Thirumalai Gounder, Vs. State of Tamil Nadu Rep. by Its Secretary to Govt., Housing and Urban Development Dept., - Court Judgment

Excerpt:
(i) property - acquisition - sections 4, 6 and 11a of land acquisition act article 226 of constitution of india - whether there was delay in publication of substance of section 4 (1) notification in locality and such delay vitiates acquisition - in view of precedents firstly time gap between publication of notification in official gazette and public notice of substance of notification in locality does not by itself render acquisition void - secondly in case two events are unlinked from each other by gap of time so large as lead to prima facie conclusion of lack of bona fides in proceedings for acquisition then it may become necessary to further discover in case there is any cause for delay and if delay caused prejudice to anyone - held, there was no delay in publication and even if there.....ordere. padmanabhan, j.1. the writ petition is at the stage of notice of motion and it is taken up for final hearing with the consent of counsel appearing on either side.2. the writ petitioner has prayed for the issue of a writ of certiorari calling for the records of the respondents relating to g.o.ms. no. 490, housing and urban development department dated 12.11.1996 in issuing section 4(1) notification published in the government gazette dated 11.12.1996 and g.o.ms.no:126, housing and urban development, dated 20.4.1998 in issuing a declaration under section 6 of the land acquisition act published in government gazette dated 21.4.1998 in respect of the petitioners' land comprised in survey nos347/12 and 347/13 in tiruchengode village and taluk, namakkal district and quash the entire.....

Judgment:
ORDER

E. Padmanabhan, J.

1. The writ petition is at the stage of notice of motion and it is taken up for final hearing with the consent of counsel appearing on either side.

2. The writ petitioner has prayed for the issue of a writ of certiorari calling for the records of the respondents relating to G.O.Ms. No. 490, Housing and Urban Development Department dated 12.11.1996 in issuing Section 4(1) Notification published in the Government Gazette dated 11.12.1996 and G.O.Ms.No:126, Housing and Urban Development, dated 20.4.1998 in issuing a Declaration under section 6 of The Land Acquisition Act published in Government Gazette dated 21.4.1998 in respect of the petitioners' land comprised in Survey Nos347/12 and 347/13 in Tiruchengode Village and Taluk, Namakkal District and quash the entire acquisition proceedings.

3. The petitioners have joined together and have filed the present writ petition. The petitioners 2 and 3 are the sons of the first petitioner. The petitioners claim that they are living jointly and enjoying the property jointly. The petitioners claim that they jointly own 3.92 acres of land comprised in S. Nos. 347/1, 347/2, 347/3, 347/8, 347/16, 347/11, 347/12 and 347/13 in Thiruchengode Village. On the earlier occasion the State Government excluded 3.58 acres of land of the petitioners from the acquisition proceedings and consequently the earlier writ petition filed by the petitioners was dismissed as not pressed. In the earlier acquisition proceedings, the petitioners claimed that they have put up pucca buildings consisting of a house and five hops in the remaining lands to earn their livelihood. The petitioners claim that they have applied to the Local Municipality for approval of building plan under section 197 of the Tamil Nadu District Municipalities Act. The said application has not been disposed of, nor been refused and therefore in terms of the deeming provision contained in section 202(2), the approval or permission is deemed to have been granted as applied for by the petitioners. The construction was also completed. The petitioners came to know about the pendency of the acquisition proceedings relating to 34 cents of the land which is under their occupation where they have put up construction. The petitioners moved Civil Court, but it was dismissed as not maintainable. Hence the petitioners filed Writ petition No. 17600 of 1994. But the respondents represented that the lands of the petitioners measuring 3.59 acres have been excluded, but not 34 cents.

4. It is the case of the petitioners that the respondents published Section 4(1) Notification in G.O.Ms.No:490, Housing and Urban Development Department dated 11.12.1996. Section 4(1) Notification was published in the Government Gazette and in two Tamil dailies, besides publication in the locality. It is the case of the petitioners that during 5 A enquiry they raised objections. The remarks of the Requisitioning Body was also forwarded to the petitioners. Rule 3(b) enquiry was conducted on 1.7.1997 and the Special Tahsildar overruled the objections and submitted draft declaration to the State Government. The State Government considered the objections and overruled the same and directed issue of a Declaration under section 6 of The Land Acquisition Act in G.O.Ms.No: 126 Housing and Urban Development Department dated 21.4.1998 and published the same in the Government Gazette as well.

