IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.9432 and 9433 OF 1997 and connected miscellaneous petitions. Dhandapani ` .. Petitioner in WP.9432 of 1997 Karunaiammal .. Petitioner in WP.9433 of 1997 vs. 1.The State of Tamil Nadu rep. By Secretary to Govt. Dept. Of Housing & Urban Development (L.A.3) Fort St.George, Chennai 9. 2.The Special Thasildar (LA) Housing Scheme, Unit II Collectorate, Coimbatore 18. 3.The Executive Engineer & Administrative Officer Coimbatore Housing Unit Tamil Nadu Housing Board Coimbatore. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari as stated therein. For petitioners : Mr.C.V.Vijayakumar for Mr.T.R.Rajaraman For respondents : Mrs.D.Geetha Addl.Govt. Pleader for R.1 & 2 Mr.R.Girijaran for R.3 .. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER In these writ petitions notifications issued under Section 4(1) of the Land Acquisition Act,1894 (Central Act) (in short, "the Act") in G.O.Ms.No.638 Housing and Urban Development [L.A.3(2)] Department dated 18.07.1995 is challenged by the petitioners in respect of their lands to an extent of 1.72 and 2.58 acres comprised in Survey Nos.295/1, 296/2 and 296/5 and 296/2B, 296/5B, 295/1 and 296/5 in Kalapatti village, Coimbatore District. 2. The petitioners in these writ petitions are the owners of the above said extent of lands and after purchase, they have been in possession of the said lands. Land acquisition proceedings under the Act has been initiated by the respondents to acquire lands to an extent of 14.00.5 hectares in Kalapatti Village for the purpose of construction of houses under Neighbourhood Scheme. Notification under Section 4(1) of the Act was issued in G.O.Ms.No.190 dated 25.02.1994, however, it was published after four months in the Tamil Nadu Government gazette on 15.06.1994. 2(a). The second respondent was appointed by the Governor to discharge the functions of the Collector under Section 5-A of the Act. The second respondent has also conducted enquiry under the said provision in September,1994. The petitioners were present on the date of enquiry and have made their objections orally as well as in writing that the acquired lands are the only livelihood for them and they are small farmers. 2(b). According to the petitioners, the second respondent has not forwarded the remarks of the requisitioning authority, viz., the third respondent, Housing Board on the objections made orally as well as in writing, recorded by the second respondent as per the procedure. The second respondent, after obtaining remarks from the requisitioning authority, should have forwarded the same to the land owners/interested parties and conducted another enquiry if necessary. By not forwarding the remarks of the requisitioning authority, the petitioners valuable right in giving objections properly has been affected. 2(c). According to the petitioners, they were not aware of the subsequent declaration passed under Section 6 of the Act during the year 1995. Fresh applications were invited for issuance of patta to landowners and the petitioners were issued patta in respect of the above said lands on 01.12.1995. Therefore, the petitioners were under the bona fide impression that the land acquisition proceedings were dropped. It was only after the notice was received in award proceedings during the first week of June,1997 for enquiry dated 18.06.1997, called by the second respondent, the petitioners came to know about Section 6 declaration passed by the respondents on https://hcservices.ecourts.gov.in/hcservices/ 18.07.1995 in G.O.Ms.No.638. 3. The land acquisition proceedings are challenged on various grounds including, (i)Between 4(1) notification and 6 declaration, there has been a gap of one year and five months and therefore, the declaration issued under Section 6 of the Act is vitiated; and according to the petitioners, the delay in approaching the Court is due to the reason that they were issued patta by the Revenue Department in the year 1995; (ii)The second respondent has not followed the procedure for conducting enquiry under Section 5-A of the Act by forwarding the remarks of the requisitioning authority, viz., the third respondent on the objections made by the petitioners for further enquiry; (iii)While notification under Section 4(1) was issued in G.O.Ms.No.190 dated 25.02.1994, the same was published in the gazette after four months, viz., on 15.06.1995; and (iv) After the date of declaration under Section 6 viz., 18.07.1995, pattas were issued to the petitioners by the Revenue Department in respect of same properties on 01.12.1995. 