P.V. Mohammed Ghouse vs State of Tamil Nadu and Others

Mohan, J.—This writ petition is for certiorari to quash the G.O. Ms. No. 802, Transport Department, dated 16th July, 1980 in so far as it relates to the Petitioner''s land of an extent of 0.75 acre comprised in R.S. No. 301/3-A, No. 44, Raja Sooriamadai Village, Ramanathapuram Taluk, Ramnad District.

The facts are as under, The Petitioner is the owner of the land of an extent of 2.25 acres in R.S. No. 301/3-A. Land acquisition proceedings were initiated to acquire a portion of this land, via,. 0.75 acres (equivalent to 0.35.5 hectare) for a public purpose to wit, for the construction of Micro-wave building and Tower.

In view of the urgency, the statutory enquiry u/s 5A of the Land Acquisition Act was dispensed with and a declaration u/s 6 was made in G.O. Ms. No. 989 P.W. (General), dated 28th June, 1977. This was published in the Tamil Nadu Government Gazette, dated 20th September 1977. At that stage, the Petitioner filed Writ Petition No. 3281 of 1977 to quash the said declaration. This writ petition was dismissed at the admission stage. However, in Writ Appeal No. 592 of 1977, the Division Bench quashed the said G.O. Ms. No. 989, P.W. (General), dated 28th June, 1977 and made the following order:

...In this case, the notification u/s 4(1) the direction and the declaration have all been simultaneously published on 20th July, 1977. This is scant respect to the statutory provisions and the rule of law as embodied therein. Apart from this consideration there is another fundamental aspect. Section 17(2) does not contemplate the application of Section 17(4) for purposes of the acquisition as stated in the notification u/s 4(1) in this case. This merely, indicates that there has been no application of the mind to Section 17 at all before wielding the heavy weapon given to the authority u/s 17(4). Such an action borders on arbitrariness if not on perversity. In such circumstances, We are constrained to interfere by issue of necessary directions. We consider that interests of justice demand that the notification, dated 28th June, 1977 which is at page 7 of the typed set of papers, must be quashed in toto, that is, as far as the decimation portion is concerned, and so also the dispensing with the enquiry u/s 5A is concerned. We do so.

However, certain observations were made with regard to delivery of possession and the relevant portions of the judgment reported in paragraphs 9 and 10 at page 177 are as follows vide P.V. Mohammed Ghouse Vs. State of Tamil Nadu and Another, .

Before parting with his case, we would like to record that counsel for the Appellant stated that he has no objection to 75 cents of land being taken from he portion of the land lying away from the road and that he has no objection to the whole of that 75 cents being taken, and he only wants his interest being safeguarded. The portion lying adjacent to the road, it is said, is necessary for the purpose of opening a cinema theatre which he proposes to do so. It is not disputed that only 75 cents is required for the purpose for which public acquisition was resorted to. In the light of these statements made by counsel on behalf of the Appellant, it seems to us to be possible to have the enquiry concluded without any delay, because the land is available to the Government, and only its location need be determined.

We direct that notice be given of the enquiry and the Appellant given an opportunity to state his case and his claim that the acquisition be confined to the back portion that is, the portion lying away from the road, be considered. The authority conducting he enquiry should apply his mind to the question and pass proper orders before proceeding further with the acquisition proposed.

The effect of this as I understand is to direct a fresh enquiry u/s 5A in the light of the observations made above. This judgment was on 5th January, 1978. With regard to possession, the following events require to be noted.