5. It is alleged that no notice for passing of an award enquiry has been served on the petitioner. It is contended that Section 4(1) Notification and Section 6 Declaration are illegal, arbitrary and unreasonable. The fresh acquisition proceedings initiated is vitiated and illegal, since already the petitioners' land has been excluded. The respondents have failed to consider the objections raised by the petitioners and in particular the construction of extensive superstructure and a commercial complex which has not been taken note of. The requirement of the respondents is not bona fide, nor it is genuine. There is four months delay between the gazette publication and the locality publication and the said delay is fatal. That apart, there is a gap of more than one year between section 4(1) Notification dated 11.12.1997 and Section 6 Declaration dated 21.4.1998 and this vitiates the acquisition. The existing superstructure has not been set out in 4(1) Notification or in the Section 6 Declaration. Hence the acquisition is liable to be quashed.

6. A counter has been filed on behalf of the first, second and third respondent. The 4th respondent, Executive Engineer-Administrative Officer, Salem Housing Unit applied for acquisition of land measuring 0.34 acres of land in Thiruchengode village and Taluk for construction of houses under Housing Board Neighbourhood Scheme. A Notification under Section 4(1) of the Land Acquisition Act was issued in G.O.Ms. No. 490, Housing and Urban Development Department dated 12.11.1996 and it was published in the Government Gazette on 11.12.1996. Section 5A enquiry notice has been served on the land owners by affixure on 29.4.1997 as they refused to receive the notices. The land owners Thirumalai Gounder and Marappan appeared and presented objection petitions. Statement of Marappan was recorded. ` The objections were referred to the 4th respondent, the requisitioning body. The remarks of the requisitioning body were communicated to the objectors. But the objectors have not at all appeared before the land acquisition officer for enquiry. The objections were considered and a draft Declaration was submitted. The State Government overruled the objections and issued the Declaration under section 6 of the Act in G.O.Ms.NO:126, Housing and Urban Development Department dated 20.4.1998. The direction under section 7 of the Act was also issued.

7. The petitioners are the owners of 3.59 acres of land comprised in S. Nos. 347/1,2,3,10 and 11 which were excluded from acquisition, which was notified in G.O.Ms. No. 1103, Housing and Urban Development Department, dated 16.12.1982 as well as Section 6 draft Declaration issued in G.O.Ms.No:1455, Housing and Urban Development Department, dated 30.12.1985. Out of the said 3.59 acres only 0.34 acres of land is covered in the present acquisition. It is true that the petitioners on the earlier occasion filed W.P. NO. 4878 of 1986, and W.P.Nos:6996 of 1989 and 7020 of 1989 filed by other land owners. Therefore the award could not be passed. Subsequently 3.59 acres was excluded. Hence, the writ petition No:4878 of 1982 and 6996 of 1989 were withdrawn. Once again, the 4th respondent moved the State Government for acquisition of S.O.No:347/12 measuring 0.14 acres and S.No:347/13 measuring 0.20 acres as the same is essentially required for the Housing scheme by the Housing Board and without which the Scheme could not be completed. It is contended that there is no illegality in the Section 4(1) Notification issued and Section 6 Declaration made. Section 5A Enquiry conducted properly and proceedings were served upto the stage of award and deposit of compensation with Civil Court.

8. The land of 34 cents is essentially required for the Housing Board to complete the scheme and if the said extent is excluded the entire Housing scheme will be inexecutable. The 4(1) Notification was gazetted on 11.12.1996 and it was published in the locality on 25.4.1997. I is contended that no time limit is prescribed for locality publication before introduction of Tamil Nadu Land Acquisition Amendment Act 16 of 1997. The said Amendment Act will apply only to those 4(1) Notifications which came to be issued on and after 14.3.1997.

9. It is also contended that within one year from the date of locality publication Section 6 Declaration was made on 20.4.1998. The Acquisition is for the public purpose. The petitioners being well aware of the acquisition proceedings proceeded with the construction of shops to avoid the acquisition. It is further pointed out that due compensation will be paid to the superstructure as per rules. According to the respondents land includes the superstructure standing thereon and therefore for whatever the superstructure that existed on the date of section 4(1) Notification compensation deter mined and deposited with the Civil Court.

