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2001 DIGILAW 413 (MAD)

Kanniammal v. State of Tamil Nadu

2001-03-30

T.MEENA KUMARI

body2001
ORDER The petitioner has filed the above writ petition seeking to issue a writ of certiorarified mandamus calling for the records of the first respondent relating to the acquisition of petitioner's land measuring 3.92 acres in S.No.85/4 in Kalur Village, Kancheepuram Taluk, Chengai MGR District and published in Government Gazette Supplement, Part II, Section 2, dated 21.12.1983 and Section 6 declaration published in the Tamil Nadu Government Extraordinary dated 12.3.1984 and the award of the second respondent in Award No.4/83-84 dated 28.3.1984 and to quash the same and further forbearing the respondents from dispossessing the petitioner from lands pursuant to the impugned award. 2. In the affidavit, it is stated by the petitioner that the petitioner is the owner of the land measuring to an extent of 3.92 acres in Survey No.85/4 in No.44, Kalur village, Kancheepuram Taluk, which is required for providing house sties to Adi Dravidars of Kalur and Vitchanthangal village. Hence, a notification under Sec.4(1) of the Land Acquisition Act was issued and the same was published in the Tamil Nadu Government Gazette on 21.12.1983. Notice for an enquiry under Sec.5-A of the Act was issued and the petitioner has also putforth his objections stating that there are alternative lands available including poramboke lands and as the land sought to be acquired is used as Kalam by the land owners, the acquisition proceedings should be dropped. The first respondent after overruling the objections made by the petitioner, issued declaration under Section 6 of the Land Acquisition Act and the same was published in the gazette on 12.3.1984. 3. It is also stated that at the earlier point of time, the petitioner filed W.P.No.3260 of 1994 to quash the notification under Sec.4(1) of the Act, viz., G.O.Ms.No.2853, Social Welfare, dated 6.12.1983. But the same was dismissed by this Court by an order dated 6.3.1992. Aggrieved by the same, the petitioner preferred W.A.No.259 of 1992, which was dismissed by this Court on 16.3.1992. After the dismissal orders, the second respondent issued notice in Na.Ka.1925/83 directing the petitioner to surrender the lands acquired, failing which, steps will be taken in accordance with law, however, granting liberty to the petitioner to make the claim with regard to compensation for the lands acquired. Challenging the same, the petitioner approached this Court by another W.P.No.1357 of 1993 and the same was dismissed on 22.7.1993 at the admission stage itself. Challenging the same, the petitioner approached this Court by another W.P.No.1357 of 1993 and the same was dismissed on 22.7.1993 at the admission stage itself. As the award has been passed on 28.3.1984, the petitioner made a request to the second respondent to furnish a copy of the award and same was received by him on 30.9.1993. Challenging the award passed by the second respondent on 28.3.1984, the present writ petition has been filed. 4. Mr.S.Chandramouli, the learned senior counsel appearing for the petitioner argued that Sec.9(1) and (2) of the Land Acquisition Act contemplates that after the award enquiry a notice should be issued giving 15 days clear notice and that there is no proper service of notice as required under the provisions of the Act. He has also submitted that even assuming that the notice has been served on the petitioner, there was no clear 15 days time between the publication of the notice under Sec.9(1) and on the date of holding of the enquiry. He also submitted that declaration under Sec.6 of the Act has been issued on 12.3.1984 and the award came to be passed on 28.3.1984 and that the respondent has failed to comply with the provisions under Secs.7 and 8 of the Land Acquisition Act. The learned senior counsel further submitted that the Collector has to get the approval from the State Government under Sec.11 of the Act before passing of the award. But, in this case, no prior approval has been obtained from the Government before passing of the award. There was no enquiry as contemplated under Sec.11 of the Act before passing of the award by the Collector. Hence, the respondents have failed to comply with the mandatory provisions of Sec.11 of the Land Acquisition Act also. 5. To substantiate the above contentions, the learned senior counsel has relied upon the judgments reported in (1) Velagapudi Kanaka Durga v. District Collector, Krishna District, Chilakapudi and others Velagapudi Kanaka Durga v. District Collector, Krishna District, Chilakapudi and others Velagapudi Kanaka Durga v. District Collector, Krishna District, Chilakapudi and others A.I.R. 1971 A.P. 310; (2) Periya Angammal and others v. The State of Tamil Nadu represented by Secretary to Government, Social Welfare Department, Fort St. George, Madras-9 and another Periya Angammal and others v. The State of Tamil Nadu represented by Secretary to Government, Social Welfare Department, Fort St. George, Madras-9 and another Periya Angammal and others v. The State of Tamil Nadu represented by Secretary to Government, Social Welfare Department, Fort St. George, Madras-9 and another Periya Angammal and others v. The State of Tamil Nadu represented by Secretary to Government, Social Welfare Department, Fort St. George, Madras-9 and another (1982)2 MLJ. 98 ; (3) Prasanna Kumar Das and others v. State of Orissa Prasanna Kumar Das and others v. State of Orissa Prasanna Kumar Das and others v. State of Orissa A.I.R. 1956 Ori. 114. The learned senior counsel also relied on a decision reported in The Revenue Divisional Officer, Chidambaram v. A.N.Damodara Mudaliar and others The Revenue Divisional Officer, Chidambaram v. A.N.Damodara Mudaliar and others The Revenue Divisional Officer, Chidambaram v. A.N.Damodara Mudaliar and others A.I.R. 1978 Mad. 201 wherein it has been held as follows: “Natural justice requires that any notice to be effective and to be positive, should have been served on the person against whom it is intended and without proof of such actual service of such notice, a bare inference of constructive knowledge of the obligation to prefer the claim within 15 days from the date of the notice, ought not to be pressed into service to the prejudice of the affected party. Reading Secs.9(2) and 9(3) together the intendment of the prescription and mandate in Sub-sec.