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Judgment
P. Jyothimani, J.—The petitioners in this writ petition have challenged the notification issued by the first respondent, Government in G.O.Ms.
No. 73 dated 19.02.1997, published in the Government gazette dated 19.03.1997 u/s 4(1) of the Land Acquisition Act,1894 in respect of the
lands to an extent of 3 acres situate in Survey No. 485/1 in Kasipalayam Panchayat, Erode Village and Taluk.
The petitioners 1 to 4 have purchased the said 3 acres out of 3.55 acres on 25.02.1986 and after that they obtained necessary approval on
21.01.1988 and formed a lay-out consisting of 43 plots and a shop and the petitioners 5 to 9 have purchased various house sites under the
approved lay-out from petitioners 1 to 4 on 27.09.1995. According to the petitioners, originally, the total extent of land (3.55 acres) comprised in
Survey No. 485/1 belonged to the family of one N. Kandasamy Gounder and his wife Valliammal and their two sons, viz., K. Palanisamy and
M.K. Ramasamy and the revenue records stood in the name of K. Palanisamy.
2(a). As stated above, petitioners 1 to 4 have purchased the said 3 acres of land under a registered sale deed dated 25.02.1986 in equal moiety.
The Deputy Director of Town and Country Planning, Coimbatore in his proceedings in DTCP Na.Ka. 1890/87 has granted approval for lay-out
and after the approval, petitioners 1 to 4 have also registered gift deeds in respect of the places allotted for road and park and based on the same,
Kasipalayam Panchayat has also passed resolution on 20.01.1988, accepting the gift after getting necessary approval. Various plots were sold on
20.01.1993. Petitioners 1 to 4 got the patta changed in their names. The remaining properties were sold in 1995 under 15 sale deeds consisting of
30 plots and one of the purchaser has also put up a pucca terraced building in the year 1996 itself.
2(b). It was later, the petitioners came to know that the respondents have initiated proceedings to acquire the entire extent of 3.55 acres in Survey
No. 485/1 for construction of LIG/MIG/HIG houses by the Tamil Nadu Housing Board under a Neighbourhood Scheme. They came to know
that Section 4(1) notification was issued on 19.02.1997 in G.O.Ms. No. 73 Housing and Urban Development Department and the second
respondent has conducted enquiry u/s 5A of the Land Acquisition Act 1894. According to the petitioners 1 to 4 even though they have purchased
3 acres of land in Survey No. 485/1 as early as in 1986, and the revenue records stand in their name, they have not received any notice from the
second respondent for enquiry u/s 5A of the Act. It was after they came to know about the acquisition proceedings, they obtained the copy of the
notification and filed the present writ petition.
2(c). The said 4(1) notification is challenged on various grounds including that the notification does not contain the names of the petitioners 1 to 4
who have purchased as early as in 1986; the notification is against the guidelines issued by the Government, since it pertains to approved lay-out;
the notification was not given by local publication as envisaged u/s 4(1) of the Land Acquisition Act; the substance of the notification has not been
published and therefore the entire procedure is in violation of Section 4(1). According to the petitioners, the respondents are proceeding to issue
declaration u/s 6 of the Act and it was at that time they have filed the present writ petition.
The respondents have filed a counter affidavit. According to the respondents, as per the request of the Executive Engineer and the
Administrative Officer, Erode Housing Unit of Tamil Nadu Housing Board, an extent of 19.82.5 hectares of land in R.S. No. 472/1, 473/1 to 3,
474/1, 2 and 485/1, 2 etc. in Kasipalayam Village was proposed to be acquired for construction of LIG/MIG/HIG houses to the houseless public
and the scheme was approved by the Tamil Nadu Housing Board on 04.04.1990. The Government has issued notification u/s 4(1) of the Act in
G.O.Ms. No. 73 Housing and Urban Development Department dated 19.02.1997 and the notification was published in the Tamil Nadu
Government gazette on 19.03.1997, followed by publication in two Tamil dailies, viz., Malai Malar and Pirpagal on 29.03.1997.
