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2010 DIGILAW 5061 (MAD)

Suganthi Subbammal v. The Land Acquisition Officer and Special Tahsildar

2010-11-16

M.M.SUNDRESH

body2010
Judgment :- 1. The petitioner herein is the owner of the land measuring an extent of 1.84.0 hectare in S.No.74/4A and 0.03.0 hectare in Survey No.74/4B situated in Boothalpuram Village, hamlet of Chinnaiyapuram, Vilathikulam Taluk, Tuticorin District. 2. Proceedings have been initiated by the respondents for the purpose of providing house sites for 52 families of Adi Dravidar Community of Boothalpuram Village, hamlet of Chinnaiyapuram, Vilathikulam Taluk, Tuticorin District. Accordingly, after the inspection of the lands belonging to the petitioner, a notice in Form-I under Section 4(2) of the Land Acquisition Act, 31 of 1978 was issued to the petitioner on 21.07.1999 and 16.08.1999. 3. Therefore, in pursuance to the above said notice, the petitioner was informed to appear before the respondent No.1 for an enquiry on 03.09.1999. The petitioners husband appeared on behalf of the petitioner and gave his objections. On a consideration of the objections, the respondent No.1 overruled the same and sent his report recommending acquisition proceedings, to the respondent No.2. 4. A notification issued under Section 4(1) of the Land Acquisition Act, 31 of 1978 was approved by the respondent No.1 in and by his proceedings dated 24.10.1999. In pursuance to the said order it was also published in the District Gazette and its substance was published in the locality. In pursuance to the notification issued in Form III under Section 4(1) of the Land Acquisition Act, 31 of 1978, the petitioner was directed to appear before the Special Tahsildar on 25.02.2000. The above said notice dated 16.02.2000 was served on the petitioner on 17.02.2000. Thereafter, the petitioner was informed to appear before the respondent No.1 on 03.03.2000. Once again, the petitioners husband made his appearance on behalf of the petitioner and his statement was recorded. 5. A notice issued under Section 11(2) of the Land Acquisition Act, 31 of 1978 was sent to the petitioner, informing her to receive the compensation amount of Rs.26,942/-. The petitioner has received the bill for Rs.26,942/-on 21.03.2000. The petitioner has also signed in a revenue stamp acknowledging the receipt of the amount mentioned in the bill. The possession of the land was taken on 23.03.2000. 6. Even though the petitioner has acknowledged the receipt and received the bill for the purpose of presenting the same to encash the amount, she did not do so. The petitioner has also signed in a revenue stamp acknowledging the receipt of the amount mentioned in the bill. The possession of the land was taken on 23.03.2000. 6. Even though the petitioner has acknowledged the receipt and received the bill for the purpose of presenting the same to encash the amount, she did not do so. However, she approached this Court and filed the present writ petition and obtained an order of stay on 17.04.2000. The petitioner has filed this writ petition seeking to quash the proceedings of the first respondent dated 05.11.1999 issued under Rule 5(1) of The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979. 7. The interim stay granted already was vacated by this Court in and by the order dated 29.11.2001 on the ground that possession has been taken already. After the interim order was vacated, the possession has been handed over to the beneficiaries and by the proceedings of the first respondent dated 29.05.2002 free housing pattas have been given. 8. Mr.M.Suresh Kumar, the learned counsel appearing for the petitioner submitted that the petitioner has made a detailed objections to the proposed acquisition in pursuance to the notice issued by the first respondent under Section 4(2) of the Land Acquisition Act, 31 of 1978. It is his further submission that the objections given by the petitioner have not been considered properly by the respondents. According to the learned counsel, the objections of the petitioner must have been sent to the requisition body and thereafter, the orders ought to have been passed by affording an opportunity to the petitioner after serving the copy of the remarks of the requisition body. In support of his contention, the learned counsel has relied upon the judgment of this Honourable Court rendered in MARIAPPAN v. STATE OF TAMIL NADU [ 2001 (3) CTC 158 ]. The learned counsel also made reliance on a unreported judgment of this Court rendered in W.A.NO.2038 OF 2005 DATED 22.11.2005 and submitted that the objections of the petitioner will have to be sent to the requisition body and after the receipt of its remarks, a fresh order will have to be passed by the respondents. Therefore, in the absence of the above said procedure being followed the proceedings are to be set aside. 9. Therefore, in the absence of the above said procedure being followed the proceedings are to be set aside. 