Research › Search › Judgment

Madras High Court · body

2002 DIGILAW 1287 (MAD)

K. G. Narayana Pillai & Another v. The Government of Tamil Nadu

2002-10-24

E.PADMANABHAN

body2002
Judgment :- 1. The two petitioners herein, have joined together and filed a single writ petition praying for the issue of a writ of certiorari to call for the records of the respondent relating to G.O. Ms. No.509 Housing & Urban Development Department dated 17.5.95 and G.O. Ms. No.290 Housing and Urban Development Department dated 17.6.96 and quash the same as illegal. This Court granted interim stay on 13.8.1996. 2. Heard Mr.V.Raghavachari, learned counsel appearing for the petitioners and Ms.D.Malarvizhi, learned Government Advocate appearing for the respondents. 3. The learned counsel advanced the following three contentions :- "i) The publication of Section 4 (1) Notification in a daily, which has no circulation in the locality vitiates the acquisition ; ii) No notice has been served on the petitioners for enquiry under Section 5-A of The Land Acquisition Act and this vitiates the acquisition ; and iii) The outcome of Section 5-A enquiry has not been communicated to the petitioner and this vitiates the acquisition." All the three contentions could be considered together. 4. The petitioners claim that they have jointly purchased the land comprised in survey No.241/1A of Vilanguruchi village, Coimbatore North Taluk from Nallammal on 17.2.1982. Though application for mutation of permanent land register and issue of patta was submitted subsequent to the purchase, the patta pass book was issued on 20.11.95 under Rule 5 of The Tamil Nadu Patta Pass Book Act, 1983, in favour of the 2nd petitioner for the total extent of 1.53.5 Hectares. Thereafter, the present writ petition has been filed on 23.7.1996 challenging Section 4 (1) Notification and Section 6 Declaration. 5. A larger extent of 894.64.0 Hectares of land in Vilanguruchi village in Coimbatore North Taluk was notified for the public purpose of construction of houses for low income and middle income group in Ganapathi Neighbourhood Scheme. The land was divided into 72 blocks for convenience. The petitioners though claimed that they have purchased the land, their names did not find a place in the revenue records on 17.5.1995, the date of Section 4 (1) Notification. As the petitioners secured mutation only on 28.11.1995, their names has not been set out in Section 4 (1) Notification. Section 4 (1) Notification was published in the local daily "Pirpagal" on 17.6.95, "Dina Tanthi" on 18.6.95 in the name of original owner Nallammal, from whom the petitioners have purchased. As the petitioners secured mutation only on 28.11.1995, their names has not been set out in Section 4 (1) Notification. Section 4 (1) Notification was published in the local daily "Pirpagal" on 17.6.95, "Dina Tanthi" on 18.6.95 in the name of original owner Nallammal, from whom the petitioners have purchased. Substance of Section 4 (1) Notification was published on 19.6.95 in the locality. All the persons interested, who have submitted their objections were served with a notice under Section 5-A for enquiry. Enquiry was conducted on 12.4.96. The petitioners did not send their objection and they were keeping quiet. The petitioners have come before this Court challenging Section 4 (1) Notification and the Declaration issued under Section 6 issued in G.O. Ms. No.290 Housing and Urban Development Department dated 17.6.96. The petitioners name find a place in Section 6 Declaration. 6. The petitioners name did not find a place in the revenue records and, consequently their names could not have been set out in Section 4 (1) Notification even though the petitioners have purchased the land long prior to Section 4 (1) Notification. At one place the petitioners claim that they are permanent residents of Coimbatore and at another place they claim that they belong to Kerala and they reside in the State of Kerala. Substance of Section 4 (1) Notification was published in the locality and after wide publicity, an enquiry under Section 5-A was conducted on 22.1.96 in respect of those who filed the objections within time and further enquiry was conducted after communicating the remarks of the requisitioning body on 12.4.96. Admittedly, petitioners did not send their objections and, therefore, no notice has been served on the petitioners calling upon them to appear for an enquiry under Section 5-A. It is incidentally stated that notice was sent to the Kerala address given by the petitioners, but it has been returned. 7. In the light of the said facts and the details, the contentions advanced by Mr.Raghavachari, learned counsel for the petitioners have to be considered. 8. It is being contended that Section 4 (1) Notification was published in the tamil dailies "Dina Tanthi" and "Pir Pagal" respectively on 18.6.95 and 17.6.95. The petitioner contends that "Pir Pagal" has no circulation in the locality. There is no dispute that the Tamil daily "Dina Tanthi" has wide circulation in the locality. 