IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.06.2008 C O R A M THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI W.P.Nos.9241 & 9259 of 1998 and Connected Miscellaneous Petitions A.Unnikrishnan .. Petitioner in W.P.No.9241/98 Sabitha Unnikrishnan .. Petitioner in W.P.No.9259/98 -Vs- 1. State of Tamilnadu rep. by its Commissioner & Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai – 600 009. 2. The Special Tahsildar (L.A.), Housing Scheme Unit I Coimbatore Pin:641 018, Tamil Nadu. 3. The Executive Engineer and ADO, Coimbatore Housing Unit, Coimbatore. .. Respondents in both the WPs. Writ Petitions filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari calling for the records on the file of the 1st respondent relating to the Section 4 (1) Notification published on 14.06.1995 in the Tamil Nadu Government Gazette in G.O.Ms.No.508, Housing and Urban Development Land Acquisition 3(2), 17th May 1995 and Section 6 declaration published on 01.07.1996, in the Tamil Nadu Government Gazette Extra-ordinary part II Section 2 in G.O.Ms.No. BTF, Housing and Urban Development (L.A. 3-1) 28th June 1996 relating to Survey Nos.517/2, and 501/2 respectively at No.19, Vellakinar Village, Coimbatore district, Coimbatore (North) measuring 5.69 Acres and 3.51 Acres respectively and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.A.Sivaji, for Mr.David Tyagaraj For Respondents 1 & 2: Mrs.D.Geetha, Additional Government Pleader For Respondent 3 : Mr.R.Girirajan - - - - C O M M O N O R D E R The petitioners in these writ petitions are the husband and wife respectively. In these writ petitions, the petitioners have challenged the land acquisition proceedings including Section 4(1) Notification dated 14.06.1995, issued under G.O.Ms.No.508, Housing and Urban Development Department dated 17.05.1995 and Section 6 Declaration published on 01.07.1996, relating to the properties of the petitioners in Survey Nos.517/2 and 501/2 at No.19, Vellakinar Village, Coimbatore District, Coimbatore (North) measuring 5.69 acres and 3.51 acres respectively. 2. The property comprised in Survey No.517/2 measuring 2.88 acres with right of pathway in 2.8 meters wide south to north common cart track measuring 14 cents and another property in Survey No.501/2 measuring 3.51 acres with right of pathway in 2.8 meters wide south to north common cart track measuring 14 cents belonged to the petitioner in W.P.No.9241 of 1998, which he had purchased under two sale deeds. Likewise, the property comprised in Survey No.501/2 measuring 3.51 acres with right of pathway in 2.8 meters wide south to north common cart track measuring 14 cents is owned by the petitioner in W.P.No.9259 of 1998, having purchased by her under a Registered Sale Deed. 3. According to the petitioners after their purchase, which was in 1993, the details of transfer has been effected in the village accounts. The said property was purchased for the purpose of putting up an industry and the petitioner in W.P.No.9341 of 1998 has purchased machinery through Tamil Nadu Industrial Investment Corporation, Hosur, worth about Rs.8.3 lakhs for manufacturing agricultural pesticide containers. 4. The petitioners have received notice dated 03.06.1998, received by them on 08.06.1998, under Sections 9(3) and 10 of the Land Acquisition Act, 1894 issued by the second respondent. Only on receipt of the said notice, the petitioners came to know for the first time about the land acquisition proceedings. In the https://hcservices.ecourts.gov.in/hcservices/ said notice, the second respondent has called upon the petitioners to appear for an enquiry on 22.06.1998, for the purpose of passing the Award. Later, the petitioner came to know that 4(1) Notification has been published on 14.06.1995, in the Tamil Nadu Government Gazette in G.O.Ms.No.508, Housing and Urban Development Department, dated 17.05.1995 and Section 6 Declaration has been published on 01.07.1996. 5. The petitioners have filed the above writ petitions challenging Section 4(1) Notification and Section 6 Declaration on various grounds including that 4(1) Notification was not published in the locality publication as contemplated under the Act and therefore, the Notification as well as Section 6 Declaration are liable to be quashed; that no opportunity was given to the petitioners to participate in Section 5(A) enquiry. That apart, the gap between Section 4(1) Notification and Section 6 Declaration is more than one year and therefore, it is liable to be set aside; that the second respondent is aware of the fact that the petitioners are the owners, since the revenue records have been transferred in the name of the petitioners; that the award should be passed within two years from the date of Section 6 declaration and in this case, Section 6 declaration was published on 01.07.1996 and Award notice itself was given on 03.06.1998 and in as much as the Award has not been passed till date even beyond two years and that some of the lands in the same area similar to that of the petitioners has been excluded from the acquisition and therefore taking away the properties of the petitioners violate Article 14 of the Constitution of India. It is the further case of the petitioners that prior approval of the Government has not been obtained for the purpose of Housing Board acquisition as required under Section 3(f)(vi) of the Central Act 1 of 1894. 