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2016 DIGILAW 1405 (MAD)

Union of India v. A. N. Natchimuthu

2016-04-01

M.VENUGOPAL, SATISH K.AGNIHOTRI

body2016
JUDGMENT : SATISH K. AGNIHOTRI, J. Regard being had to the commonality of the acquisition proceedings and also the question of law, all the writ appeals and the writ petition are taken up together and disposed of by this common judgment. 2. To avoid complexity, the parties are referred to by their litigative status in the instant appeals. 3. The facts in nutshell are that the Government of Tamil Nadu issued a Government Order in G.O.Ms.No.690, Public (Military) Department, dated 24th June, 1997, wherein and whereunder, the draft notification under Section 4(1) of the Land Acquisition Act, 1894 (herein-after referred to as “the Act, 1894”) has been approved for acquisition of land for formation of Married Staff Accommodation of Indian Air Force in Kadambadi Village, Coimbatore District. Further, it is notified to publish Section 4(1) notification in the next issue of the Tamil Nadu Government Gazettte dated 10th July, 1997 and it was further requested to cause publication of the substance of the notification at the convenient places of the locality immediately after the publication of the notification in the Government Gazette. Thereafter, declaration under Section 6 of the Act, 1894 was issued by G.O.Ms.No.1653, Public (Military) Department, dated 9th October, 1998, which was published in the Government Gazette on 10th October, 1998. 4. The respondents/land owners, questioning the validity of the acquisition proceedings preferred writ petitions, seeking to quash the said proceedings on the ground that the time prescribed under the Land Acquisition (Tamil Nadu Amendment) Act, 1996 (Tamil Nadu Act 16 of 1997) has not been adhered to, resulting in vitiation of the proceedings. 5. During the pendency of the acquisition proceedings initiated on publication of notification under Section 4(1) of the Act, 1894, the Tamil Nadu Act 16 of 1997 came into force from 16th July, 1997, wherein the time schedule for publication of the notification under Section 4(1) of the Act, 1894 in the locality was prescribed, i.e., within a period of 60 days. 6. The respondents/land owners assailed the acquisition proceedings on several grounds, inter-alia that the proceedings stand lapsed for non publication of Section 4(1) notification in the locality within a period of sixty days from the date of the publication in the Government gazette/newspapers. 6. The respondents/land owners assailed the acquisition proceedings on several grounds, inter-alia that the proceedings stand lapsed for non publication of Section 4(1) notification in the locality within a period of sixty days from the date of the publication in the Government gazette/newspapers. The other grounds of challenge were that no public notice under the Land Acquisition (Tamil Nadu) Rules was issued immediately after the publication of the notification under Section 4(1), calling for objections from the persons interested within 30 days. Further, the remarks of the requisitioning body on the objection raised by land owners/respondents were not communicated to them before the conduct of enquiry under the provisions of Section 5A of the Act, 1894. 7. The learned Single Judge, by order dated 25th October, 2000 in W.P.Nos.17417 and 17418 of 2000, allowed the writ petitions and set aside the acquisition proceedings in respect of the petitioners therein, observing as under : “2. x x x x x x x x The notification was published in the gazette on 9.7.1997; on 12.7.1997 and 13.7.1997, the same was published in the newspaper and the same was published in the locality on 13.10.97, ignoring the amendment to Section 4 of the said Act. The said provision was amended under Act 16 of 1997 which came into effect from 16.7.1997. The last publication should have been made at least within 60 days from the date of the amendment. Admittedly, that has not been done in these cases. In view of the said mandatory provision as submitted by the learned counsel appearing for the petitioner, the notification published under section 4(1) of the said Act dated 9.7.1997 cannot be sustained at all. The above said observation of mine is supported by the decision of this Court in Pothu Chettiar V. Special Tahsildar, Land Acquisition, 2000 (3) C.T.C. 456 . “ 8. Following the above stated order, W.P.No.19123 of 1998 which was filed by the first respondent in W.A.No.1640 of 2001, was allowed by the learned Single Judge by order dated 23rd April, 2001. Further, the writ petition filed by the first respondent in W.P.No.9123 of 2001 was also allowed by the learned Single Judge by order dated 26th October, 2009. Thus, assailing the orders passed by the learned Single Judge in those writ petitions, the instant writ appeals have been preferred. 