3(a). It is also stated by the respondents that the substance of notification was published in the locality on 16.06.1997 by beat of tom-tom, apart
from publishing in conspicuous places on the same day. According to the respondents, the land owner K. Palanisamy Gounder, appeared for 5-A
enquiry and has stated that the property in S. No. 485/1 was sold to others on 25.02.1986 and therefore, he has no right over the land and he has
also not furnished the particulars about the purchasers. The objections of the interested persons were communicated to the Executive Engineer and
the Administrative Officer of the Erode Housing Unit on 16.09.1997 for remarks, who has offered his remarks on 23.12.1997, 24.12.1997 and
27.12.1997 and the same was communicated to the interested persons on 21.01.1998, requiring them to appear for re-enquiry on 20.2.1998. The
re-enquiry was conducted on the said date, in which the objections as raised in Section 5A enquiry on 21.07.1997 was raised again and the
objections were over-ruled and draft declaration was recommended to the Government.
3(b). According to the respondents, the Government in G.O.Ms. No. 209 Housing and Urban Development Department, dated 12.06.1998 have
approved the draft declaration u/s 6 of the Act and the same was published in the Government gazette on 12.06.1998 followed by publication in
two Tamil dailies, viz., ""Thinakaran"" and ""Pirpagal"" on 15.06.1998 and the substance of the notification was published in the locality on
15.06.1998 by beat of tom-tom and also published in the conspicuous places. Therefore, according to the respondents, Section 4(1) notification
was served on one K. Palanisamy Gounder, in whose name the revenue records in respect of the property in dispute stood at the time of initiation
of proceedings under the Land Acquisition Act.
3(c). It is the further case of the respondents that the subsequent sales have been effected in the year 1995 in the names of respondents 5 to 9
under various documents giving details in paragraph 4 of the counter affidavit. However, it is the case of the respondents that the purchasers names
did not find place in Chitta at the time of publication of Section 4(1) notification. Since the names of the petitioners were not found in Chitta, notice
for Section 5A enquiry was served by affixture in the survey stones of the field under acquisition. It is stated in the counter affidavit that petitioners
1 to 4 have given a petition on 06.12.1993, requesting the Land Acquisition Officer that they are the owners of the land in Survey No. 485/1 and
the land to be excluded from acquisition, however, they have not produced any document to establish their right over the property. The original
land owner K. Palanisamy Gounder, in whose name the revenue records stand was served with notice to appear for 5A enquiry and he did not
appear and therefore, Section 6 declaration was published.
The learned Counsel appearing for the petitioners would submit that the notification issued u/s 4(1) of the Land Acquisition Act,1894 is vitiated
as the provisions of the said Section 4(1) as amended by Act 16 of 1997 was not followed. According to him, as per the Amendment Act 16 of
1997, the procedure u/s 4(1) notification has to be completed within 60 days from the date of commencement till the date of local publication and
in the present case, Section 4(1) notification was published on 19.03.1997 and local publication was on 16.06.1997 and therefore, it is beyond 60
days, as per the Amendment Act 16 of 1997, and to substantiate the above said contention he would rely upon the Judgment of the this Court in
Pethu Chettiar Vs. Special Tahsildar, Land Acquisition, Adi Dravida Welfare, Chidambaram, Cuddalore, and two others, . He would also rely
upon an unreported Judgment of this Court in a batch of writ petitions, viz., W.P. Nos. 9740 of 1998 etc. dated 14.12.2001 G. Rajamma and
Ors. v. The State of Tamil Nadu rep. By Secretary to Housing and Urban Development Department, Fort St. George, Chennai 9 and Anr., in
which while dealing with the same Government Order, which is impugned in this writ petition, the learned Judge has quashed the acquisition
proceedings following the Judgment of this Court in C. Ponnusamy and 62 Ors. v. The Government of Tamil Nadu etc. 1997 WLR 310 : 19976
(1) CTC 212.
The learned Counsel appearing for the respondents has also produced the files regarding the land acquisition proceedings.
It is seen that the Government has approved the proposal for land acquisition on 19.02.1997 and the notification u/s 4(1) was published in
G.O.Ms. No. 73 dated 19.02.1997; newspaper publication was made in two Tamil dailies, viz., ""Pirpagal"" and ""Malai Malar"" on 29.03.1997 and
the locality publication was made on 16.06.1997. It is true that Section 6 declaration was published in G.O.Ms. No. 209 dated 12.06.1998,
which is within the period stipulated under the Act. It is also seen that award has been passed on 21.06.2000 in Award No. 2 of 2000 and the
award amount was deposited in the Court. When the above writ petition came up for admission, this Court, by order dated 10.07.1998, has
granted interim stay of dispossession.
