IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.12.2010 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.7415 of 2002 S.Muthuvenkataseshan ... Petitioner vs. 1.The State of Tamil Nadu, Rep. By its Secretary to Government, Highways (HP2) Department, Fort St. George, Chennai 600 009. 2.The District Collector, Tiruchirapalli. 3.The Land Acquisition Officer, Revenue Divisional Officer, Tiruchirapalli. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records of the first respondent herein relating to his proceedings in G.O.Ms.No.48 Highways (HP2) Department dated 05.03.2001 and quash the notification under Section 4(1) of the Land Acquisition Act in respect of the property bearing New T.S.No.8/2 Ward D, Block 38, Door No.10, Srinivasapuram Street, Thennur Village, Tiruchirapalli 17 and quash the same. For Petitioner : Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman Associates For Respondents: Mr.V.Srikanth, Additional Govt. Pleader O R D E R
The land comprised in T.S.No.8/2 Ward D, Block 38, Door No.10, Srinivasapuram Street, Thennur Village, Tiruchirapalli was originally owned by one Mr.Jayarama Iyer. The petitioner purchased the same under two different sale deeds dated 20.07.1983 and 21.07.1983. There is no doubt that as of now, the petitioner is the absolute owner of the property. There is also a house constructed on the same which is surrounded by a compound wall and the petitioner has been admittedly in possession of the same.
2.The first respondent initiated proceedings for acquiring a number of lands, including a part of the above land belonging to the petitioner for a public purpose viz., for constructing railway over bridge. A notice under Section 4(1) of the Land Acquisition Act, 1894 was issued in the respect of all such lands. But in so far as the land in question is concerned, the same was issued in the name of Mr.Jayarama Iyer and not in the name of the petitioner, who is the owner of the property. According to the petitioner, he was not aware of the acquisition proceedings. The said notification under Section 4(1) of the Act came to be issued by invoking the emergency power provided in Section 17 of the Act, dispensing with the enquiry under Section 5A of the Act. Subsequently, a declaration under Section 6 of the Act, appears to have been made, in which also the petitioners name was not mentioned. However, notice under Section 9 of the Act was issued in respect of the award enquiry. The said notice was issued in the name of Mr.Jayarama Iyer, son of Muthuvenkatesan. When the notice was attempted to be served on the petitioner, though it was addressed to Mr.Jayarama Iyer son of Mr. Muthuvenkatesan, the petitioner received the said notice. Then he appeared before the Award Officer and participated in the same and raised his objections. Simultaneously, the petitioner rushed to this Court with this writ petition challenging the very acquisition proceedings. In the mean while, the award enquiry was proceeded further and an award has also been passed.
3.In this writ petition, the learned Senior Counsel appearing for the petitioner, reiterating the grounds raised in the writ petition, would submit that there was no satisfaction on the part of the Government to invoke the emergency provision as contained in Section 17 of the Act for this purpose. The learned Senior Counsel would rely on two judgments of this Court in A.Dhanalakshmi v. State of T.N (2009(6) MLJ 61) and Pon.Elangovan v. The State of Tamil Nadu (2009(5)CTC 661) in support of the said contention.
4.Secondly, the learned Senior Counsel would submit that the notification under Section 4(1) of the Act was issued in the name of Mr.Jayarama Iyer though the authority was appraised that the petitioner was the owner of the property and that the petitioner alone was in possession of the property in question. Such notice issued in the name of Mr.Jayarama Iyer, is not legal. Therefore, all the consequential proceedings are vitiated, he contended.
5.The learned Senior Counsel would further contend that a part of the land of the petitioner which is surrounded by a compound wall and a part of actual construction i.e., the building is sought to be acquired. The learned Senior Counsel would point out that since the property which is sought to be acquired is in respect of a house site and building, the District Collector has to pass an order under Section 49 of the Act. But there was no such order issued by the District Collector.
