IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:10-4-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.12312 of 1998 ..... Tmt. Leelavathi .. Petitioner Vs 1. The State of Tamil Nadu rep. By its Secretary to Government Housing and Urban Development Department, Fort St.George Madras 9. 2. The Special Tahsildar (Land Acquisition) Housing Scheme, Unit II Coimbatore. 3. The Executive Engineer & Administrative Officer Coimbatore Housing Unit Tamil Nadu Housing Board Coimbatore. (R.3 impleaded as per order dt.23.03.2007 by SRJ in WPMP.No.656 of 2007) .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioner : Mr.AR.L.Sundaresan,Sr.Counsel for Mrs.AL.Gandhimathi For respondents: Mr.Hasan Fizal,GA for R.1 & 2 Mr.R.Girirajan for R.3. .. ORDER The challenge in this writ petition is the notification issued under Section 4(1) of the Land Acquisition Act,1894 dated 06.09.1996 and 6 declaration dated 04.11.1997 in respect of lands of the https://hcservices.ecourts.gov.in/hcservices/ petitioner in Survey No.366 to an extent of 3.03.0 hectares and in S.No.367 to an extent of 0.95.0 hectares in No.12, Kalapatti Village, Coimbatore Taluk. 2. According to the petitioner, the above said property is the ancestral property of her deceased father Karamadai Naicker and after his death, the petitioner and her sister entered a partition deed on 28.09.1992, according to which the petitioner is in possession of the above said lands, which are the subject matter of acquisition. 2(a). The further case of the petitioner is that she has developed the property into house sites by spending more than Rs.2 lakhs and prepared a lay-out and gifted the same to the Kalapatti Panchayat Union by gift deed dated 17.12.1996 for public purposes. 2(b). The second respondent has also issued a certificate dated 25.01.1995 to the effect that the lands in S.No.366, 378 and 381 were not the subject matter of any land acquisition proceedings. The Revenue Tahsildar has also issued a certificate on 12.06.1996, stating that S.No.367 was not subject to any acquisition. However, by letter dated 05.12.1997, received from the Director of Town and Country Planning, Madras, the petitioner came to know that the above lands were acquired and hence, the approval for the lay-out was refused. 2(c). The petitioner understands that the property has been acquired for the public purpose of providing house sites under Neighbourhood Scheme and declaration under Section 6 of the Act has been issued on 04.11.1997 and the petitioner was not given an opportunity at any point of time to participate in the enquiry. According to the petitioner, the notification under Section 4(1) of the Land Acquisition Act,1894 (in short, "the Act") was issued in the name of her father Karamadai Naicker, who was not alive on the date of notification. 2(d). It is the further case of the petitioner that the substance of 4(1) notification was not published in the village in proper manner. There was no notice for enquiry under Section 5-A of the Act, served on the petitioner. After the partition between the petitioner and her sister dated 13.11.1992 under the registered document in Document No.6715/92, the petitioner has executed a gift deed in favour of public authorities regarding the place set apart for public purpose as per the lay out. 2(e). Section 4(1) notification and 6 declaration were questioned on various grounds, including that it is a mala fide exercise of powers vested with the respondents, since only the petitioner's lands have been chosen for acquisition; that 4(1) notification was published in the name of dead person; that 5-A enquiry was vitiated for the reason that the actual owner, viz., the https://hcservices.ecourts.gov.in/hcservices/ petitioner was not served with the notice and no opportunity was given to her and therefore, it is in violation of the principles of natural justice; that after coming to know about the notice dated 24.12.1996, affixed near her lands, the petitioner submitted her objection on 15.01.1997 and the same has not been considered; that 4 (1) notification was published in a Tamil daily "Pirpagal" which was not actually having wide circulation and therefore, the mandatory requirements of Section 4(1) of the Act are not complied with; that according to the petitioner, as per G.O.Ms.No.620 Housing and Urban Development Department, dated 29.06.1990, it was informed that the Tamil Nadu Housing Board should avoid acquisition proposal in respect of lands where lay-out was approved by the Director of Town and Country Planning and the layout was approved in respect of the petitioner's lands as early as on 30.10.1995 and the petitioner has gifted the lands of an extent of 1.75 acres to the Panchayat Union for public purposes by gift deed dated 17.12.1996 and therefore, it cannot be said that the respondents are not aware of the fact that the petitioner is the owner of the property; and that the mandatory requirement under the Act to effect service of personal notice has not been fulfilled. 