4. The third respondent, requisitioning authority, viz., Coimbatore Housing Unit of Tamil Nadu Housing Board in its counter affidavit has stated that the Executive Engineer and Administrative Officer of the Coimbatore Housing Unit has requested for acquisition of lands in Kalapatti village for the construction of houses under Kalapatti Neighbourhood Scheme. It is also admitted that notification under Section 4(1) of the Act was approved in G.O.Ms.No.190 dated 25.02.1994 and the same was published on 15.06.1994. 4(a). It is the case of the third respondent that the substance of the said 4(1) notification was also published in two Tamil dailies, viz., "Dhinamalar" on 17.06.1994 and "Vetrimalai" on 18.06.1994 and the locality publication was effected on 20.07.1994; enquiry under Section 5-A of the Act was conducted in the Office of the second respondent on 12.09.1994, after observing all legal formalities and service of notice under Section 55(1) of the Act. The objections filed by the interested persons were forwarded to the Executive Engineer and Administrative Officer, viz., the requisitioning authority and the remarks received from the Executive Engineer and Administrative Officer were communicated to the interested parties. 4(b). Thereafter, draft declaration under Section 6 of the Act was approved in G.O.Ms.No.638 Housing and Urban Development Department dated 18.07.1995 and published in the gazette notification on 19.07.1995; the substance of the 6 declaration was published in two Tamil dailies, viz., "Makkal Kural" and "Vetrimalai" on 20.07.1995 and the locality publication was effected on 16.08.1995. Notices under https://hcservices.ecourts.gov.in/hcservices/ Sections 9(3) and 10 of the Act were served on the persons interested and notice under Section 9(1) was published on 18.05.1997 in the prescribed manner. The award enquiry under Section 11 of the Act was conducted by the second respondent and award has been passed on 17.07.1997 in Award No.9 of 1997. It was at that stage, the above writ petitions came to be filed. 4(c). It is the case of the third respondent that as per the award, the notified persons are, Arumuga Gounder, S/o.Palani Gounder, Kasthuri Naidu S/o.Rama Naicker and Tmt.Saraswathi W/o.Nanjappa Konar. It is the case of the third respondent that the petitioners have purchased the lands without verifying the land acquisition proceedings and according to the said respondent, the lands are not useful for agricultural operations. It is the case of the third respondent that the objections raised by the petitioners during the time of enquiry under Section 5-A of the Act, were only general in nature and the requisitioning authority, viz., the Tamil Nadu Housing Board has rejected the objections of the petitioners and the said opinion of the requisitioning authority has already been communicated to all land owners. 4(d). The contention of the petitioner that between 4(1) notification and 6 declaration, time taken by the respondents is more than one year is also denied. In this regard, it is stated that the locality publication of notification under Section 4(1) of the Act was made on 20.07.1994 and the declaration under Section 6 was made on 18.07.1995 and published in the gazette on 19.07.1995 and therefore the same is within the period of one year. The award has been pronounced on 17.07.1997 and the writ petition is filed only to drag on the proceedings. 5. Mr.C.V.Vijayakumar, learned counsel appearing for the petitioners would submit that the locality publication of notification under Section 4(1) of the Act stated to be made on 20.07.1994, is not correct. According to him, even by taking the publication of notification under Section 4(1) in two Tamil dailies, viz., "Dhinamalar" and "Vetrimalai" on 17.06.1994 and 18.06.1994 respectively, in the absence of any proof to show that the locality publication was made more than one month thereafter, viz., on 20.07.1994, the declaration under section 6 of the Act passed on 18.07.1995 is clearly beyond one year period and therefore, the acquisition proceedings are liable to be set aside. 5(a). It is his further contention that enquiry under Section 5-A of the Act was conducted on 12.09.1994 and it was only thereafter, the objections of the petitioners were referred to the requisitioning authority, viz., third respondent, who has given its remarks on 13.12.1994, and after such remarks of the requisitioning authority only enquiry under Section 5-A should have been conducted in which https://hcservices.ecourts.gov.in/hcservices/ case, the petitioners would have an opportunity of raising oral objection about the remarks of the requisitioning authority, whereas in this case, the second respondent has not conducted any enquiry under Section 5-A of the Act after the requisitioning authority submitted its remarks on the objections of the petitioners. Therefore, according to him, the enquiry is vitiated. He would also submit that the award was passed on 17.07.1997 within one month from the date of filing of the writ petitions viz., 26.06.1997 and according to