S.R. Krishnamoorthi and Others vs The State of Tamil Nadu and Another

S. Jagadeesan, J.—The petitioner have filed this writ petition challenging the acquisition proceeding in respect of their land situated in

Vannivedu village, Wallajah Taluk.

The notification u/s 4(1) of the Land Acquisition Act was published in the gazette on 31.3.1993. The substance of the same was published in the

locality on 28.4.1993. After conducting the enquiry u/s 5-A of the said Act, the declaration u/s 6 was made on 26.4.1994. Thereafter, the award

enquiry was conducted on 10.1.1995 and the award was also passed on the same day.

The land was purchased by the petitioners'' mother on 1.4.1961 and after her death a joint patta was granted in favour of the petitioners and

their sister and other brothers. However, the names of the petitioners as well as their sister and other brothers do not find a place in the notification

u/s 4(1) of the said Act as well as the declaration u/s 5 of the said Act. During the enquiry u/s 5-A of the said Act, the brother of the petitioners

herein Mr. Amarnath as well as his sister appeared and gave the particulars with regard to the ownership of the land and requested the Land

Acquisition Officer to issue notice to all the land owners. Though the Land Acquisition Officer promised to send the same, without any notice to

any of the persons interested in the land sought to be acquired, the acquisition proceedings had been completed. As there was no notice to any of

the interested persons, the acquisition proceedings is liable to be quashed; especially when the individual notice for the enquiry u/s 5-A of the said

Act is a mandatory one.

The respondents have filed counter affidavit, wherein it is stated that the patta stood in the name of Kanakavalli Ammal, the mother of the

petitioners. However, during the enquiry u/s 5-A her son objected to the acquisition proceeding and also stated that there are other persons who

got interest over the land under acquisition. The petitioners'' sister also appeared for the enquiry and she also gave the names of other interested

persons; but she failed to furnish their address and as such the notices for the enquiry u/s 5-A of the said act were served by affixture. As no one

appeared for the enquiry, the further proceedings were concluded. At this stage, it is not open to the petitioners to come forward with the writ

petition on the complaint of non-service of notice.

The learned senior counsel for the petition reiterated what is stated in the affidavit and contended that the non-issue of the notice to the persons

interested in the land inspite of the land Acquisition Officer being informed about the interested person would vitiated the acquisition proceedings.

Similarly the Special Government Pleader contended that notices were served by affixture in the absence of any particulars of the land owners.

Hence service has to be held valid and hence no interference is called for.

In view of certain admitted facts, there is no need to elaborate the facts. Admittedly the petitioners'' sister and one brother appeared during the

enquiry u/s 5-A of the said Act and gave the names of the persons who are interested in the land sought to be acquired. When that be the case, as

held by the Full Bench of this Court in P.C. Thanikavelu Vs. The Special Deputy Collector for Land Acquisition, Madras and Another, the Land

Acquisition Officer is bound to serve the notice on the interested persons. To extract the principles laid down by the Full Bench is as follows:

It is therefore elementary that, to be consistent with the principles of natural justice, such a person should be put on notice before his lands are

acquired and his objection heard and considered. The enquiry contemplated u/s 5-A of the Act would be full and complete only when the person

who is really interested in the land is put on notice. But, at the same time, it is made clear that the individual notice is mandatory only to those

persons whose names are found in the revenue records or who are found, by the collector as persons interested on information received through

reliable source.

Oh the above principles, there cannot be any second opinion that the Land Acquisition Officer is obliged to serve the notices on the persons

interested in the land, event though such particulars are brought to his notice during the enquiry u/s 5-A of the said Act.

It is admitted that the names of the persons interested in the land had been furnished. But however, their addressed were not furnished and as

such the Land Acquisition Officer resorted to the affixture of the notice on the land. This is clear from the averments made in paragraph 6 of the

counter affidavit.

So far as the affixture is concerned, the mere statement in the counter affidavit cannot be accepted, in the absence of any records. At the time

of hearing, the file was not produced. Till today no attempt has been made by the respondents to produce the record.

In the judgment of Thangamuthu Gounder Vs. The Secretary Government of Tamil Nadu Social Welfare Department Fort. St. George,

Madras 600 009 and 4 others, I have held as follows:

If, the notice has been served by affixture, naturally the endorsement should contain the reason for such affixture and also the same ought to have

been attested by the neighbouring land owners. Even though, several adjournments have been granted, till date, the respondents are not in a

position to produce the records. It is represented that the records are not traceable. When the award enquiry is of the year 1984, naturally at the

time of the filing the Writ Petition the records might have been available. When the matter is pending from 1989 till date, it is the duty of the

respondents to trace out the records and keep them ready for Court reference. Without doing so, the respondents are avoiding production of the

records. Hence, I am of the view that mere statement in the counter affidavit that the petitioner absented himself for long-time and hence, they

resorted to affixture cannot be accepted.

When the records were not produced and there is no averments in the counter affidavit the none of the interested person is available in the land, the

statement made in the counter affidavit regarding affixture cannot be ipso facto acted upon. Hence, in my view, the land acquisition proceeding is

vitiated for the non-issue of the notice on the interested persons.

Consequently the writ petition is allowed and the impugned notifications are set aside. W.M.P.No. 10630 of 1995 is closed.