IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.Nos.12927, 14320 of 2009 and 28266 of 2010 Nachimuthu ... Petitioner in all writ petitions. Vs. 1.The District Collector, Salem District, Salem. ...Ist Respondent in all Wps. 2.The Special Tahsildar (LA), National Highways - 7, Unit - 1, Jagirammapalayam, Salem - 5. ...2nd Respondent in W.P.14320, 12927 of 2009 3.The District Revenue Officer (LA), Krishnagiri District, Krishnagiri. ... 3rd Respondent in W.P.Nos.12927/09 & 28266/10 4.The Project Director, National Highways Authorities of India, Office of the Project Director, No.9/11, Second Floor, V.S.A.Complex, Salem - 4. ... 4th Respondents in all Writ petitions 5.The Special District Revenue Officer (LA), (NH7, 46 and 47) Salem and Krishnagiri District, Krishnagiri District. Krishnagiri. ...3rd Respondent in W.P.No.14320 of 2009 6.The special Tahsildar(La) National High Ways -7 Unit -1 Jagirmmapalayam Krishnagiri ...2nd Respondent in W.P.28266/10 https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN W.PNo.12927 of 2009: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records pertaining to the notice in Na.Ka.No.62/2007, dated 06.09.2008 on the file of the 2nd respondent and quash the same and consequently direct the respondents not to acquire the lands of the petitioner's comprised in Survey No.13/11 to an extent of 905 square meter and in Survey No.14/3 to an extent of 155 square meter situated in Kandampatti Village, Salem District without following the procedures contemplated under the National Highways Act and pass such further orders. PRAYER IN W.P.No.14320 of 2009: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records relating to the issuance of the notification in Na.Ka.No.1290/2007 (A1), dated 29.08.2008 issued by the 3rd respondent and quash the same in so far as it relates to Item Nos.34 and 35 of the said notification and consequently direct the respondents not to proceed with the acquisition proceedings in respect of the petitioner's land without following the mandatory provisions contained in the National Highways Act and pass such further orders. PRAYER IN W.P.No.28266 of 2010: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records pertaining to the notice in Na.Ka.1647/2009 (A1), dated 19.11.2010 on the file of the 2nd respondent and quash the same and consequently direct the respondents not to acquire the lands of the petitioner's comprised in Survey No.13/11A to an extent of 905 square meter and in Survey No.14/3A to an extent of 155 square meter situated in Kandampatti Village, Salem District without following the procedures contemplated under the National Highways Act and pass such further orders. For Petitioner in all petitions :Mr.C.Kanagaraj For Respondents in all petitions :Mr.S.Sivashanmugam, GA for R1 to R3 Mr.P.Wilson, SC for M/s.P.Wilson Associates for R4 COMMON ORDER As the facts relating to all the writ petitions are identical, they are disposed of by this common order. 2. When there was a request for acquisition of land for laying service road, which is part of widening and construction of four laning of NH7 in Salem Taluk, the respondents initiated land acquisition proceedings by exercising the provisions of the National https://hcservices.ecourts.gov.in/hcservices/ Highways Act, 1956 and accordingly, a notification under Section 3A (1) of National Highways Act, 1956, was published in the Government of India Gazette vide notification No.331, Part II, Section - 3, Sub- Section (ii) and S.O.No.485(E), dated 13.03.2008 and the same was also published in the local dailies under Section 3A(3) of the National Highways Act, 1956, both in Tamil Daily Thanthi and in the Hindu on 20.04.2008, inviting objections if any from the land owners within 21 days from the date of publication of the notice. 3. Challenging the records pertaining to the notice in Na.Ka.No.62/2007, dated 06.09.2008 on the file of the 2nd respondent, the present writ petition in W.P.No.12927 of 2009 has been filed to quash the same with a consequential direction to the respondents not to acquire the lands of the petitioner comprised in Survey No.13/11 to an extent of 905 square meter and in Survey No.14/3 to an extent of 155 square meter situated in Kandampatti Village, Salem District, without following the procedures contemplated under the National Highways Act. 4. The learned counsel appearing for the petitioner submitted that the landed property comprised in Survey Nos.102/3C and 103/3D bearing patta No.289 covering more than 2 hectares was originally owned and possessed by the petitioner's father, by duly paying necessary taxes and charges to the authorities concerned. Subsequently, the petitioner's father, out of love and affection towards the petitioner, had executed a settlement deed dated 20.12.2005. By virtue of the registered settlement deed, the petitioner has been in possession and enjoyment of the said land and the mutation process was also undertaken and as a result, the petitioner's name has been properly mutated in the revenue records by paying necessary taxes and charges to the authorities concerned in his name in respect of the said property and subsequently, the petitioner's father Muthu Gounder had also died on 08.09.2006 leaving behind the petitioner and his legal heirs to succeed his estate. Only after the death of the petitioner's father, the 2nd respondent had issued a notice in Na.Ka.No.62/2007, dated 