IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED2707.2009 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.19889 OF19991. Pon.Elangovan 2. V.Subramanian 3. T.Janaki 4. E.Krishnamoorthy 5. M.Mathrabootham 6. R.Kalyani 7. S.Balasubramanium 8. N.Savathri 9. Suresh 10.M.Devi 11.C.Murugesan 12.M .Manjula 13.Chandra 14.Chitradevi 15.Akilan 16.kamala 17.V.Saroja Devi 18.P.Arumugahm 19.P.Subramanian 20.M.Thangamani 21.Chitra Shayam 22.Gracy 23.T.Saradambal 24.El.Pon.udayan 25.A.C.Bala Deepak 26.R.Janardanam 27.J.Rajeswari 28.C.Geetha 29.A.B.Chakrapani ... Petitioners VS1 The State of Tamil nadu rep. by its Secretary, Revenue Department, Chepauk, Chennai.9 2. The Collector, Karur District, Karur 639 001 3. The Special Tahsildar cum Land Acquisition Officer, Perinthita Vallaga Thitam Karur District, karur 639 001.
4. A.B.Lalitha Rukmani 5. V.Sekar 6. S.Vijaya 7. A.Riswankamal 8. A.Imran kamal 9. Dr.S.M.S.Subayar 10.A.Sardaj 11.H.M.Sulaiman 12. S.Ponmoli 13.V.Murugan 14.C.Velayutham 15.V.Duraisamy 16.R.SEnthilkumar 17. M.Amsavalli 18. C.N.Vivekananthan 19.R.lalitha 20.R.Kumudhavalli 21.C.B .Balasubramnian 22.P.Jamuna Prithiviraj 23.R.Kanchana 24.R.Surendran 25.A.Senthamil Selvi 26.N.Jayaraman 27.S.Rukkumani 28. A.Nagalakshmi 29.A.Govindarajan 30.G.Ramesh 31.C.Ambujam 32.C.Poongathai 33.C.Kalyani 34.S.Kanthalakshmi 35.S.Chandrasekaran 36.A.Senthamizh Selvi 37.K.Mohan ... Respondents. . . . Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the first respondent pertaining to proceedings issued under Section 4(1) Notification of Land Acquisition Act in G.O.Ms.No.452, Revenue Department dated 03.06.1998 and all the consequential award proceedings and quash the same. For Petitioners : Mr.R.Swaminathan For Respondents: Mr. S.Sivashanmugam, Govt.Advocate (R1 to R3) Mr.M.Rajasekar (R4 to R32) ..... ORDER
The petitioners, numbering 29, claim that they are the owners of the plots comprised in S.No.801/2, 801/3, 801/6, 809, 810, 811 and 812 at Thanthoni village, Karur Taluk, Karur District. Originally, Mrs.Kanniammal and 3 others were the owners of these lands. Mrs.Kanniammal laid lay out under the name of ".Thiruvallur Nagar"., and got approval from the Director of Town Planning. After completing all the formalities, she dedicated the streets to the local Panchayat and then sold away the plots to various persons on various dates between the years 1988 and 1996. The petitioners purchased few such plots from Mrs.Kanniammal and 3 others. According to them, they have been in possession and enjoyment of their respective plots.