6. The Tamil Nadu Housing Board, the third respondent in the writ petitions, who is the requisitioning authority, in the counter affidavit has stated that Section 4(1) Notification was approved under G.O.Ms.No.508, Housing and Urban Development Department dated 17.05.1995 and published in the Gazette on 14.06.1995 and it was published in 'Pirpagal' and 'Daily Thanthi' Newspapers on 18.06.1995. That apart, the locality publication was effected on 03.07.1995. The second respondent was authorised to perform the function of the Collector in conducting enquiry under Section 5(A) of the Act. It is stated that draft declaration under Section 6 was approved in G.O.Ms.No.296, Housing and Urban Development Department, dated 28.06.1996, after overruling the objections raised by the land owners, and was published in the Gazette on 01.07.1996 and in two Tamil dailies viz., 'Pirpagal' and 'Malai Murasu' on 02.07.1996 and therefore, https://hcservices.ecourts.gov.in/hcservices/ the gap between Section 4(1) Notification and Section 6 Declaration is within one year. It is also stated that the enquiry under Section 5(A) was conducted by following all the procedures on 25.08.1995 and 18.09.1995 in the Office of the Special Tahsildar (LA), Housing Scheme -I, Coimbatore by giving reasonable opportunity to the owners. 7. According to the third respondent, owners have appeared on the said dates and given statements in writing and the objection raised by the land owners were communicated to the third respondent requisitioning body on 20.09.1995, the third respondent has offered his remarks on the objections on 30.10.1995, stating that it is not possible to exclude the lands. Remarks of the requisitioning body was communicated to the objectors for offering their objections on the date of enquiry to be conducted on 12.12.1995. Further, enquiry was conducted on 12.12.1995 and the petitioners have not appeared. However one Velusamy who is the owner of the adjacent lands appeared for the enquiry and his objections were overruled. The Notice under Sections 9(3) and 10 were served to the land owners and interested persons for Award enquiry under Section 11 of the Act. The Second respondent has conducted the same on 22.06.1998 and land owners and interested persons appeared and draft declaration was approved on 01.07.1996 and writ petitions were filed on 03.07.1998. According to the third respondent, the land acquisition proposal was approved even in the year 1981 and the petitioners have purchased the property without checking the acquisition proceedings. The petitioners have received the Award Notice but they have not appeared in the Award enquiry. The petitioners have been given opportunity but they have not utilised the same and they cannot question the Award. Section 4(1) Notification have been sent to independent owners as per the revenue records and published in the prominent public places. Section 5(A) enquiry was conducted as per law. 8. In the counter affidavit filed by the second respondent, the contentions raised in the counter affidavit of the third respondent has been reiterated. It is also stated that Section 4 (1) Notification has been published in the names of the persons in whose names revenue records stand and locality publication effected as per the rules. Section 5(A) enquiry was conducted in which the petitioners have not chosen to appear and based on the available records and based on the remarks from the requisitioning authority, Section 6 Declaration was passed and thereafter Award came to be passed. https://hcservices.ecourts.gov.in/hcservices/ 9. Heard Mr.A.Sivaji, learned counsel appearing for the petitioners, Mrs.D.Geetha, learned Additional Government Pleader appearing for the Respondents 1 and 2 and Mr.R.Girirajan, learned counsel appearing for the 3rd respondent. The learned Additional Government Pleader has produced the files relating to the acquisition proceedings and I have perused the same. 10. As per the files it is seen that the notification under Section 4(1) of the Land Acquisition Act, 1894 (Central Act 1 of 1894) was issued to a larger extent of 8.81.5 hectares in Survey No.484 etc., in Vellakinar village. The acquisition of land is for the purpose of Tamil Nadu Housing Board, Madras. Draft notification was issued on 17.05.1995, which was published in the Gazette on 14.06.1995. The properties comprised in Survey Nos.517/2 and 501/2 subject matter of dispute in W.P.No.9241 of 1998 have been stated to be in the name of one Doraisamy Naidu. Likewise, the property in Survey No.501/2 subject matter of dispute in W.P.No.9259 of 1998 also stood in the name of Doraisamy Naidu. The said publication of Section 4(1) notification is effected in 'Pirpagal' as well as 'Daily Thanthi' news papers dated 17.06.1995 and 18.06.1995 respectively. The publications are also in the name of Doraisamy S/o Karuppusamy Gounder. The second respondent by letter dated 03.07.1995, has written to the District Collector, Revenue Divisional Officer, Thasildar, Sub- Registrar and Executive Engineer-Housing Board directing them to publish in their notice board. It is also seen that the said authorities have issued certificate on 03.07.1995, indicating that the locality publication has been made on 03.07.1995. 