As correctly submitted by the learned Counsel for the petitioners, in respect of the same 4(1) notification issued under G.O.Ms. No. 73 Housing
and Urban Development Department dated 19.02.1997 and also Section 6 declaration under G.O.Ms. No. 209 Housing and Urban Development
Department dated 12.06.1998, regarding the other properties comprised in adjacent survey numbers, viz., 485/2 etc. in the same Kasipalayam
Village, W.P. Nos. 9740, 10158 & 13058 of 1998 were filed before this Court.
A reference to Section 4(1) notification dated 19.02.1997 shows that the property belong to K. Palanisamy Gounder S/o. Kandasamy
Gounder. Again, Section 6 declaration published on 12.06.1997 in respect of survey number in question also states the owner of the property as
K. Palanisamy Gounder S/o. Kandasamy Gounder and the petitioners name does not find place. The award passed u/s 11 of the Land Acquisition
Act, 1894 dated 21.06.2000 in respect of Survey No. 485/1 also stands in the name of K. Palanisamy Gounder S/o. Kandasamy Gounder and
others and not in the name of the petitioners and others.
It is seen that the Chitta filed by the petitioners in the typed set of papers, which was given on 06.06.1998 does not contain the name of anyone
of the petitioners. On the other hand, it remains in the name of K. Palanisamy Gounder S/o. Kandasamy Gounder. The said K. Palanisamy
Gounder S/o. Kandasamy Gounder, in whose name the revenue records stand has been admitted by the petitioners as their predecessor in title,
who hag appeared for the enquiry conducted u/s 5A of the Act on 21.07.1997 and also given statement that he has sold the properties, however
without furnishing further particulars.
It is seen that notice under Sections 9(3X and 10 of the Land Acquisition Act, 1894 has been issued to the petitioners as ""occupiers"" and after
hearing the objections, the same was rejected, finding that the petitioners have not proved that the building was put up before Section 4(1)
notification and therefore, the claim of the petitioners to pay compensation for the building was also rejected.
11.On the factual position as ascertained based on the records and files produced before this Court, I do not think that the claim of the petitioners
are similar to that of the petitioners in W.P. Nos. 9748, 10158 & 13058 of 1998 and therefore, on that basis no order can be passed in the
present case since in respect of the lands under acquisition they are different even though they form part of the same notification.
The next point to be considered is, as to whether the acquisition proceedings are sustainable for non-compliance of explanation inserted to
Section 4(1) of the Land Acquisition Act, 1894 by the Tamil Nadu Act 16 of 1997, by which it is made clear that for the purpose, of notification
u/s 4(1) of the Land Acquisition Act,1894, the same must be completed within 68 days, to be computed from the date of publication in the official
gazette or date of publication of such notification in two daily newspapers or the date of giving public notice, which ever is earlier.
The learned Counsel appearing for the petitioners has brought to the notice of this Court about an order passed in W.P. Nos. 20426 and
20427 of 1999 M. Saroja and Anr. v. The Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai 9
and Anr. dated 09.10.2001 by K. Govindarajan, J. in respect of Section 4(1) notification dated 19.02.1997, which is also the subject matter in
this writ petition. In that case Section 4(1) notification was published in G.O.Ms.No.73 Housing and Urban Development Department dated
19.02.1997 and ultimately, the last mode of publication by public notice was on 16.06.1997 and relying upon the earlier Judgment reported in
Pethu Chettiar Vs. Special Tahsildar, Land Acquisition, Adi Dravida Welfare, Chidambaram, Cuddalore, and two others, , it, was held that
Section 4(1) notification proceedings have not been completed within the period of 60 days and therefore, the authorities cannot sustain the
acquisition proceedings and therefore allowed the writ petition. The learned Counsel for the petitioners submits that since the present writ petition
also relates to the same Government Order, which was set aside in the above referred Judgment on the ground of non-compliance of Section 4(1)
notification proceedings within the period contemplated under explanation to Section 4 introduced by Tamil Nadu Act 16 of 1997, the entire
acquisition proceedings are vitiated.
By the Land Acquisition(Tamil Nadu Amendment) Act,1996, [Tamil Nadu Act 16 of 1997], the following insertions/alterations have been
made to Section 4(1) of the Land Acquisition Act,1894.
In Section 4,-
(1)in Sub-section (1),-
(a) for the expression ""whenever it appears to the appropriate Government"", the expression ""subject to the provisions of Sub-section (1-A),
whenever it appears to the Collector or the Commissioner of Land Administration or the Government, as the case may be,"" shall be substituted;
(b) the following explanation shall be added at the end, namely:
Explanation- for the purpose of this sub-section, the publication of notification in the Official Gazette, the publication of such notification in two
daily newspapers and giving of a public notice;
(a) may precede each other;
(b) shall be completed within a period of 60 days. The period of 60 days shall be reckoned from the date of publication of notification in the
Official Gazette or the date of publication of such notification in two daily newspapers or the date of giving public notice, whichever is earlier.