2. While so, the District Collector, Karur has issued a Notification under Section 4(1) of the Land Acquisition Act proposing to acquire these lands along with some more lands for the purpose of forming ".Master Plan Complex of Karur. Under Section 4(2) of the Act. The Special Tahsildar, Land acquisition for ".Master Plan Complex of Karur". was authorised to exercise the powers conferred by the said Sub Section and under Clause ( c ) of Section 3 of the said Act. As per G.O.Ms.No.452 Revenue (RA1 Department, dated 03.06.1998, the Collector was directed under Section 17(4) of the Act, to dispense with the provisions of Section 5-A of the Act, in view of the urgency of the case. In the said Notification issued under Section 4(1) of the Act, unfortunately, the names of the petitioners were not mentioned as land owners and instead, the name of Mrs.Kanniammal and 3 others were mentioned. It was published in the Gazette on 04.06.1998. Paper Publication of the said Notification was made on 13.06.1998 and local publication was made on 16.06.1998. Thereafter, a declaration under Section 6 of the Act was made on 17.06.1998. On 17.06.1998, publication was said to have been made and on 28.06,.1998, paper publication in two vernacular newspapers was said to have been made. Local publication was made on 02.07.1998 by Tom Tom. A further declaration under Section 7 of the Act was made on 15.02.1999. Award enquiry was held on 15.03.1999. One Mrs. Saradambal, one of the writ petitioners, submitted her objections on 28.03.1999. However, award was made on 05.07.1999. It is claimed by the respondents that possession was taken on 11.10.1999. While so, petitioners filed the present writ petition on 19.11.1999, challenging the entire acquisition proceedings.
3. In the writ petition, the following are the main grounds raised: i) The decision of the Government authorising the District Collector to invoke emergency provision under Section 17(4) of the Act, so as to dispense with the enquiry under Section 5A of the Act is not sustainable, inasmuch as there was no such grave emergency as required under Law, prevailing, impelling the Government to dispense with enquiry under Section 5 A of the Act: ii) Notice under Section 4(1) of the Act was not served on the petitioners though it was very well known to the authorities that the lands had already been sold away by laying plots to various persons including petitioners; iii) At the time when the sale deeds were executed as required under the Registration law, necessary fee was collected by the Registering Officer for effecting mutation in the revenue records and as a matter of fact, as soon as registrations were made, the Registering Officer had forwarded the applications to the Tahsildar for transfer of patta. But without effecting mutations in the Revenue Records , the respondents, now erroneously claim that they are not bound to make roving enquiry in respect of title and then to issue notice to the persons interested;and iv) Under Section 17(3) (a) of the Act, unless 80% of the compensation amount is tendered for payment to the land owners, the entire proceedings shall stand vitiated. In the case on hand, though prior to the award, some of the petitioners made representations along with copies of sale deeds, thereby brining to the notice of the authorities that the lands had been purchased by them, still 80% of the compensation amount was not tendered for payment, as required under Section 17(3)(a) of the Act and so, the entire proceeding is vitiated.
4. In the additional grounds raised, it is stated that the entire proceedings are vitiated because of the failure to comply with mandatory provision contained in Section 17( 3-A) (a) of the land Acquisition Act.
5. The next additional ground is that the entire proceedings are vitiated as the emergency provision has been arbitrarily invoked without any reason and the respondents have acted mala fide and with oblique motives to deny the valuable rights of the petitioners to make representation and to have an enquiry.
6. The respondents have filed their counter and a rejoinder. The learned Government Advocate has made his submissions based on the original records. This Court also had occasion to go through the entire records produced by the learned Government Advocate.
7. The learned counsel for petitioners would submit that the emergency, as provided under Section 17(4) of the Act, must be so grave that the Government cannot wait for the conclusion of the enquiry under Section 5- A of the Act. Unless such emergency persists, it is not at all legal for the Government to direct dispensation of the enquiry under Section 5(A) of the Act. The learned counsel relies on the following judgments: (i) Om Prakash and another VS State of U.P. And others reported in (1998) 6 SCC1 and (ii) Union of India and others Vs Krishnan Lal Arneja and others reported in(2004) 8 SCC453 8. The learned Government Advocate would submit that by G.O.Ms.No.913 Revenue Department dated 30.09.1995, the then erstwhile Trichirappalli District was trifurcated, in which, Karur District was carved out and Karur District became functional from 30.09.1995 itself. The Collectorate and other offices started functioning in temporary building. According to the learned Government Advocate, therefore, it was thought of constructing the ".Master Plan Complex". for Collectorate and other offices. The matter was under consideration of the Government for quite some time. Finally, the Government issued G.O.Ms.No.454, Revenue (RA-1) Department dated 14.05.1997 under which, the Government accorded administrative sanction for the Land Acquisition work and ordered the work to be taken up under the emergency provision contained in Section 17(4) of the Act. Thereafter, the draft notification under Section 4(1) of the Act was approved under G.O.Ms.No.452 Revenue Department dated 03.06.1998 and then, 4(1) notification was published on 04.06.1998.