10. The 4th respondent has filed a counter reiterating the contents of the counter filed on behalf of the respondents 1 to 3. The 4th respondent has also asserted that extent of 34 cents is essentially required for completion of the scheme.

11. As seen from the supplemental affidavit publication of Section 4(1) Notification was issued on 31.1.1997 in two Tamil dailies Pirpagal and Malai Malar. It is contended that the publication in the said Newspapers and locality should not be an empty formality, but it should be made in effective manner. The publication in the Dailies Pirpagal and Malar Malar is not sufficient as has been held by a Division bench in Krishnan v. Government of Tamil Nadu reported in 2001 (4) CTC 108 where the Division Bench emphasised that publication should be made in leading English and Tamil Dailies, less the acquisition is vitiated.

12. Mr. R. Thiagarajan, learned senior counsel, appearing for the petitioners made his submissions while the learned Government Advocate appearing for the respondents and Mr. Veerasekaran appearing for the 5th respondent made their submissions. It is contended by the learned senior counsel that the acquisition proceedings are vitiated in that,

(i) the substance of 4(1) Notification has been published belatedly after a lapse of four months and 18 days;

(ii) Section 6 Declaration has been published after a gap of one year and 4 months from the date of Section 4(1) Notification;

(iii) existing building has not been referred to in the 4(1) Notification or in Section 6 Declaration and only the land alone has been set out which would show the non application of mind;

(iv) the award is passed on 20.4.2000 beyond two years and therefore the proceedings abate in terms of Sec. 11-A of the Act.

13. Per contra, it is contended by the learned Government Advocate that on facts all the above contentions are devoid of merits and cannot be countenanced. The learned Government Advocate referred to the details of various dates which are relevant and contended that the points advanced by the counsel for the petitioner are devoid of merits.

14. In the circumstances, the following points arise for considerations:-

(A) Whether there is delay in publication of substance of Section 4(1) Notification in the locality and such delay vitiates the acquisition?

(B) Whether the issue of Declaration under Section 6 beyond one year from the date of Section 4(1) Notification vitiates the acquisition?

(C) Whether the acquisition abates under Sec. 11A of The Land Acquisition Act?

(D) Whether the non mentioning of the superstructure in 4(1) Notification and Section 6 Declaration vitiates the acquisition?

(E) Whether the publication of Section 4(1) Notification in the two Tamil Dailies Pirpagal and Malai Malar on 31.1.1997 vitiates the acquisition?

(F) To what relief, if any?

15. In the present case an extent of 0.34 acres comprised in Survey Nos. 347/12 and 13 of Thiruchengode Village is the subject matter of acquisition. Section 4(1) Notification was issued in G.O.Ms.No:490, Housing and Urban Development Department, on 1.11.1996. Section 4(1) Notification was published in the Government Gazette on 11.12.1996 and in the Newspapers on 31.1.1997. Substance of Section 4(1) Notification was published in the locality on 25.4.1997. Section 5A enquiry notice dated 29.4.1997 is deemed to have been served on the land owners who appeared for enquiry on 28.5.1997. Objections were forwarded to the requisitioning body, remarks of the requisitioning body was also communicated to the petitioners and thereafter the 5A enquiry was conducted which came to be concluded on 2.7.1997. The State Government overruled the objections and issued a Declaration under Section 6 in G.O.Ms.No: 126, on 20.4.1998 and the same was gazetted on 21.4.1998, published in the Newspapers on 22.4.1998 and published in the locality on 23.4.1998. A notice under Section 9(1) and 10 dated 9.3.2000 was served on the land owners on 23.3.2000 by post. On 3.4.2000 award enquiry was conducted and award was passed on 20.4.2000. A notice under section 12(2) was issued. At that stage, the petitioners moved the present writ petition and on 16.7.1998, this court while ordering notice of motion granted interim stay of dispossession alone.

16. It is also seen that after passing of the award the entire compensation of Rs.11,65,827/= has been deposited to the credit of the case on the file of the Sub Court, Sankari on 15.10.2001. As seen from the award not only the land but also the superstructure has been valued at Rs.7,71,608/=. In this case as already pointed out, Section 4(1) notice was issued on 1.11.1996, gazatted on 11.12.1996, published in the Newspapers on 31.1.197 and published in the locality on 25.4.1997.

