BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2010 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.8336 of 2007 & W.P.(MD)No.8337 of 2007 and M.P.(MD)Nos.1 & 2 of 2007 and M.P.(MD)No.1 of 2009 1.K.Parasuram Batta 2.V.Seenivasaga Reddiar 3.E.Subburam ... Petitioners in both W.Ps Vs 1.The Government of Tamil Nadu, rep. by the Secretary to Government, Backward Classes Welfare Department, Fort St. George, Chennai. 2.The Collector of Tuticorin District, Tuticorin. 3.The Special Thasildar (ADW) Land Acquisition Department, Tuticorin-1 ... Respondents in both W.Ps.
Prayer in W.P.(MD)No.8336 of 2007
Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of
Certiorarified Mandamus, to call for the records in G.O.(3D)No.20, Backward
Classes and most Backward Classes Welfare, dated 30.04.1997 issued under Section
6 of the Act and quash the same.
Prayer in W.P.(MD)No.8337 of 2007
Writ Petition has been filed under
Article 226 of the Constitution of India praying for the issuance of a writ of
Certiorarified Mandamus, to call for the records of the first respondent 4(I)
publication in G.O.Ms.No.379, dated 10.05.1989 Backward Classes and must
Backward Classes Welfare Department and quash the same.
!For Petitioner ... Mr.M.N.Padmanabhan
Senior Advocate
^For Respondents ... Mr.D.Sasikumar
Government Advocate
:COMMON ORDER
Heard both sides.
2.In both the writ petitions, the petitioners challenged the 4(1)
notification, dated 10.05.1989 and section 6 declaration, dated 30.04.1997
issued under the provisions of Land Acquisition Act.
3.It is admitted that the lands in Survey Nos.177,178, 179/1 and 179/3
situate at Sankara Peri Village, Tuticorin Taluk belonged originally to
S.Alagirisamy Naicker, S/o.Sankarappa Naicker, Madurai, under a registered sale
deed, dated 30.10.1987, document No.1530/1987. The said Alagirisamy Naicker
sold the aforesaid properties to one N.V.Srinivasan for valid consideration and
ever-since the sale, N.V.Srinivasan had been in possession and enjoyment of the
property. It was also claimed that patta was also changed in the name of
N.V.Srinivasan on 08.12.1997. Thereafter, in July 1989 N.V.Srinivasan
approached the Special Tasildhar, Land Acquisition, Tuticorin, to verify whether
the lands are to be acquired by the Government of Tamil Nadu and the Special
Tasildhar, Land Acquisition, Tuticorin, issued a certificate, dated 13.07.1989
that the lands are not under the process of land acquisition for Housing Board.
Thereafter, the said N.V.Srinivasan formed a lay out and sold various plots to
various persons and the petitioners have purchased 3 plots on different dates
from the said N.V.Srinivasan.
4.Meanwhile, the Government of Tamil Nadu had taken proceedings under the
Land Acquisition Act for the acquisition of the aforesaid lands for the purpose
of providing house sites to Washerman of Kandasamypuram, Sakthivinayagapuram,
Polanickenpettai and Selvanayagipuram in Tuticorin Town and issued
G.O.Ms.No.379, Backward Classes Welfare, Nutritious Meals Programme and Social
Welfare, dated 20.04.1989 and the 4(1) notification was issued on 10.05.1989.
