R.RAJENDRAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Four petitioners have jointly filed this single writ petition seeking issuance of a writ of certiorari, to call for the records relating to G.O.Ms.No.1177, Housing and Urban Development Department dated 29.12.81 and published in the Tamil Nadu Government Gazette dated 2.2.82 in Supplement No.4A part Section 2 in issuing the notification under Section 4(1) of the Land Acquisition Act, 1894 as amended therein and the G.O.(Nilai) No.283, Housing and Urban Development Department dated 10.7.2000 in issuing the declaration under Section 6 of the Act and the notice dated 22.4.2002 issued by the Special Tahsildar (Land Acquisition) Housing Scheme No.III, Coimbatore, the second respondent herein under Sections 9(3) and 10 of the said Act so far as the petitioners lands are concerned and situated in S.F.No.86/1A, Veerakeralam Village, Coimbatore Taluk and District in an extent of 1.22.0 Hectares of lands and to quash the same.

(2.) Mr.R.Sivaraman, learned counsel for the petitioners submitted that the punja land in question having an extent of 3.02 acres covered in S.F.No.86/1A, Veerakeralam Village, Coimbatore Taluk originally belonged to one Tmt.Nallakkammal, the mother of the third petitioner and grandmother of the other petitioners herein. After the purchase of the said property in the year 1938, she was in exclusive possession and enjoyment of the land till her death on 6.9.2002. During her lifetime, she had executed a registered Will dated 2.9.2002 in favour of the petitioners. While so, the first respondent issued a notification under Section 4(1) of the Land Acquisition Act, 1894 ("the Act" for short) in G.O.Ms.No.1177, Housing and Urban Development Department dated 29.12.81 and the same was also published in the Government Gazette dated 2.2.82 stating that the lands comprised in various survey numbers belonging to the petitioners and others were needed for a public purpose to wit for the construction of houses under the Annanagar Neighbourhood Scheme. Even though the said late Nallakkammal participated in the enquiry conducted by the second respondent under Section 5-A of the Act and submitted her objections, the second respondent overruled the objections and recommended for further proceedings to acquire the land. Accordingly, the Commissioner and Secretary to Government, accepting the recommendations of the Special Tahsildar (Land Acquisition), issued a declaration under Section 6 of the Act in G.O.Ms.No.131, Housing and Urban Development Department dated 30.1.85 and the same was also published in the Tamil Nadu Government Gazette on 31.1.85. Aggrieved by the land acquisition proceedings and complaining that the same were perverse, illegal and contrary to the provisions of the Act, the late Nallakkammal filed W.P.No.18493 of 1991 before this Court. This Court, by order dated 13.7.99, clearly held that the particulars regarding Section 5-A enquiry showed that after communicating the remarks of the Housing Board to the petitioners on 4.10.82, there was no further enquiry as per Section 5-A(2) of the Act. Hence, the acquisition proceedings from the stage of 5-A enquiry were quashed, however, with liberty to the respondents to issue a fresh notice under Section 5-A of the Act. On the basis of such liberty, the respondents proceeded with the land acquisition proceedings by issuing a notice under Section 5-A of the Act calling upon the late Nallakkammal to submit her objections for the proposed acquisition and also to appear for the enquiry to be held on 31.3.2000. Even though detailed objections were submitted, the second respondent-Special Tahsildar (Land Acquisition), without applying his mind, by proceedings dated 22.6.2000, after rejecting the objections, recommended for the acquisition of the lands, and the first respondent also, accepting the said proposal, issued a notification under Section 6 of the Act in G.O.(Nilai)No.283, Housing and Urban Development Department dated 10.7.2000. In this background, the learned counsel for the petitioners submitted that even after the notice issued under Sections 9(3) and 10 of the Act by the second respondent to participate in the enquiry on 10.5.2002 in his office, the said late Nallakkammal participated in the enquiry and also submitted her objections. Thereafter, nothing was heard from the respondents till this date and no award was also passed. Therefore, they were constrained to file the second writ petition under Article 226 of the Constitution of India for issuance of writ of certiorari to call for the impugned proceedings issued by the second respondent, namely, in issuing the declaration under Section 6 of the Act, on the ground that the same is illegal, suffers from error apparent on the face of record and also contrary to the provisions of the Act and the Rules made thereunder.

(3.) Mr.R.Sivaraman, learned counsel, further pleaded that the entire acquisition proceedings which culminated in the issuance of impugned notification under Section 6 of the Act are wholly invalid and illegal, for the reason that the substance of the notification under sub-section (1) of Section 4 of the Act was not published in the newspaper or in the locality. Further, the Apex Court also has clearly held that where the declaration under Section 6 is quashed by a Court, fresh declaration must be issued within the period prescribed under the first proviso to Section 6(1) of the Act. Elaborating his argument, it was contended that admittedly the notification under Section 4(1) dated 29.12.81 was published in the Gazette on 2.2.82 and the Section 6 declaration was issued in G.O.Ms.No.131, Housing and Urban Development Department dated 30.1.85 and the same was also gazetted on 31.1.85. Under these circumstances, when the late Nallakkammal filed the earlier writ petition in W.P.No.18493 of 1991, this Court, by order dated 13.7.99, partly allowed the writ petition by retaining the Section 4(1) notification. Subsequently, after issuance of a fresh notice under Section 5-A of the Act on 10.3.2000, another notification under Section 6 of the Act in G.O.(Nilai)No.283, Housing and Urban Development Department dated 10.7.2000 was published in the Tamil Nadu Government Gazette apart from the publication in the local newspapers on 12.7.2000. This will clearly speak of the illegality of the notification, for the reason that as per the first proviso to sub-section (1) of Section 6 of the Act, declaration shall be made within a period of three years from the date of publication of the Section 4(1) notification. In the present case, admittedly fresh declaration under Section 6 was issued on 10.7.2000 and the same is beyond the time limit prescribed in the said proviso. Therefore, the entire land acquisition proceedings initiated by the respondents are liable to be quashed and in support of his submission, he has relied upon the judgment of the Apex Court in Padmasundara Rao (Dead) and others v. State of Tamil Nadu and others, 2002 2 CTC 55. A Constitution Bench of the Apex Court, while dealing with a similar issue, has held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 cannot be issued beyond the prescribed period of the publication of the notification under sub-section (1) of Section 4 of the Act.