Writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari, to call for the records, relating to Section 4(1) notification made in G.O.Ms.No.516, Industries (MII), dated 08.09.2000 and the consequent Section 6 Declaration made in G.O.(2D)No.56, Industries Department, dated 06.09.2001, on the file of the first respondent herein and quash the same.
O R D E R
1. Challenge in this writ petition is to the acquisition notification issued under Section 4(1) of the Land Acquisition Act, 1894, made in G.O.Ms.No.516, Industries (MII), dated 08.09.2000 and Section 6 Declaration made in G.O.Ms.No.56, Industries Department, dated 06.09.2001.
2. The case of the petitioner is that he was the owner of agricultural lands in S.Nos.106, 159, 163, 241, 246 and 247 Perundurai. The Government of Tamil Nadu sought to acquire lands for the purpose of setting up an industrial estate, at Perundurai, under the control of the erstwhile Tamil Nadu Corporation of Industrial Infrastructure Development [TACID]. In pursuance of the said decision, by private negotiation with this Corporation, the petitioner sold the entire extent of lands belonging to him in the aforesaid survey numbers. The remaining lands available with his possession was to an extent of 7 acres in S.No.232, wherein, there is a coconut grove, consisting of about 580 coconut trees and borewells. Even this lands in S.No.232, was sought to be acquired later, by making necessary notification under the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"). The Government issued orders in G.O.Ms.No.15, Industries Department, dated 8.1.1993, for acquiring the lands for the purpose of establishing an industrial estate at Perundurai under the control of the erstwhile Tamil Nadu Corporation of Industrial Infrastructure Development [TACID]. Being aggrieved by the same, in 1993, the petitioner has made objections that the lands, where there is coconut grove should not be acquired and accepting the same, the Government have issued a notification in G.O.2(D) No.91, Industries Department, dated 29.3.1994, deleting the said lands from the purview of acquisition notification. Thereafter, the petitioner made substantial improvements in the said lands and dug up 4 more bore wells. A huge tank for rearing fishes was also put up.
3. While that be so, the petitioner came to know that the Tamil Nadu Corporation of Industrial Infrastructure Development [TACID] has been merged with Small Industries Promotion Corporation of Tamil Nadu [SIPCOT] and that the Government, once again sought to acquire the same lands, which were already deleted from the earlier notification. As the petitioner was not put on notice by any notification by the Government or by the Special Tahsildar [Land Acquisition], the second respondent herein, he has sent a registered letter, dated 14.08.2001, to the second respondent, to provide him a reasonable opportunity before acquiring the lands. Though the said letter has been acknowledged by the second respondent, there was no reply. On enquiry, the petitioner came to know that by G.O.MS.No.516, Industries (Mil) dated 8.9.2000, the Government have issued notification under Section 4(1) of the Act and pursuant to which, a declaration has also been made under Section 6 of the Act in G.O.(2D)No.56, Industries Department, dated 6.9.2001. In the abovesaid circumstances, the petitioner has assailed the Government Orders, stated supra, on the following grounds.
4. The first ground of attack is that the petitioner, being the owner of the land, ought to have been given a notice of the acquisition proceedings and that an enquiry ought to have been conducted, as per Section 5-A of the Land Acquisition Act.