the learned counsel for the petitioners, there was an interim order of dispossession and therefore, the award passed subsequent to filing of the writ petitions will not validate the enquiry, which has been conducted against the provisions of the Act. 6. On the other hand, Mrs.D.Geetha, learned Additional Government Pleader appearing for respondents 1 and 2 and Mr.Girirajan, learned standing counsel for the third respondent Housing Board would submit that the locality publication under Section 4(1) of the Act was effected on 20.07.1994 and 6 declaration was approved on 18.07.1995 and within one year the declaration was made and therefore, the notification is perfectly valid. It is also their submission that notice dated 18.08.1994 for enquiry under Section 5-A of the Act was served on the petitioners on 18.08.1994 itself and the petitioners have submitted objections on 12.09.1994 and the same were considered in the enquiry conducted on the same day. 6(a). According to them, the remarks obtained from the third respondent, requisitioning authority on 13.12.1994 on the objections of the landowners, viz., the petitioners were only for the purpose of enabling the second respondent, Special Tahsildar to prepare his proceedings in order to finalise the 6 declaration process and the remarks obtained from the requisitioning authority need not be communicated to the petitioners. According to them, after the enquiry was conducted under Section 5-A of the Act on 12.09.1994, the objections of the petitioners were sent to the third respondent Housing Board, which in its turn has sent its remarks on 13.12.1994, which were in fact communicated to the petitioners on 22.12.1994 and thereafter, the second respondent has submitted his proceedings dated 20.01.1995 to the Collector and therefore, according to her the entire proceedings are perfectly in order. The learned Additional Government Pleader has also produced files relating to land acquisition proceedings for perusal by this Court. 7. In respect of the first point raised by the petitioners is that between 4(1) notification and 6 declaration, the period taken by the acquisition authorities is more than one year and therefore, the declaration becomes invalid under Section 6(1)(ii) of the Act. The said section states that no declaration in respect of land covered in the notification under Section 4(1) published after the commencement of the Land Acquisition (Amendment) Act,1894 shall be made after the https://hcservices.ecourts.gov.in/hcservices/ expiry of one year from the date of publication of 4(1) notification. For the purpose of computing the period of one year, the date of last mode of publication of 4(1) notification has to be taken into consideration. 8. It is the admitted case of the petitioners and respondents that in respect of these cases, 4(1) notification has been approved in the gazette on 25.02.1994 while the gazette publication was made on 15.06.1994. Before considering the point raised, it is better to refer section 4(1) of the Act which prescribes that a notification to the effect that it appears to the appropriate Government that the land in a locality is likely to be needed for public purpose, should be published in the official gazette. There is no distinction between approval of 4(1) notification in the gazette and the gazette notification. What is required is date of gazette notification published in the official gazette, which is the starting point of 4(1) notification. Therefore, the contention of the learned counsel for the petitioners that the Government has approved the 4(1) notification on 25.02.1994 in G.O.Ms.No.190 and the gazette notification was issued on 15.06.1994, and hence, there is a gap of four months, which would vitiate the notification issued under Section 4(1) of the Act, is unsustainable. In this case, the date of the gazette publication of 4 (1) notification which is 15.06.1994 which has to be taken as starting point of the acquisition proceedings. 9. It is not in dispute that 4(1) notification has been published in two Tamil dailies circulated in the locality, viz., "Dhinamalar" dated 17.06.1994 and "Vetrimalai" dated 18.06.1994, and the same is only after the gazette publication dated 15.06.1994. The learned counsel appearing for the petitioners has questioned that there is no locality publication, which is also a necessary ingredient under Section 4(1) of the Act, which states that after the official gazette notification, the same should be published in two newspapers circulated in the locality and it is the duty of the Collector to cause public notice of the substance of such notification to be made at convenient places in the locality. Therefore, in addition to the said two modes, the locality publication is also a necessary ingredient. 