(2) after Sub-section (1), the following Sub-section shall be inserted, namely:
(1-A) The notification under Sub-section (1) shall be published by;
[(a) the Collector in respect of land not exceeding 40 acres in extent the value of which does not exceed rupees twenty-five lakhs;
(b) the Commissioner of Land Administration in respect of land not exceeding 75 acres in extent the value of which exceeds rupees twenty-five
lakhs, but does not exceed rupees fifty lakhs; and
(c) the Government in other cases.];
(3) in Sub-section (2), for the words ""by such Government"", the words ""by such Collector or Commissioner of Land Administration or
Government, as the case may be,"" shall be substituted.
In the said Tamil Nadu (Amendment) Act, the explanation to Section 4(1) which has been inserted is relevant for the facts and circumstances
of the case. While the explanation states that the publication of notification in the official gazette, notification in two daily newspapers and the/giving
of a public notice should precede each other. It is also made clear that the entire process as stated above should be completed within a period of
60 days and the period of 60 days is directed to be reckoned from the date of publication of the notification in the official gazette or from the
publication of such notification in two daily newspapers or the date of giving public notice, ""which ever is earlier"".
(Emphasis supplied)
In the present case, Section 4(1) notification was issued under the impugned G.O.Ms. No. 73 Housing and Urban Development Department
dated 19.02.1997; it was published in the official gazette on 19.03.1997; publication in two newspapers, viz., ""Pirpagal"" and ""Malai Malar"" was on
29.03.1997; and the locality publication as seen in the records is 16.06.1997. Therefore, by applying the said explanation (b) to Section 4(1) of
the Land Acquisition (Tamil Nadu Amendment) Act, 1997, if the earliest date of publication in the notification u/s 4(1) in the official gazette is
taken, viz., 19.03.1997, the local publication was effected on 16.06.1997, and therefore, the same is clearly beyond the period of 60 days. It is
relevant to point out that even from the date of newspaper publication, which is stated to be on 29.03.1997, the local publication being on
16.06.1997, there are more than 68 days in between the same and therefore, it is clearly against the said explanation to Section 4(1) of the Land
Acquisition Act.
When a question arose that when the Central Act has not prescribed any time limit, whether the State Amendment can impose the same and is
binding on the authorities, this Court has held that if there is a violation of the said explanation inserted by the Tamil Nadu Act 16 of 1997 in
respect of the period of 60 days in completing Section 4(1) notification process, the entire acquisition proceedings are vitiated. That was in Pethu
Chettiar Vs. Special Tahsildar, Land Acquisition, Adi Dravida Welfare, Chidambaram, Cuddalore, and two others, . Justice K. Govindarajan,
having taken note of the fact that the said Tamil Nadu Amendment Act 16 of 1997 has received the assent of the President of India on
14.03.1997, has held that by virtue of the assent obtained from the President subsequent to the Amendment Act, it cannot be said that no time limit
has been stipulated under the principal Act and therefore the State Act cannot operate against the same.