It is admitted that in the 4(1) notification, the name of the original owner
Alagirisamy Naicker was found and the name of the purchaser, N.V.Srinivasan, who
purchased the property in the year 1987 was not mentioned in the said 4(1)
notification. Without knowing the acquisition process, the said N.V.Srinivasan
sold plots to various persons and the petitioners are the purchasers of some of
the plots. On coming to know of the acquisition proceedings in pursuance of
4(1) notification, dated 10.05.1989, N.V.Srinivasan appeared before the
Authorities and informed that he was not given any notice and he purchased the
properties and the 4(1) notification is also not valid as his name was not
mentioned in the 4(1) notification. He also objected to the acquisition of the
land and in the 5(A) enquiry conducted by the authorities, the Special
Tasildhar, did not consider the objection of the said N.V.Srinivasan and the
Government issued section 6 declaration, dated 12.05.1990. Therefore, the said
N.V.Srinivasan challenged the section 6 declaration by filing Writ Petition
No.11653 of 1990 and that writ petition was allowed by this Court, by judgment,
dated 21.02.1992 and section 6 declaration was quashed. Thereafter, proceedings
were initiated and enquiry was conducted under section 5(A) and N.V.Srinivasan
did not participate in the enquiry and finally, section 6 declaration was
published on 30.04.1997. This section 6 declaration, dated 30.04.1997 is
challenged in W.P.(MD)No.8337 of 2007 and section 4(1) notification, dated
10.05.1989 is challenged in W.P.(MD)No.8336 of 2007.
5.The respondents filed a common counter stating that as per the name
found in the revenue records, the name of the owner, Alagirisamy Naicker was
mentioned in the 4(1) notification and the name of the subsequent purchaser,
N.V.Srinivasan was not entered in the revenue records when enquiries were
started and 4(1) notification was issued and therefore, there is no error in
issuing 4(1) notification mentioning the name of Alagirisamy Naicker and unless
the subsequent purchaser’s name find a place in the revenue records, the
authorities are not expected to know about the purchase by N.V.Srinivasan and
therefore, section 4(1) notification was issued in accordance with law and it
cannot be quashed. It is further stated that after 4(1) notification,
N.V.Srinivasan appeared through counsel and informed about his purchase and Form
3-A notice issued to him it could not be served on him and therefore, it was
served by affixing the same in his land itself and 5(A) enquiry was conducted on
09.08.1989 and 31.08.1989 and section 6 declaration was made on 11.05.1990. It
is further submitted that after section 6 declaration was quashed by this Court
in W.P.No.11653 of 1990, further proceedings were initiated and the 5(A) enquiry
was conducted and notice was served on N.V.Srinivasan on 18.06.1992 and
N.V.Srinivasan filed O.S.No.235 of 1999, on the file of the District Munsif
Court, Thoothukudi, for injunction, but no interim injunction was granted.
Therefore, 5-A enquiry was conducted by the 3rd respondent and after completing
the enquiry, proceedings were initiated by the 3rd respondent, dated 19.06.1992
over-ruling the objection raised by the owner. Thereafter, N.V.Srinivasan filed
W.P.No.11730 of 1992 challenging the proceedings of the 3rd respondent, dated
19.06.1992 and the same was dismissed as premature. Thereafter, the Government
approved the declaration under section 6 of the Land Acquisition Act in its
G.O.(3D)No.20, Backward Classes and Most Backward Classes Welfare, dated
30.04.1997 and published in the Tamil Nadu Government Gazette, dated 02.05.1997.
This G.O.(3D)No.20, was challenged by N.V.Srinivasan in W.P.(MD)No.8396 of 1997
and that was dismissed for non-prosecution on 17.03.2006.
6.It is further stated that section 6 declaration was published within the
stipulated time and in W.P.No.11653 of 1990, this Court while quashing section 6
declaration did not prescribe any time limit for the issuance of section 6
declaration after conducting 5-A enquiry and as no time limit is earmarked in
the Court order, the declaration issued under section 6 of the Act, dated
30.04.1997 is well within time and cannot be quashed.