3. The Tamil Nadu Housing Board has subsequently filed a petition to implead itself as a party and ultimately it was impleaded as third respondent as per the order dated 23.03.2007 and thereafter, the Housing Board has filed a counter affidavit. As per the counter affidavit, notification under Section 4(1) of the Act was approved in G.O.Ms.No.385 Housing and Urban Development dated 06.09.1996 and published in the gazette on 23.10.1996 and the substance of the notification was published in "Murasoli" and "Pirpagal" on 31.10.1996 and in the locality on 08.11.1996. Enquiry under Section 5-A of the Act was conducted on 17.06.1997 after observing usual formalities and after publication and service of the required notice as per the rules framed under Section 55(1) of the Act. The objections filed by the interested persons were forwarded to the Executive Engineer and Administrative Officer, Coimbatore Housing Unit, Coimbatore and the remarks of the said Executive Engineer were also communicated to the interested persons and thereafter, the declaration under Section 6 was approved in G.O.Ms.No.390 Housing and Urban Development Department dated 04.11.1997 and published in the gazette on 05.11.1997. It was at that stage, the petitioner has filed the above writ petition against the acquisition. 3(a). It is the case of the third respondent that while issuing notification under Section 4(1), names of the pattadars were furnished as per village chitta and in respect of the lands in question, the name of pattadar found in the revenue records was Karamadai Naicker. It is also stated that Form-B for enquiry under Section 5-A was duly published in the vicinity and the petitioner has also sent her objections on 15.1.1997. It is also stated that section 6 declaration has been published within one year from the https://hcservices.ecourts.gov.in/hcservices/ date of 4(1) notification. In respect of the locality publication it was effected on 08.11.1996 and therefore, there is no procedural irregularity. 3(b). The approval of lay-out by the Director of Town and Country Planning on 30.10.1995 was after the original proposal for acquisition started in 1988, but prior to Section 4(1) notification, which was on 06.09.1996. The mere approval of lay-out is not a bar for proceeding with acquisition. According to the third respondent, the interested persons were enquired and notice intended to the owners have been served as per Section 45 of the Act. 3(c). According to the third respondent, the persons whose names find place in the revenue records alone will be given notice. G.O.Ms.No.620 dated 29.06.1990 is not applicable to the case of the petitioner since the land acquisition proposal was started in the year 1988, that is prior to publication of 4(1) notification, and the lay-out has been approved by the Director of Town and Country Planning only on 30.10.1995. 4. Even though the first and second respondents have not filed any counter affidavit, the learned Government Advocate has produced the files relating to the acquisition proceedings. 5. Mr.AR.L.Sundaresan, learned senior counsel appearing for the petitioner would submit that the Director of Town and Country Planning has approved the lay-out presented by the petitioner, as admitted by the third respondent, Housing Board itself on 30.10.1995 and it was after that approval the petitioner has earmarked various portions as per the lay-out for public purposes by registered gift deed dated 17.12.1990. He would also submit that the second respondent himself has issued a certificate on 25.01.1995 to the effect that there was no 4(1) notification published in respect of S.Nos.366, 378 and 381. The learned senior counsel fairly admits that as per the counter affidavit of the third respondent, the locality publication of Section 4(1) notification was made on 08.11.1996 and 6 declaration was on 04.11.1997, and hence, the time between the said 4(1) notification and 6 declaration is in time. 5(a). He would submit that inasmuch as the partition deed was effected on 28.09.1992, by which the property got in her name was gifted to the Panchayat Union on 17.12.1996 after getting the lay-out approved by the Director of Town and Country Planning in 1995 and in spite of it Section 4(1) notification was issued in the name of a dead person which is not valid. He would also submit that in respect of S.No.367, the Tahsildar has issued a letter addressed to the petitioner dated 12.06.1996 stating that the said Survey Number is not involved in any land acquisition proceedings. https://hcservices.ecourts.gov.in/hcservices/ 