9. Further, the writ petition filed by the first respondent in W.P.No.9123 of 2001 was also allowed by the learned Single Judge by order dated 26th October, 2009. Thus, assailing the orders passed by the learned Single Judge in those writ petitions, the instant writ appeals have been preferred. 9. In the meantime, the Union of India had preferred an appeal against the order passed in W.P.No.19123 of 1998 dated 23rd April, 2001, which was heard along with some other appeals. The said appeal was allowed by a common judgment dated 18th January, 2005. Thereafter, on review, being Review Application No.36 of 2005, the judgment passed in W.A.No.1640 of 2001 alone was set aside and that writ appeal was restored to file. 10. Besides, a writ petition, being W.P.No.9361 of 2006 is filed by the petitioners herein, who are also the petitioners in W.P.No.17418 of 2000, which was allowed by a common order dated 25th October, 2000. There against, now W.A.No.334 of 2014 has been preferred by the State Government. The said writ petition has been preferred stating that the petitioners are in possession of the property in question and that in view of the order passed in W.P.No.17418 of 2000, the respondents should be directed not to interfere with the petitioners' possession and enjoyment of the land in question. 11. Thiru G. Rajagopalan, learned Additional Solicitor General, appearing for the appellant/Union of India would contend that the Tamil Nadu Act 16 of 1997, which came into force on 16th July, 1997, would not be applicable to the acquisition proceedings initiated under Section 4 of the Act, 1894 prior to enforcement of new amending provision. In the case on hand, the notification under Section 4(1) of the Act, 1894 was published in the Gazette on 9th July, 1997 and in the newspapers on 12th July, 1997 and 13th July, 1997. The publication was made in the locality on 13th October, 1997. It is further contended that the time schedule prescribed for publication of the notification in the locality pursuant to the Tamil Nadu Act 16 of 1997 was a procedural requirement and as such, the same would not be mandatory, leading to vitiation of proceedings. 12. The learned Additional Solicitor General, in support of this contention, has referred to and relied on a decision of the Supreme Court in State of Haryana and another Vs. 12. The learned Additional Solicitor General, in support of this contention, has referred to and relied on a decision of the Supreme Court in State of Haryana and another Vs. Raghubir Dayal, (1995) 1 SCC 133 and a decision of this Court in The Government of Tamil Nadu Vs. S. Jayaraman, 1992 Writ L.R. 332 13. It is further contended that the acquisition proceedings would not stand vitiated, particularly when the possession of the land has already been taken over by the authorities, and as such, the acquisition proceedings cannot be declared as vitiated, referring to a decision of the Supreme Court in State of T.N and others Vs. L.Krishnan and others, (1996) 1 SCC 250 . It is further urged that the Tamil Nadu Act 16 of 1997 will not have retrospective effect, unless it is so specified in the provision itself. 14. Mr. P.H. Arvind Pandian, learned Additional Advocate General appearing for the appellant-State would advance similar contentions as made by the learned Additional Solicitor General and seek permission to adopt the same. 15. Per contra, the learned counsels appearing for the respondents/land owners would submit that the amending Act deals with the procedure and as such, it is presumed to be retrospective, unless the amending Act provides otherwise. In support of this contention, the learned counsels rely on a decision of the Supreme Court in Shyam Sunder and others Vs. Ram Kumar and another, (2001) 8 SCC 24 . 16. It is next contended that the contention of the learned Additional Solicitor General that the provisions of the Tamil Nadu Act 16 of 1997 would not be applicable to the proceedings, which were initiated on publication of notification under Section 4(1) on earlier point of time, is not proper. Even if the reckoning of sixty days does not commence from the date of publication of Section 4(1) notification, but the same has to be counted from the date of the notification of the amending Act. In the case on hand, even the publication was not made in the locality within sixty days from the date, the amending Act came into force on 16th July, 1997. 