On 18th June, 1978, the Sub-Collector, Ramanathapuram had taken possession of the land from the Micro Wave Department. On 19th June, 1978, a telegram was issued calling upon the Petitioner to take possession on 21st June, 1978. This is seen from page 395 of the second Respondent''s file (volume 3). However, the petition refused to take possession. On 26th June 1968, again there was a further circumstance, on 3rd November, 1978, the Government instructed the Collector to proceed with the enquiry u/s 5A. On 14th December, 1978, Section 5A enquiry was conducted as seen from pages 929 and 931 of the second Respondent''s file (volume 2) produced by the learned Government Pleader. On 6th December, 1978 communication was sent by the Petitioner through his Counsel refusing to participate in the enquiry. This is obtained at page 931 of volume II of the records. On 14th December, 1978, Section 5A enquiry was conducted without the Petitioners. On 21st December 1978, the report of the 5A enquiry was sent to the Board of Revenue by the Collector (within the meaning of the Act). On 7th January, 1979, the Board has made a report. This is available at page 513 of volume III of the records. It is thereafter G.O. Ms. No. 802, Transport Department, dated 16th July,1980,was passed declaring the need for acquisition, which was made u/s 6 of the Act. This is available at page 889 of volume II of the records. It was published in the Tamil Nadu Government Gazette, which publication is available at page 893 of volume II of the records. On 22nd April, 1980, applications in Civil Miscellaneous Petition Nos. 9849 and 9850 of 1978 and 12627 of 1979 were taken out by the Collector and the following order was passed by this Court:

In the order in Writ Appeal the State was directed to hand, over possession of the property sought to be acquired to the writ Petitioner immediately. But it appears that after taking possession of the property, the Government have put up compound wall and dug a well, costing about Rs. 26,000 and when the department wanted to hand-over possession to the writ Petitioner (Respondent herein) along with the compound wall and well, he refused to take them and demanded that he should be given possession of the property in the same petition as it was taken from him. It is at this stage, the Government have filed these three petitions, one for a direction to the Respondent to take possession of the property comprising 75 cents in R.S. No. 301/3-A Raja Sooriamadai Village, Ramanathapuram District, with the existing construction and structures and another petition for directing the Respondent to maintain the status quo obtaining on the date when possession is given with respect to the building; and the third one for suitable directions to the Respondent for tailing possession of the land without insisting for the removal.

We think that in the peculiar circumstances of this case the proper directions in these three petitions will have to be as follows:

The Department is at liberty to hand-over possession either with or without the compound wall and well;

If the Department chooses to hand-over possession with the compound wall and well without demolishing the same, the Respondent will be entitled to take the property with the compound wall and well if the compound wall and well belong to him and were in existence even before the 4 (1) notification;

In case the acquisition is proceeded further and completed, the Respondent will be entitled to the compensation for the compound wall and well separately as if the compound wall and well were put up by him and they belong to him;

Subject to the above conditions, in case the property is handed-over along with the compound wall and well, the Respondent will not be at liberty to demolish the same for a period of one year from this date, subject to further orders as to extension of time by this Court; and

If the Government agrees to acquire the rear portion of the property now sought to be acquired which is offered by the Respondent for acquisition, then the Respondent will pay a sum of Rs. 26,000 to the Government towards the value of the compound wall and well which are handed over to him. Subject to the above terms, before parting with this case we also want to express our feeling having regard to the facts and circumstances of this case, that in case the rear portion offered by the Respondent is found suitable for purposes for which the land is sought to be acquired, the Government may consider acquiring the same, instead of depriving the Respondent of the property which is now sought to be acquired which he considers as very valuable and useful to him. This order is also subject to the condition that it will be open to the Respondent to have all the defence that are open to him with reference to the acquisition of the property as such.

On 24th May, 1980, the Requisitioning Department was contacted to consider whether the rear portion of the land could be acquired as requested by the Petitioner. To this there was a reply on 27th May, 1980 by the Requisitioning Department that the same was not feasible, since, the alignment throughout is likely to be spoiled. On 9th June, 1980 a telegram was issued by the Revenue Divisional Officer to the Petitioner calling upon him to take possession. On 11th June, 1980, the Petitioner replied refusing to take possession. A further correspondence followed between the parties as seen from page 855 of volume II of the records. Then on 20th June, 1980 the Collector informed the Government of the position. The Revenue Divisional Officer again issued a telegram on 6th July 1980 to the Petitioner as seen from page 873 of volume II of the records. To that, the Counsel for the Petitioner replied or 8th July, 1980 about his client''s inability to take possession. That is seen from page 879 of volume II of the records. It was in these circumstances the present writ petition has came to be preferred for the above said relief. The following grounds are urged in support of the prayer.