9. The learned Government Advocate would further submit that since construction of ".Master Plan Complex". for newly formed Karur District was emergent, the Government ordered to invoke emergency provision under Section 17 (4) of the Act, thereby, dispensing with the enquiry under Section 5-A of the Act. Therefore, according to the learned Government Advocate, there is no arbitrariness in this regard.
10. I have considered the above submissions. Of course, the power of the Government under Section 17(4) of the Act cannot be doubted. But, at the same time, the said power cannot be arbitrarily exercised. The learned Government Advocate would try to submit that it is not for this Court to go into the details of the circumstances, which warranted the Government to invoke the emergency provision. He would further submit that the Government is not obliged to pass any reasoned order. Of course, regarding the said legal position, there can be no doubt. But, at the same time, it is within the purview of this Court to see whether there is arbitrary exercise of the said power. It can be done only by looking into the facts and circumstances of the case. Though it is the subjective satisfaction of the Government in respect of the existence of the emergency, as I have already stated, when the same is questioned before this Court under Article 226 of the Constitution of India, it is for the Government to explain to this Court, as to what are all the circumstances which warranted to invoke the emergency provision. In the case on hand, except saying that after the formation of Karur District, emergency arose to construct ".Master Plan Complex". for Collectorate and other offices, no other circumstances has been brought to the notice of this Court.
11. Admittedly, the District started functioning from 13.09.1995 whereas, the G.O.Ms.No.454, directing the dispensation of 5-A enquiry was issued only on 14.05.1997 (ie) nearly after 20 months and 4(1) notification was issued only on 03.06.1998 (i.e) after 33 months. This delay of 33 months itself would go to show that there was no such grave emergency to invoke Section 17(4) of the Act. The scope of Section 17(4) of the Act came to be considered by the Hon'ble Supreme Court in OM PRAKASH AND ANOTHER V. STATE OF U.P. AND OTHERS reported in (1998) 6 SCC1 wherein while interpreting Section 17(4) of the Land Acquisition Act, the Hon'ble Supreme Court has held as follows: ".21.".According to the aforesaid decision, inquiry under S.5A is not merely statutory but also has a favour of fundamental rights under Arts. 14 and 19 of the Constitution though right to property has no longer remained a fundamental right, at least observation regarding Art.14 vis-a-vis S.5-A of the Land Acquisition Act would remain apposite.".
12. Subsequently, the Hon'ble Supreme Court in UNION OF INDIA AND OTHERS Vs. KRISHNAN LAL ARNEJA AND OTHERS reported in (2004) 8 SCC453 has held in paragraph No.31, as follows: ".31. In the present appeals, the appellants have not been able to show before the High Court any genuine subjective satisfaction depending upon any relevant material available to the State authorities at the time when they issued the impugned Notification under S.4(1) of the Act and dispensed with S.5-A inquiry taking aid of S.17(4) of the Act. A Bench of three learned Judges of this Court in Narian Govind Gavate and others v. State of Maharashtra and others, [(1997) 1 SCC133]. has expressed that S.17(4) cannot be read in isolation from Ss.4(1) and 5-A of the Act and has expressed that having regard to the possible objections that may be taken by the land owners challenging the public purpose, normally there will be little difficulty in completing inquiries under S.5-A of the Act very expeditiously. In the same judgment, it is also stated that ".the mind of the Officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under S.5-A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under S.5-A which has to be considered.". ".Urgency". for invoking the provision under section 17 of the Act should be one arising naturally out of circumstances which exist when the decision to acquire the land is taken and not such, which is the result of serious lapse or gross delay on the part of acquiring authority. It has been further held in the said Judgment that failure to take timely action for acquisition by the authorities of the Union of India cannot be a ground to invoke the urgency clause to the serious detriment of the right of the land owner to raise objections to the acquisition under section 5-A of the Act. The learned Senior counsel would therefore submit that in this case the invoking of urgency clause under section 17(4) is not at all required and so the G.O. is liable to be set aside, directing the District Collector to hold an appropriate enquiry as provided under section 5-A. ".