5. Taking this Court through the contents of the petitioner's representation, dated 14.08.2001, addressed to the Special Tahsildar (Land Acquisition), SIPCOT, Perundurai, Erode District, Mr.T.Muruga Manickam, learned counsel for the petitioner submitted that, at the time of acquisition, the Village Administrative Officer and the petitioner, who was then the President of Perundurai Panchayat, were not in good terms, on account of an issue that the petitioner could not comply with a request of the VAO for providing water supply and keeping that in mind, whenever letters were sent from any Office, the then Village Administrative Officer, by making endorsements to the effect that the petitioner had refused to receive the Tapals, used to affix it on the survey stones and inform the concerned officers that service had been effected. He also submitted that as a Panchayat Union Leader and Politician, the petitioner had to attend many meetings and notices were not served on him and in the abovesaid circumstances, when the petitioner has made a representation on 14.08.2001, even before the issuance of Section 6 Declaration, under the Act, explaining to the second respondent that there were 580 fruit bearing coconut trees; 190 feet deep well, with four bore wells, each to a depth of 500 feet; a fish tank, measuring 100 ft x 70 ft and 4 ft depth constructed at the cost of Rs.6 Lakhs and when 50% of the work, costing Rs.10,00,000/- for putting up another fish tank was in progress, the request of the petitioner to provide an opportunity and to submit his objections to the acquisition, ought to have been considered.
6. Learned counsel for the petitioner further contended that when the animosity between the Village Administrative Officer and the petitioner, the manner, in which, notices were deliberately withheld, was complained of, and having acknowledged the letter, dated 14.08.2001, the second respondent ought to have verified from the records, as to whether notice has been served on the petitioner in the manner prescribed under the provisions of the Land Acquisition Act. Earlier, in the course of this writ proceedings, it appears that records were permitted to be perused. Upon perusal of the same, learned counsel reiterated his contentions regarding non-compliance of notice.
7. Placing reliance on the judgment of this Court in Muthu v. The Government of Tamil Nadu reported in 99 LW 186, learned counsel for the petitioner submitted that service of notice, as per Section 45, is a mandate of law. He further contended that as per the provisions, the first mode ought to have adopted by the officials, is to serve the notice, on the person, by delivering or tendering the copy of the notice. If the abovesaid mode is not feasible, the other modes as specified in Section 45(3) have to be resorted to. He also submitted that if the person, on whom, notice has to be served, cannot be found, then service on an adult made member of the family ought to have been attempted and if no such adult male member is also not available, then only service by affixture on the outer door of the house has to be made. According to him, as stated supra, there was no such attempt to service notice, either on the petitioner or on the adult male member of the family and therefore, there is a violation on the part of the respondents in complying with the statutory requirement.
8. Inviting the attention of this Court to the directions of the Government, issued in G.O.Ms.No.12, Revenue, dated 03.03.1985, incorporated in paragraph 10 of the judgment in The State of Tamil Nadu v. A.Kandasamy reported in 2007 (2) CTC 225 and the observations of a Division bench in the abovesaid judgment, learned counsel for the petitioner submitted that despite the abovesaid Government instructions, acquisition proceedings are sought to be justified, on the ground of service of notice, despite violation of the mandatory provision. He further submitted that the case of the respondents, regarding refusal and service by affixture of Section 5-A enquiry notice, is not supported by records.
9. Inviting the attention of this Court to the reasons for deletion of the lands in the earlier land acquisition proceedings on the ground that there was a coconut grove, in the petitioner's land and as per G.O.Ms.No.1761, Revenue, dated 25th October, 1982, wherein, the Government have directed that in case, on any land, where there are coconut trees and that when the lands are to be acquired, then the coconut trees should not be felled and that the lands should be used for housing purposes, in such a way, without cutting the trees, learned counsel for the petitioner submitted that under the impugned 4(1) notification, no special reasons have been given, as to why, the subsequent acquisition has been sought for, ignoring the reasons for deletion. He also submitted that pursuant to the deletion notification issued by the Government, the petitioner has developed his lands by digging up four more bore wells and planted coconut trees and also put up another fish tank and in such circumstances, the Government cannot go back on their stand and issue a fresh notification.