10. Rule 2 of the Land Acquisition (Tamil Nadu) Rules framed by virtue of the powers under Section 55(2) of the Act is as follows: " Rule 2.- The Collector shall cause public notice of the substance of the notification under sub-section (1) of section 4 in Form 'A'. The notice shall be published at convenient places in the locality and copies thereof fixed up in the offices of the Collector and the Tahsildar." A reference to the file produced by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ respondents in fact shows that such local publication has been effected on 20.07.1994, which is evident by the certificate of the Village Administrative Officer, Revenue Inspector, Zonal Deputy Tahsildar and Revenue Divisional Officer and also Form 'A' affixed in the office of Tahsildar with the signatures of many of the local residents dated 20.07.1994 and on the factual situation, the 6 declaration itself was notified in the gazette notification on 19.07.1995 and therefore, the period between these two within one year and on that ground the acquisition proceedings cannot be held invalid. 11. About the next facet of the contentions raised by the learned counsel for the petitioners that enquiry under Section 5-A of the Act was not conducted by the second respondent Tahsildar in accordance with law. Before going into the legal aspect, some of the factual aspects are to be ascertained from the records available. It is not in dispute that notice dated 18.08.1994 in Form No.B for enquiry has been issued by the second respondent under Section 5-A of the Act, fixing the date of enquiry as 12.09.1994. It is seen that on 12.09.1994, both the petitioners in these writ petitions have given their statements before the second respondent, raising objections. The main objection given by the petitioners is that the subject matter of the lands under acquisition are their only source of livelihood, since the petitioners are small farmers living in the said lands by putting up houses. 12. It is also seen that based on the letter of second respondent dated 12.10.1994 addressed to the third respondent, requisitioning authority, which is the Tamil Nadu Housing Board, the third respondent has submitted a statement by way of answer to the objections raised by the petitioners in his letter dated 13.12.1994. The said answer of the requisitioning authority to the objections as it is seen in the file is as follows: https://hcservices.ecourts.gov.in/hcservices/ "COIMBATORE HOUSING UNIT FROM TO C.P.SUBBANNAN,B.E.,M.I.E., The Special Tahsildar(LA) The Exe.Engr. & Admn. Officer Housing Scheme No. Coimbatore Housing unit Coimbatore 18. Tatabad, HUDCO Colony COIMBATORE 12. ------------------------------------------------------------ Lr.No.LI/8297/91 Dt.13.12.94 Sub:Housing – Coimbmatore Housing Unit – Kalapatty Village S.F.No.295/1, 296/2B, 296/5, 296 5A Enquiry Objection petition of Tvl.Karuniammal, 2.Dhandapani,3.A.Mani, 4.R.Sundaram, 5.Narayanasamy. Ref:Your Lr.No.929/88 dt.12.10.94. .. The objection raised by the petitioners are common nature. The lands are situated at vantage point and required for the proposed Neighbourhood Scheme. The lands are absolutely necessary for the formation of the (Kalapatty N.H.Scheme). Hence the exclusion of these lands will adversely affect the comprehensive nature of the layout. If the petitioner desires to have an allotment he may apply in the prescribed application form at the appropriate time and allotment will be considered as per the allotment rules of the Tamil Nadu Housing Board. Necessary compensation will be paid for the lands and structures. Hence the land owners objection may be over ruled and the lands may please be acquired and handed over to Tamil Nadu Housing Board for the early implementation of the proposed Neighbourhood schemes." 13. It is also seen in the file that the second respondent along with his letter dated 22.12.1994 addressed to the petitioners has enclosed the answer given by the third respondent dated 13.12.1994. The relevant portion of the letter of the second respondent dated 22.12.1994, enclosing the answer by the requisitioning authority is as follows: https://hcservices.ecourts.gov.in/hcservices/ ",t;tYtyfj;jpy; 12/9/94 md;W eilbgw;w 5V tprhuizapd; nghJ jh';fs; bfhLj;j Ml;nrgiz kD epyk;nfhUk; JiwapdUf;F mDg;gp itf;fg;gl;Ls;sJ/ mk;kD kPjhd epyk; nfhUk; Jiwapdhpd; Fwpg; [giuia ,j;Jld; j';fSf;F mDg;gpa[s;nsd;/ " 14. It was thereafter, the second respondent has prepared his proceedings dated 20.01.1995 in reference No.929/88 and considering the objections of the petitioners, including the statement recorded on the date of enquiry, viz., 12.09.1994 apart from the requisitioning authority's reply dated 13.12.1994, the second respondent, ultimately in his report submitted to the Collector, has stated as follows: " The objections are general in nature. Hence the above objections needs no consideration and are rejection. As regards the higher value demanded by some of the land owners they will be awarded value according to the prevailing market value based on the sale deeds. Hence the objections are over-ruled in keeping in view of the circumstances explained above and the lands may be acquired. The publication of draft declaration is recommended." It is thereafter, the publication of 6 declaration was made in the gazette notification on 19.07.1995. 