IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.11.2010 CORAM THE HONOURABLE MR. JUSTICE. M.M.SUNDRESH W.P.NO.8088 OF 2002 Sivaprakasam .. Petitioner Vs 1. The Government of Pondicherry Represented by Joint Secretary to Government, Revenue Department Pondicherry 2. The Deputy Collector, Land Acquisition, Collector Office Building, Saram, Pondicherry. .. Respondents PRAYER: This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records of the second Respondent issued Under Section 4(1) of the Land Acquisition Act in G.O.(General) No.72, dated 14.11.2000 and the declaration under Section 6 in order dated 10.12.2001 in G.O.Ms.59, pursuant to the said 4(i) Notification published in Government Gazette dated 25.12.2001 and quash the same in respect of the petitioner's land in S.NO.40/2 0.13.0 acres and Sy.No.40/8 for 0.13.50 acres situate in Abishegapattinam Village, Nanamedu, Pondicherry State. For Petitioner : Mr.J.Anandhavalli For Respondents : M/s.D.Srinivas & S.Giriprasad for R1 & R2 O R D E R The petitioner's parents are the original owners of the land situated in R.S.Nos.40/2 and 40/8 in Abishegapattinam Revenue Village Land Acquisition proceedings have been initiated by the respondents by issuing notification under Section 4(1) of the Land Acquisition 1894 vide G.O.Ms.No.72 dated 14.11.2000. In pursuant to https://hcservices.ecourts.gov.in/hcservices/ the notice under Section 4(1) of the said Act, the petitioner gave a detailed representation on 21.12.2000. In the said representation, the petitioner stated that his parents were no more even prior to the notification under Section 4(1) of the Act. The objection of the petitioner was forwarded to requisitioning body and the requisitioning body gave its remarks. 2. Thereafter, enquiry under Section 5A of the Land Acquisition Act, 1894 , was conducted on 03.10.2001. The petitioner appeared before the enquiry and gave his objections in writing. The petitioner raised the objections which were earlier raised in his representation, dated 21.12.2000. After overrulling the objections of the petitioner, a declaration under Section 6 of the Land Acquisition Act was passed in G.O.Ms.No.59 dated 10.12.2001. Challenging the said declaration, the petitioner has filed the present Writ petition. 3. The learned counsel for the petitioner submitted that inasmuch as the parents died much prior to issuance of notification under Section 4(1) of the Act, the entire proceedings initiated against the dead persons are vitiated. According to the learned counsel for the petitioner, the proceedings being void, they cannot be maintained in the eye of law. The learned counsel further submitted that there was an earlier acquisition proceedings in respect of some of the land of the petitioner's family. He further submitted that the family of the petitioner is in requirement of the land acquired and hence this writ petition has to be allowed. In support of his contention, the learned counsel placed reliance of the judgment of this Court rendered in 2002 (1) CTC 28 [ARUMUGHA MUDALIAR S/O. ANGAPPA MUDALIAR REP. BY THE POWER OF ATTORNEY AGENT V.K. CHELLAKUTTI, S/O. KRISHNA GOUNDER, 24, THIRU VI.KA.ST., VILANKURICHI, COIMBATORE-641 085 VS. THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT HOUSING AND URBAN DEVELOPMENT DEPARTMENT, FORT ST. GEORGE, MADRAS – 600 009 AND ANOTHER] and prayed taht the writ petition will has to be allowed inasmuch as the proceedings having been initiated against the present petitioner cannot be sustained in the eye of law. 4. It is seen from the records that notification was issued under Section 4(1) in the name of the petitioner's parents, who are admittedly died at the time of issuance of the said notification. However, the contention of the learned counsel for the petitioner that even prior to the notification, a representation was issued, has been denied in the counter affidavit. Even or otherwise it is seen that the said representation was made prior to the initiation of the proceedings that too to the second respondent. Therefore, considering the above said facts, this Court is not willing to go into the disputed questions of facts which are also not relevant. https://hcservices.ecourts.gov.in/hcservices/ The petitioner has given the objection after the issuance of notification under Section 4(1) of the Act. The petitioner's objection dated 21.12.2000 was referred to the requisitioning body and, thereafter, the petitioner participated in the enquiry conducted under Section 5A of the Land Acquisition Act on 03.10.2001. After considering the objections raised by the petitioner as well as the remarks of the requisition body, Section 6 declaration was made by the first respondent. The above facts indicate that the petitioner has appeared in the enquiry conducted under Section 5-A of the Act and his objections were referred to the requisition body prior to the enquiry. Therefore, the contention of the learned counsel for the petitioner that the notification issued in the name of the dead persons would vitiate the acquisition proceedings cannot be valid. The petitioner is only aggrieved by the issuance of notification under Section 4 (1) in the names of the dead persons. The petitioner had participated in the enquiry conducted under Section 5-A of the Act. The notification issued under Section 4(1) is a preliminary notification, which did not involve any adjudication process. The second respondent is not required to conduct a detailed enquiry before the publication of the notification under Section 4(1) of the Act. The Provisions of the Act have been complied with specifically by the respondents. Hence, this Court is of the opinion that there is no irregularity in the proceedings of the respondents. 