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.) ADDING further, it was heavily argued that when the respondents have issued the Section 4(1) notification on 29.12.81 and gazetted the same on 2.2.82, they have also issued Section 6 declaration on 30.1.85. The petitioners filed the writ petition in the year 1991 challenging the acquisition proceedings on the ground that there was no paper publication or affixure of the substance of the notification in the locality. It was also pressed into service that the respondents have failed to follow Rule 3(b) of the Rules, that is in view of the language used in Section 5-A of the Act read with Rule 3(b) of the Rules, after communicating the remarks of the requisitioning body, the second respondent ought to have conducted further enquiry. But the Court, after looking into the issue that without conducting further enquiry, the first respondent had passed a declaration under Section 6 and published the same on 31.1.85, held that the respondents have not complied with the procedure provided under Section 5A(2) read with Rule 3(b) of the Rules. When there was no further enquiry as per Section 5-A(2), the Court quashed the acquisition proceedings from the stage of Section 5-A enquiry and as a result, Section 6 declaration was also quashed. Therefore, the point urged by the learned counsel for the petitioners is that once Section 6 declaration was quashed on the ground of violation of the mandatory provisions, the first respondent cannot issue the second declaration, for the simple reason that in terms of the first proviso to Section 6(1), no declaration in respect of any land covered by a notification under Section 4(1) shall be made after the expiry of three years from the date of the publication of the notification. The learned counsel also relied upon one another judgment of the Apex Court in Oxford English School v. State of Tamil Nadu, (1995) 5 SCC 206 to say that if a direction was issued by the Court after quashing the land acquisition proceedings so as to conduct fresh enquiry under Section 5-A of the Act in accordance with law, and further if the Government decides to proceed with the acquisition and declaration is issued under Section 6 of the said Act within six months from the date of judgment, the same would be illegal, since the prohibition of issuance of declaration under Section 6 after the expiry of three years from the date of publication of the notification under Section 4(1) is absolute. On this basis, he further argued that the High Court also cannot give any such direction once again for issuance of declaration under Section 6, once the time of three years gets lapsed.