9. Mr.Dhandapani, learned Special Government Pleader appearing for the respondents submitted that the objections of the petitioner have been considered by the respondent No.1 while sending his report. Thereafter, the respondent No.2 on a consideration of the recommendations of the respondent No.1 has passed the order in AW6/85224/99 dated 24.10.1999 accepting the same which in turn resulted in the publication in the Gazette notification on 05.11.1999. The learned Special Government Pleader further submitted that after passing of the order by the respondent No.2 under Section 4(3)(b) of the Land Acquisition Act, 31 of 1978 on 24.10.1999 which was published in the District Gazetee on 05.11.1999, it was also published in the locality on 20.12.1999. The petitioner appeared for the award enquiry and accepted to receive the award amount. In fact, the amount was received by making the acknowledgment by the petitioner and accordingly she was issued with necessary bill for encashment. 10. In as much as the award was passed in Award No.3/99-2000 on 10.03.2000, the writ petition cannot be maintainable. According to the learned Special Government Pleader, after the award was passed on 10.03.2000, a notice under Section 11(2) of the Act was sent to the petitioner to receive the amount and the petitioner after receiving the bill by signing the acknowledgment did not receive the same. The learned Special Government Pleader further submitted that even before filing the writ petition, the possession has been taken and thereafter the lands have been allotted to the beneficiaries in and by the proceedings dated 29.05.2002. The beneficiaries are in possession of the land and put up construction and residing there. The learned counsel has also made reliance upon the judgment rendered in SOUNDARAVALLI AMMAL v. GOVERNMENT OF TAMIL NADU [ 2007 (5) CTC 241 ] and submitted that in as much as the award having been passed already the writ petition cannot be maintained. 11. The facts narrated above would indicate that the petitioners objections were heard and considered by the respondent No.1. Thereafter, a report was sent by the respondent No.1 containing his recommendations that the objections may be overruled. The respondent No.2 after a due consideration of the materials available on record has overruled the objections of the petitioner and passed an order. The facts narrated above would indicate that the petitioners objections were heard and considered by the respondent No.1. Thereafter, a report was sent by the respondent No.1 containing his recommendations that the objections may be overruled. The respondent No.2 after a due consideration of the materials available on record has overruled the objections of the petitioner and passed an order. In pursuance to the order passed by the respondents in proceedings No.AW6/85224/99 dated 24.10.1999 a publication was also effected in the District Gazettee on 05.11.1999 which was also published in the locality on 20.12.1999. 12. Thereafter, an award was passed on 10.03.2000. Before passing the award a notice was served on the petitioner on 17.02.2000 and the petitioners husband took part in the award enquiry. After passing the award, a notice was issued to the petitioner to collect the award amount. The petitioner signed the relevant records in a stamp paper acknowledging the receipt of the amount but has not chosen to present the bill after receiving the same. Therefore, the petitioner is aware of the award proceedings and the factum of taking the possession on 23.03.2000 is also not in dispute. However, the petitioner has rushed to this Court by filing the present writ petition stating as if she was in possession. The interim order granted regarding taking over of possession was also subsequently vacated. The beneficiaries were given pattas by the proceedings of the respondent No.1 and they are enjoying their respective allotments. 13. When an award is passed and possession is taken the property vests in the hands of the respondents, the petitioner would become a persona non grata having lost her title. Having participated in the award enquiry and thereafter signed the acknowledgment, it is not open to the petitioner to turn around and challenge the acquisition proceedings. When once the land is acquired the property vest with the respondents free from all encumbrances. Therefore, the petitioner having lost her title thereafter cannot challenge the said proceedings. The petitioner having taken part in the proceedings, the only right that is available to her is regarding the compensation payable. In other words, the petitioner cannot claim the right of repossession. The Honourable Apex Court in MUNICIPAL CORPORATION OF GREATER BOMBAY v. INDUSTRIAL DEVELOPMENT INVESTMENT CO. PVT. LTD. AND OTHERS [ (1996) 11 SCC 501 ] has observed as follows: "9. In other words, the petitioner cannot claim the right of repossession. The Honourable Apex Court in MUNICIPAL CORPORATION OF GREATER BOMBAY v. INDUSTRIAL DEVELOPMENT INVESTMENT CO. PVT. LTD. AND OTHERS [ (1996) 11 SCC 501 ] has observed as follows: "9. "If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the State free from all encumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loathe to quash the notifications." 