6.The learned Senior Counsel would further point out that the notice issued under Section 9 of the Act also was not in order. It was addressed to one Mr.Jayarama Iyer, son of Mr. Muthuvenkatesan. It was neither addressed to the vendor of the petitioner nor to the petitioner. Therefore, the award enquiry also cannot be stated to be legal. For this purpose, the learned Senior Counsel would rely on a judgment of this Court in Arumugha Mudaliar v. The State of Tamil Nadu (2002 (1) M.L.J 459), wherein this Court has set aside the acquisition proceedings on the ground that though the authorities were made to know as to who were the owners and as to who were in possession of the property, the notice under Section 4(1) of the Act and all other consequential proceedings were issued in the name of the erstwhile owner.
7.The learned Senior Counsel would lastly contend that the land in question is not required for the present for the public purpose for which it was sought to be acquired as the lands covered under the very same notification have already been taken possession of and that the project has been completed on the said lands. Thus, the petitioner land is not now required for the project.
8.The Revenue Divisional Officer/third respondent has filed a detailed counter. Reiterating the grounds stated therein, the learned Additional Government Pleader would submit that the construction of railway over bridge was considered to be an emergency project and that was the reason why Section 17 of the Act was invoked and the enquiry under Section 5-A of the Act was dispensed with.
9.The learned Additional Government Pleader would submit that all the other requirements under Section 17 of the Act were also satisfied. He would further submit that the notice in the name of Mr.Jayarama Iyer under Section 4(1) of the Act was issued, because in the revenue records, the property in question stood in the name of Mr.Jayarama Iyer, and not in the name of the petitioner. He would further contend that it is not the duty, of the authorities, under the Act to make a moving enquiry about the ownership of the property as it would be suffice if the notification is issued as per the revenue records.
10.In this case, according to the learned Additional Government Pleader, it may be true that the petitioner purchased the property in the year 1983, but since he did not effect mutation in the revenue records, the authorities rightly issued notice under Section 4(1) of the Act, in the name of Mr.Jayarama Iyer. He would further contend that the authorities were not appraised of the fact that the petitioner was the owner of the property at the time of acquisition. He would further submit that the notice under Section 9 of the Act was issued in the name of Mr.Jayarama Iyer, son of Mr. Muthuvenkatesan. But as stated in the counter, it was only a typographical error. As a matter of fact, the notice was meant to be issued only to the petitioner who is Mr.Muthuvenkateseshan. According to the respondents, the petitioner received the notice without any protest and thereafter, the award also came to be passed. Therefore, the typographical error which had occurred in the notice issued under Section 9 cannot be taken advantage of by the petitioner. He would also submit that the land in question is still required for public purpose and therefore, the contention of the petitioner to the contrary cannot be accepted. For all these reasons, the learned Additional Government Pleader would pray for dismissal of the writ petition.
11.I have considered the rival submissions.
12.At the out set, I have to state that to invoke the emergency clause contained in section 17 of the Act, there has to be an emergency, which is not in the legal sense an ordinary emergency. The scope of Section 17 of the Act came to be considered on several occasions by the Honble Supreme Court as well as this Court (vide Union of India and others v. Krishnan Lal Arneja and others (AIR 2004 SC 3582) Narian Govind Gavate and others v. State of Maharashtra and others (1997(1) SCC 133)). Having considered the above two judgments of the Honble Supreme Court and various other judgments, in the case relied on by the learned Senior Counsel appearing for the petitioner in A.Dhanalakshmi v. State of T.N (2009(6) MLJ 61), I had an occasion to examine the legal position wherein, I have held that that the emergency provision contained in Section 17 of the Act can be invoked if only the emergency is one of grave. In this case, a perusal of the original records which are produced before this Court would go to show that the Government has not at all recorded any grounds to justify the invocation of the emergency clause. The project was originally proposed in the year 1999 whereas the notification was issued only in the year 2001 i.e., after two years. Thus, the Government itself allowed the proposal to be kept pending for two years. The right to own property, though not a fundamental right, is now a constitutional right under Article 300 A of the Constitution of India and the same cannot be deprived of without following due process of law. In this case, as it has been held in the above two judgments of this Court and as held by the Honble Supreme Court in the judgments cited supra, since there is no emergency in the sense in which it has been stated in Section 17 of the Act, I am of the view that the entire proceedings in this case are vitiated and the same are liable to be quashed.
