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Judgment
P. Jyothimani, J.—The writ petitioners challenge the notification issued u/s 4(1) of the Land Acquisition Act, 1894 (Central Act I of 1894)
(in short, ""the Act"") in G.O. Ms. No. 670, Housing and Urban Development Department (LA 2), dated 31.7.1995 and also the declaration u/s 6
of the said Act in G.O. Ms. No. 422, Housing and Urban Development Department (LA 3-2) dated 26.9.1996 in respect of their lands measuring
0.90.5 hectares in S.F. No. 15/2 situate in 19, Vellakinar village, Coimbatore North taluk, Coimbatore District.
According to the petitioners, the notification u/s 4(1) of the Act was published on 31.7.1995 on the basis that the properties were required for
public purpose of formation of Thudiyalur Neighbourhood Scheme. It was published in the Government Gazette on 13.9.1995. Thereafter, Section
6 declaration was issued and published on 27.9.1996. The Tamil Nadu Housing Board is the requisitioning body for the Scheme. The names of the
petitioners were found registered in the land records. In 5A enquiry, the petitioners filed their objections. However, according to the petitioners,
there was no enquiry conducted as per Section 5A of the Act and the objections raised by the petitioners were not forwarded to the requisitioning
authority and the reply from the requisitioning authority has not been communicated to the petitioners and considered. Therefore, according to the
petitioners, the enquiry conducted without notice u/s 5A of the Act is not valid in law.
2(a). It is the further case of the petitioners that 4(1) notification has been issued in the name of Arukutti Gounder, who is the husband of the first
petitioner and father of other petitioners, while Section 6 declaration has been issued in the names of the petitioners as Legal Representatives of the
said Arukutti Gounder. It is also the case of the petitioners that 4(1) notification was issued on 13.9.1995 while Section 6 declaration was made on
26.9.1996 and therefore, it is beyond the period of one year and on that score also, the land acquisition proceedings are liable to be set aside.
2(b). In short, it is the case of the petitioners, as submitted by the learned Counsel for the petitioners, that the properties originally belonged to
Arukutti Gounder, husband of the first petitioner and father of other petitioners who died on 15.7.1988 and the fact of death was brought to the
notice of revenue authorities when the mutation of records was made as early as on 11.2.1994 and therefore, the notification issued u/s 4(1) of the
Act in the Gazette dated 13.9.1995 which is in the name of a dead person is void ab initio.
2(c). The next contention is that the notice for enquiry u/s 5A of the Act was also issued in the name of Arukutti Gounder, but served only on one
of his legal representatives, viz., Kuppusamy on 10.11.1995, wherein he has made an endorsement to the effect that he received the notice as his
father died. However, even thereafter, the respondents have not taken any steps to issue a modified notice u/s 4(1) of the Act.
2(d). On the date of 5A enquiry, viz., 29.11.1995, the Village Administrative Officer has given the details about the land owners in the chart
containing entries relating to mutation of records and even thereafter, no attempt was made to serve notice on all the petitioners who are the
interested persons. Therefore, 5A enquiry without due notice which is a mandatory requirement and the consequential declaration u/s 6 of the Act
are not valid in law.
2(e). The participation of the second petitioner in 5A enquiry will not validate the initial illegality of Section 4(1) notification and therefore, any
award passed will also become invalid. The learned Counsel for the petitioners would also rely upon various judgements viz.,
(i) Bhama Ramamoorthy Vs. The State of Tamil Nadu and Another, ;
(ii) State of Madras and Another Vs. Deivasigamani Pillai, ;
(iii) P.C. Thanikavelu Vs. The Special Deputy Collector for Land Acquisition, Madras and Another, ;
(iv) Mrs. Chinthamani and others Vs. The Special Tahsildar for Land Acquisition and another, ; and
(v) Savithiriammal Vs. The State of Tamil Nadu, to substantiate his contentions.
On the other hand, the learned Additional Government Pleader, by producing the files relating to the land acquisition proceedings, would submit
that locality publication of notification u/s 4(1) of the Act was effected on 6.10.1995 and declaration u/s 6 of the Act was published on 27.9.1996
and therefore, the acquisition is well within the time. It is also her contention that the second petitioner has participated in 5A enquiry on behalf of
the family of the petitioners and he is not a stranger and therefore, it cannot be stated that the enquiry is vitiated. It is also the case of the learned
Counsel for the respondents that the writ petition came to be filed on 16.11.1998, which is much after the award which was passed on 28.9.1998
and therefore, on the ground of laches, the writ petition is liable to be dismissed. She has produced the necessary files.
