AI Structured Summary
Not yet generated for this judgment
Judgment
N.V. Balasubramanian, J.—The first petitioner is the owner of the land situate in T.S. No. 6/2, Block II, Saligramam Village, Egmore-
Nungambakkam Taluk, Madras District. The first petitioner has constructed a pucca building in the said land. In the year 1981, the first petitioner
was served with a notice under Rule 3 of the Rules framed u/s 55(1) of the Land Acquisition Act by the first respondent calling upon the first
petitioner to file his objection, and to appear for the hearing on 21.10.1981. The notice showed that the land was proposed to be acquired for
constructing a Kalyana Mandapam at Vadapalani by Vadapalani Andavar Temple. The first petitioner filed his objection. There was no further
proceeding. In the year 1984, according to the petitioner, the petitioner received a letter from the first respondent stating that his objections were
overruled and the matter was sent to the second respondent to issue the declaration u/s 6 of the Land Acquisition Act. The first petitioner received
a notice under Sections 9(3) and 10 of the Land Acquisition Act to appear in person or by authorised agent on 12.9.1986 before the first
respondent to submit his statement. According to the first petitioner, he came to know that the land was acquired for the said public purpose at that
time. Therefore, the first petitioner has approached this Court stating that the notification u/s 4(1) of the Land Acquisition Act, was published on
26.8.1981 and the declaration u/s 6 of the Land Acquisition Act was not made before 26.8.1984 and hence, the entire land acquisition
proceedings are liable to be quashed. The first petitioner also stated that there are vacant lands belonging to the said temple and those lands could
be utilised by the respondents for the purpose for which the land is sought to be acquired. The case of the petitioner is that the purpose mentioned
for the acquisition is the construction of Kalyana Mandapam, and the construction of Kalyana Mandapam cannot be regarded as public purpose at
all. The petitioners in the supplementary affidavit have stated that the main object for which the land was sought to be acquired is no more in
existence as Vadapalani Andavar Temple has already constructed two Kalyana Mandapams in the memo and style. ""Valli Thirumana Mandapam
and ""Dheivayani Thirumana Mandapam"" adjacent to the temple and the said Kalyana Mandapam were constructed in the land of an extent of 5
acres.
The third respondent has filed a counter-affidavit wherein it is stated that Shri Vadapalani Andavar Temple is a public religious institution and the
construction of Kalyana Mandapam to the temple is a public purpose. According to the third respondent, construction of a Kalyana Mandapam is
for the benefit of general Public and the notification u/s 4 of the Land Acquisition Act was duly published in the locality. The first petitioner was also
served with individual notice. According to the third respondent, the procedure contemplated under the Land Acquisition Act have been complied
with and there are no merits in the writ petition.
It is significant to note that respondents 1 and 2 have not filed any counter-affidavit.
Mr. N.R. Chandran, learned Senior Counsel for the petitioner submitted that though notification u/s 4(1) of the Land Acquisition Act was
published on 26.8.1981, it was not notified in the locality. According to the learned senior counsel, u/s 4 of the Act, it must be notified in the
Government gazette and it must be published in the common convenient places in the locality. According to the learned senior counsel, the
procedures contemplated under Rule 3 of the Rules framed u/s 55(1) of the Act have not been complied with. According to the learned senior
counsel, the Supreme Court in Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . I has held that the procedures
prescribed u/s 4 of the Act are mandatory in nature and any violation thereof would vitiate the proceedings. He also referred to the relevant pages
in the files produced before me to show that there was no indication that notification was published in the locality. According to the learned
Counsel, since it is a defect found in the records, which was not available to the petitioners, it is open to the petitioners to raise an additional
ground with regard to this, though it was not specifically raised in the affidavit filed in support of the writ petition.
The second submission of the Learned Counsel for the petitioner is that the procedures prescribed under Rule 3(b) of the Rules framed u/s 5(1)
of the Act were not followed. Finally he submitted that the files also indicate that though the award was stated to be passed on 19.9.1986 the
award was passed without the approval of the Government and the award passed without the approval of the Government cannot be regarded as
a valid one in the eye of law, and therefore, the land acquisition proceedings are deemed to have lapsed. Learned Government Advocate on behalf
of the respondents 1 and 2 submitted that the procedures prescribed in the Land Acquisition Act have been fully complied with.