5(b). He would also submit that the Director of Town and country Planning in his letter dated 04.11.1996 addressed to the petitioner after the 4(1) notification, directed the petitioner to pay some charges regarding the approval of layout and even in that, there was no whisper about 4(1) notification. He would also submit that the acquisition regarding neighbouring lands under the same Scheme has been quashed by this court. The learned senior counsel would rely upon various judgements, including (i) 1989 WLR 89 (FB) [P.C.Thanikavelu vs. The Special Deputy Collector for Land Acquisition, Madras.] (ii) 1993 (1) MLJ 217 [Muthuswamy vs. State of Tamil Nadu]; and (iii) 2000 (4) CTC 125 [Asiya Mariyan vs. The Secretary to Government of Tamil Nadu], to substantiate his contention that 5-A enquiry is invalid, since persons interested were not heard. 5(c). He would also rely upon the judgement of the Division Bench of this Court in Savithiriammal vs. State of Tamil Nadu [2006 (3) MLJ 389], wherein the Division Bench has held that notice against the dead person vitiates the entire acquisition proceedings. Further, he would rely upon the judgement in M.Velayutham and others vs. State of Tamil Nadu [2006 (5) CTC 585] and in The Secretary to Government of Tamil Nadu, Housing and Urban Development, Fort St.George, Chennai 9 and another vs. J.Sivaprakasam and others [2005 (2) MLJ 106], to substantiate his contention that the publication in this case is not proper. 6. On the other hand, it is the contention of the learned counsel for the respondents that Section 5-A notice was not sent to the petitioner because the mutation of records was not effected in the name of the petitioner. It is his contention that the notice sent to the petitioner's father was received by one of his daughters, Kuttiammal and notice sent to the petitioner – Leelavathi and Kuttiammal for 5-A enquiry was returned as left. Therefore, the respondents have taken steps to serve on the legal heirs. At the time when the enquiry was conducted under Section 5-A of the Act on 17.06.1997, the petitioner had knowledge about the acquisition proceedings. It is also his further contention that the newspaper "Pirpagal" in which the publication was made is also a registered newspaper. 6(a). The learned counsel for the third respondent would vehemently contend that while conducting enquiry under Section 5-A of the Act, a roving enquiry is not contemplated, by relying upon the judgement of the Supreme Court in W.B.Housing Board and Others vs. Brijendra Prasad Gupta and Others [1997 (6) SCC 207]. 7. I have heard learned counsel appearing for the petitioner and learned counsel for respondents and perused the file produced by the learned Government Advocate. https://hcservices.ecourts.gov.in/hcservices/ 8. Admittedly, Section 4(1) notification was published in the gazette on 23.10.1996 and the newspaper publication was effected in two newspapers on 31.10.1996 and the locality publication of 4(1) notification was made on 08.11.1996, duly certified by the Special Tahsildar with the signature of residents of local people. However, the said 4(1) notification in respect of the property in question was issued in the name of Karamadai Naicker. In the light of the local publication effected in the manner known to law regarding 4(1) notification dated 06.09.1996; 6 declaration was issued on 04.11.1997 and published in the gazette on 05.11.1997; newspaper publication was made on 06.11.1997 and locality publication was made on 07.11.1997 and as fairly admitted by the learned senior counsel for the petitioner, the point regarding the period of one year from the date of 4(1) notification to the date of section 6 declaration need not be be considered in this case, since the declaration under section 6 has been made within the time as per law. 9. The next contention of the learned senior counsel for the petitioner is that the Revenue Tahsildar, Coimbatore North has issued a certificate to the petitioner on 12.06.1996 stating that the property comprised in S.No.367 to the extent of 0.95.5 hectares does not include any poramboke land and as on that date, there was no 4(1) notification issued. By letter dated 25.01.1995, the second respondent himself has stated that S.Nos.366 and 378 to 381 were not subject matter of any 4(1) notification. His submission is that as per the layout approved, the petitioner has in fact executed a registered gift deed on 17.12.1996 in favour of the Executive Officer of the Kalapatti Panchayat and if really 4(1) notification was issued on 06.09.1996, the gift deed would not have been registered. 