11. Subsequently, Section 6 declaration has been approved and published in G.O.Ms.No.296, dated 28.06.1996. In such circumstances, the first contention raised by Mr.A.Sivaji, learned counsel appearing for the petitioners that there is a gap of more than one year between Section 4(1) Notification and Section 6 declaration is not sustainable. It is seen that the said Section 6 declaration has been published in 'Pirpagal' newspaper on 02.07.1996. Even though it is the case of the respondents in the counter affidavit that the said Section 6 declaration was also published in 'Malai Murasu' dated 02.07.1996, there is nothing on record to show that such publication has been effected in 'Malai Murasu' newspaper. It is also relevant to point out that the learned Additional Government Pleader sought many adjournments for the purpose of getting a copy from the Malai Murasu, but ultimately she was unable to produce the same. Therefore, on record it is clear that Section 6 declaration was published only in Pirpagal newspaper on 02.07.1996. Even the Section 6 declaration stood in the name of Doraisamy Naidu. Certificates https://hcservices.ecourts.gov.in/hcservices/ are issued by various authorities including Collector's office, Village Administrative Office and so on that local publication and Section 6 declaration was published on 02.07.1996. The Award is stated to have been pronounced by the second respondent on 01.07.1998, as it is seen in the files. 12. In this regard it is relevant to point out that publication of Section 6 declaration in two daily newspapers apart from locality publication is a necessary requirement for completion of land acquisition proceedings. Section 6(2) of the Act states as follows: “Section 6. Declaration that land is required for a public purpose: (1)..... (2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.” 13. It is also seen that as per the requirements of Section 3 (f)(vi) of the Land Acquisition Act, 1894 which states as follows: “Section 3(f) the expression 'Public Purpose' includes:- (i)..... (ii)..... (iii)..... (iv)..... (v)..... https://hcservices.ecourts.gov.in/hcservices/ (vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (XXI of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;” The land in this case is required for housing purpose. It is also seen that even the Award proceedings by the second respondent dated 01.07.1998, does not speak anything about obtaining prior approval from the Government. 14. The Special Commissioner in his letter addressed to the Secretary, Housing and Urban Development Department dated 03.01.1994, has stated that Section 4(1) notification has been approved and the same came to be published on approval from the Government. He has also stated that after the Government's approval, documents can be sent to the District Collector. In the said letter in para 4 it is stated as follows: “4. ifafk; bra;ag;gLk; epy';fspy; tpiykjpg;g[s;s fl;Lkhd';fs;. njhg;g[g; gFjpfs; vJt[k; ,y;iy/ nkw;fz;l R {H;epiyapy; nfhak;g[j;J}h; TLjy; khtl;l Ml;rpahpd; ghpe;Jiufis Vw;W 4(1) tiut[ mwptpf;if Kd;bkhHpt[ muR xg;g[jy; mspj;J murpjH; kw;Wk; ,U jpdrhp ehspjH;fspy; gpuRuk; bra;ayhk; vdg; ghpe;Jiu bra;fpnwd;/ ,j;Jld; nfhak;g[j;J}h; TLjy; khtl;l Ml;rpahpd; foj efy; kw;Wk; mjDld; bgwg;gl;l midj;J Mtz';fSk; ,izf;fg;gl;Ls;sd/ muR xg;g[jYf;Fg; gpd;dh; Mtz';fis TLjy; khtl;l Ml;rpaUf;F jpUg;gp mDg;gp itf;FkhW nfl;Lf; bfhs;fpnwd;/ ” However, there is nothing on the file to show that the Government has in fact granted prior approval. There is no averment in that regard by the respondents in the counter affidavits. 15. It is held in H.M.T. House Building Cooperative Society Vs. Syed Khader and others reported in ((1995) 2 SCC 677) that such prior approval of the Government under Section 3(f)(vi) of the Central Act 1 of 1894 is not a mere formality, it is a condition precedent to the exercise of power of acquisition by the https://hcservices.ecourts.gov.in/hcservices/ Government for a housing scheme, since it involves public interest. The Hon'ble Supreme Court has held in para 14 and 19 as follows: “14. In view of the substituted definition of the expression “public purpose”, in Section 3(f)(vi), the provision for carrying out any housing scheme sponsored by the Government or by any authority established by Government for carrying out any such scheme shall be deemed to be a “public purpose”. It further says that the provision of land for carrying out any housing scheme with prior approval of the State Government by a cooperative society within the meaning of any law relating to cooperative societies for the time being in force in any State, shall be deemed to be a “public purpose”. As such for any housing cooperative society lands can be acquired by the appropriate Government, treating the same as acquisition for the public purpose. But, in that event, there has to be a prior approval of such scheme by the appropriate Government. When the lands are acquired for any cooperative society with prior approval of the scheme by the State Government, there is no question of application of the provisions of Part VII of the Act. Such acquisition shall be on the mode of acquisition by the appropriate Government for any public purpose. ................... 