17. In terms of Section 4(1) of the Land Acquisition Act, before the introduction of amendment to Section 4 by the Land Acquisition (Tamil Nadu) Amendment Act 1996 (Act 16 of 1997) no time has been prescribed for locality publication of the substance. Only by the Amendment Act 16/97, Section 4(1) Notification is required to be published in two tamil dailies and publication in the locality should be completed within 60 days from the date of first notification. This amendment has no application to the case on hand as the said amending Act came into force on 20.3.1997. The Amendment was assented by The President of India on 14.3.1997 and published in the Government Gazette on 20.3.1997. The Tamil Nadu Amendment Act, 1996 (Act16/97) has no application to the impugned notification as Section 4(1) has been issued even on 1.11.1996. The contention advanced by the counsel for the petitioner proceeds on the premise that the said Land Acquisition Amendment Act is applicable. Therefore merely because the substance of Section 4(1) Notification was published in the locality on 25.4.1997 the acquisition is not vitiated. Nor it is liable to be quashed. In this case it cannot be said that there is a wide gap. However, it is pointed out in view of various earlier writ petitions which were pending and dispose of, there was a misconception. The respondents have explained the delay. In the circumstances, as held by the Supreme Court in State of Haryana Vs . Raghubir Dayal, reported in : even assuming that there is a gap, it will not vitiate the acquisition. The Apex Court in the said case held thus:-

'7. Therefore, the word 'shall' used in Section 4(1) should be construed to be mandatory because the requirement of Section 4(1) of the publication of the notification in the Gazette followed by their publication in the newspapers perhaps in some cases may not meet the needed purpose of notice to the owner or person claiming interest in the land proposed to be acquired. For instance, in rural areas most agriculturists may not read even the vernacular newspapers. Their fields are their world and work therein is their breadwinner. They would come to know only if the substance of the notification is published (announced) in the village by beat of drum. Therefore, publication of the substance of the notification of Section 4(1) and in the locality is mandatory but it is not the requirement of the law that it be done simultaneously with the publication in the Gazette or newspapers. Though there is a time gap of more than six months between the date of the notification under Section 4(1) in the State Gazette and the date of the publication of the substance of the notification in the locality, the delay by itself does not render the notification under Section 4(1) published in the State Gazette, invalid.'

18. In State of Tamil Nadu and another V. Rajendran and 23 others, reported in 1993 (2) L.W. 352 a Division Bench of this Court held thus:-

'...Thus, the following propositions emerge from the decision of the Supreme Court: (i) it is mandatory to comply with the provisions of S. 4(1)(ii). The publication of the notification under S. 4(1) in the Official Gazette and public notice of the same in the locality need not be simultaneous or immediate and can be contemporaneous as it involves a gap of time; therefore, both must necessarily be separate by a gap of time. (iii) The time gap between the publication of the notification in the Official Gazette and public notice of the substance of the notification in the locality does not by itself render the acquisition void. (iv) If the two events are unlinked from each other by a gap of time so large as may lead to the prima facie conclusion of lack of bona fides in the proceedings for acquisition then it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone.'

19. While following the above two pronouncements, this court holds that there is no delay in the publication of locality publication and even if there is a delay it is not fatal to the acquisition as it has been explained. Hence Point (A) is answered against the writ petitioners.

20. Taking up Point (B) for consideration, in the present case Section 4(1) Notification was published in the locality on 25.4.1997. Declaration has been issued on 20.4.1998 and gazetted on 21.4.1998. Thus, it is clear that within a period of one year from the last of the publication Section 6 Declaration has been issued. Proviso to Section 6 provides that no declaration under section 6(1) shall be made after the expiry of one year from the date of last of the publication of Section 4(1) Notification. In this case within one year of the last of the publication of Section 4(1) Notification namely substance of publication in the locality on 25.4.1997, Section 6 Declaration has been issued. Therefore, this contention fails and Point (B) is answered against the petitioners.