The learned Counsel appearing for the Tamil Nadu Housing Board would also rely upon various judgements, viz.,
(i) Star Wire (India) Ltd. Vs. State of Haryana and Others, ;
(ii) The Municipal Council, Ahmednagar v. Shah Hyder Beig 2000 (1) Sup 146;
(iii) Urban Improvement Trust, Udaipur Vs. Bheru Lal and Others, ;
(iv) Ramalingam and Others Vs. The State of Tamil Nadu and Others, ;
(v) The Secretary, Tamil Nadu Housing Board Vs. The State of Tamil Nadu and Others, ; and
(vi) S. Harshavardhan and Another Vs. State of Tamil Nadu and Others, ,
to substantiate his contention that the writ petition filed after the award passed has to be dismissed on the ground of laches.
I have heard learned Counsel for the petitioners and the respondents as well as perused the files.
In this case, it is seen that 4(1) notification was published in the Government Gazette on 13.9.1995. That apart, the same has been published in
two newspapers, viz., ''Malai Murasu'' and ''Pirpagal'' on 15.9.1995 and 16.9.1995 respectively. The local publication has been effected on
6.10.1995. As it is seen from the certificates issued by the Executive Officer, Vellakinar Town Panchayat and also the Revenue Officer, Sub
Registrar dated 6.10.1995, apart from the signatures of the residents obtained by the Village Administrative Officer on 6.10.1995, who has also
signed, that 4(1) notification has been published by tom-tom and signatures have been obtained from the residents. Section 6 declaration was
published on 26.9.1996. In view of the above said factual position as found in the files, the contention of the petitioners that the duration between
4(1) notification and Section 6 declaration is more than one year is not sustainable.
In respect of the next contention regarding notice given for 5A enquiry, it is seen that 5A enquiry has been fixed on 28.11.1995 and 5A enquiry
notice has been issued in the name of Arukutti Gounder. It is seen in page No. 95 of the file that the second petitioner, A. Kuppusamy has
received the notice for 5A enquiry with an endorsement that he is receiving the same since his father Arukutti Gounder died. The endorsement has
been countersigned by the official of the Department on 10.11.1995. Page No. 102 of the file which are the particulars furnished by the Village
Administrative Officer contains an endorsement to the effect that since Arukutti Gounder died, his name was removed and the names of his legal
heirs were included in reference No. MTR-2284/94-95 dated 11.2.1994. Therefore, as per the endorsement of the Village Administrative Officer
which forms part of the records, the revenue records have been changed by removing the name of Arukutti Gounder and incorporating the names
of his legal heirs as early as on 11.2.1994 which is much before 4(1) notification dated 13.9.1995. Therefore, on the face of the records produced
by the respondents, it is clear that on the date of 4(1) notification, the factum of death of the owner of the lands viz., Arukutti Gounder was very
much available on record and mutation of records by incorporating his legal heirs had been effected even on 11.2.1994 and in spite of the same, it
is not known as to why the 4(1) notification was issued in the name of a dead person.
That apart, even while receiving 5A enquiry notice, as certified by the officials of the respondents on 10.11.1995, the second petitioner has
himself informed the respondents about the death of original owner, Arukutti Gounder and in spite of the same, the respondents have not taken
steps to issue any modified notification u/s 4(1) of the Act. The contention that the second petitioner being the son has received notice for 5(A)
enquiry in November, 1995 and participated in the proceedings thereafter and waited till the award is passed on 28.09.1998 and moved this
Court in November, 1998 and therefore, he having knowledge about the acquisition proceedings even in 1995, which would make the writ petition
liable to be dismissed on laches is not tenable on the facts of the case stated above regarding the death of the original owner and entry in the
revenue records about his legal heirs.
It is no doubt true that the second petitioner has appeared for the award enquiry and made a statement on his behalf and on behalf of other
petitioners and subsequently, the award came to be passed on 28.9.1998, but the issue to be decided in this case is, on the factual situation as
stated above, whether the issuance of 4(1) notification in the name of a dead person, even after having knowledge about the death much before
4(1) notification is valid in law.
In a similar circumstance, a Division Bench of this Court consisting of P. Sathasivam, J. (as He then was) and V. Dhanapalan. J. in
Savithiriammal Vs. The State of Tamil Nadu, , by referring to various case laws on the subject held that, in such circumstances, the entire
acquisition proceedings are vitiated. The operative portion of the judgement is as follows:
We verified the Section 4(1) Notification, Section 5A enquiry proceedings and Section 6 Declaration. As rightly pointed out, in the Notification
and Declaration, it is stated that Thiruvenkatasamy is the owner of the lands in S. Nos. 267/5 and 268/3. We have already referred to the written
objection filed by the petitioner, who is none else than the daughter of the said Thiruvenkatasamy, to the effect that her father died on 6.3.1987. In
such circumstances, it is but proper on the part of the Land Acquisition Officer to rectify the mistake in all the proceedings including Section 4(1)
Notification. The Notification issued in the name of dead person is a nullity and the proceedings cannot be continued based on the said
Notification.