10. In this context, learned counsel for the petitioner also invited the attention of this Court to the status report on the lands in Survey No.232, measuring an extent of 2.84.0 Hectares in Perundurai Village, Perundurai Taluk, Erode District and further submitted that even the report of the Revenue Divisional Officer, Erode, discloses the fact that as on today, there is a open well and 3 bore wells; that there are 309 fruit bearing coconut trees and 97 young coconut trees and that the excess remaining land is being utilised for cultivation of Cholam, Plantain and Mulbery, which only confirms the contention of the petitioner that there is a coconut grove in the lands sought to be acquired and that therefore, the lands, once exempted from acquisition, for the reasons, stated supra, ought not to have been brought within the purview of another acquisition. In support of the contention that the lands with coconut grove have to be excluded from acquisition, he relied on a decision of this Court in Subbiah v. Government of Tamil Nadu reported in ILR 1988 (2) Mad. 330. At this juncture, this Court deems it fit to extract another judgment of this Court in C.Ponnusamy v. Government of Tamil Nadu reported in 1997 (1) CTC 212, wherein, at Paragraph 10, this Court considered the above reported case, relied on by the learned counsel for the petitioner and held as follows:
"10. As regards the contention that the lands on which coconut trees stand, should be excluded in terms of the Government Order and as laid down by this Court in A. Subbiah and another v. Government of Tamil Nadu , A.I.R. 1988 Madras 355, the learned Counsel for the respondents placed reliance on the dicta of the Apex Court reported in State of Tamil Nadu v. Mahalakshmi Ammal , 1996 (7) S.C.C. 269. The Apex Court had already held that giving the benefit of the Government Orders, exclusion of certain lands on identical reasoning is no longer permissible and that the Government order is administrative instructions issued by the Government for the purpose of consideration by the Tamil Nadu Housing Board and the Government Orders have since been withdrawn. Hence, this contention is also no longer available to the petitioners."
11. On the basis of the counter affidavit filed by the Deputy Secretary to Government, Industries Department, Chennai, Mr.K.V.Dhanapalan, learned Additional Government Pleader, submitted that an extent of 2.84.0 Hectares of land in S.F.No.232 of Perundurai "B" Village in Perundurai Taluk of Erode District along with other lands was sought to be acquired for State Industries Promotion Corporation of Tamil Nadu Limited (SIPCOT) Industrial Growth Centre, Perundurai. While the proposal was under examination of the Government, the petitioner made a representation to the Government that his lands in S.F.No.232, be exempted. Accepting the said request, the Government in G.O.(2D)No.91, Industries Department, dated 29.3.1994, deleted the said lands from acquisition proceedings. After the issuance of deletion orders by the Government, the District Revenue Officer, while analysing various aspects of the issue, merits and demerits of the deletion of the petitioner's land, came to a conclusion about the necessity of acquisition of the above land and sent a detailed report to the Government, stating that the land is very essential to the scheme.
12. Learned Additional Government Pleader further submitted that SIPCOT agreed with the views of the District Revenue Officer, Erode and thereafter, after accepting his report, requested the Collector to initiate land acquisition proceeding to acquire the petitioner's land for Tamil Nadu Corporation for Industrial Infrastructure Development (TACID), for establishment of a growth centre and to send necessary 4(1) proposals to the Government. In the abovesaid circumstances, a notification under Section 4(1) of the Land Acquisition Act, 1894 (Central Act No. 1 of 1894), was approved in G.O.Ms.No.316, Industries (MII) Department, dated 8.9.2000 and that it was also published in Tamil Nadu Government Gazette No.38-A, Part II, Section-2 (Supplement), dated 27.09.2000, followed by two Tamil dailies namely "Pirpagal" (Kovai), dated 19.9.2000, "Malaimalar" (Erode), dated 22.10.2000. The substance of the notification was also published in the locality on 14.11.2000 by beat of tom-tom. Therefore, the learned Government counsel submitted that though earlier, the petitioner's land in Survey No.232 was deleted, after considering the necessity for acquisition of the abovesaid lands and after examination of the report of the District Revenue Officer, Erode, the Government have issued 4(1) notification and hence, initiation of acquisition proceedings in respect of the petitioner's land, cannot be said to be, without any basis.