14. The above said judgment of the Honourable Apex Court was followed very recently in SAWARAN LATA v. STATE OF HARYANA [(2010) 7 MLJ 121], wherein it has been held as follows: "12. In the instant case, it is not the case of the petitioners that they had not been aware of acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of Act, 1894 had been published in the newspapers having no wide circulation. Even if, the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of acquisition proceedings for the reason that very huge chunk of land belonging to large number of tenure holders had been notified for acquisition. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings." 15. Therefore, applying the above said ratio laid down, this Court is of the opinion that the writ petition is not maintainable in law and facts. 16. An important factor to be noted in this case is that the petitioner has neither challenged the proceedings of the second respondent passed in Na.Ka.No.AW6/85224/99 dated 24.10.1999 passed under Section 4(1) of the Land Acquisition Act, 31 of 1978 nor the notification issued under the Tuticorin District Gazette dated 05.11.1999. 16. An important factor to be noted in this case is that the petitioner has neither challenged the proceedings of the second respondent passed in Na.Ka.No.AW6/85224/99 dated 24.10.1999 passed under Section 4(1) of the Land Acquisition Act, 31 of 1978 nor the notification issued under the Tuticorin District Gazette dated 05.11.1999. What has been challenged in the present writ petition is only a notice issued in Form-III under Rule 5(1) of The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979. The said rule merely provides for a procedure for determining the amount. Therefore, the petitioner cannot canvass his case against the notification issued under Section 4(1) of the Land Acquisition Act, 31 of 1978 while challenging a collateral proceeding. It is further to be seen an order under Section 4(1) of the Land Acquisition Act, 31 of 1978 was passed by the second respondent and the impugned notice is issued by the first respondent as a consequence of the said order. Hence, on this fact also the writ petition is not maintainable. 17. A counter affidavit has been filed stating that the petitioners objections have been considered both by the respondents 1 and 2. Merely because there is no relevant record available with the second respondent it cannot be said that the procedure has not been followed more so when the order passed by the second respondent has not been challenged. Hence, the contention of the learned counsel appearing for the petitioner on the merits of the case cannot be accepted. 18. The judgments relied upon by the learned counsel appearing for the petitioner that the objections of the petitioner will have to be sent to the requisition body has no legal basis. The judgments relied upon by the learned counsel for the petitioner are under the Central Act wherein a separate procedure has been contemplated. The procedure as submitted by the learned counsel for the petitioner is no longer contemplated under the State Act. It is also to be noted that the first respondent himself is the authority to acquire the lands. Therefore, there is no necessity even otherwise to follow the said procedure. Hence, the said contention of the learned counsel for the petitioner also cannot be countenanced. 19. It is further to be seen that the petitioner has not approached this Court with clean hands. Therefore, there is no necessity even otherwise to follow the said procedure. Hence, the said contention of the learned counsel for the petitioner also cannot be countenanced. 19. It is further to be seen that the petitioner has not approached this Court with clean hands. The petitioner has been dispossessed even before she approached this Court. However, the writ petition was filed contending that she is in possession of the property. The writ petition was also filed after the award was passed. The respondent No.1 has identified the beneficiaries and distributed the lands acquired. The classification of the land was also changed as seen from the records. The learned Special Government Pleader also stated that the beneficiaries have taken possession in the year 2002 itself and put up construction. The above said facts also would indicate that the discretionary relief under Article 226 of the Constitution of India cannot be extended in favour of the petitioner. 20. Therefore, for the reasons stated above, this Court does not find any merits in the writ petition and accordingly, the writ petition is dismissed. No costs.