10. On the other hand, it is the case of the third respondent, Housing Board, which is the requisitioning body in this case that the revenue records stood in the name of the petitioner's father Karamadai Naicker, in whose name 4(1) notification was issued. In such circumstances, the contention of the learned senior counsel as to its legality as stated above cannot be sustained. It is seen that the notice under Section 5-A enquiry, which was addressed to Karamadai Naicker has been received by Kuttiammal, as the daughter of the said Karamadai Naicker. That was the notice fixing the enquiry on 21.01.1997 and subsequently the enquiry was adjourned to 17.06.1997. Another notice in Form-B as per Section 5A of the Act, which was addressed to Karamadai Naicker was received by Kuttiammal again on 14.05.1997 with an endorsement that Karamadai Naicker died and the same has been served to Kuttiammal, being his daughter. In addition to that, another copy of Form-B notice dated 14.05.1997, has been sent to Kuttiammal by registered post, which has been returned. Likewise, similar notice posting the 5-A enquiry on 17.06.1997 was sent to the petitioner also by registered post, which has been returned. It is in the file that (as it is seen from page Nos.37 and https://hcservices.ecourts.gov.in/hcservices/ 43) Kuttiammal, having received the notice has informed the authorities for the first time on 14.05.1997 that her father died and having received the notice on two occasions, she has failed to appear for the enquiry. 11. It is also seen that after hearing all other neighbouring owners who have participated in the enquiry, the Special Tahsildar (LA) in his proceedings dated 04.08.1997 recommended that the declaration to be published under Section 6 of the Act on the basis that the properties are situated in the middle of the larger Scheme and thereafter, 6 declaration was published in the gazette dated 04.11.1997 and it is also seen that the said declaration stands in the name of the petitioner Mrs.Leelavathi Ammal and her sister Mrs.Kuttiammal. It is also seen from the file that notice under Section 9(3) of the Act for the purpose of award enquiry dated 20.09.1999 has been received by the daughter-in-law of Mrs.Kuttiammal, viz., S.Sarveswari, who has endorsed that, "this land is sold". However, the said notice to the petitioner was affixed on the place of the petitioner, where she has resided last with an endorsement by the Village Administrative Officer and thereafter, award has been passed on 28.10.1999 and the amount has been deposited in the Sub-Court. However, the present writ petition has been filed before passing of the award. 12. It is in the light of the factual situation in the files which has been perused, we have to consider the next contention of the learned senior counsel for the petitioner that Section 4(1) notification has been issued in the name of Karamadai Naicker and on the said date of 4(1) notification, the said Karamadai Naicker died and therefore, the entire proceedings should be vitiated. In Savithiri Ammal vs. State of Tamil Nadu [2006 (3) MLJ 389], the Division Bench of this Court consisting of P.Sathasivam,J.(as he then was) and V.Dhanapalan,J., dealt with almost a similar circumstance wherein the daughter of deceased father has specifically raised an objection that 4(1) notification is illegal since her father died even on 06.03.1987 whereas 4(1) notification was issued on 14.06.1995. In spite of the objection raised, the authorities have not taken steps to rectify the 4(1) notification and also issued 6 declaration in the name of the deceased person. It was in those circumstances, the Division Bench, applying series of judgements on the issue, viz., Muthusamy vs. State of Tamil Nadu (1993 (1) MLJ 217); Devaraj vs. State of Tamil Nadu (2003 (4) CTC 134); Asiya Mariyan vs. Secretary to Government of Tamil Nadu (2000 (4) CTC 125), has quashed the notification issued under Section 4(1) of the Act in the following operative words: " 5.This Court, in Muthusamy vs. State of Tamil Nadu (1993 (1) MLJ 217); Devaraj vs. State of Tamil Nadu (2003 (4) CTC 134); Asiya Mariyan vs. Secretary to Government of Tamil Nadu (2000 (4) CTC 125); and in series of other https://hcservices.ecourts.gov.in/hcservices/ decisions, h held that Notice/Notification issued in the name of the dead person and the proceedings with respect to the said lands cannot sustained. By applying the said principle, we accept the contention of the learned counsel for the appellant and quash the Notification issued under Section 4(1), dated 14.6.1995. Consequent, the writ appeal is allowed. " 13. In a subsequent judgement of the Division Bench rendered in G.S.Gopalakrishnan & 2 Others vs. Government of Tamil Nadu and 2 Others (2006 (3) Law Weekly 936), wherein after the death of the original owner, the property has gone to various persons and the subsequent purchasers have challenged the acquisition on the ground that 