Since the respondents 1 and 2 have not filed the counter-affidavit, ! have perused the records. It is seen, the files K-2/4523/79 are found in two
volumes. In that file, there was a memorandum issued by the special Deputy Collector to the Special Revenue Inspector directing that the notices
u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act'') should be published in the notice board of Land Acquisition
Officer''s Office, Collector''s Office, Taluk Office, SubRegistrar''s Office, con-cerned Police Station and it should be affixed at a conspicuous
place on the spot and the published copy should be submitted to the Office of the Special Deputy Collector. It is found in page No. 95 of the file
Vol. 1. It is seen at page 89, a draft notice u/s 4(1) of the Act was prepared. A perusal of the file does not indicate that the notification was
published in the Notice Board of the Land Acquisition Officer''s Office, Collector''s Office, Taluk Office, etc. There was no compliance report by
the Special Revenue Inspector on the directions of the Special Deputy Collector. The Special Revenue Inspector was directed to forward a served
copy and published copies before 23.9.1981, but, in the files maintained by the respondents 1 and 2. there is no mention that the said Revenue
Inspector has complied with the directions of the Special Deputy Collector. There is no indication that the draft notification was not published in the
locality and in the Public Office, then, according to the decision of the Supreme Court in Collector (District Magistrate) Allahabad and Another Vs.
Raja Ram Jaiswal, . I the entire proceedings are liable to be struck down. The Supreme Court, in the abovesaid decision held as under:
A bare perusal of Section 4(1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein
the land which is needed or is likely to be needed for a public purpose'' has to be published in the Official Gazette. The second part of the sub-
section provides that the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in
which the land proposed to be acquired is situated. Both the conditions are held by a catena of decisions to be mandatory. Whether the second
condition is mandatory or directory is no more res Integra. In Khub Chand and Others Vs. State of Rajasthan and Others, , Subba Rao, C.J.
Speaking for the Court observed that the statutory intention is, therefore, clear, namely, that the giving of public notice is mandatory. If so, the
notification issued u/s 4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant
thereto would by equally void. '' ''while reaching this conclusion, the Court distinguished the decision in Babu Barkya Thakur Vs. The State of
Bombay and Others, , wherein it was held that ""any defect in the notification u/s 4. is not fatal to the validity of the proceedings, particularly when
the acquisition is for a company and the purpose has to be investigated u/s 5A or Section 40 necessarily after the issue of the notification u/s 4 of
the Act"". The Court pointed out that the defect with which the notification in Babu Barkya Thakur''s case suffered was of a formal nature and did
not go to the root of the matter. However, the decision is not an authority for the proposition that if a public notice of the notification was not given
as prescribed by Section 4, it can be ignored. The pertinent observation of the Court is that such an approach would constitute re-writing the
seclion. The Court also referred to Smt. Somavanti and Others Vs. The State of Punjab and Others, and quoted with approval the Statement
therein made that a valid notification under sub sec. (1) of Section 6. This view has been consistently followed and was approved in State of
Mysore Vs. Abdul Razak Sahib, , wherein it was. ob-served that in the case of a notification u/s 4 of the Land Acquisition Act, the law has
prescribed that in addition to the publication of the notification in the Official Gazette, the Collector must also give publicity of the substance of the
notification in the concerned locality. Unless both these conditions are satisfied, Section 4 of the Land Acquisition Act cannot be said to have been
complied with. The publication of a notice in the lo-cality is a mandatory requirement.
In the above decision, the Supreme Court makes it clear that the requirements of publication at convenient places in the locality, and the affixture in
the public places are mandatory and failure to comply with the provisions of the Act would vitiate the entire land acquisition proceedings. Though
the petitioner has not raised this ground specifically, it is seen from the files that the first respondent has not complied with the statutory conditions
prescribed u/s 4(1) of the Act. Since sine quo non of the land acquisition proceedings that is the mandatory provision of Section 4 of the Act were
not complied with as there is no compliance of the provisions of Section 4, the further acquisition proceedings are liable to be struck down. The
facts are available only in the records. The fact that the petitioner has not specifically raised the ground would not make the land acquisition
proceedings valid. It is the duty of the respondents to comply with the provisions of the Act. Where there is non-compliance, the proceedings are
liable to be struck down. Though the learned Government Advocate has referred to the memorandum found in page 95 of the file, Volume-1, it
merely says that notices should be affixed in the no notice board of Land Acquisition Officer''s Office, etc., and it was a direction to the Special
Revenue Inspector. But, there is no compliance report of the Special Revenue Deputy Collector that he has complied with the directions given by
the Special Deputy Collector. Hence, a presumption that all official acts have been done properly cannot be drawn in view of the factual position
disclosed from the files maintained by the respondents. Since there was no compliance of the conditions prescribed u/s 4(1) of the Act, the
notification u/s 6 of the Act are liable to be quashed.
The second point that is urged by Mr. N.R. Chandran, learned senior Counsel is that the notification u/s 4(1) of the Act was published on
26.8.1981, and enquiry u/s 5-A of the Act was held on 21.10.1981 and the first petitioner participated in the enquiry and submitted his objection.