13. As regards notice of enquiry under Section 5-A of the Act, based on the averments made in the counter affidavit, learned Additional Government Pleader submitted that when the notice of enquiry under section 5-A of the Act was sent to the petitioner, he has refused to receive the same. The enquiry under section 5-A of the Act was conducted by the Land Acquisition Officer on 15.12.2000. The petitioner did not attend the enquiry and that no objection was raised by him. Hence the Land Acquisition Officer has issued 5-A(2) proceedings on 15.12.2000. The Draft Declaration under section 6 of the Act was approved by the Government in G.O.(2D)No.56, Industries Department, dated 6.9.2001 and it was published in the Tamil Nadu Government Gazette No.604, Part II, Section - 2 Extra-ordinary, dated 6.9.2001, followed by publication in two Tamil dailies namely "Thina Boomi" dated 14.9.2001, "Makkal Kural" dated 14.9.2001. The substance of the notification was also published in the locality on 05.10.2001 by beat of tom-tom. He therefore submitted that there is no procedural irregularity in the matter of notification and service of notices to the petitioner under the Act.
14. Though the Revenue Divisional Officer, in his report, has submitted that there are 309 fruit bearing coconut trees and 97 young coconut trees in the subject lands, under the acquisition proceedings, learned Additional Government Pleader submitted that merely because there are some trees scattered in the larger extent of lands, it cannot be construed that there was any coconut grove, warranting exclusion from acquisition. It is his further submission that acquisition is for a public purpose and that the contention that merely because there was a grove, the lands have to be excluded, should not be approved. In sum and substance, he submitted that there is no violation of any statutory provision or procedure contemplated under the Act and that the acquisition proceedings are in accordance with law.
15. Learned Additional Government Pleader also submitted that the subject lands cannot be used for dwelling purpose, since it is located adjoining to a Gas refilling unit, but, it would be effct the compactness of the scheme, for the Industrial Centre. He also submitted that the public purpose should be given weightage than the individual interest. Hence, for the reasons stated supra, prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
16. Before adverting to the rival contentions of both parties, this Court deems it fit extract few provisions, relating to the aspect of publication and service of notice.
17. Section 4 of the Act deals with publication of preliminary notification and powers of officers thereupon and the said Section is extracted hereunder:
"(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the Regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)."
18. Section 5-A of the Act, deals with hearing of objections and the same reads as follows:
"5-A. Hearing of objections. (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further enquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
19. As per Section 5-A of the Act, every objection under sub-section (1) of the said Section shall be made to the Collector in writing, and that the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader. After the constitutional amendment, right to hold property is no more a fundamental right. It is the eminent domain of the government to acquire any land for public purpose. Section 5A of the Land Acquisition confers a valuable and a very important right to a person, whose lands are sought to be acquired and having regard to the right, under Article 300 A of the Constitution of India, it has been held to be akin to a fundamental right. Section 5A of the Land Acquisition Act is the only provision, which enables the land owner to object to the acquisition proceedings and it is not an empty formality, but a substantive right and it cannot be deprived of, by the authorities without serving the statutory notice, in the manner provided for under Section 45A of the Act and without considering the objections in proper prospective, having regard to the fact, that there would be a violation of a right akin to fundamental right. If the acquisition proceedings are concluded without providing a reasonable opportunity to the landowner to submit his objections, and providing an opportunity of being heard, as provided for in the statute, it would be a gross violation of his constitutional right guaranteed under Article 300A of the Constitution of India. The heart and soul of the land owner is his objection under Section 5A of the Act. In such a view of the matter, the service of notice on the landowner assumes importance and if the Court, adjudicating the correctness of the land acquisition proceedings, is satisfied that the authorities have failed to serve notice on the land owner, in the manner known to law, thus depriving him, a valuable right of submitting his objections and being heard, the Court should not hesitate to strike down the acquisition proceedings, unless there is no unreasonable delay and laches. On the aspect of enquiry under Section 5A of the Act, let me just extract few cases, decided by the Apex Court.