21. Taking up Point (C), the award under section 11-A is required to be made within a period of two years from the date of publication of the Declaration and if no award is made within the said period, the entire acquisition proceedings shall abate. In the present case Section 6 Declaration was issued on 20.4.1998 and gazetted on 21.4.1998, published in the newspapers on 21.4.1998 and it was published in the locality on 23.4.1998 and the award has been passed on 20.4.2000. Therefore, factually within a period of two years from the date of publication of declaration, the award has been passed. Hence, this contention cannot be countenanced. Point (C) is answered against the writ petitioners.

22. Taking up Point (D), it is true that in Section 4(1) Notification and Section 6 Declaration there is no mention of the superstructure which were being put up by the petitioner. Section 3(a) defines the expression 'land'. In terms of the said definition land includes benefits to arise out of land and things attached to earth or permanently fastened to anything attached to the earth. Therefore by the inclusive definition of 'land' the superstructure is also included. The Apex Court has laid down that when the land is acquired, the superstructure standing on such land even if it is not specifically mentioned in Section 4(1) Notification, it comes within the purview of the property acquired. In Bai Malimabu v. State of Gujarat, reported in : the Supreme Court held thus:-

'4. The second submission for the appellants' was that the Section 4 notification was bad because-

(i) in the notification the land was specified but the superstructure standing thereon was not mentioned; and

(ii) construction of a dispensary may be for a public purpose, but building staff quarters for the employees of the State Insurance Scheme cannot be a public purpose. Such an expenditure is not warranted by Section 28 of the Employees' State Insurance Act, 1948.

The definition of 'land' in clause (a) of Section 3 of the Act will .include the superstructure, if any, existing upon it. It was not the requirement of the law to mention the structure, if any, separately in the notification.'

23. Following the above pronouncement, this court holds that mere failure to set out the existence of superstructure in Section 4(1) Notification or Section 6 Declaration will not vitiate the acquisition. Factually, in this case, superstructure that existed on the date of 4(1) Notification has been assessed and compensation as seen from the award has been awarded and a substantial sum has been awarded towards the value of superstructure. Point (D) is also answered against the petitioners.

24. In this case the small extent of land is essentially required for the purpose of the Housing Board scheme without which the scheme can not be implemented at all as seen from the affidavit and as seen from the files. The earlier acquisition has to be dropped because of the delay in the proceedings and various writ petitions. Even in respect of the substantial extent of land belonging to the petitioner, acquisition has been dropped and only an extent of 34 cents being essentially required for the implementation of the Housing Scheme, proposal was submitted by the 5th respondent once again and thereafter the State Government issued a Notification under Section 4(1). Merely because from the earlier acquisition the petitioners lands were excluded, the same will not bar the respondents from initiating fresh land acquisition proceedings, when it is essentially required for the implementation of the Housing Project by the Tamil Nadu Housing Board. There is no bar and the respondents are well founded in this respect as without this 34 cents, the entire scheme is at a stand still.

25. Taking up point (E), in terms of Section 4(1), apart from the publication in the official gazatte, Section 4(1) Notification is required to be published in two dailies having circulation in the locality of which one shall be in the regional language, besides publication of substance in the locality. Section 4(1) contemplates publication of notification in two dailies and there is no bar that one of which shall be in the regional language. There is no bar for both the publication being in a regional language. Nowhere it ha been set out in the affidavit filed in support of the writ petition that the said two dailies have no circulation at all in the locality. Had such a point been raised, then this court would have expected the respondents to controvert. It is the stand of the respondents that the two tamil dailies have a circulation in the locality. The two tamil dailies are registered newspapers. The reliance placed upon the Division Bench judgment of this Court is of little assistance to the petitioners as such an averment has not been set out or raised in this writ petition, while before the Division Bench, it was the specific case that the two dailies have no circulation in the locality and it has been established by placing materials. This is not the case here. Without a plea and raising a contention in this respect, the respondents cannot be expected to meet such contention by filing a counter. The two Tamil dailies are registered newspapers having circulation in the locality it cannot be held that the publication of Section 4(1) Notification in Pirpagal and Malai Malar is not in conformity with Section 4(1) of the Act. Hence, this point also fails.

26. In the result, all the contentions advanced by the learned senior counsel for the petitioner fail and the writ petition is dismissed. No costs. Consequently, connected WMP is also dismissed.