13.Turning to the notification in the name of Jayarama Iyer, ofcourse, it is true that it is the bounden duty of the parties to approach the revenue authority to mutate the names in the revenue records after transfer of title. It is also true that the Honble Supreme Court has held in more than one case that it would be suffice for the authorities under the Land Acquisition Act, to issue notice under Section 4(1) of the Act in the name of the person in whose name the revenue records stand. But at the same time, as held by this Court in Arumugha Mudaliar v. The State of Tamil Nadu (cited supra) when the authorities are appraised of the fact that the land has been transferred in the name of someone else and he is in occupation, surely the authorities would be expected under law to issue notice under Section 4(1) of the Act only against such person.
14.In this case, admittedly, the property is a house property where the petitioner is residing. At the time of the survey before proposing to acquire the land, surely, the authorities would have come to know that the house was in occupation of the petitioner. Despite the same, the notification under Section 4(1) of the Act was not issued in the name of the petitioner. Yet another point raised by the learned Senior Counsel is that the notice under Section 9 of the Act was issued in the name of Mr.Jayarama Iyer son of Muthuvenkatesan and not in the name of the petitioner. From this, it can be inferred that when the authorities made inspection of the land sought to be acquired, they were appraised of the ownership of the land in favour of the petitioner, even before the notice was issued under section 4(1) of the Act. Therefore, the initiation of proceedings in respect of the land in question in the name of Mr.Jayarama Iyer cannot be sustained.
15.Now moving on the next contention of the petitioner pertaining to applicability of Section 49 of the Act, it is the submission of the learned Senior Counsel that as required under second proviso to Section 49 of the Act, there was no enquiry held by the District Collector as to whether the land proposed to be taken does or does not form part of the house belonging to the petitioner. There is no dispute in this case that on the land which is sought to be acquired, there is a house which was constructed by the petitioner. A part of the house is not sought to be acquired together with the land. But, enquiry as contemplated in second proviso to Section 49 of the Act, by the District Collector will arise if only as per Section 49(1) of the Act, the land owner expresses his desire to part away with the entire house property. In this case, it is not at all the case of the petitioner that he is willing to part away with the entire property including the house. Therefore, the question holding any enquiry by the Collector as to whether a part of the land which is sought to be acquired forms part of the building or not does not arise. In such view of the matter, further occasion for the petitioner to express such desire also had not arisen because there was no enquiry held under Section 5A of the Act. If only there is enquiry held under Section 5A of the Act, the petitioner would be in a position to know as to what is the portion of the land and the building which is sought to be acquired and thereafter, whether to express his desire to part away with the entire property or with a portion of the property which is sought to be acquired.
16.Now, coming to the question as to whether the land is still required for the purpose for which it was sought to be acquired, I am of the view that it is not proper for this Court to express any opinion. Ofcourse, it is true that the lands covered under the very same notification have already been taken possession of and the project has been completed for the same purpose and also, the same has been brought under use. Thus, it may even be true that the project has been completed. It does not mean that the land in question is not at all required for public purpose. It may be true that without making any development in the land in question the project would have been completed in the other areas. Therefore, it is for the authorities to decide as to whether this part of the land which is sought to be acquired is required still or not.
17.In view of all the foregoing discussions, the entire acquisition proceedings are liable to be quashed, however, with liberty to the respondents to decide the question whether the land in question is still required for a public purpose or not, and if it is so required, they are at liberty to issue fresh notification under Section 4(1) of the Act and then to proceed in accordance with law.
18.In the result, the writ petition is allowed. The entire acquisition proceedings are quashed and the respondents are at liberty to issue fresh notice to the petitioner and then to proceed in accordance with law.
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To
1.The State of Tamil Nadu,
Rep. By its Secretary to Government,
Highways (HP2) Department,
Fort St. George,
Chennai 600 009.
2.The District Collector,
Tiruchirapalli.
3.The Land Acquisition Officer,
Revenue Divisional Officer,
Tiruchirapalli