20. In Fasid Ahmed vs. Ahmedabad Municipality reported in AIR I976SC 2095 = 1976 (3) SCC 719, the Apex Court held that the heart of section 5-A of the Land Acquisition Act, 1894 is the hearing of the objections and under sub-section (2) of that section, a personal hearing is mandatorily provided for section 5-A does not rest on a persons demand for personal hearing. The matter may be different if a person whose property is acquired abandoning the right to a personal hearing. Provision of appeal is also not a substitute for personal hearing provided under section 5-A of the said Act.
21. In Rambhai Lakhabai Bhakt v. State of Gujarat reported in 1995 (3) SCC 752 = AIR 1995 SC 1549, the Supreme Court held that an opportunity of hearing to the owner or person interested is mandatory.
22. In Hindustan Petroleum Corporation Ltd., Vs. Darius Shapur Chenai and others, reported in 2005 (7) SCC 627, a Division Bench of the Supreme Court held that Section 5-A confers a valuable and important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained in Article 300-A of the Constitution of India, it has been held to be akin to a fundamental right. The State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but, the same must be for a public purpose and reasonable compensation therefor must be paid. The Apex Court at paragraph 9, further held that,
"It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right. At paragraph 10, the Court also extracted an earlier decision of the Supreme Court in State of Punjab Vs. Gurdial Singh, wherein, the Apex Court held that "Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons."
Some of the decisions considered in Hindustan Petroleum Corporation's case are reproduced hereunder:-
This Court in Om Prakash and Another Vs. State of U.P. and Others [(1998) 6 SCC 1] held, thus:
"21. Our attention was also invited by Shri Shanti Bhushan, learned Senior Counsel for the appellants to a decision of a two-Judge Bench of this Court in the case of State of Punjab v. Gurdial Singh, wherein Krishna Iyer, J. dealing with the question of exercise of emergency powers under Section 17 of the Act observed in para 16 of the Report that save in real urgency where public interest did not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 and 19, burke an inquiry under Section 17 of the Act. Thus, according to the aforesaid decision of this Court, inquiry under Section 5-A is not merely statutory but also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution though right to property has now no longer remained a fundamental right, at least observation regarding Article 14, vis-`-vis, Section 5-A of the Land Acquisition Act would remain apposite."
The said decision has been cited with approval in Union of India and Others Vs. Krishan Lal Arneja and Others [(2004) 8 SCC 453].
Recently, this Court in Union of India and Others Vs. Mukesh Hans [(2004) 8 SCC 14] observed:
"35. At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of Section 5-A inquiry was noticed by this Court in the case of Munshi Singh v. Union of India wherein this Court held thus: (SCC p. 342, para 7)
"7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. ... The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A:""
Such an opportunity of being heard is necessary to be granted with a view to show that the purpose for which the acquisition proceeding is sought to be made is not a public purpose as also the suitability of land therefor. [See Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others, (1992) 2 SCC 168, State of Tamil Nadu and Another Vs. A. Mohammed Yousef and Others, (1991) 4 SCC 224, Bharat Singh and Others Vs. State of Haryana and Others, (1988) 4 SCC 534 and Shri Farid Ahmed Abdul Samad and Another Vs. The Municipal Corporation of the City of Ahmedabad and Another, (1976) 3 SCC 719]."
23. In the light of the settled principles of law, a land owner should have been provided with an opportunity of personal hearing in the enquiry under Section 5-A and for that purpose, he should have been served with a notice of enquiry under Section 5-A, in the manner as provided for, under Section 45A of the Act.
24. Section 45 of the Act deals with services of notices and it reads as follows:
"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 (VI of 1898) and service of it may be proved by the production of the addressee's receipt."
25. Now let me consider some of the decisions, on the aspect as to how service of notice, in the manner as provided for, under Section 5A has been considered by Courts.