06.09.2008 in the name of his father Late Muthur Gounder invoking the provision of Section 3G(3) of the National Highways Act, 1956, proposing to acquire the lands comprised in Survey No.13/11 to an extent of 905 sq. mtr. and in Survey No.14/3 to an extent of 155 sq.mtr. When the 2nd respondent directed the petitioner's father Late Muthu Gounder to appear for an enquiry in the office of the 3rd respondent on 16.09.2008, by submitting his objection if any, on the proposed land acquisition proceedings intended for the purpose of widening the National Highway-7, the petitioner appeared before the 3rd respondent and submitted that his father died on 08.09.2006 and therefore, notice issued in the name of the dead person will not have any statutory force. Therefore, a request was made to issue the notice in the name of the petitioner, since the notice was issued in the name of the dead person. https://hcservices.ecourts.gov.in/hcservices/ Alternatively, it was submitted before the enquiry by the petitioner that the proposed exercise to lay service lane will be a costlier one, as the lands sought to be acquired are private lands and moreover, when an alternative poromboke lands at the opposite side of the NH-7 are available, but, without utilising the said lands, the lands of the petitioner sought to be acquired, which are costlier as of today, that too, without any notice to the interested person, and on that basis, it was again, contended that the same will be violative of the provisions of the National Highways Act. Further, the learned counsel appearing for the petitioner vehemently contended that the impugned notice issued under Section 3G(3) of the National Highways Act by the 2nd respondent in the name of the deceased person, who had died on 08.09.2006, is illegal and violative of the principles of natural justice and hence, the same is liable to be set aside. 5. In his further submission, it was contended that the official attached to the respondents department are now engaged in the process of widening the road for the purpose of laying a service lane without following any of the procedures contemplated under the National Highways Act. At this juncture, if the respondents department are permitted to proceed further, the petitioner would be put to loss and hardship and also the the valuable right of the property will be infringed. Therefore, the learned counsel for the petitioner prayed for an order to restrain the respondents from proceeding further pursuant to the notice dated 06.09.2008 issued by the 2nd respondent under Section 3G(3) of the National Highways Act in the name of the dead person. 6. Per contra, learned counsel appearing for the 4th respondent emphatically argued that the present writ petition is neither maintainable in law nor on facts, for the reason that the petitioner, by participating in the enquiry, had given a statement dated 16.09.2008, accepting the fact that he was well aware of the proceedings initiated by the respondents for acquiring the petitioner's land for laying the service road. Again in another statement dated 16.09.2008, the petitioner had requested the competent authority to pay the compensation in equal proportion to three legal heirs of the deceased, namely, Nachimuth, Krishnamoorthi, Shanmugam. When the petitioner appeared for 3G enquiry and produced relevant documents relating to the above property, it was accepted by the respondent that the land is their ancestral property and there was also a gift deed executed by one Late Muthu Gounder. However, the petitioner's brother, namely, Krishnamoorthi and Shanmugam, who are also two other sons of Late Muthu Gounder, have given an objection petition stating that the case is pending before the Salem Fast Tract Court in O.S.No.129/06 and CRP.No.3487/2008 before the Madras High Court. https://hcservices.ecourts.gov.in/hcservices/ 7. Further, it was contended that the petitioner cannot say that the impugned notice was issued against the dead person under Section 3(C) of the National Highways Act, 1956. After the competent authority issued a notification by way of proper publication in local news papers, any person interested in the land may, within twenty one days from the date of publication of the notification under Sub- Section (1) of Section 3-A, may object to the use of the land for the purpose or purposes mentioned in that sub-section. But, in the present case, the petitioner did not submit his objections as per Section 3(C), however, when the petitioner participated in the enquiry, made a written request dated 16.09.2008 stating that he was aware of the acquisition proceedings and further requested the competent authority to deposit the compensation in three equal share, hence, it is absolutely not open to the petitioner to challenge the notice, that too, after the award was passed. 8. In as much as Section 3(D) of the Act, where no objection under Sub-Section (1) of Section 3-C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in Sub-Section (1) of Section 3-A. When all the above mentioned provisions have been followed, only in view of the pendency of the several suits filed by the petitioner as well as his two brothers, the award has been passed by the competent authority and an amount of Rs.15,51,413/- as well as Rs.2,49,556/- have been deposited in favour of the Sub Court, Salem, therefore, at this juncture, the present writ petitions challenging the 3(G) notification are not maintainable in law, therefore, the same are liable to be dismissed in limine. 