(i) Section 4(1) notification does not specify or localise the extent excepting merely to state that 75 cents of land is required. This is therefore not a valid notification. As laid down in Tharoo Mal Vs. Puran Chand Pandey and Others, if the locality is not specified, the public purposes cannot be said to be fully sub served.

(ii) In the instant case, Section 4(1) notification was made on 22nd March, 1977 and ultimately, Section 6 declaration came to be made on 16th July, 1980. Therefore, reckoned from that date it is beyond three years. This again will be a reason to hold that 4(1) notification is invalid. Section 4(1) notification cannot be used as a reservoir as it is well-settled in law. Looked at from that point of view, the notification will have to fall to the ground.

(iii) Section 5A enquiry has not been conducted properly, because on 13th May, 1978 and 20th November, 1978, the notices were issued fixing the hearing date as 14th December, 1978. However, on 24th May, 1980, a further notice was issued. Therefore what exactly was the enquiry ore is not in a position to determine. This apart, the report of the Section 5A enquiry was not sent to the Government, as a result of which there has not been a re-compliance of the statutory provision.

The next argument is that the procedure laid down Under Rule 3(4) of the Land Acquisition Rules framed under the Act have not been followed in that, after the objections of the Petitioner were filed, the copies were not forwarded to the Requisitioning Department and their opinion elicited. Unless that opinion is made known to the Petitioner, there cannot be an effective opportunity of putting forth the objections. As a matter of fact, the affording of an opportunity is essential as has been laid down in Shri Mandir Sita Ramji Vs. Lt. Governor of Delhi and Others, and State of Mysore and Others Vs. V.K. Kangan and Others, . If u/s 6(3) the acquisitions in the manner contemplated under the Act and possession can be taken only in accordance with Section 9(1), which will be pursuant to a valid declaration, here the declaration itself not being valid, without a proper Section 5A enquiry, the same cannot be done at all. In other words, what the learned Counsel for the Petitioner wants to contend precisely in that when, there is a clear direction from this Court to deliver possession, unless and until the delivery of possession takes place, there cannot be valid Section 6 declaration much less taking possession u/s 9(1) of the Act. Failure to deliver possession is the grossest abuse of process having no respect for the decision of this Court.

In meeting these contentions, it is argued for the Respondents represented by the learned Advocate-General that the effect of the ruling in P.V. Mohammed Ghouse v. State of Tamil Nadu (1978) 91 L.W. 125 is not that a fresh 5A enquiry should be conducted. Actually 4(1) notification was left in tact and what was quashed was only the Section 6 declaration and dispensation of enquiry u/s 5A by the invocation of the urgency provisions. Or 12th June, 1978, in this case 5A enquiry was conducted to which the Petitioner objected stating that unless and until he was delivered possession, 5-A enquiry could not be proceeded with. This is not a case of failure to localise or specify the extent sought to be acquired. Actually by reading 4(1) notification, one is in a position to know what exactly is the property that is sought to be acquired. As a matter of fact, the Petitioner himself had been asking that instead of front portion being acquired, the rear portion of the same extent be acquired and therefore, it does not suffer from any vagueness nor is it correct to contend that 4(1) notification once issued is exhausted in view of the clear ruling of the Division Bench of this Court reported in P.V. Mohammed Ghouse v. State of Tamil Nadu. (1970) 91 L.W. 175 In Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, the demarcation of the lard was not found and therefore, the party was handicapped. Here there is no such handicap and consequently, it is not possible for the Petitioner to contend otherwise. As regards the three years limit, the argument of the Respondents is that the time taken during the pendency of the writ petition will have to be necessarily excluded in view of the amendment. If so excluded then Section 6 declaration is well within time Girdharilal Amratlal Shodan and Others Vs. State of Gujarat and Others, is clearly against the Petitioner and his contention that Section 4(1) is sought to be used as a reservoir is without any substance.