(2) of Sec.9 of the Act is to see that the notice under Sec.9(2) as in Sec.9(3) should also be served on the persons affected and that ought to be the date which has to be reckoned for the purpose of calculating the 15 days time available to the claimant for preferring his objections under the above Sub-section. The prescription in Sec.9(2) of the Act read in conjunction with the well known principles of natural justice, requires that it is the date of service of a statutory notice in any enactment which ought to be the relevant factor to consider whether the subsequent conduct of the addressee is in accordance with the statute or not. Thus the date of the public notices alone cannot govern the situation. But it is the date of service of such notices which is the essential criteria to consider whether the claimants have acted in accordance with the statute or not.” 6. Thus the date of the public notices alone cannot govern the situation. But it is the date of service of such notices which is the essential criteria to consider whether the claimants have acted in accordance with the statute or not.” 6. It is the submission of the learned Senior counsel that as per the judgments cited above, after issuance of notice under Sec.9(2) and (3) of the Land Acquisition Act, a period of 15 days has to be granted for filing objections by the petitioner. But in this case, it is seen from the records that the notice under Sec.9(2) was prepared on 3.3.1984 i.e., prior to the issuance of Sec.6 declaration. The declaration under Sec.6 was issued on 12.3.1984 and the notice has been sought to be served on the petitioner on 13.3.1984 and the records show that there was an enquiry as contemplated under Sec.9(2) before the Collector and even assuming that the Collector has passed an award after declaration under Sec.6 of the Act, the duty is cast upon the Collector to issue such notice of the award to the persons, stating that the Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to him, and giving a clear notice of 15 days. In this case, excluding the date of notice and the date of award and the date of service of notice, the notice period is too short and award has been passed within the period of 15 days. Therefore, the notice is not a valid one. 7. The learned senior counsel further argued that after declaration under Sec.6 of the Act, the Collector has to take steps under Sec.7 of the Act for acquisition. As per Sec.8 of the Act, the land has to be marked out, measured and planned by the Collector. Then, as per Sec.9 of the Act, the Collector shall cause public notice stating that the Government intends to take possession of the land and that claims to compensation by all interests in such land may be made to him. Under Sec.10 of the Act, the Collector has got power to require and enforce the making of statements as to names of the interested persons, earlier than fifteen days after the date of requisition. Under Sec.10 of the Act, the Collector has got power to require and enforce the making of statements as to names of the interested persons, earlier than fifteen days after the date of requisition. Under Sec.11 of the Act, enquiry has to be conducted by the Collector as per the provisions. No award shall be passed by the Collector under this Sub-section without the prior approval of the appropriate Government or of such officers at the appropriate Government may authorise in this behalf. Under Sec.12, award becomes final. Once award is filed in the Collector's Office under Sec.12(2) the Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives, when the award is made. 8. In the above circumstances, it is to be seen that before passing of the award the Collector has to follow the above said procedures. But in this case, it is seen that the award notice has been prepared on 3.3.1984 i.e., prior to declaration under Sec.6 of the Act viz., on 12.3.1984. The award notice has been served on the petitioner on 13.3.1984 and the award has been passed on 28.3.1984. However, records shows that no such claim has been made. If the petitioner had the service of notice, the petitioner would have chosen to file his statement of claim before the Collector. Moreover an approval contemplated under Sec.7 of the Act has not been obtained by the Collector from the appropriate Government or of such officer as the appropriate Government authorise in this behalf under Sec.11 of the Act. It is also to be noted that there was no proof for filing of the award in the Collector's office. It is also to be noted from the records that the petitioner continues to be in possession and also, the award was not filed in the Collector's office and hence, it has to be held that the award has not become final under the provisions of Sec.12 of the Act. Hence, there is no proper compliance under Secs.9(2) and (3) and no clear notice of 15 days for filing objections. Moreover there is also non compliance of Sec.12 of the Act and on that count also the award passed cannot be termed as final. 9. Hence, there is no proper compliance under Secs.9(2) and (3) and no clear notice of 15 days for filing objections. Moreover there is also non compliance of Sec.12 of the Act and on that count also the award passed cannot be termed as final. 9. To substantiate the above contentions the learned counsel relied on the decision reported in E.K.Raghavan Reddiar v. Collector of Madras E.K.Raghavan Reddiar v. Collector of Madras E.K.Raghavan Reddiar v. Collector of Madras A.I.R. 1961 Mad. 33 wherein it has been held as follows: “This” filing in an office of the Collector “means” receiving papers initially for orderly he make safe keeping, subject to inspection by whomsoever it may concern. “As there is not form of filing of the award in the office of the Collector, it is physical act of filing and receiving the award in the office of the Collector keeping therein as part of the records of that office, which constitute filing within the meaning of Sec.12(1) of the Act.” 10. In the above circumstances, relying upon the case laws cited above, it has to be held that there was violation of mandatory provisions and hence, the award is liable to be quashed and the same is accordingly quashed and the writ petition is allowed. No costs. But however, it is made clear that this order shall not stand in the way of respondents in proceeding afresh by issuing fresh notice under Secs.9(2) and 9(3), if they so desire and if the scheme is still in existence. It is submitted by the learned senior counsel that the petitioner is still in possession of the land. Hence, liberty is given to the petitioner to make a representation within a period of three months from the date of receipt of a copy of this order to the State Government to delete the lands. As and when, such representation is made, the respondents are directed to consider and pass orders on merits in accordance with law at the earliest, however, within a period of two months thereafter. Consequently, W.M.P.No.28512 of 1993 is closed. Writ Petition allowed.