9. Heard the learned counsel appearing on either side and perused the materials available on record. 10. After examining the congested junction in Salem Bypass package No.NS/12(TN), and identifying the said crossing is always leading to an accident and causing serious loss to the road users, only to improve the safety and to give proper access to the local people, the National Highways Authority of India proposed to lay service lane by connecting the underpass. Accordingly, by proposing a service road for 990 mtrs. on the eastern side and 665 mtrs on the western side, on the request of the NHAI to acquire necessary lands for laying the service lane, which is part of the widening and construction of four laning of NH7 in Salem Taluk, the land https://hcservices.ecourts.gov.in/hcservices/ acquisition proceedings were initiated under the provisions of the National Highways Act, 1956, to acquire the land to an extent of 2120 sq.mtrs. including land in S.No.14/3 to an extent of 905 sq. mtrs, which is belonged to the petitioner. Accordingly, a notification under Section 3A(1) of National Highways Act, 1956, was published in the Government of India Gazette vide notification No.331, Part II, Section - 3, Sub-Section (iii) and S.O.No.485(E), dated 13.03.2008, and the same was also published in the local dailies under Section 3A (3) of the National Highways Act, 1956, in two local news papers on 20.04.2008, inviting objections, if any, from the land owners or person interested within 21 days from the date of publication of the notice. 11. In this context, it is useful to refer Sections 3-A, 3-C and 3D(1), which are extracted as under:- 3-A. Power to acquire land, etc. - (1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. (2) Every notification under Sub-Section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. 3-C. Hearing of objections -- (1) Any person interested in the land may, within twenty one days from the date of publication of the notification under sub-section (1) of Section 3-A, object to the use of the land for the purpose or purposes mentioned in that sub-Section. (2) Every objection under Sub-Section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. (3) Any order made by the competent authority under sub-section (2) shall be final. 3-D. Declaration of acquisition -- (1) where no objection under Sub-Section (1) of Section 3-C has been https://hcservices.ecourts.gov.in/hcservices/ made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in Sub- Section (1) of Section 3-A. Since the above provisions under the National Highways Act, do not contemplate any individual notice to be given to the owners of the land, it is only the person who are interested in the land, after the publication of the notification in the local newspapers, shall come forward on their own with objections, if any, within 21 days from the date of publication of the notification under Sub-Section(1) of Section 3-A. In the present case, admittedly, there was no objections made within 21 days from the date of publication, therefore, the question of no notice was served upon the petitioner, but only notice was served upon the dead person, namely, his father Late Muthu Gounder, will not hold any reason. 12. Further, the records produced by the respondent reveals that on 16.09.2008, the petitioner appeared for 3(G)3 enquiry and also produced the relevant documents relating to the property. The petitioner, in his written statement dated 16.09.2008 filed before the competent authority, has specifically admitted that he was well aware of the land acquisition proceedings initiated under the Act and by another statement dated 16.09.2008, he has also requested the competent authority to pay the compensation in equal proportion to three legal heirs of the deceased, namely, Nachimuth, Krishnamoorthi, Shanmugam. Having made such a written statement with a request to pay the compensation in three equal amount, it is too late for the petitioner to challenge the impugned notice dated 06.09.2008. 13. Further, after hearing the petitioner as well as his brothers, the Competent Authority and the Special District Revenue Officer, Krishnagiri, passed an award vide Roc.No.1290 of 2007, dated 18.05.2009 under Section 3H(1) of the National Highways Act, 1956, and ordered to deposit the compensation amount of Rs.15,51,413/- in respect of the petitioner's land to an extent of 905 sq.mtrs in S.No.13/11-A in favour of the Sub Court, Salem and Rs.2,49,556/- in respect of the petitioner's land to an extent of 155 sq.mtrs. in Sl.No.14/3A in favour of the Sub Judge, Sub Court, Salem and accordingly, the same have been deposited in pursuant to the said order. Therefore, this Court does not find any substance in the present writ petition and it is only for the petitioner to approach the Civil Court after the disposal of the pending Civil Suit for payment of the above mentioned amount, which are deposited by the competent court. https://hcservices.ecourts.gov.in/hcservices/ 14. Even on the question of issuance of notice, this Court directed the respondent to file an affidavit to find out the ownership of the land mentioned in the revenue records and in pursuant to the said order, additional counter affidavit has been filed, which says that the Town Survey No.13/11B and Town Survey Number.14/3B bears the name of Muthu Gounder S/o.Karuppa Gounder as on 03.12.2010. 