5. The judgment rendered by this Court reported in 2002 (1) CTC 28 [ARUMUGHA MUDALIAR S/O. ANGAPPA MUDALIAR REP. BY THE POWER OF ATTORNEY AGENT V.K. CHELLAKUTTI, S/O. KRISHNA GOUNDER, 24, THIRU VI.KA.ST., VILANKURICHI, COIMBATORE-641 085 VS. THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT HOUSING AND URBAN DEVELOPMENT DEPARTMENT, FORT ST. GEORGE, MADRAS – 600 009 AND ANOTHER] is not applicable to the facts of the present case. In the said case, no counter affidavit was filed and finding was rendered to the effect that there is nothing to indicate that the person aggrieved had participated in the enquiry conducted under Section 5A of the Land Acquisition Act. Hence, the facts involved in the present case are totally different. Further, in G.S.GOPALAKRISHNAN AND OTHERS V. GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY, INDUSTRIES DEPARTMENT, FORT ST. GEORGE, CHENNAI-600 009 AND OTHERS reported in [2006 (4) CTC 757] it has been held by the Hon'ble Division Bench of this Court is as follows: "10. A Division Bench of this Court considered, in the case of Savithiriammal v. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 any one 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 judgment may, in such cases, 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 https://hcservices.ecourts.gov.in/hcservices/ 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 v. State of 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 remains to be dealt with is that the order impugned in this case is not enforceable because it was directed against the petitioner's husband, who was dead at the date of the order, besides the other two persons indicated in it who were not concerned with the premises. In our opinion, there is no substance in this contention either. An order like the one passed under Section 6(4)(a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity. But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premises to the so called "lodger" or "paying guest". Admittedly the petitioner's husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation. The fact that the petitioner's husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under Section 13 of the Act should be erased from the order. But even so, it does not affect the enforceability of the same. Section 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a copy of the order to some conspicuous part of the premises in which he is known to have last resided". https://hcservices.ecourts.gov.in/hcservices/ 15. Thus, it could be seen from the law laid down by the Apex Court that a distinction was always maintained between judicial/quasi-judicial proceedings and other proceedings. In so far as the scheme of the Land Acquisition Act, 1894 is concerned, it envisages various types of notices at various stages. Section 4(1) notification is required to be gezetted followed by publication in two dailies having circulation in the locality and a local publication. The opportunity provided under Section 5-A is actually for "persons interested" and not necessarily the land owners. This enquiry is followed by a Section 6 declaration and the Act thus provides innumerable opportunities to "persons interested" in objecting to the acquisition. The Land Acquisition Act does not limit its reach to "owners of land", but enables any person interested in the land to have a say. Moreover, the liability of the acquiring authorities to serve a notice of enquiry is also restricted only to persons whose names find a place in the revenue records. When the Act does not even make it obligatory for the acquiring authorities to conduct a roving enquiry to find out the actual owners, beyond the names reflected in the revenue records, it cannot be expected of the acquiring authorities to find out if the patta holder is alive or dead" 6. Hence, this Court is of the opinion that merely because 4(1) notification was issued in the name of the dead persons the entire proceedings would not be vitiated inasmuch as the petitioner was issued with notice for participating in the enquiry under Section 5A of the Act and his objections were considered before issuing declaration under Section 6 of the Act. 7. The other contention of the learned counsel for the petitioner is that there were earlier proceedings against the petitioner's family and therefore and therefore, the proceedings have to be set aside, also cannot be accepted. Merely because certain lands belonging to petitioner's family were acquired on the earlier occasion, the present proceedings would not get vitiated. Similarly, the fact that the petitioner's family requires the land also cannot be a ground to set aside the proceedings, more so, when the same has been denied by the respondents. In fact, it has been specifically stated by the respondents that the petitioner has sufficient lands belonging to his family in the nearby areas. 8. Hence, this Court does not find any reason to interfere with the acquisition and the Writ Petition is liable to be dismissed. The learned counsel for the petitioner submitted that as https://hcservices.ecourts.gov.in/hcservices/ per proceedings under Section 5A of the Act, the second respondent has stated that the petitioner's case for issuance of house site patta can be considered in future. This is a matter between the petitioner and the respondents. Therefore, while dismissing the writ petition, liberty is given to the petitioner to approach the respondents by making a representation seeking house site patta and as and when such request made then it is open to the respondents to consider the same on merits in accordance with law. Accordingly, the writ petition is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kal To 1. The Joint Secretary to Government, The Government of Pondicherry Revenue Department Pondicherry 2. The Deputy Collector, Land Acquisition, Collector Office Building, Saram, Pondicherry. 1 cc to M/s. P. Ananthakrishnan Nair, Sr. 81609 2 ccs to Sr. Public Prosecutor (Pondy), SR. 81597. 79035 W.P.NO.8088 OF 2002 MS (CO) kk 16/12 https://hcservices.ecourts.gov.in/hcservices/