13. In W.P.Nos.9860 to 9862 of 1998, while considering similar facts and circumstances of the case, in respect of Land Acquisition Proceedings for construction of ".Master Plan Complex". in the newly formed Namakkal and Thiruvallur Districts, I had occasion to hold that there was no emergency as required under Section 17(4) of the Act.
14. A perusal of the judgments of the Hon'ble Supreme Court cited supra, would go a long way to show that it is not an ordinary emergency which would empower the Government to invoke emergency provision, but it should be a grave emergency wherein, it will not be possible to hold any enquiry under Section 5-A of the Act and only in such grave emergency, the Government can invoke the emergency provision.
15. Further,the very fact that this writ petition was filed in the year 1999 and an interim order of stay was also granted, but, till today, no application to vacate the interim order has been filed by the respondents, itself would go to show that there is no emergency in the matter, much less grave emergency.
16. Though right to property is not a fundamental right, nevertheless, it is a constitutional right under Article 300-A of the Constitution. Therefore, the provision of the Land Acquisition Act should be scrupulously followed. Analysing the facts and circumstances of the case, the Hon'ble Supreme Court in the judgments cited supra has ultimately held that there was no such grave emergency impelling the Government to invoke emergency provision. Applying the same test, if the facts of the present case are analysed, as I have already said, except stating that ".Master Plan Complex". is to be constructed, no other circumstance has been brought out on record to substantiate the contention that there was really grave emergency as required under Section 17(4) of the Act. Therefore, I have to hold that the direction of the Government to invoke the emergency provision under Section 17(4) of the Act, so as to dispense with enquiry under Section 5-A of the Act, is not sustainable.
17. The next contention of the learned counsel for the petitioner is that failure of service of notice under Section 4(1) of the Act on the petitioners, who are the real owners of the land, vitiates the entire Acquisition Proceedings. To meet the said argument, the learned Government Advocate would submit that it is not required for the authorities to make a roving enquiry to find out the real owners of the properties. He would submit that it would be suffice for the authorities to go by the revenue records. In this case, according to him, since the properties stood in the name of Mrs.Kanniammal and 3 others, notification under Section 4(1) of the Act was made only against them.
18. Let me now consider the above submissions. Admittedly, approved lay out was laid by Mrs.Kanniammal and 3 others many years before the Acquisition Proceedings were commenced. A perusal of records would go to show that the Director of Town Planning has approved the same. There is also no controversy that the roads were donated to the local Panchayat. Apart from that, admittedly, at the time when the sale deeds were registered, necessary fee was collected by the Registering Officer and he has forwarded the applications to the Tahsildar concerned, for transfer of pattas in the name of vendees. The learned Government Advocate, on instruction from the Revenue Divisional Officer, who is present in Court and after going through the records, has fairly submitted that, as a matter of fact, such applications were received from the Registering Officer for transfer of pattas, but according to him, pattas could not be transferred in the name of the purchasers because the proforma sent by the Registering Officer did not contain the fuller details required. It is further submitted that the Registering Officer did not forward copies of sale deeds. Therefore, according to him, the Tahsildar concerned, rejected all the applications, however the order copies were not served either on vendees or on the Registering officer. When this Court directed the learned Government Advocate to produce the original file from Taluk Office to verify as to whether any order was passed either transferring or denying to transfer patta in the name of the vendees, the learned Government Advocate, despite several adjournments taken, could not produce the same. His only explanation is that the entire file relating to transfer of patta on the file of the Tahsildar concerned was destroyed in the year 1987 itself. It is something curious to know from the revenue authorities that though they have passed some orders, they did not serve the same, but they have destroyed the files.
