land owner vitiates the proceedings. 15. In Palani Naicker and another v. State of Tamil Nadu and others, (1991)2 M.L.J. 14 another Division Bench of this Court has held that “the requirements of Rule 3(b) are mandatory and that non-compliance with the same vitiates the enquiry.” 16. In N.D Ramanujam v. Collector of Madras etc., (1994) Writ L.R. 326 a similar view has been expressed. 17. In Palani Naicker and another v. State of Tamil Nadu and others, (1991)2 M.L.J. 14 another Division Bench of this Court has held that “the requirements of Rule 3(b) are mandatory and that non-compliance with the same vitiates the enquiry.” 16. In N.D Ramanujam v. Collector of Madras etc., (1994) Writ L.R. 326 a similar view has been expressed. 17. In M.J.Saravanaperumal and another v. State of Tamil Nadu etc. and three others, (1997)3 C.T.C. 605 I have held that “after obtaining the comments from the requisitioning body, there should be a second enquiry conducted and only such enquiry will conform to the requirements of Rule 3(b) and (c).” 18. As pointed out already, there is nothing to show that the authorities after they got the objections from the writ petitioner out of time, forwarded the same to the requisitioning body and thus waived the requirement relating to filling of objections within 30 days of the publication under Sec.4(1) of the Act. 19. In these circumstances, there is no alternative other than to reject the writ petition. Accordingly, the writ petition fails and the same is dismissed. However, there will be no order as to costs. Consequently, the stay petition W.M.P.No.1959 of 1993 is also dismissed.