4(1) notification was issued in the name of dead person C.Kondappa Naidu. While it was admitted that when the original owner died, the property has been transferred to various persons, and at the instance of the subsequent purchasers, 4(1) notification was challenged, the Division Bench in the above said case has considered the earlier judgement reported in 2006 (3) MLJ 389 (cited supra) and distinguished it by saying that the earlier case was relating to the legal heir of the deceased father, who in fact informed during the time of 5-A enquiry that her father died and in spite of it 6 declaration was issued in the name of dead person. By holding that as a general principle of law, proceedings against dead person are null and void, the Division Bench has found that Order 22 of the Code of Civil Procedure deals with the procedure to be followed in the case of death and held that the Land Acquisition Act does not make it obligatory on the authority to conduct a roving enquiry to find out the actual owners, beyond the names reflected in the revenue records for the reason that it cannot be expected of the acquiring authorities to find out whether the patta holder is alive or dead. In that view of the matter, based on the judgement of the Supreme Court in U.P.Jal Niger vs. Kalra Properties (P) Ltd. [1963 (3) SCC 125], the subsequent Division Bench has held that the land acquisition proceedings are not nullity on the basis that the proceedings were issued in the name of a dead person unless it is established that the fact of death was brought to the notice of the authority at the appropriate stage. The operative portion of the judgement of the Division Bench is as follows: " 10. A Division Bench of this Court considered, in the case of SAVITHIRIAMMAL vs. STATE OF TAMIL NADU (2006 (3) MLJ 389), the validity of a notification issued in the name of a dead person and held that "the notification issued in the name of a dead person is a nullity and the proceedings cannot be sustained based on the said notification". But in para-3 of the said judgement, the learned Judges recorded a finding that the factum of death of the original owner was brought to the notice of the authorities even during the enquiry under Section 5-A and that despite the same, the https://hcservices.ecourts.gov.in/hcservices/ authorities did not carry out necessary changes in the Section 6 declaration also. In view of such a finding, the Bench quashed the entire proceedings and that too at the instance of the legal heir of the deceased owner. But in the case on hand, the property has changed several hands and the appellants purchased the plots much after the award enquiry was over. It is not the case of the appellants that anyone ever brought to the notice of the acquiring authorities, the fact that the original owner was dead. Under such circumstances it is difficult to comprehend as to how the authorities can be expected to know that the original owner was dead. We are entirely in agreement with the views expressed by the learned Judges in the aforesaid cases, especially in the light of their finding in those cases that the acquiring authorities had knowledge of the death of the owner of the lands. 11. It is true that as a general principle of law, proceedings against dead persons are null and void. But this principle is not without exception. Order 22 of the Code of Civil Procedure which deals with the procedure to be followed in the case of death, marriage and insolvency of parties, carves out one such exception to the said principle under Sub-Rule (4) of Rule 4, which reads as follows:- "(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgement may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." 12. This Sub-Rule (4) under Rule 4 of Order 22 was introduced by way of the Code of Civil Procedure (Amendment) Act, 1976 and this amendment drew its inspiration only from an amendment already made by Calcutta, Madras, Karnataka and Orissa High Courts. 13. Thus it could be seen that even under the Code of Civil Procedure where the rigours of impleading necessary and proper parties and service of notice are more pronounced than in proceedings under special enactments, it is not made an universal rule that such proceedings against dead persons are null and void. 14. In a case arising under the Bombay Land Requisition Act, 1948, in SMT. LILA VATI BAI vs. STATE OF https://hcservices.ecourts.gov.in/hcservices/ BOMBAY (AIR 1957 SC 521), the Constitution Bench of the Supreme Court had an occasion to consider whether an order of requisition issued under the said Act in the name of a dead person was enforceable or not. Over-ruling the contention of the petitioner that such a notice was unenforceable, the Apex Court held as follows:- "13. The only other contention which