19. Above all, a perusal of the original records produced for my inspection would reveal that most of the petitioners sent objections in writing, either before the award or even before the very Notification under Section 4(1) of the Act was made stating that plots had already been sold away to them. The records further reveal that Mrs.Kanniammal, during enquiry, also told that she had already sold away these lands by forming plots to various parties. Despite all these things, the authorities did not take care to issue notice to the real owners, namely, the petitioners. To find out the real owners of the lands, of course, it has been now well settled in a catena of decisions that the Acquisition Officer need not make a roving enquiry. But in this case, even without there being any enquiry, it was brought to the notice of the Acquisition Officer that the plots had already been sold away. When that be so, I am at loss to understand as to how the authorities could neglect to issue notice to the real owners, namely, the petitioners. The learned counsel for petitioners would rely on the judgment of a Division Bench of this Court in Lakshmanan VS The Government of Tamil nadu rep. by its Secretary to the Government, Adi Dravidar and Tribal Welfare Department, Chennai 9 and another reported in 2000(1) CTC382wherein the Division Bench has held as follows: ". If even in the absence of his name in the Revenue records, and if in the preliminary enquiry prior to the issue of notification under Section 4(1) of the Act itself, his interest in the property had been disclosed and he is also recognised as a person interested, the subsequent attempt and exercise on the part of the authority to adjudicate upon the rights of the parties and to hold that the appellant was not an interested person, is uncalled for and unsustainable. More so, when both persons whose name appear in the revenue records had come before the authority disclaiming any interest in the property and had disclosed the name Lakshmanan as the real owner. The expression ".person interested". is couched in a very wide manner which would include even a tenant or a holder of easementary right etc. The reason is that principles of natural justice require that an opportunity should be given to all persons who are genuinely interested in the property. Of course, we make it clear that the acquiring authority need not mention the persons beyond the names disclosed in the revenue records, but if the enquiry clearly discloses that some other individuals was the real owner of the property and person interested, it would be erroneous to ignore the said claim. In the present case, in stating that the parties were trying to delay the proceedings, it is actually the enquirying authority who is guilty of having unnecessarily delayed and protracted the proceedings by adopting an unreasonable attitude of ignoring their own notification under Section 4(1) of the Act and in having assumed the role of civil court adjudicating upon the rights of the parties. All that was required to be done was to have dealt with the appellant's objection also and to have treated him as one of the persons interested. One further strange feature is that even in the declaration under section 6 of the Act, the appellant's name has been disclosed as the owner of the property. If so, there was absolutely no justification for having held that he was not the owner of the property and to have failed to deal with his objections.
20. The Division Bench, ultimately, quashed the entire acquisition proceedings. Applying the ratio laid down in the above judgment by the Division Bench, it is crystal clear that in the case on hand, even before 4(1) notification, objections were raised by some of the petitioners and after Notification under Section 4 (1) of the Act, objections were again raised by some of the petitioners and the Revenue authorities were informed by the Registering Officer about the sales made. Despite all the above, the acquiring authority did not consider the claim of the petitioners for the property to issue notice under section 4(1) of the Act and to allow them to participate in the subsequent enquiry under Law.
21. Similar view has been taken in Mrs.Chinthamani and 2 others VS The Special Tahsildar for land Acquisition and another reported in 2000(11) CTC21and in Immaculate Heart of mary Society Pudupalayam rep. by Sister Regina marry FIHM Mother General,St.Therasa's St.Pondicherry 1 VS The Special Tahsildar, Adi Dravidar Welfare, Sivaganga Pasumpon Devar District reported in 2003(1) CTC449and few more judgments.