In the instant case, the Requisitioning Department was actually moved to find out whether it was possible for them to acquire the rear portion. But such a request could not be complied with because the Requisitioning Department was of the view that it would cause disturbance of alignment, which is most important having regard to the sophisticated machinery involved in micro wave technology. No doubt, on 24th May, 1980 a notice was issued to the Petitioner by the Collector to file his objections and it was only with a view to elicit further opinion, but that will not in any way militate against the validity of Section 6 declaration.

Throughout, the Petitioner was unwilling and non-cooperative in regard to taking possession. He would go to the extent of saying that he would not take possession at all in spite of the specific orders of this Court in Civil Miscellaneous Petition Nos. 9849 of 1978 etc. and the repeated telegram of the Revenue Divisional Officer did not bear any result with regard to taking of possession. Therefore, it is incorrect to contend that possession was retained and Section 6 declaration was made.

In fact, the report of the 5-A enquiry is not absolutely essential because law says report, if any and in this case, there is no such necessity to send the report. Factually the report had been sent. That the procedure Under Rule 3 has been followed is clear from the averments made in paragraph 10 of the counter-affidavit.

I will take up the points one by one. Whether Section 4(1) notification is valid?

1 have already extracted the relevant portions of the judgment of the Division Bench in P.V. Mohammed Ghouse Vs. State of Tamil Nadu and Another, . From a reading of that judgment, it is very clear that what the Division Bench quashed was only the declaration made u/s 6 and the dispensation of enquiry u/s 5A. No doubt, there were directions issued by this Court for handing over possession, which I will consider in the later part of this judgment. Once that was the position, via., Section 4(1) notification was left intact and the Government were enabled to conduct the 5-A enquiry. I am unable to see how a contention could be raised on the basis of Doongarsee and Sons and Others Vs. State of Gujarat and Others, that Section 4(1) is exhausted. It is not as if the Government cancelled the Section 6 declaration, but it was quashed by an order of the Court, but that would not invalidate Section 4(1) notification, which had come to be issued by independent powers contained in the section. It is well-settled that such a notification u/s 4(1) is purely preliminary in character without affecting the rights of the parties. For this, no authority is needed. However if any authority is needed one has to refer to the decision reported in Smt. Somavanti and Others Vs. The State of Punjab and Others, ., Therefore, in this case, the effect of it is that Section 4(1) notification has remained intact. Whether, the procedure laid down in Section 4(1) has been followed or not is a different question, which will be taken up as the next point. Suffice it to hold here that this is not a case where Section 4(1) notification could ever be said to be exhausted. Nor I am persuaded to accept the contention that the locality of the extent to he acquired is not specified actually, as 4(1) notification contained the following schedule.

District: Ramanathapuram

Taluk: Ramanathapuram

Village: Raja Soorimadai

Description of land, wet or Dry, Inam or poromboke with Survey or paimash Number Name of the owner or occupier Boundaries of the land required to be taken up North- East North- West Extent under acquisition approximate Whether (ariabl or waste)

(1) (2) (3) (4) (5)

Ground Kent S. No. 301/3-A P. V, Mohammed Ghouse Son of Vavi Sai Mohammed Ramnad Maduai Road 301/4 301/3b 301/2 0.75 Ground Rent Land

From a reading of the above, it is cleat that the ratio of the ruling in Tharoo Mal Vs. Puran Chand Pandey and Others, will not apply. Of course, where there is no specification of the property, the party would be handicapped by the absence of the particulars as has been held in Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, . The factual position is entirely different in that case. As a matter of fact, I may now refer to Girdharilal Amratlal Shodan and Others Vs. State of Gujarat and Others, . Paragraph 4 in that decision reads as follows:

Counsel for the Appellants next submitted that on issuing the notification, dated July 18, 1961 the power of the State Government to issue a notification u/s 6 was exhausted and the Government could not issue a fresh notification u/s 6. There is no substance in this contention. The notification, dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power u/s 6. In the circumstances, the Government could well-issue the fresh notification u/s 6, dated August 14, 1964.

These observation are clearly against the Petitioner.