17. In the case on hand, even the publication was not made in the locality within sixty days from the date, the amending Act came into force on 16th July, 1997. 17. The learned counsels appearing for the land owners would further contend that the time schedule prescribed under the provisions of the Tamil Nadu Act 16 of 1997 is mandatory, as has been held in case of two years time schedule prescribed for making the award under Section 11 of the Act, 1894, which has been held as mandatory. In support of this contention, reliance is placed on a decision of the Supreme Court in Mulchand Khanumal Khatri Vs. State of Gujarat and others, (2012) 5 SCC 365 . It is also contended that the period prescribed for publication of the notification under Section 4(1) in the locality would, in any case, commence from the date of the notification of the amending Act. 18 On the question of taking over of possession, it is strongly contended that the land owners continue in possession of the land in question and the same never vested with the Government, as the dispute in respect of the validity of the acquisition proceedings was pending in the Court. 19 Heard Thiru G. Rajagopalan, learned Additional Solicitor General assisted by Thiru Venkatasamy Babu, learned Additional Central Government Standing Counsel, appearing for Union of India, Thiru P.H. Arvind Pandian, learned Additional Advocate General, assisted by Mrs. A. Srijayanthi, learned Special Government Pleader, appearing for the State and Thiru K.V. Subramaniam, learned Senior Counsel for Thiru M.A. Abdul Wahab, learned Advocate, Thiru R. Kannan and Thiru R.N. Amarnath, learned counsels appearing for the respondents/land owners and perused the pleadings and documents appended thereto. 20 It is profitable to refer to the relevant provision under the Tamil Nadu Act 16 of 1997, which reads as under : “The Land Acquisition (Tamil Nadu Amendment) Act, 1996 (Tamil Nadu Act 16 of 1997). 20 It is profitable to refer to the relevant provision under the Tamil Nadu Act 16 of 1997, which reads as under : “The Land Acquisition (Tamil Nadu Amendment) Act, 1996 (Tamil Nadu Act 16 of 1997). In section 4, - (1)in sub-section (1), - (a) for the expression “Whenever it appears to the appropriate Government”, the expression “Subject to the provisions of sub-section (1-A), whenever it appears to the Collector or the Commissioner of Land Administration or the Government, as the case may be,” shall be substituted ; (b) the following Explanation shall be added at the end, namely :- “Explanation.-For the purpose of this subsection, the publication of notification in the Official Gazette, the publication of such notification in two daily newspapers and the giving of a public notice,- (a)may precede each other; (b) shall be completed within a period of sixty days. The period of sixty days shall be reckoned from the date of publication of notification in the Official Gazette or the date of publication of such notification in two daily newspapers or the date of giving public notice, whichever is earlier.“ (2) after sub-section (1), the following sub-section shall be inserted, namely : “(1-A) The notification under sub-section (1) shall be published by - [(a) the Collector in respect of land not exceeding forty acres in extent the value of which does not exceed rupees twenty-five lakhs; (b)the Commissioner of Land Administration in respect of land not exceeding seventy-five acres in extent the value of which exceeds rupees twenty-five lakhs, but does not exceed rupees fifty lakhs; and (c) the Government in other cases.]”; (3) in sub-section (2), for the words “by such Government”, the words “by such Collector or Commissioner of Land Administration or Government, as the case may be,” shall be substituted.” 21. There is no dispute in the factual matrix. Indisputably, the preliminary notification under Section 4(1) of the Act, 1894 was published in the Tamil Nadu Government Gazette on 9th July, 1997, seeking acquisition of lands in Kadambadi village, Palladam Taluk, Coimbatore District, which was published in two dailies on 12th July, 1997 and 13th July, 1997. It is also not in dispute that the notification under Section 4(1) of the Act, 1894 was published in the locality on 13th October, 1997. Thereafter, further proceedings were initiated. 22. It is also not in dispute that the notification under Section 4(1) of the Act, 1894 was published in the locality on 13th October, 1997. Thereafter, further proceedings were initiated. 