19. According to us, in Section 3(f)(vi) the expression ‘housing’ has been used along with educational and health schemes. As such the housing scheme contemplated by Section 3(f)(vi) shall be such housing scheme which shall serve the maximum number of members of the society. Such housing scheme should prove to be useful to the public. That is why Parliament while introducing a new definition of “public purpose”, said that any scheme submitted by any cooperative society relating to housing, must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. If requirement of Section 3(f)(vi) is not strictly enforced, every housing cooperative society shall approach the appropriate Government for acquisition by applying Section 3(f)(vi) instead of pursuing the acquisition under Part VII of the Act which has become more rigorous and restrictive. In this background, it has to be held that the prior approval, required by Section 3(f)(vi), of the appropriate Government is not just a formality; it is a condition https://hcservices.ecourts.gov.in/hcservices/ precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a cooperative society.” It is also stated by the Hon'ble Supreme Court that it is incumbent on the part of the Government while granting approval to examine different aspects of the matter so that it may serve the public interest and it was ultimately held in para 21 as follows: “21.......That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any cooperative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on the part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Sections 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons who had no role in the decision- making process — whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same invalid.” 16. In such circumstances, in the absence of any prior approval from the Government for acquiring the lands for public purpose of putting up housing sites, the subsequent proceedings initiated by the respondents under Section 4(1) and Section 6 of the Central Act 1 of 1894 are necessarily to be held invalid. On this score itself the acquisition proceedings are liable to be set aside. 17. As far as the other point raised by the learned counsel appearing for the petitioners regarding Section 5(A) enquiry, it is seen that mutation of records in the village accounts as well as the revenue accounts has been transferred in the name of the petitioners on 10.08.1995. By that time, Section 5(A) enquiry has already been commenced, therefore that may not be a ground for the purpose of declaring Section 5(A) enquiry as not valid. However since the notification under Section 4(1) and Section 6 declaration are liable to be set aside for the reasons stated above, it means that Section 5(A) enquiry should also go. https://hcservices.ecourts.gov.in/hcservices/ 18. There is one other issue involved in this case namely, whether previous approval of the Government is required for the Collector to pass the Award. Section 11 of the Land Acquisition Act, 1894, deals with enquiry and award by the Collector, which reads as follows: “Section 11. Enquiry and award by Collector:- (1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land at the date of the publication of the notification under section 4, sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of- (i) the true area of the land; (ii) the compensation which, in his opinion, should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him: Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf: Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf. (2) Notwithstanding anything contained in sub- section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in https://hcservices.ecourts.gov.in/hcservices/ writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section (2) shall not, in any way, affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (4) Notwithstanding anything contained in the Registration Act, 1908 (XVI of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act.” Therefore, proviso to Section 11(1) of the Act makes it clear that prior approval of appropriate Government is necessary except in cases where the appropriate Government specifically states the cases where such approval is not required. 19. In view of the requirements of prior approval by the Government before initiating land acquisition proceeding having not been complied with, the general principle that no writ petition would be entertained after passing of the Award is not applicable. In view of the same, the writ petitions stand allowed and Section 4(1) notification dated 14.06.1995 and Section 6 declaration dated 01.07.1996 stands quashed. Consequently, the connected Miscellaneous petitions are also closed. No costs. kk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Commissioner & Secretary to Government, State of Tamil Nadu, Housing and Urban Development Department, Fort St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Special Tahsildar (L.A.), Housing Scheme Unit I Coimbatore Pin:641 018, Tamil Nadu. 3. The Executive Engineer and ADO, Coimbatore Housing Unit, Coimbatore. 1 cc to the Government Pleader, SR.27510 1 cc to the Mr.R.Girirajan, Advocate, SR.27472 ms (co) dv/9.6. PRE DELIVERY ORDER in W.P.Nos.9241 & 9259 of 1998 and Connected Miscellaneous Petitions https://hcservices.ecourts.gov.in/hcservices/