Basing reliance on the Judgment of the Supreme court in Gauri Shankar Gaur and Others, etc. Vs. State of U.P. and Others, , this Court has
also taken note of the fact that subsequent to the Amendment Act 16 of 1997, there was no Parliament amendment in respect to the provision in
question. The relevant portion of the Judgment is as follows:
As pointed out earlier, the said amendment Act has received the assent of the President and so in view of Article 254(2) of the Constitution of
India, the said amendment will prevail notwithstanding its repugnancy to the earlier law made by the Union. The subject matter relating to the land
acquisition is covered by the concurrent list, and, in the Central Act, no time-limit has been prescribed to complete the proceedings u/s 4(1) of the
Act. Since the amendment under Act 16 of 1997 has received the assent of the President, the State Act even if it is inconsistent with the Central
Act, prevails in the State and overrides the provisions of the Central Act in its application to the State of Tamil Nadu. This issue has been dealt
with in detail in the decision in Gauri Shankar Gaur and Others, etc. Vs. State of U.P. and Others, . In the said decision, the Hon''ble Judges of the
Apex court have held as follows:
There is no doubt or difficulty as to applicability of the law under Article 254 of the Constitution. As to what would happen in a case of conflict
between a Central and State Law occupying the same field enumerated in the concurrent list, Article 254 was enacted to solve that conflict. Article
254(1) envisages the normal rule that in the event of a conflict between the law made by the Union and the State Legislature in the concurrent field,
the former prevails over the latter; if the law relating to the concurrent subject made by the State Legislature is repealed by Union law, whether
Union law is prior or later in point of time-, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. An
exception has been engrafted to this rule by Clause (2) thereof, namely, if the State law has been reserved for consideration and the President gives
assent to a State law, it will prevail, notwithstanding its repugnancy to a earlier law made by the Union, though both laws are dealing with a
concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President to the State Act which is
inconsistent with the Union law prevails in that State and overrides the provisions of the Union law in its application to that State only. However, if
the Parliament, in exercising its power under the proviso to Article 254(2) makes a law adding, amending or repealing the Union law,
predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue
of President''s assent, would be void either directly or by its repugnance with respect to the same matter. The Parliament may not expressly repeal
the State law and by necessary implication the State law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the
Parliament creating repugnancy is made. Such repugnancy may also arise where both the laws are operating in the same field and they cannot
possibly stand together. This is the consistent law laid by, this Court. In Zaverbhai Amaidas Vs. The State of Bombay, . Section 7 of the Essential
Supplies (Temporary Powers) Act, 1946, was amended in 1948 and 1949 and thereafter by Act LII of 1950. It was held that Act LII of 1950 is
a legislation in respect of the same matter as Bombay Act (XXXVI of 1947) within the meaning of Article 254(2) of the Constitution and therefore
Section 2 of Bombay Act XXXVI of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act as amended by
Act LII of 1950. In M. Karunanidhi Vs. Union of India and Another, another Constitution Bench surveyed the case-law when Tamil Nadu Public
Men (Criminal Misconduct) Act, 1973 was challenged as being repugnant to the Code of Criminal Procedure, 1898, Prevention of Corruption
Act, 1947 and Criminal Law (Amendment) Act, 1952 and laid down the test thus: (1) where the provisions of a Central Act and a State Act in the
Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will (Italics supplied) prevail and the State Act will become
void in view of the repugnancy; (2) where, however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in
the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided
the State Act has been passed in accordance with Clause (2) of Article 254(3) where, however, a law made by the State Legislature on a subject
covered by the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by
obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so
far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only.
Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the
State Legislature under the proviso to Article 254. In that case it was held that part of the provisions were not repugnant in their application to the
public men in Tamil Nadu but are void to the extent of public servants. T. Barai Vs. Henry Ah Hoe and Another, is a case where Section 16(1)(a)
of the Prevention of Food Adulteration Act, 1954 in the Concurrent List prescribes a punishment of six years and fine. The West Bengal State
Legislature amended it by West Bengal Amendment Act, 1973 and prescribed a punishment of imprisonment for life for the selfsame offence u/s
16(1) of the Act. Prevention of Food Adulteration Act was amended by Parliament in 1976. The question arose whether by operation of proviso
to Article 254(2) the State law is void. Since the Central Amendment Act, 1976 occupies the same field imposing lesser punishment, the previous
State law imposing punishment of imprisonment for life, though received the assent of the President was held to be void.
It is not in dispute that subsequent to the amended Act No. 16 of 1997 there is no amendment by the Parliament with respect to the provision in
question. The decision relied on by the learned Government Advocate in Senjeevanagar Medical and Health Employees Co-operative Housing
Society Vs. Mohd. Abdul Wahab and Others, will not apply to the facts of the present case. The said decision has considered the scope of
amendment Act No. 9 of 1983, prescribing the publication of the substance u/s 4(1) should be done within 40 days in the District Gazette from the
date of publication. The Apex court taking into consideration of the amendment made by the Parliament under the amendment Act 68 of 1984, has
come to the conclusion that in view of the said enactment made by the Parliament under the amendment Act 68 of 1984, the earlier amendment by
the State cannot operate inconsistent to the subsequent - amendment of the Parliament.
In view of the above settled principles, and also in view of the fact that the respondents have not completed the acquisition proceedings within
the said stipulated period, the entire proceedings are vitiated.
In view of the above said facts and legal position, the impugned G.O.Ms. No. 73 Housing and Urban Development Department dated.
19.02.1997, viz., notification issued u/s 4(1) of the Land Acquisition Act, 1894, is set aside and the writ petition stands allowed. No costs.