7.It is submitted by Mr.M.N.Padmanabhan, the learned Senior Advocate,
appearing for the petitioners that having regard to the provision of section 4
and 6 of the Land Acquisition Act, the time frame stipulated for the issuance of
section 6 declaration notice is mandatory and when section 6 notification was
issued beyond the one year period from the date of publication of section 4(1)
notification, it has to be quashed and in this case, admittedly, section 6
declaration was made on 11.05.1990 and it was beyond the period of one year from
section 4(1) notification, dated 10.05.1989 and that was also quashed by this
Court in W.P.No.11653 of 1990 and even assuming that the period during which the
aforesaid writ petition was pending before this Court has to be excluded,
W.P.No.11653 of 1990 was allowed and section 6 declaration, dated 11.05.1990 was
quashed on 21.02.1992 and time begin to run from that date and section 6
declaration ought to have been made within one year from 21.02.1992, the date of
judgment of W.P.No.11653 of 1990 and admittedly, section 6 declaration was made
only on 30.04.1997 and hence, it is beyond the period of one year and it is
liable to be quashed.
8.The learned Senior Advocate, Mr.M.N.Padmanabhan appearing for the
petitioners further submitted that as per proviso to Section 6 of the Land
Acquisition Act, no declaration in respect of any of land covered by a
notification under section 4(1) shall be made after the expiry of one year from
the date of publication of the notification and in this case, admittedly, 4(1)
notification was made on 10.05.1989 and section 6 declaration is now made only
on 30.04.1997 and hence, it is beyond one year period and hence, it is liable to
quashed. He further submitted that when the Act specifically provided that
section 6 declaration has to be made within one year from the date of section
4(1) notification and when admittedly, section 6 declaration was made after the
expiry of one year period, no proceedings can be initiated in pursuance to
section 4(1) notification and therefore, section 6 declaration is also liable to
be quashed.
9.He relied upon the judgments of the Honourable Supreme Court reported in
2002(3) SCC 533 in the matter of Padma Sundara Rao v. State of Tamil Nadu, which
was followed in the judgment reported in 2009(9) SCC 92, in the case of Vijay
Narayan Thatte and others vs. State of Maharashtra and others, in support of his
contention and submitted that as section 6 declaration was passed after the
period of one year and therefore, no proceedings can be taken or initiated in
pursuance to Section 4(1) notification and hence, 4(1) notification is also
liable to be quashed.
10.Mr.D.Sasikumar, the learned Government Advocate appearing for the
respondents submitted that originally section 6 declaration was made in time and
when 4(1) notification was issued on 10.05.1989, as per the revenue records, the
name of Alagirisamy Naicker was mentioned in that notification and therefore,
4(1) notification was issued in accordance with law and while quashing section 6
declaration by this Court, no time limit has been prescribed for the
publication of section 6 declaration and therefore, after conducting fresh
enquiry under section 5-A of the Act, the 3rd respondent issued proceedings,
dated 19.06.1992 and that was challenged by the owner, N.V.Srinivasan in
W.P.No.11730 of 1992 and that was disposed of on 18.08.1992 as premature and
therefore, on 30.04.1997 section 6 declaration was issued and hence, it is valid
in law.
11.He further submitted that N.V.Srinivasan challenged section 6
declaration by filing W.P.(MD)No.9380 of 1997 and that was dismissed for non-
prosecution on 17.03.2006 and the present writ petitions filed by the present
petitioners in the year 2007 challenging the 4(1) notification and section 6
declaration are also not maintainable and therefore, the petitions are to be
dismissed on the ground of latches and delay.
12.I have given my anxious consideration to the submissions made by both
parties.
13.In this case, the facts are admitted. The section 4(1) notification was
issued on 10.05.1989 and N.V.Srinivasan purchased the property on 30.08.1987 and
it is claimed that patta was also transferred in his name on 08.12.1987, but no
proof was filed by the petitioners that prior to 4(1) notification, patta was
transferred in the name of N.V.Srinivasan. It was only stated in the affidavit
that patta was transferred in his name on 08.12.1987 and there is no specific
denial by the respondents in their counter. The respondents have stated that as
on date of 4(1) notification, the name of the N.V.Srinivasan was not found in
the revenue records and hence, his name was not included or mentioned in the
4(1) notification.