26. A notice under the Land Acquisition Act should, whenever practicable, be served under Section 45 on the person named in the notice by delivering or tendering it. It is only when the person cannot be found that service may be made in another way. Mere temporary absence from his house of the person to be served would not fall within the expression "cannot be found" used in Clause (3) of the Section (Fazal Rasul Vs. Collector of Agra, 17 A.L.J. 268 = 50 Indian Cases 70).
27. Sub Section 3 of Section 45 of the Land Acquisition Act, provides that when such person cannot be found, service may be made on any adult male member of his family residing with him. A copy can be affixed on the outer door of his house only when two conditions are fulfilled, namely,--
(1) the person on whom the notice is to be served cannot be found; and
(2) no adult male member of the family residing with the person also can be found.
Where any of these conditions is not fulfilled, service of the notice on the outer door of the house does not fulfill the requirements of this sub section and is, therefore, not a proper mode of service under this section. Reference may be made to Janakibai Vs. Nagpur Improvement Trust, AIR 1960 Bombay 499 = 1962 Bombay LR 629 = 1960 Nag LJ 276.
28. As rightly pointed by Mr.T.Murugamanickam, learned counsel for the petitioner that when the knowledge of the fresh acquisition proceedings issued under Section 4(1) of the Act, has been denied by the petitioner and when an opportunity was sought for to participate in the enquiry proceedings, the second respondent, having acknowledged the registered letter, dated 14.08.2001, ought to have verified from the records, as to whether the notice was served in the manner, as set out in Section 45 of the Act and whether the Village Administrative Officer, has made any attempt to service notice in accordance with law. At this juncture, it would be appropriate to extract the views of the Hon'ble Mr.Justice Nainar Sundaram, in a decision in Muthu v. The Government of Tamil Nadu reported in 99 LW 186, at Paragraphs 2 and 3, which are as follows:
"It is not claimed that service by delivering or tendering the copy of the notice on the petitioner in person was attempted as contemplated under sub-secs. (1) and (2) of Sec. 45 of the Act. Sub-sec. (3) of Sec. 45 of the Act contemplates and lays down other modes of service only when such person cannot be found. The service of any notice under the Act in the manner provided therein is a mandate of law, and the due procedure and modalities having been evolved, there cannot be a by-passing of the same by the official, and if they do so, they will be opening the gates for challenge of the proceedings as an illegality. It is not up to the officials to choose modes of service as suit them, if they do not conform to the statutory norms. As contemplated in sub-secs. (1) and (2) of Sec. 45 , service on the person concerned by delivering or tendering a copy of the notice shall be first attempted. Only when such service is not feasible, on the ground that such person cannot be found, the other modes of service as contemplated in sub-sec. (3) of Sec. 45 should be resorted to. If the person cannot be found, service on an adult male member of the family should be attempted, and if no such adult male member can be found, then only service by affixture 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 who signed the notice or in Collector's office or in the court house should be done'. In such a case, in addition to the above modes, affixture of the copy of the notice in some conspicuous part of the land to be acquired should also be done. The proviso to subsec. (3) says that the notice may, if the Collector or the Judge so directs, be sent by registered post in a letter addressed to the person named therein at his last known residence, address or place of business. It is not the case of the authorities that there was attempt to reach and serve the petitioner at his last known address. Equally so, service by post was also not resorted to. The set of expressions 'when such person cannot be found occurring in sub-sec. (3) in the context could mean only when such person cannot be found in the place where he ordinarily dwells or carries on business. Merely on the ground that such person is non-resident of the village, Sec. 45(3) does not enable the authorities to resort to a mode of service by affixture in the land' subject matter of acquisition.
