LEELAVATHI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE challenge in this writ petition is the notification issued under Section 4(1) of the Land Acquisition Act, 1894 dated 06.09.1996 and 6 declaration dated 04.11.1997 in respect of lands of the petitioner in Survey No.366 to an extent of 3.03.0 hectares and in S.No.367 to an extent of 0.95.0 hectares in No.12, Kalapatti Village, Coimbatore Taluk.

(2.) ACCORDING to the petitioner, the above said property is the ancestral property of her deceased father Karamadai Naicker and after his death, the petitioner and her sister entered a partition deed on 28.09.1992, according to which the petitioner is in possession of the above said lands, which are the subject matter of acquisition. 2(a). The further case of the petitioner is that she has developed the property into house sites by spending more than Rs.2 lakhs and prepared a lay-out and gifted the same to the Kalapatti Panchayat Union by gift deed dated 17.12.1996 for public purposes. 2(b). The second respondent has also issued a certificate dated 25.01.1995 to the effect that the lands in S.No.366, 378 and 381 were not the subject matter of any land acquisition proceedings. The Revenue Tahsildar has also issued a certificate on 12.06.1996, stating that S.No.367 was not subject to any acquisition. However, by letter dated 05.12.1997, received from the Director of Town and Country Planning, Madras, the petitioner came to know that the above lands were acquired and hence, the approval for the lay-out was refused. 2(c). The petitioner understands that the property has been acquired for the public purpose of providing house sites under Neighbourhood Scheme and declaration under Section 6 of the Act has been issued on 04.11.1997 and the petitioner was not given an opportunity at any point of time to participate in the enquiry. ACCORDING to the petitioner, the notification under Section 4(1) of the Land Acquisition Act, 1894 (in short, "the Act") was issued in the name of her father Karamadai Naicker, who was not alive on the date of notification.2(d). It is the further case of the petitioner that the substance of 4(1) notification was not published in the village in proper manner. There was no notice for enquiry under Section 5-A of the Act, served on the petitioner. After the partition between the petitioner and her sister dated 13.11.1992 under the registered document in Document No.6715/92, the petitioner has executed a gift deed in favour of public authorities regarding the place set apart for public purpose as per the lay out.2(e). Section 4(1) notification and 6 declaration were questioned on various grounds, including that it is a mala fide exercise of powers vested with the respondents, since only the petitioner's lands have been chosen for acquisition that 4(1) notification was published in the name of dead person that 5-A enquiry was vitiated for the reason that the actual owner, viz., the petitioner was not served with the notice and no opportunity was given to her and therefore, it is in violation of the principles of natural justice that after coming to know about the notice dated 24.12.1996, affixed near her lands, the petitioner submitted her objection on 15.01.1997 and the same has not been considered that 4(1) notification was published in a Tamil daily "Pirpagal" which was not actually having wide circulation and therefore, the mandatory requirements of Section 4(1) of the Act are not complied with that according to the petitioner, as per G.O.Ms.No.620 Housing and Urban Development Department, dated 29.06.1990, it was informed that the Tamil Nadu Housing Board should avoid acquisition proposal in respect of lands where lay-out was approved by the Director of Town and Country Planning and the layout was approved in respect of the petitioner's lands as early as on 30.10.1995 and the petitioner has gifted the lands of an extent of 1.75 acres to the Panchayat Union for public purposes by gift deed dated 17.12.1996 and therefore, it cannot be said that the respondents are not aware of the fact that the petitioner is the owner of the property and that the mandatory requirement under the Act to effect service of personal notice has not been fulfilled.

(3.) MR. AR.L. Sundaresan, learned senior counsel appearing for the petitioner would submit that the Director of Town and Country Planning has approved the lay-out presented by the petitioner, as admitted by the third respondent, Housing Board itself on 30.10.1995 and it was after that approval the petitioner has earmarked various portions as per the lay-out for public purposes by registered gift deed dated 17.12.1990. He would also submit that the second respondent himself has issued a certificate on 25.01.1995 to the effect that there was no 4(1) notification published in respect of S.Nos.366, 378 and 381. The learned senior counsel fairly admits that as per the counter affidavit of the third respondent, the locality publication of Section 4(1) notification was made on 08.11.1996 and 6 declaration was on 04.11.1997, and hence, the time between the said 4(1) notification and 6 declaration is in time.5(a). He would submit that inasmuch as the partition deed was effected on 28.09.1992, by which the property got in her name was gifted to the Panchayat Union on 17.12.1996 after getting the lay-out approved by the Director of Town and Country Planning in 1995 and in spite of it Section 4(1) notification was issued in the name of a dead person which is not valid. He would also submit that in respect of S.No.367, the Tahsildar has issued a letter addressed to the petitioner dated 12.06.1996 stating that the said Survey Number is not involved in any land acquisition proceedings.5(b). He would also submit that the Director of Town and country Planning in his letter dated 04.11.1996 addressed to the petitioner after the 4(1) notification, directed the petitioner to pay some charges regarding the approval of layout and even in that, there was no whisper about 4(1) notification. He would also submit that the acquisition regarding neighbouring lands under the same Scheme has been quashed by this court. The learned senior counsel would rely upon various judgments, including (i) 1989 WLR 89 (FB) [P.C. Thanikavelu vs. The Special Deputy Collector for Land Acquisition, Madras.](ii) 1993 (1) MLJ 217 [Muthuswamy vs. State of Tamil Nadu] and(iii) 2000 (4) CTC 125 [Asiya Mariyan vs. The Secretary to Government of Tamil Nadu],to substantiate his contention that 5-A enquiry is invalid, since persons interested were not heard. 5(c). He would also rely upon the judgment of the Division Bench of this Court in Savithiriammal vs. State of Tamil Nadu [2006 (3) MLJ 389], wherein the Division Bench has held that notice against the dead person vitiates the entire acquisition proceedings. Further, he would rely upon the judgment in M. Velayutham and others vs. State of Tamil Nadu [2006 (5) CTC 585] and in The Secretary to Government of Tamil Nadu, Housing and Urban Development, Fort St.George, Chennai 9 and another vs. J.Sivaprakasam and others [2005 (2) MLJ 106], to substantiate his contention that the publication in this case is not proper.