8. It is being contended that Section 4 (1) Notification was published in the tamil dailies "Dina Tanthi" and "Pir Pagal" respectively on 18.6.95 and 17.6.95. The petitioner contends that "Pir Pagal" has no circulation in the locality. There is no dispute that the Tamil daily "Dina Tanthi" has wide circulation in the locality. In the affidavit filed in support of the writ petition, what has been stated is that Section 4 (1) Notification was not published in the dailies having circulation in the locality. In the counter it has been specifically stated that Section 4 (1) Notification was published in the gazette on 14.6.95 and two tamil dailies viz., "Pir Pagal" on 17.6.95 and "Dina Tanthi" on 18.6.95, which are having more circulation in the locality. The petitioner has not even stated that "Pir Pagal" has no circulation at all in the locality. But in the counter it has been specifically stated that both the tamil dailies have more circulation in the locality. The petitioner has not filed any reply even though counter has been served on the petitioner on 31.8.98. The petitioner has come forward with a vague averments in this respect and has not even averred that the daily "Pir Pagal" has no circulation in the locality. Hence, this Court has to accept the contents of the counter affidavit in this respect and has to reject the first contention advanced by Mr.Ragavachari. 9. However, Mr.Ragavachari relied upon an unreported order of P.Sathasivam, J., dated 22.9.2000 made in W.P. Nos.19925 and 19927 of 1994. It is in respect of the same Ganapathi Neighbourhood Scheme Phase-II. Section 4(1) Notification was impugned in that writ petition. In that writ petition, Section 4 (1) Notification was published in "Thee Kathir" on 1.5.91 and "Pir Pagal" on 2.5.91 and Section 6 Declaration was published in Tamil Dailies "Makkal Kural" and "Dina Thoothu" on 29.5.1992. In the said case, to the counter affidavit filed by the respondents, a reply affidavit has been filed by the writ petitioner contending that the two tamil dailies are not in circulation in the locality, viz., Coimbatore city. Relying upon the said reply affidavit, the learned Judge held that the said two dailies have no circulation in the locality and quashed the acquisition. 10. Relying upon the said reply affidavit, the learned Judge held that the said two dailies have no circulation in the locality and quashed the acquisition. 10. In the present case, this Court finds that there is no averment at all in the affidavit that the two tamil dailies have no circulation in the locality, while in the counter affidavit the respondents have specifically stated that both the dailies have wide circulation in the locality, namely, in and around Coimbatore. No reply has been filed. There is not even an averment or a reply in this respect to suggest that the two dailies have no circulation at all. In respect of "Dinathanthi" one of the dailies, there is no dispute. Merely because in another writ petition it has been held that the publication is defective in respect of different Notification, viz., the dailies have no circulation, it cannot be assumed that the two dailies in which the impugned notification and declaration were published have no circulation in the locality. Such a contention is too wide and this Court is not inclined to sustain such a contention in the light of the specific stand taken in the counter affidavit. Hence, the reliance placed upon the said unreported judgment is clearly distinguishable on the facts of the present case. 11. As regards the second contention, concedingly patta was transferred only on 20.11.95. Therefore, the petitioners name did not find a place under Section 4 (1) Notification and their vendor's name finds a place. If after the purchase the petitioners failed to take steps to enter their names in the revenue records, the petitioners have to blame themselves. The plea that application for patta was kept pending for quite sometime cannot be a ground to sustain the petitioners contention. Concedingly, only on 20.11.95 (i.e.) after five months from the date of Section 4 (1) Notification, mutation of revenue records have been effected and the names of the second petitioner has been entered. 12.It is rightly pointed out that under Section 4 (1) no individual notice need be served on the land owners. In the present case, there has been a publication in the gazette, dailies as well as substance in the locality. 12.It is rightly pointed out that under Section 4 (1) no individual notice need be served on the land owners. In the present case, there has been a publication in the gazette, dailies as well as substance in the locality. It is not as if just one or two items of the land was notified, but it is several hundred items and there was large scale acquisition notification at or about the same time covering around 894 hectares in the same village for public purpose of Ganapathi Neighbourhood Scheme. 