22. In the meantime, the Tamil Nadu Act 16 of 1997 was notified and came into force on 16th July, 1997, wherein, it is provided that the publication of the notification in the official Gazette, the publication of such notification in two daily newspapers and the giving of a public notice may precede each other and shall be completed within a period of sixty days. Further, the period of sixty days shall be reckoned from the date of publication of the notification in the Official Gazette or the date of publication of such notification in two daily newspapers or the date of giving public notice, whichever is earlier. 23. The question that arises for our consideration is as to whether the Tamil Nadu Act 16 of 1997, which came into force on 16th July, 1997, would apply to the land acquisition proceedings, wherein, the notification under Section 4(1) of the Act, 1894 has been published prior to the notification of the Tamil Nadu Act 16 of 1997. 24. The purpose of prescribing time schedule is to avoid uncertainty in the proceedings as after the issuance of the notification under Section 4(1) of the Act, 1894, the land owners become conscious of the fact that the land which is a valuable property is likely to be acquired by the Government. On perusal of the amending provision, it is luculent that sixty days time prescribed therein for publication of the notification in the locality from the date of the publication of the notification in the official gazette or in two daily newspapers, is mandatory. The land owners have sacrosanct and inviolable constitutional right over the property and as such Article 300-A of the Constitution of India, prescribes that no person shall be deprived of his property save by authority of law. Thus, the procedure for deprivation of the property under the land acquisition proceedings is mandatory. 25. The issue as to whether publication of the substance of the notification in the locality is mandatory, came into consideration in Ajay Krishan Shinghal and Others vs. Union of India and Others, (1996) 10 SCC 721 wherein, the Supreme Court held that the requirement is mandatory. The relevant paragraph reads as under: “12. 25. The issue as to whether publication of the substance of the notification in the locality is mandatory, came into consideration in Ajay Krishan Shinghal and Others vs. Union of India and Others, (1996) 10 SCC 721 wherein, the Supreme Court held that the requirement is mandatory. The relevant paragraph reads as under: “12. x x x x x x x It is futile to reiterate the settled legal position that the publication of the notification under Section 4(1) in the Gazette and substance thereof in the locality are mandatory requirements and the omission thereof renders the notification void. In Khub Chand case this Court had held the same view. x x x x x x x x x.” 26. Once the publication in the locality is held as mandatory, the time schedule fixed therein is also mandatory. The contention of the learned Additional Solicitor General that the time schedule, being a procedural requirement, is not mandatory, does not merit acceptance. 27. A learned Single Judge of this Court, in Pethu Chettiar vs. Special Tahsildar, Land Acquisition, 2000 (3) CTC 456 : 2000 (3) MLJ 430 wherein, a notification under Section 4(1) of the Act, 1894 was published in the gazette on 19 May 1998 and in the newspapers on 24 May 1998, but, published in the locality on 01 September 1998, held the entire land acquisition proceedings as vitiated, as the notification was not published in the locality, within the stipulated period. 28. The identical issue came up for consideration when two years period was prescribed for making the award under Section 11 of the Act, 1894, in Mulchand Khanumal Khatri (supra), wherein, it was held that the period of two years is mandatory and would commence from the date when the amendment was notified, i.e., 24th September, 1984. Thus, it was held by the Supreme Court as under : “11. We are in respectful agreement with the above legal position. The period prescribed in Section 11-A is mandatory. The consequence of breach is provided in the provision itself viz. the entire acquisition proceedings get lapsed. Insofar as computation of the period is concerned, the period of two years commences from the date of the publication of the declaration. Where the declaration has been published before the Amendment Act, then the period commences from the commencement of the Amendment Act. the entire acquisition proceedings get lapsed. Insofar as computation of the period is