In the instant case, Section 4(1) notification was issued on 21st March, 1977. Ultimately after the proceedings, which culminated in writ appeal as reported in P.V. Mohammed Ghouse Vs. State of Tamil Nadu and Another, . Section 6 declaration was issued on 16th July, 1980. Reckoned from the date of 4(1) notification, it is clearly beyond three years. However, the Act itself makes provision for exclusion of time taken during the pendency of any proceeding. That is because of the amendment of Section 6 wherein the following explanation has been added:

In computing the period of three years specified in this provision, any period during which any action or proceeding to be taken in pursuance of the notification issued under Sub-section (1) of Section 4 is held up on account of stay or injunction by an order of Court shall be excluded.

Therefore, the period during which the proceedings were pending has to be necessarily excluded. If so excluded it is well within time. Accordingly, there is no legal infirmity attached to Section 4(1). It does not suffer either from want of vagueness nor it has been exhausted nor again it is beyond three years.

Coming to the validity of Section 5A enquiry, I have already referred to the important dates. The ruling of the Division Bench reported in P.V. Mohammed Ghouse Vs. State of Tamil Nadu and Another, is, dated 5th January, 1978. After this a notice u/s 5A was issued to the Petitioner. On 13th May, 1978 calling upon him to file his objections within 16 days from the receipt of the notice. To this, Petitioner replied on 31st May, 1978 referring to the proceedings of this Court stating that the proposed conducting of the enquiry u/s 5A was illegal. On 6th June, 1971, the Sub-Collector makes the following note:

The notice referred to in the reference cited has been received in this office and further action has been stopped.

On 12th June, 1978, when Section 5A enquiry was sought to be conducted the Petitioner, objected. On 18th June, 1978, the Sub-Collector called upon the Petitioner to take possession and issued telegram, dated 19th June, 1978 to take possession on 21st June 1978 (page 395 of volume III of the records produced by the Government Pleader). The Petitioner refused to take possession. A further request was made to that effect. That was also refused. It was on 3rd November, 1975, the Government instructed the Collector to proceed with the statutory enquiry u/s 5A and on 6th December, 1978, the Petitioner through his Counsel replied refusing to participate in the enquiry. On 14th December, 1978 the enquiry was conducted without the Petitioner having regard to his refusal to participate in the enquire.

On 21st December, 1978, the report of the enquiry u/s 5A was sent to the Board of Revenue. The Board made its comments on 7th January, 1979 to the following effect;

...Thus, it is clear from the above fact, that the Land Acquisition Officer was ready to deliver the possession to the land owner, but the lard owner has refused to take over possession of the land.

Then comes Section 6 declaration. If the matter had stood at that stage, I do not think anyone could have quarrelled. Unfortunately, it was possession which was a thorn in the flesh of the Government. They seem to have irked by the attitude of the Petitioner, which certainly is not warranted. A person, who is deprived of his land has every right to fight and be can fight to the last. I am not for a moment saying that there was any lack of public purpose. Nevertheless, if law requires a particular procedure to be followed, it has to be necessarily followed. What I mean by this will be evident when I refer to a few more facts.

I have already alluded to the fact that Civil Miscellaneous Petition Nos. 9849 and 9850 of 1978 and 12627 of 1979 were filed by the Collector and a Division Bench of this Court made an order, This was on 22nd April, 1980. On the basis of this order, the Collector writes to the Petitioner on 24th May, 1980 as follows:

In accordance with the instructions of the High Court, Madras, I am to inform you that you may file objection, if, any for the acquisition of your land in S. No. 301/1-A of Raja-Sooraimadai Village, Ramnad Taltuk, for Micro-Wave Project to the Revenue Divisional Officer, Ramanathapuram who is the Land Acquisition Officer in this case before 31st May, 1980 and send a copy of your objection.

I am totally unable to understand the purpose of issuing a notice of this kind, If really Section 5A enquiry had been made and a valid Section 6 declaration had also been emanated, why such notice came to be issued on 24th May, 1980 remains unexplained.