This Court, in Muthusamy v. State of Tamil Nadu 1993 (1) MLJ 217; V. Devaraj, V. Sundararajan, V. Damodarasamy, Dr. V. Ramachandran
and V. Lakshminarayanasami Vs. The State of Tamil Nadu, ; Miss. Asiya Mariyan Vs. The Secretary to Government of Tamil Nadu. Adi-
Dravidar and Tribal Welfare Department, Fort St. George, Madras and another, ; and in series of other decisions, held that Notice/Notification
issued in the name of dead person and the proceedings with respect to the said lands cannot be sustained. By applying the said principle, we
accept the contention of the learned Counsel for the appellant and quash the Notification issued u/s 4(1), dated 14.6.1995. Consequently, Writ
Appeal is allowed. No costs. Connected Miscellaneous Petitions are closed. It is made clear that the respondents are free to proceed with the
acquisition if they so desire, by initiating fresh proceedings in accordance with law.
A Full Bench of this Court in P.C. Thanikavelu Vs. The Special Deputy Collector for Land Acquisition, Madras and Another, has held that in
5A enquiry if the enquiry officer is informed that the ownership of the land vests in a person not shown in the revenue records, the enquiry officer is
bound to issue notice and hear such person, holding that such non-compliance would invalidate the proceedings, the principles of natural justice
which is in-built in any law. The Full Bench has held as follows:
...In such cases, the statutory enquiry u/s 5A of the Act which has not been dispensed with, would be completed without affording a reasonable
opportunity to the persons who have an existing right in the land under acquisition. Though it is incumbent upon the Revenue to keep their records
up to date by effecting mutation of names reflecting the actual state of affairs by showing the persons really interested in the land in their records,
yet in a few cases it may so happen that the revenue records are not made up to date and the person who is really interested in the land may not
receive any notice from the Collector for the enquiry u/s 5A of the Act. In such cases, if it is brought to the notice of the Collector by the erstwhile
land owner or by any other person including the present owner thereof, of the names of interested persons, the Collector as a statutory functionary
cannot decline to afford an opportunity to the person who is really interested in the land and close the enquiry. When such information it brought to
the notice of the Collector, it is needless to say that the principles of natural justice enjoin upon him an obligation to issue notice to the person who
is found to be really interested in the land even though his name may not be found entered in the revenue records. It is true that the Government has
the prerogative to acquire lands belonging to individuals for a public purpose sanctioned under the theory of ''eminent domain''. But the rule of law
which governs and controls the executive functions in the thread that runs through the fabric of constitutional democracy, the rule of law behoves
the Government to act fairly and reasonably and the principles of natural justice are the quintessence of such fair play and reasonableness. The
decision reported in Padmavathi v. State of Tamil Nadu (1978) 91 MLW 80 does not reflect the true statement of law. The Supreme Court has
held in Swadeshi Cotton Mills Vs. Union of India (UOI), that even in the absence of express reference to observance of principles of natural
justice, such principles should be followed whenever it affects the rights of parties. It cannot be gainsaid that when the lands of an individual are
acquired, albeit he may be paid compensation, his civil rights may be affected. It is therefore elementary that, to be consistent with the principles of
natural justice, such a person should be put on notice before his lands are acquired and his objection heard and considered. The enquiry
contemplated u/s 5A of the Act would be full and complete only when the person who is really interested in the land is put on notice. But, at the
same time, it is made clear that individual notice is mandatory only to those persons whose names are found in the revenue records or who are
found by the Collector as persons interested on information received through reliable source.
That was also the view taken by this Court in Mrs. Chinthamani and others Vs. The Special Tahsildar for Land Acquisition and another, . In
such circumstances, on the factual situation, the reliance placed by the learned Counsel for the Tamil Nadu Housing Board on the judgements of
the Supreme Court regarding laches have no application, even though it is true that the award was passed on 28.9.1998 and the writ petition came
to be filed in November, 1998 and the second petitioner was having knowledge about the proceedings even in November, 1995.
In such circumstances, necessary conclusion which one can come to is to hold that 4(1) notification which has been issued in the name of dead
person even after having the knowledge about the death of owner of the lands, as found in the revenue records, has to be set aside and
accordingly, the 4(1) notification as well as the consequential Section 6 declaration are set aside and the writ petition stands allowed, however,
with liberty to the respondents to initiate fresh acquisition proceedings, if so advised, in accordance with law. No costs.