13. Section 5-A provides that any person interested in any land which has been notified under Section 4 (1) as being acquired or likely to be acquired for public purpose, within thirty days from the date of publication of the notification object to the acquisition. Sub-section (2) of Section 5-A provides that objection under sub-section (1) shall be made to the Collector in writing and the Collector has to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall after hearing the objectiors and after making such further enquiry, either make a report in respect of the land which has been notified under sub-section (1) of Section 4 or make different reports in respect of different parcels of land to the appropriate Government with record of his proceedings. 14. The petitioners are persons interested. Thirty days limitation for filing the objection under Section 5-A has to be reckoned from the date of publication of notification. If the petitioners fail to file objection within thirty days from the date of publication, then the petitioners have to blame themselves. There is no requirement either under Section 4 or 5 or the rules framed thereunder to serve notice on the petitioners, who are persons interested. If the petitioners fail to file their objections, they cannot later complain that they have not been heard nor a notice has been served on them for an enquiry under Section 5-A. No service of notice is contemplated if objection is not filed within the period of thirty days prescribed under Section 4 (1). There is nothing in the rule to suggest that the land acquisition officer should serve a personal notice on the persons interested even if they have not forwarded their objections within the time prescribed. 15. There is nothing in the rule to suggest that the land acquisition officer should serve a personal notice on the persons interested even if they have not forwarded their objections within the time prescribed. 15. In this case, concedingly, no objection at all has been submitted by the petitioners at any time. They have come before this Court after publication of Section 6 Declaration. Section 5-A mandates that within thirty days from the date of publication of notification the person interested has to raise an objection about the acquisition of the land. An opportunity for hearing is required to be provided, if within thirty days from the date of publication of the notification, the person interested files the objection to the land acquisition officer. On the facts of the case, it cannot be stated that there has been a violation of Section 5-A read with the rules. 16.Without filing an objection, it is too late in the day for the petitioners to contend that they have not been served with a notice of hearing. Therefore, it follows that it is not obligatory for the land acquisition officer to serve a notice on the petitioners to appear for an enquiry under Section 5-A. Hence, the second contention also cannot be countenanced. 17. The third contention also has to necessary fail as the petitioners have failed to submit objections and, therefore, there is no occasion for the land acquisition officer either to afford an opportunity of hearing or to consider the objections when admittedly objection has not been filed within the period of thirty days, which is a mandatory provision. Hence, no question of intimating the result of Section 5-A enquiry would arise. There is no rule which contemplates communication of Section 5-A enquiry Report to persons interested. The State Government has considered Section 5-A enquiry report submitted by the land acquisition officer. Various other persons interested have submitted their objections, who were heard admittedly, Remarks of requisitioning body were communicated and were considered elaborately, but overruled for various reasons. The same cannot be relied upon by the petitioner also. There is no question of petitioner being communicated with Section 5-A enquiry report in terms of the Act or the rules framed thereunder. Hence, the third contention also fails. 18. The learned counsel Mr.Raghavachari, relied upon the Full Bench judgment of this Court in P.C. THANIKAVELU VS. The same cannot be relied upon by the petitioner also. There is no question of petitioner being communicated with Section 5-A enquiry report in terms of the Act or the rules framed thereunder. Hence, the third contention also fails. 18. The learned counsel Mr.Raghavachari, relied upon the Full Bench judgment of this Court in P.C. THANIKAVELU VS. THE SPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION MADRAS & ANOTHER reported in 1989 WLR 89 where the Full Bench held that a person interested whose name is not entered in the records as persons but about whom the officer conducting enquiry is informed of the interest possessed by such person, the Full Bench held that a notice to such person is necessary. In the present case, nobody has intimated nor the petitioners' vendor has intimated about the sale of the land in favour of the petitioners and, therefore, the question of issuing a notice will not arise and the reliance placed upon the Full Bench judgment is of little use to the petitioner. 19. In the light of the above discussions, all the three contentions advanced by Mr.Ragavachari, learned counsel appearing for the petitioners fail and the writ petition deserves to be dismissed. 20. In the result, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.