RAMIAH MOOPANAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) . Aggrieved by the land acquisition proceedings initiated by the respondents for a public purpose, namely, for providing house-sites to house-less Adi-Dravidars, the petitioner has filed the above writ petition.

(2.) IT is stated that the petitioner is the owner of S. No. 142/id to an extent of 0. 25. 5 Hectares in Peranoor village, Tenkasi Taluk. He came to know that the first respondent sought to acquire the said land for provision of house-sites to Adi- Dravidars and a notification under section 4 (1)of the Land Acquisition Act was published in the Tamil Nadu Government Gazette dated 29. 9. 1992. A notification under section 6 of the Act was published in the gazette dated 18. 8. 1993. The petitioner was not served with any notice under section 4 (1) or under section 6 of the Act. He is a permanent resident of peranoor. He has got his permanent house at Peranoor and is residing in that house. The petitioner received a communication dated 10. 12. 1992 stating that notice was not served on the petitioner because he was out of station. On receipt of section 5-A enquiry, the petitioner made a protest to the second respondent stating that the enquiry was bad since notice was not issued to him. Inspite of such protest, no fres h notice was issued and no fresh enquiry was conducted. IT is further stated that 4 (1) notice said to have been published in 'kumari Murasu'and'kinnas'. Both the news- papers are said to be Tamil Newspapers. However, both the newspapers are not circulated in the locality where the petitioner resides or where the property situated. In the absence of any notice under the mandatory provision of the Act and there is no circulation at all of the papers in which the notification was published, the entire ac quisition proceedings are liable to be quashed.

(3.) WITH regard to the first contention, even though the first respondent has filed a counter affidavit, the said position has not been properly explained. In para 6, it is stated that'the notice under section 3a sent to the land owner on 19. 11. 1992 as per rules laid down in the said Act. . .'It is very vague answer without informing particulars as regards service of notice on the petitioner. The records produced by the learned Government Advocate show that the land owner of S. No. 142/id, the petitioner herein, was not in the village, the said notice was affixed on a stick and the same was fixed in the land in question. According to the learned government Advocate, since the petitioner was not in the village, they adopted the procedure and affixed the notice in the land itself. The procedure adopted by the respondents cannot be accepted in view of section 45 of the Land acquisition Act. An elaborate procedure has been prescribed in section 45 of the Land Acquisition Act (hereinafter referred to as'the Act'; ). 'section. 45. Service of notices, - (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under section 4, by the officer therein mentioned and, in the case of any other notice, by or by order of the collector or the Judge. (2) Whenever it may be practicable, the service of the notice shall be made on the person therein named. (3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and, if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired: Provided that, if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and registered under sections 28 and 29 of the Indian Post Office Act, 1898, and service of it may be proved by the production of the addressee's receipt.' It is clear that as per sub-section (2) of Section 45 of the Act, all notices shall be served on the person concerned. When such person cannot be found, it is open to the authorities to effect service on any adult male member of his family residing with him and if no such adult male member is not found, the notice may be served by fixing a copy on the outer door of the house in which the person ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the Land acquisition Officer or of the Collector or in the court- house. In addition to the above mode of service, the officer is expected to affix a copy in some conspicuous part of the land to be acquired. There is no explanation either in the counter affidavit or in the records regarding compliance of such course as mentioned in sub-section (3) of section 45 of the Act. After holding that the land owner/petitioner herein was not in the village, no effort has been taken by the officer to serve a copy on the adult male member or affixed a copy on the outer door of the house in which the petitioner resides in the village. Affixing a copy in some conspicuous part of the land to be acquired is in addition to the affixture in the dwelling house or serving on the adult male member. Even otherwise, as per Proviso to sub-section (3) of Section 45, the officer could have sent the notice by post in a letter addressed to the petitioner at his last known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post Office Act, 1898. Such recourse has not been followed by the respondents. In such a circumstances, I accept the first contention raised by the learned counsel for the petitioner and I hold that there was no proper service of notice in Form 3-A on the petitioner. Accordingly, he had lost the opportunity of filing his valid objections during enquiry under Section 5-A. As discussed though it is stated by the first respondent in para 3 of the counter affidavit that they received objections from the land owners, no details have been furnished, hence the statement is not hopeful to their own defence.