It is not for me to dwell into the files and make out reasons. The question of filing any objection to the acquisition does not arise at all. The order of the Division Bench extracted above does not even warrant filing of objections. It was only concerning possession which required the Government to consider the request of the Petitioner to acquire the rear portion, if possible. Therefore, when the Collector by the communication extracted above calls upon the Petitioner to file his objections and the Revenue Divisional Officer, to whom a copy of this communication was marked, as directed to transmit the objection, if any, received from the land owner through a special messenger addressed in a name cover to the Additional Personal Assistant to the Collector of Ramanathapuram. I have no other, option but to conclude that the head of the revenue hierarchy in a district who is incharge of administration is not in a position to understand the power wielded by him under the Land Acquisition Act. It is needless for me to emphasise that the power of eminent domain is a very valuable power, causing serious inroads into the fundamental tights of the land owners in so far as they are deprived of their lands. Such power should be exercised with great caution and restraint. What has been now done is just calling upon the Petitioner to file objections. Is the Court to conclude that there was a valid Section 5-A enquiry or not. I have already referred to the fact that Section 5A was concluded as disclosed by the files on 14th December, 1978 and the report was sent to the Board of Revenue on 21st December, 1978, on which the Board made its comments. After all this, the Government issued Section 6 declaration. The effect of issue of Section 6 declaration is final and conclusive. Therefore, having regard to this notice, one is to conclude that neither the Government had made up its mind notwithstanding the finality attached to Section declaration nor again the Collector was aware of the scope of powers which he was wielding under the Land Acquisition Act.

In a highly contentious matter of this kind where the Petitioner has been fighting and both sides have been resorting to Court, for some guidance or other, one desires that the Collector had taken proper legal advice before the issue of the above letter dated 24th May, 1980. After all the Government has its own legal advisers at its elbow and it is more surprising that an attitude of this kind should have been taken. I am not for a moment criticising the Collector with regard to delivery of possession. Of course, the Petitioner bas been adopting an obstinate attitude, but that will not relieve the Collector of the application of mind, while exercising his duty properly. Therefore, on the basis of this letter, when it requires the Petitioner to file his objection, if any, for the acquisition of his land, I am to necessarily conclude that there has not been any valid and concluded Section 5A enquiry. If that be so, it follows a fortiori that there cannot be a valid Section 6 declaration as well. That is the conclusion on the second point.

In view of this, it is unnecessary for me to go into the question whether the procedure Under Rule 3(b) has been followed or not. But it appears that the Requisitioning Department was contacted on 24th May, 1980 to consider the feasibility of acquiring the rear portion, to which the reply by the Requisitioning Department on 27th May, 1980 was that it could not be complied with, since it was likely to disturb the alignment. However, the report of the Requisitioning Department could not be furnished to the Petitioner, since his attitude is one of complete obstinance from Section 5A enquiry. In the instant case, a report has been sent by the Collector to the Board of Revenue. Therefore, I am unable to accept the argument of the Petitioner that a report ought to have followed Section 5A enquiry.

I am unable to accept the contention of the Petitioner that because possession was not parted with, there cannot be any valid Section 6 declaration. I have already referred to the various proceedings including certain telegrams, dated 9th June, 1980 and the letter of the Collector, dated 24th May, 1980 and the further telegram of the Revenue Divisional Officer to the Petitioner, dated 6th July, 1980 requiring him to take possession, which he refused to comply with for reasons best known to him. On that score, I cannot say that there was any invalidity attached to the acquisition proceedings.

In the result, holding that there has been no valid concluded final enquiry as a follow-up of which there could be no valid Section 6 declaration, the impugned proceedings are quashed, I make it very clear that Section 4(1) notification will remain intact, which means, if and when the Government is desirous they could further proceed according to law from the stage of issue of Section 4(1) notification. The writ petition is allowed in the above terms. The Petitioner will be entitled to costs.

The matter having been set down for being spoken to, the delivery of possession will be strictly in terms of the order of the Division Bench, dated 22nd April, 1980 in Writ Appeal No. 592 of 1977 which means all the conditions stipulated by the Division Bench shall be observed by both the parties except as regards the time. However should the Government be inclined to proceed further with the acquisition and do the final enquiry the same shall be done within one year from today.