Sundara Naicker vs The State of Tamil Nadu and Another

K.A. Swami, C.J.—This appeal is preferred against the order dated 15th October, 1990 passed by the learned single Judge in W.P.No.

7133 of 1990. As the writ petition has been dismissed, the petitioner therein has come up in appeal.

In the writ petition, the petitioner sought for quashing the acquisition proceedings started with the notification issued u/s 4(1) of the Land

Acquisition Act (hereinafter referred to an the Act in G.O.Ms. 733 P.W.D. (Electricity) dated 29.4.1988, published in the Tamil Nadu

Government Gazette, part II, Section 2, on 25.5.1988 and also the declaration made u/s 6 of the Act in G.O. Ms. 1095, P.W.D.(Electricity)

dated 1.6.1988 and published in the Government Gazettee dated 2.6.1988, acquiring an extent of 5.23 cents of agricultural land situated at

Ncikuppy Village, for the public purpose, viz., for construction of staff quarters for Madras Atomic power station at Kalpakkam. The

petitioner/appellant filed the objections on 19.7.1988, whereas the Notification u/s 4(1) 6f the Act was published in the locality on 6.6.1988. Even

then, the said objections have been inquired into and the report u/s 5A of the Act has been made in favour of proceeding with the acquisition.

Accordingly, the declaration has been issued.

Before the learned single Judge, it was contended that the objections were not inquired into and the requisitioning department had not offered its

remarks, therefore the acquisition was vitiated. It was also further contended that agriculture was more important than construction of staff

quarters, therefore the lands could not have been acquired. In addition to this, it was also contended that the declaration made u/s 6 of the Act was

not published, as required by Section 6 of the Act. Learned single judge has rejected all these contentions.

However, before us, it is contended that the substance of the Notification issued u/s 4(1) of the Act was not published in the locality, that the

requirements of Rule 3 (b) were also not complied with, that the declaration made u/s 6 was also not published, as per the provisions contained in

Section 6 of the Act and that 4(1) Notification had been published in the news paper earlier to the publication of the same in the Official Gazette.

We may point out here that the learned Government Pleader has produced the records before us. From the records, it is noticed that the

substance of the Notification issued u/s 4(1) of the Act has been published in the locality. However, the contention is that the publication of the

substance of the Notification is not in the form in which it ought to have been published in the locality, therefore, in the eye of law, such publication

has no value and as such, it should be ignored and it must be held that there is non-compliance with the requirements of Section 4(1) of the Act as

to publication of the substance of the Notification in the locality issued u/s 4(1) of the Act. On a perusal of the publication of the substance of the

Notification, we notice that there is an endorsement made by the village Administrative Officer that it has been published in the village by tom-tom.

Again, the sub inspector of police, southern police station, Chingleput, has also certified that the copies of 4(1) Notification with Form 3 A

regarding acquisition of land in 177, Neikuppy village, received from the Special Tahsildar, was published in the office. Again, the village

administrative Officer has also certified that the same was published in his office. The sub Registrar has also certified about the publication of the

substance of the Notification. The Panchayat Union Commissioner has also certified that the Notification issued u/s 4(1) of the Act was published

in his office. All these certificates bear the date 6.6.1988. That being so, it is not possible to appreciate the contention of the learned counsel for the

appellant that as the form under for publication of the substance of the Notification does not accord with the form prescribed it is bad in law, in the

light of the decision of the Supreme Court in Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . In that decision, it has

been held that publication of the substance of the Notification in the locality issued u/s 4 of the Act is mandatory: failure to comply with it vitiates

the acquisition. In the instant case, we have already pointed out that such a publication has taken place, though it may not be in the form that is

required, but the substance of the Notification has been published which sufficiently complies with the requirement of Section 4 of the Act.

Therefore, it is not possible to hold that there is lapse on the part of the Acquisition Officer in publishing the substance of the Notification in the

locality as required by Section 4(1) of the Act and Rule 1 of the Land Acquisition Rules framed by the State of Tamil Nadu u/s 55(1) of the Act,

as they were in force at the relevant point of time, Hence, the contention is rejected.

Apart from the fact that the objections filed on 19.7.1988 were beyond time as they were not filed within 30 days from 6.6.1988, those

objections arc of general nature, they have also been inquired into and remarks from the Acquiring Body have been received, which has stated that

the objections are of General nature. In addition to this, the petitioner/appellant has participated in the 5A inquiry and has given his no objection for

acquiring the two survey numbers, but in respect of other survey numbers, he has not given his consent. Whether he has given consent or not,

matters very little, as long as the required procedure is followed. The requirement of Rule 3(b) has been complied with, even though it was not

required to be complied with, as the objections were filled beyond time. The objections filed beyond time were not required to be sent to the

Acquiring Body, as held by a Division Bench of this Court in The Commissioner and Secretary to Government of Tamil Nadu Housing and Urban

Development Department, Madras 9 and Anr. v. C. Ramaswami Chettiar and Ors., W.A.No. 957 of 1993, dated 8.2.1996) Therefore, we sec

no substance in this contention also.

The learned counsel for the appellant place reliance on the decision reported in M. Rajagopal v. State of Tamil Nadu, 1992 (II) MLJ 404 and

Muthukaruppan and Others Vs. State of Tamil Nadu and Another, . In M. Rajagopal''s case, 1992 (II) MLJ 404 learned single Judge has placed

reliance on a decision of the Supreme Court in Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, . The contention of

the learned counsel is based upon the wordings contained in Section 4(1) of the Act. Therefore, we extract the same:-

Publication of preliminary notification and powers of offers thereup (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

Gazettce 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.