14.Further, section 6 declaration was made on 11.05.1990. As per section
6 of the Land Acquisition Act, it has to be made within one year and there is
no material available to show the last date of publication of section 4(1)
notification and therefore, it cannot be stated that section 6 declaration
issued originally on 11.05.1990 was beyond the period of one year. However,
section 6 declaration, dated 11.05.1990 was admittedly quashed by this Court in
W.P.No.11653 of 1990 on 21.02.1992. Therefore, we will have to see whether the
subsequent section 6 declaration was made within the period of one year from the
date of 4(1) notification.
15.Admittedly, section 6 declaration was made on 30.04.1997 and it is
beyond the period of one year, even from the date of disposal of W.P.No.11653 of
1990. Hence, it is beyond the period of one year and therefore, it is liable to
be quashed.
16.The contention of Mr.D.Sasikumar, the learned Government Advocate
appearing for the respondents is that while quashing section 6 declaration by
this Court, no time limit has been prescribed for issuing fresh declaration and
therefore, after conducting 5-A enquiry, the 6 declaration was made on
30.04.1997 and hence, it cannot be stated that it was issued beyond the period
of one year. This was answered by the Constitution Bench of Honourable Supreme
Court in the judgment reported in 2002(2) CTC 55, in the matter of Padmasundara
Rao (Dead) & others vs. State of T.N. & others. In that reported case, the
controversy that was resolved was whether after quashing the notification under
section 6 of the Land Acquisition Act, fresh period of one year is available to
the State Government to issue another notification under Section 6. The
Honourable Supreme Court held that fresh period of one year is not available to
the State Government for issuing section 6 declaration and even after quashing
section 6 declaration, the subsequent declaration has to be made within one year
from the date of 4(1) notification. This was made clear in the judgment of the
Division Bench of this Honourable Court reported in 2006(3) MLJ 917 in the case
of Fathimabi and others vs. State of Tamil Nadu, rep. by its Commissioner and
Secretary, Housing and Urban Development Department, Chennai and another. In
that judgment, his Lordship Justice Mr.P.Sathasivam as he then was, relied upon
the Constitutional Bench judgment reported in 2002(3) SCC 533 = 2002(2)CTC 55 =
2002 SCC 1334 and held that the respondents are not permitted to proceed further
with the existing 4(1) notification and if they so desire, they are free to
proceed afresh by issuing fresh 4(1) notification and in the recent judgment of
the Supreme Court reported in 2009(9) SCC 92, in the case of Vijay Narayan
Thatte and others vs. State of Maharashtra and others, following the
Constitutional Bench of our Honourable Supreme Court in the judgment reported in
2002(3) SCC 533, the Honourable Supreme Court in similar circumstances quashed
the 6 declaration.
17.Further, the contention of Mr.D.Sasikumar, the learned Government
Advocate appearing for the respondents that no period has been prescribed, while
quashing the earlier section 6 declaration in W.P.No.11653 of 1990 and
therefore, one year period need not be adhered to cannot be accepted. In the
aforesaid Supreme Court judgments, all these aspects were also discussed and
held that section 6 declaration has to be made within one year from the date of
4(1) notification and the Government cannot proceed further on the basis of 4(1)
notification and if they so desire, they can issue fresh 4(1) notification for
the same purpose.
18.For all the reasons and following the judgments of the Honourable
Supreme Court referred to above, section 6 declaration, dated 30.04.1990 is
quashed as it was made beyond the period of one year from section 4(1)
notification and as result of quashing of 6 declaration, the Government cannot
proceed further in pursuance of section 4(1) notification and section 4(1)
notification is also quashed. It is, however, open to the respondents to issue
fresh 4(1) notification, if they are keen in acquiring the lands by following
due process of law.
19.In the result, both the writ petitions are allowed. Consequently,
connected Miscellaneous Petitions are closed. No costs.
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