concerned, the period of two years commences from the date of the publication of the declaration. Where the declaration has been published before the Amendment Act, then the period commences from the commencement of the Amendment Act. The only period that is excludable is the period during which the action or proceedings to be taken pursuant to the said declaration remains stayed under the order of a court and no other. Section 11-A is a special provision for the purposes of the Act and the legislative intent being clear from the bare language of the Explanation appended thereto, we find no justification to read the provisions of the Limitation Act, 1963 and particularly Section 12 thereof into it." 29. On the issue of retrospective operation, in Shyam Sunder (supra), a Constitution Bench of the Supreme Court, referring to several decisions rendered by it in (i)Garikapati Veeraya V. N.Subbiah Choudhry, AIR 1957 SC 540 : 1957 SCR 488 (ii) Dayawati V. Inderjit, AIR 1966 SC 1423 : (1966) 3 SCR 275 (iii)Hitendra Vishnu Thakur V. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087 and (iv) K.S.Paripoornan V. State of Kerala, (1994) 5 SCC 593 had clearly held that the amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise. The relevant paragraph reads as under : “28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of the suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise. x x x x x x” 30. In the case on hand, if the notification was published in the locality prior to enforcement of the amending Act, i.e. Tamil Nadu Act 16 of 1997, much beyond the period of sixty days, as prescribed under the amending Act, the same was not liable to be assailed on the ground that the said notification was not published within sixty days. The amending Act though being procedural, having substantial bearing, would not have retrospective effect. However, in the case on hand, when the publication in the locality was not made before the enforcement of the amending Act, the period of sixty days would commence from the date of the notification, i.e., 16th July, 1997. Indisputably, the 60th day will come to an end on 15th September 1997, from the date of notification of the enforcement of the amending Act. The publication in the locality was given only on 16th October, 1997. 31. In State of Haryana Vs. Raghubir Dayal (supra), the question under consideration was the time gap between the publication of Section 4(1) notification and the date of publication of substance of the notification in the locality. When no time limit was prescribed, in such an event, it was held that the time gap of more than six months from the date of the notification in the official gazette and the publication of substance in the locality, would not render the notification invalid. When no time limit was prescribed, in such an event, it was held that the time gap of more than six months from the date of the notification in the official gazette and the publication of substance in the locality, would not render the notification invalid. The facts of the instant case are distinguishable and as such, the ratio laid down in that case will not be of any assistance. 32. In State of Tamil Nadu Vs. L.Krishnan (supra), the issue involved therein was whether the land owners be permitted to raise the objection, challenging the notification after the award was passed and as such, the same is not applicable to the facts of this case. 33. The case in Government of Tamil Nadu Vs. S.Jayaraman (supra) also deals with the situation, wherein publication of the notification under Section 4(1) was made in April, 1989 and was published in the official gazette on 17th May, 1989. The publication was published in the place of locality only on 5th July, 1989. It was held that the period should not exceed two months. 34. As stated herein-above, the learned Single Judge has not adverted to other grounds raised in the writ petitions. In such view of the matter, it is contended by the learned counsel appearing for the respondents/land owners that in the event, the appellants succeed in the appeals, the matter may be remitted back to the learned Single Judge for considering the challenge on other grounds raised in the writ petitions. In view of the aforestated factual matrix, we are not inclined to advert to other contentions, at this stage. 35. For the reasons and analysis stated herein-above, we do not find any infirmity in the impugned orders. Consequently, all writ appeals stand dismissed. The writ petition stands allowed. No costs. Consequently connected miscellaneous petitions stand closed.