15. In this context, if we look at the judgment of the Apex Court in the case of Sureshchandra C.Mehta Vs. State of Karnataka and Others (1994 Supp (2) SCC 511), especially paragraph 4 of the judgment, which clearly states that the land acquisition authority shall serve a notice on every person, whose name appears in the assessment list of the local authority or in the land revenue register and is primarily responsible to pay land revenue assessment on any land or building which is proposed to be acquired for executing the scheme. While emphasising the importance of the issuance of notice as a condition precedent, it is held that the authority is not required to make roving enquiry as to who is the person entitled to a notice. 16. Similarly, a Division Bench of this Court in the case of G.S.Gopalakrishnan and others Vs. Government of Tamil Nadu (2006(4) CTC 757), has held in paragraph 15 and 17 as follows:- 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 gazetted 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 'person interested' and not necessarily the land owners. This enquiry is followed by a Section 6 declaration and the Act thus provides innumerable opportunities to "person interested" in objected 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 17. Therefore, in our considered opinion, the normal principle that proceedings against a dead person are a nullity, cannot be imported to proceedings under the Land Acquisition Act, 1894, unless it is established that the factum of death was brought to the notice of the acquiring authorities at the appropriate stage. Hence, the order of the learned Judge does not call for any interference and the Writ Appeal is dismissed without any order as to costs. Consequently, connected W.A.M.P. is also dismissed. As per the ratio laid down by the Division Bench of this Court, the impugned notice issued against the dead person is a nullity, cannot be accepted in favour of the petitioner, in view of the petitioner's own statement dated 16.09.2008, accepting the fact that he was aware of the land proceedings initiated under the Act and his subsequent request for payment of compensation in three equal share to the petitioner and two of his brothers. 17. Further, the Apex Court in the case of W.B.Housing Board and others Vs. Brijendra Prasad Gupta and others ((1997) 6 SCC 207) has held in paragraph 8, which is extracted as under:- 8. The principal question that arises for consideration is if it were the writ petitioners who were entitled to notice under Section 3(2) of the Act or that this provision stood complied with by serving notice on the recorded owners of land in the Record of Rights maintained under Section 50 of the West Bengal Land Reforms Act. We are of the view that the provisions of service of notice stood complied when notices were served on the persons recorded as owners in the Record of Rights. Record of Rights is a statutory document maintained by the prescribed authority under Section 50 of the Act and it is a notice to the public at large as to who are the owners of the land in the records of the authorities. That would be the reason as to why the writ petitioners themselves applied for mutation of the lands in their names in the year 1990 when in fact they had purchased the same in 1988. Under Section 3 of the West Bengal Land https://hcservices.ecourts.gov.in/hcservices/ Reforms Act, 1955, the Act overrides other laws if there is anything inconsistent with what is stated in the Act. Section 50 of the Act provides for maintenance of the Record of Rights by the prescribed authority by incorporating therein the changes on account of mutation of names as a result of transfer or inheritance or partition, exchange etc. Under sub-section (9) of Section 51- A every entry in the Record of Rights shall be presumed to be correct until it is proved that the entry in the Record of Rights is incorrect, proceedings for that, however, will have to be initiated under the Act itself. Otherwise there is every presumption about the correctness of the Record of Rights. As noted above mutation was effected in September 1995. The Division Bench has observed that the Collector would have been aware of the pendency of the applications of the writ petitioners for mutation of lands in their names when the same were pending in his office. The Bench in effect observed that it was a case where the right hand did not know what the left hand was doing. This observation sounds good, but knowing the working of the government offices it appears to have no place. Of course, the Collector could have asked for a report from the prescribed authority concerned if any application for mutation of the land was pending with him. But that would be expecting too much from the Collector. It is no part of the duty of the Collector to make a roving inquiry into ownership of the persons. We are of the opinion that the requirements of the law were met when notices were served upon the recorded owners as per the Record of Rights. Again we do not think in a case like the present one, it is for the Collector to make enquiries from the registration office to find out if the land had since been sold by the recorded owners. In Winky Dilawari v. Amritsar Improvement Trust1 this Court observed that the public authorities were not expected to go on making enquiries in