According to the learned counsel, as the expression ""official gazettee"" occurs earlier to the circulation the newspaper and publication in the locality.

The notification in the official gazette must be published first and then it should be published in two daily newspapers having circulation in the

locality and thereafter, the substance of the same could be published at convenient places in the said locality.

We find it very difficult to agree with the aforesaid decisions, consequently, to agree with the contention of the learned counsel for the appellant.

It has to be remembered that literal construction of a statute should always be avoided, if it leads to defeat the very object of the provision.

Whether the notification is published first in the newspaper or in the gazettee, it is a notification issued under the statute by the State Government

proposing to acquire the land. In addition to that, the provisions contained in Section 4(1) would make it clear that the last of the dates of the

publications shall be deemed to be the date of publication of such notification, viz., the notification issued u/s 4(1) of the Act. That being so, as long

as the publication in the newspaper and in the Gazette have taken palace, whether the newspaper publication is earlier and the publication in the

gazette is later, matters very little, as long as those publications have been made, without an unduly long gap between the two publications, it is not

possible to hold that a publication of the notification in the news paper preceding the publication of the same in the official gazette, would lead to

non-compliance with the provisions of Section 4(1) of the Act and thereby it would lead to nullifying the acquisition. It may be pointed out here that

the decision of the Supreme Court in Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, on which reliance is placed in

M. Rajagopal''s case, 1992 (II) MLJ 404, did not concern with Section 4(1) as it.... stands today. It was concerned with Section 4(1) as it stood

before the amendment and it did not provide for publication of the Notification in two newspapers published in the locality. Not only this, the

unamended Section 4 also did not contain a provision to the effect that the last of the dates of such publication and giving of such public notice as

the date of the publication of the notification. Therefore, the decision in Collector (District Magistrate) Allahabad and Another Vs. Raja Ram

Jaiswal, . I cannot have any bearing in construing the provisions of Section 4(1) as amended. Whether the notification in the official gazette

proceeds the notification in the news paper or the publication of the notification in the newspaper precede the gazette notification, matters very little

as long as it is the last of the dates of such publication and the giving of such public notice being referred to as the date of publication of the

notification, which alone would determine the date of publication of the Notification. That being so, the aforesaid two decisions in M. Rajagopal v.

State of Tamil Nadu, 1992 (II) MLJ 404 and Muthukaruppan and Ors. v. State of Tamil Nadu, 1994 (I) MLJ 303, in our view do not lay down

the law correctly. As such the same require to be overruled and the same arc overruled.

The next contention is that the declaration made u/s 6 of the Act has not been published in the locality as required by sub-section (2) of Section

6 of the Act. Nodoubt, the learned Government Pleader has not been able to place before us the records to show that the substance of the

declaration made u/s 6 of the Act has been published in the locality. However, it is the contention of the learned Government Pleader that the same

has been done. Even otherwise, we proceed on the basis that it has not been proved by the respondents that the substance of the declaration made

u/s 6 is published in convenient places: but, the failure to do so does vitiate the acquisition proceedings, because the Supreme Court in State of

Haryana and Another Vs. Raghubir Dayal, has held that the requirement as to publication of the substance of the declaration made u/s 6 of the Act

is directory, but not mandatory, the relevant portion of the judgment is as follows:-

..The purpose of the declaration u/s 6 is to render the land notified therein as that needed conclusively for public purpose. So, we are of the

opinion that the notification under section-sub (1) should not be invalidated for non-compliance of the notification u/s 6. It is true that the language

is Section 6(2) is in pari materia with Section 4(1). The purpose of publication of the declaration is to give effect to the conclusivencss of the extent

of the land needed for the public purpose or for a company as made u/s 6(3) of the Act. Since there is an opportunity already given to the owner

of the land or persons having interest in the land to raise their objections during the enquiry u/s 5A, or otherwise in case of dispensing with enquiry

u/s 5A unless they show any grave prejudice caused to them in onn-publication of the substance of the declaration u/s 6(1), the omission not

publish the substance of the declaration u/s 6(1), in the locality would not, render the declaration of Section 6 invalid. We are not intending to say

that the officer should not comply with the requirement of law and it is their duty to do it. But their dereliction to do so per se does not render the

declaration u/s 6 illegal or invalid. Therefore, the word ""shall"" used in sub-section (2) of Section 6 should be construed to be only directory but not

mandatory. Moreover, in this case notice was issued to the respondent under Sections 9 and 10 pursuant to which they appeared before the LAO

and put forth their claim and the award has already been made. As stated earlier, since there is no inter se dispute as regards the apportionment,

the Land Acquisition Officer had already made the reference u/s 30 and deposited the compensation in the court of District Judge along with the

reference"".

That being so, the contention does not carry the case of the petitioner/appellant any further.

As all the contentions raised by the learned counsel for the appellant are rejected, the appeal has to be dismissed and it is; accordingly,

dismissed. The CM.P. is also dismissed. However, there will be no order as to costs.

After the dismissal of the appeal, it is submitted that the petitioner may be permitted to seek reference for enhancement of the compensation in

this regard the petitioner has to work out his rights, according to the provisions contained in the Land Acquisition Act. If he has already made an

application for seeking reference within the period allowed by law, the Land Acquisition Officer has to make a reference. If he has not made any

such application, still, he is not deprived of the requisite compensation, because Section 28A protects the interests of such persons, as it would be

open to him to seek the compensation awarded to the neighbouring lands, to be awarded to his lands. Therefore, we do not see that there is any

need to issue any such direction.