3. Enquiry under Section 5A of the Act is not an empty formality and notice for such enquiry has got to be served strictly in accordance with the mandates of Sec. 45 of the Act. While discountenancing the service of notice in a casual manner without adhering to the rigor of the provisions of the Act, I have opined in Church of South India Trust Association v. Government of Tamil Nadu, W.P. No. 1848 of 1979 order dt. 24-9-1981 briefly reported in (1982) 95 Mad LW (Summary of Cases) 87 that the prescriptions of the statute in the matter of service of notices under it should be strictly followed and carried out. It must be satisfied that the person concerned could not be found after reasonable and diligent enquiries within the meaning of the Act. The mandates of the statute stand violated in the present case. This obliges me to interfere in writ jurisdiction and accordingly the writ petition is allowed. It is for the authorities to pursue the matter from the stage of the enquiry under S. 5A of the Act and after duly satisfying the requisite statutory formalities."
29. In Ramiah Moopanar Vs. State of Tamil Nadu, rep. by the Secretary to Government, Adi-Dravidar and Tribal Welfare Department, Madras-9 and another, reported in 2000 (I) CTC 117, land owner was not in the village. Notice sent to him was affixed on a stick and that the same was affixed in the land in question. The petitioner contended that the notice under Section 45 of the Land Acquisition Act, was not served on him. After extracting the abovesaid provision, The Hon'ble Mr.Justice P.Sathasivam, held that,
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 5A. 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.
30. Sub Section 3 provides that if such person cannot be found, service may be made on any adult male member residing with him. This provision does not mean that in the event of casual absence of the person instead notice should be served on any other adult member.
31. Perusal of the files produced by the learned Additional Government pleader and duly instructed by the Revenue Divisional Officer, Erode, present in the Court, does not disclose, that there was even an attempt on the part of the officials under the Land Acquisition Act, to serve notice for enquiry under Section 5-A of the Act. No scrap of paper has been produced to prove that notice to the petitioner, in the manner as provided for under Section 45 of the Act, has been served, enabling him to make his objections. Right of hearing to the objector, is a statutory right, as held in Fasid Ahmed's case (cited supra) and Rambhai Lakhabai Bhakt's case (cited supra).
32. The averments in the counter affidavit filed by the Deputy Secretary to Government, Industries Department, Chennai that when notice has been served on the petitioner, under Section 5-A, he had refused to receive the same and the arguments of the learned Additional Government Pleader, are not supported by records. In the absence of service of notice on the petitioner, the pleadings and arguments are liable to be rejected. At this juncture, this Court deems fit to extract the view of the Supreme Court in Bharat Singh and Others Vs. State of Haryana and Others, reported in 1988 (4) SCC 534, as to how, the parties should present their pleadings to a Constitutional Court, dealing with writ petitions.
"13.As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time ofhearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent from the Counter-affidavit. If the facts are not pleaded or evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
33.It is also worthwhile to extract G.O.Ms.No.12, Revenue, dated 03.03.1985, which came to be issued, while considering the attitude of the authorities in abusing one or other procedural aspects in acquisition proceedings,
"The Special Commissioner and Commissioner of land Reforms has made the following general remarks in his Biennial Inspection of one of the Collectorates in the State:-
"Another grave fault, which I have noticed in land acquisition proceedings is that there is a tendency to by-pass one of the most important requirements, namely, service of the notices, etc. I found that in some cases, in their hurry, without ascertaining ownership of the land, there has been a tendency for service by affixtures, which normally, should be a last resort. This is highly reprehensible. It does not give the land-owner a chance to make a representation. The District Revenue Officers and the Collectors should look into this and see these are avoided in future."
2. In this connection, the attention of the Collectors/District Revenue Officers is invited to the following instructions in Chapter-II - Powers and Duties of the Collector under the Land Acquisition Act, in Part-III of the Land Acquisition Manual:-
"It is a well established principle of law that all statutory provisions must be strictly complied with, and the burden of proof of compliance rests upon those who claim statutory powers or base their title upon the exercise of statutory provisions. The attitude of Civil Courts invariably is that acts of this character are to be liberally expounded in favour of the public and strictly expounded as against the State Government. It is necessary that Land Acquisition Officers should bear these facts in mind at every stage of their proceedings. Thus, for example, if general notices are not published or individual notices served as and when prescribed by the law, or any minimum interval required between two operations is not observed, all subsequent proceedings are thereby rendered invalid. A record of the publication or service of all notices must, therefore, be kept, since the burden of providing the same will be upon State Government in the event of the legality of the proceedings being subsequently contested."