15. Therefore, on facts elicited above, based on the perusal of the file, it is clear that after 12.09.1994, the date on which he has obtained statements in the form of objections from the petitioners, there is no record to show that the second respondent has conducted any enquiry. It is also not the case of the second respondent that after 12.09.1994, he has conducted any enquiry. Therefore, only after completion of the enquiry under Section 5-A of the Act, the second respondent has sent the objections of the petitioners to the third respondent by his letter dated 12.10.1994. Thereafter, the third respondent has submitted his answer to the objections of the petitioners to the second respondent on 13.12.1994 and considering the objections of the petitioners and the answer given by the third respondent, the second respondent has prepared his proceedings dated 20.01.1995 and sent it to the District Collector for recommending 6 declaration. 16. The contention of the learned counsel for the petitioners is that the second respondent ought to have conducted enquiry under Section 5-A of the Act after the third respondent has submitted his answer to the objections of the petitioners, in which case, the petitioners also would have got opportunity to object about the answer given by the requisitioning authority and in the absence of such https://hcservices.ecourts.gov.in/hcservices/ opportunity given to the petitioners, the enquiry stated to have been conducted by the second respondent under Section 5-A of the Act is not valid in law. 17. The provisions regarding hearing of objections under Section 5-A of the Act are as follows: " 5-A. Hearing of objections.-(1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government.] The decision of the [appropriate Government] on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.]" 18. A reading of the said section makes it clear that it is the duty of the Collector to give objectors an opportunity of being heard. In cases where the owners or persons interested have submitted their objections within 30 days from the date of publication of notice under Section 4(1) of the Act, while considering the scope of the enquiry contemplated under Sections 5-A of the Act and also the scope of Rule 4(b) of the Land Acquisition (Tamil Nadu) Rules, a Full Bench of this Court presided over by P.Sathasivam,J.(as he then was) in Sharp Tools, Kalapatty Village, Coimbatore rep. By Managing Partner K.K.Ramasamy and others vs. State of Tamil Nadu (2006 (4) MLJ 1460), laid down the following principles, after elaborately considering the relevant provisions of the Act and case laws on the subject: " 12. As could be seen, we have elaborately considered the relevant provisions and the case laws, and dealt with various aspects very broadly in view of the complexity involved in the issue. Now, let us sum up the principles standing as https://hcservices.ecourts.gov.in/hcservices/ answer to the question referred, (I) Objections to the acquisition are to be submitted by the persons interested in the lands within 30 days from the date of publication of the notification as provided by sub- section (1) of Section 5-A of the Act. (II) The 30 days' period is to be reckoned from the last mode of publication as contemplated under Section 4(1) of the Act. (III) In all cases where objections are filed within 30 days as provided under Section 5-A(1); hearing the objectors and Department/Company and further enquiry are mandatory. (IV) The Collector shall have to fix the date of hearing the objections. He has to give notice in Form 'B' to the objector as well as to the Department. The Department or company may file a statement by way of answer to the objections before the date fixed by the Collector. The Department may also depute their representative to attend the enquiry. (V) If objections are not filed within the time, but the person interested/land owners appears before the Collector pursuant to the notice in Form 'B' and makes any objection orally, it is incumbent on the part of the Collector to hear the objector, however, conducting further enquiry is not obligatory but it is only a discretion of the Collector. To put it clear, 'personal hearing' is mandatory and 'further enquiry' is discretionary depending upon the submission of objections within 30 days of the last mode of publication. (VI) Rule