According to the learned Counsel for the petitioners the respondents 1 and 2 should have forwarded the objections raised by the petitioner to the
requisitioning body, and after the remarks of the requisitioning body were obtained, the remarks should have been communicated to the petitioner
and thereafter, an enquiry u/s 5-A of the Act should be conducted to find out the tenability or otherwise of the acquisition proceedings. In the
instant case, according to the learned senior counsel, the petitioner''s objections were not forwarded to the requisitioning body and the remarks of
the requisitioning body were not furnished to the petitioner and there was no further enquiry as contemplated u/s 5A of the Act read with Rule 3(b)
of the Rules framed u/s 55(1) of the Act. He, therefore, submitted that since this Court has repeatedly held that Rule 3(b) is mandatory in nature, if
the mandatory requirements of Rule 3(b) are not complied with, the proceedings under the Land Acquisition Act should be quashed.
I have also perused the records. It is clear from the records that enquiry u/s 5-A of the Act was held on 21.10.1981 and the first petitioner
participated and submitted his objections. The Special Deputy Collector forwarded his remarks to the Government. At page 411 of the file,
volume-I, the Commissioner and Secretary to Government has raised a doubt whether the acquisition of the land for the construction of Kalyana
Mandapam can be regarded as public purpose at all. According to him, since what constitutes a public purpose has not been defined anything in
the Land Acquisition Manual, it is doubtful whether the purpose of construction of Kalyana Mandapam to the temple would come under the
purview of public purpose. However, he forwarded the Collector''s proposal with a request to pass suitable orders. Since the statutory time limit
was running out, the Government has published declaration u/s 6 of the Act. It is seen from the letter of the Joint Commissioner that the proposal
became belated land did not contain all the informations required. Since the statutory time limit was running out within which the declaration should
be published, the Government has approved the declaration, though it was in an in-complete stage and directed the publication of the same. A
perusal of the file clearly shows that the procedures prescribed under Rule 3(b) of the Rules framed u/s 5(1), of the Act were not complied with.
this Court has repeatedly held that Rule 3(b) is mandatory in nature and the non-compliance of Rule 3(b) would vitiate the proceedings after the
stage of the notification u/s 4(1) of the Act.
this Court in the cases of Ramanujam N.D. v. Collector of Madras, & 2 others (1994) 1 L.W. 519 ; Kadirvelu Mudaliar v. State of Tamil
Nadu 1987 W.L.R. 182,; Vembuli Naicker v. State of Tamil Nadu 1993 W.L.R. 324 and in an unreported Judgment dated 9.10.1996 in W.A.
No. 503 of 1996 consistently has taken a view that if there is violation of Rule 3 (b) of the Rules framed u/s 55(1) of the Act, the entire acquisition
proceedings, after the notification u/s 4(1) of the Act are liable to be quashed.
The third objection of the learned senior counsel for the petitioner is that the award was passed without the approval of the Government. I
have seen the copy of the award under Award No. 15/86, found at page 669 of the file, Volume-II. It is not clear from the file that prior approval
of the Government was obtained before passing of the award. The award also does not state that prior approval was obtained or there is also no
indication that the approval was not necessary. As a matter of fact, it is not urged on behalf of the respondents that the prior approval of the
Government was not required for passing the award. Under the first Provise to Section 11 of the Act, no award can be made by the Collector
without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf and
any award passed in violation thereto render the award non est and void as it hinges upon the jurisdiction of the Land Acquisition Collector or
Officer to pass the award. In the eye of law when there is no award passed within the period of two years as contemplated u/s 11-A of the Act,
the entire Land Acquisition proceedings under the Act would lapse. On the facts of the case, it is seen there is no communication available in the
file to show that prior approval of the Government or such officer as the appropriate Government may authorise was obtained before passing of
the award. Since there is no prior approval, it cannot be regarded as an award in the eye of Law. Since an award valid in the eye of law was not
passed within the statutory period prescribed u/s 11 A of the Act, the entire and acquisition proceedings would lapse. The Supreme Court in the
case of State of U.P. and Others Vs. Rajiv Gupta and Another, held that the award passed without the prior approval of the authorities mentioned
in the first proviso to Section 11 of the Act would mean that there was no award made by the Land Acquisition Officer in the eye of law, and
since, Section 11-A of the Act is mandatory in nature, on the expiry of two years from the date of publication, the entire proceedings under the Act
would lapse. Following the decision of the Supreme Court, in theinstant case, since there was no award in the eye of law, the entire land acquisition
proceedings would lapse. In this view, I have taken, it is unnecessary to consider other decisions cited by the learned senior counsel for the
petitioner, namely, Ramalakshmi Ammal, T.A.K.M. v. The Revenue Divisional Officer 1985 W.L.R. 504; Jainulabudeen and Others Vs.
Government of T.N. and Others, and an unreported decision of Kanakaraj, J. in Writ Petition No. 4747 of 1987 dated 21.2.1995. Since there
was non-compliance of the requirements of law under the Land Acquisition Act at every stage of the proceeding, the notification issued u/s 4(1) as
well as the declaration u/s 6 of the Act are liable to be quashed. Accordingly, they are quashed. The writ petition is allowed. Rule Nisi is made
absolute. There will be no order as to costs.