3. The above instructions have become all the more important now that the period from 4(1) notification and declaration has been cut down from three years to one year under the Land Acquisition (Amendment) Act, 1984 (Central Act 68 of 1984) and any procedural infringement at any stage of the land acquisition proceedings should not be tolerated.
4. All the Collectors/District Revenue Officers are requested to look into this personally and see such lapses shall not recur in future and they are also requested to give instructions to all the Land Acquisition Officers to give in to the tendency to by-pass one of the most important requirement of the land acquisition proceedings, namely, the service of the notices, by affixture but to curtail this tendency and to adhere to the laid down procedures to the letter at all stages of land acquisition proceedings."
34.The observations of the Division Bench in The State of Tamil Nadu v. A.Kandasamy reported in 2007 (2) CTC 225, warranting the issuance of the abovesaid G.O., at Paragraph 10, squarely applies to the facts of this case and the said observations are as follows:
"The reason for issuing the above G.O. is to warn the officers to be cautious and sincere in their approach in acquisition proceedings. Number of cases referred to earlier only shows that the acquisition proceedings are not done in a proper manner, but in an arbitrary and capricious way."
35.Though the learned counsel for the parties have raised other contentious issues, this Court, upon perusal of the files, is convinced that even without serving notice on the land owner under Section 5-A of the Act, the acquisition proceedings have been concluded by passing a declaration under Section 6 of the Act. Violation of Sections 5-A and 45 of the Act, depriving the right of the land owner from submitting his objections and denying the right of being heard is apparent on the face of record and reflected from the perusal of the files and therefore, the proceedings, after the issuance of 4(1) notification have to be set aside.
36.Before parting with the case, this Court deems it fit to express its deep anguish, as to how, even without any basic records, relating to service of notice, under Section 45 of the Act, counter affidavit has been prepared, justifying the deprivation of the petitioner's statutory right, whose lands are acquired. For the reasons stated supra, the proceedings, after the commencement under Section 4(1) of the Act, are set aside, leaving it open to the authorities to decide, as to whether the acquisition proceedings should be continued from the stage of 4(1) notification or not. If the authorities are still interested in continuing the acquisition proceedings, a fresh notice under Section 5-A of the Act, has to be served on the writ petitioner in the manner, as set out in the statute and on receipt of the same, it is open to the land owner to make all his objections, that are raised in this writ petition and also seek for a right of hearing. The manner in which the counter affidavit has been prepared, without any supportive documents, driving the petitioner to this Court, with an agony of depriving his land, causing him litigation expenses is not appreciated and hence, this Court is of the view that the petitioner should be remedied.
37. Needless to say that whenever Government is made as a party respondent, the counter affidavit, prepared is scrutinised by the concerned department in the Secretariat and it is not known as to how the counter affidavit is prepared, without any supporting records, as regards service of notice on the petitioner.
38. Affidavit is a statement on oath. This Court would not term the counter affidavit as a false affidavit, but an affidavit, wholly not supported by any proof, as held in Bharat Singh and Others Vs. State of Haryana and Others, reported in 1988 (4) SCC 534. When the aspect of non-service of notice, in the manner provided for under Section 45A of the Act, has been raised in the supporting affidavit, to the writ petition, the respondents should have atleast verified from the records and admitted the violation. Instead, by filing a counter affidavit, they have chosen to justify their action. There is abuse of process of law, by the respondents. Therefore, this Court proposes to award cost of Rs.10,000/- to be received from the respondents.
39. In the result, the writ petition is allowed with litigation expenses of Rs.10,000/- to be paid to the petitioner by the respondents.