22. But the learned Government Advocate would rely on a judgment of the Honble Supreme Court reported in (1973) 2 Supreme Court Cases 59 in the case of Bhola Shanker VS The District Land Acquisition Officer, Aligarh and others, wherein the Hon'ble Supreme Court has held that it is the duty of the purchaser to see that mutation takes place in the Revenue Records and having failed to do so, he cannot be allowed to raise objection that notice under Section 4(1) of the At was not issued to him.
23. I have gone through the said judgment. But the facts are totally distinguishable. In that case, the appellant, admittedly purchased the property subsequent to 4(1) Notification. When subsequent enquiry was held under Section 9 of the Act, his grievance was that he was not heard. In those circumstances, the Hon'ble Supreme Court held that having failed to effect mutation in the Revenue Records, it is not proper for him to have such a grievance. But in our case, the purchases were made many years before the acquisition proceedings. It is not as though the petitioners did not make any effort to transfer patta in their names. Statutorily, the Registering Officer is bound to forward the applications for transfer of pattas to the Tahsildar concerned, which the Registering Officer has promptly done. On that basis, the pattas should have been transferred. Curiously, in this case, that was not done and not stopping with that, the authorities have destroyed the original records. Therefore, the petitioners cannot be blamed for the same.
24. The learned Government Advocate would rely on a judgment in Ahuja Industries Ltd VS State of Karnataka and others reported in (2003) 5 Supreme Court Cases 365, wherein the Hon'ble Supreme Court has held that it is unnecessary for the authorities to hold roving enquiry to find out the real land owners. Regarding this proposition, no one can have any doubt. But what I would say in this case is that even without any enquiry, much less roving enquiry, the authorities were informed by means of objections that lands had already been sold a way. The infirmity is that despite the same, they have not cared to issue notice under Section 4(1) of the Act to the land owners and also to allow them to participate in the subsequent enquiry under Section 9 of the Act.
25. The next ground urged by the learned counsel for the petitioner is that Section 17(3 -A) has not been complied with, which also vitiates the entire proceedings. A perusal of Section 17(3-A) of the Act would go to show that it is mandatory on the part of the revenue authorities to tender 80% of the compensation amount to the owners, since enquiry under Section 5 A of the Act is dispensed with. In this case, admittedly, the compensation amount for these lands was also paid to Mrs.Kanniammal and 3 others and later on it was found that Mrs.Kanniammal and others were not the owner of the lands and therefore, they were not entitled to receive the amount. Therefore, the amount was recovered from them. But, even then, the authorities neither had taken care to tender the said amount to these land owners nor had they taken any steps to deposit the amount into Court as required under Section 31 of the Act. Instead, it is now stated by the learned Government Advocate that the amount is in the civil deposit in the Sub Treasury. In my considered opinion, this would not satisfy the legal requirement. On this ground also, I have to find fault with the respondents, so as to say that the entire proceedings stand vitiated.
26. The learned counsel for the petitioner has raised few more points which I do not propose to answer since I am inclined to quash the entire proceedings on the ground which I have answered herein above.
27. In the result, the Writ Petition is allowed; the entire acquisition proceeding is quashed. However, liberty is given to the respondents to issue fresh notification, if the Government is of the view that these lands are still required. No costs. Index:Yes 27.07.2009 Internet:Yes pal Note: The original file is returned after perusal. To 1. The Secretary, State of Tamil nadu Revenue Department, Chepauk, Chennai.9 2. The Collector, Karur District, Karur 639 001 3. The Special Tahsildar cum Land Acquisition Officer, Perinthita Vallage Thitam Karur District, karur 639 001. S.NAGAMUTHU,J.
W.P.NO.19889 of 1999 Dt.27.07.2009