Sundaram Pillai and Others vs The State of Tamil Nadu and Another

Padmanabhan, J.—In Writ Petition No. 1138 of 1978 the Petitioners are one Sundaram Pillai and his children. Sundaram Pillai, the first Petitioner, is the owner of an extent of 2.70 acres, comprising R.S. No. 39/2B (Old S. No. 98 part) in Varakalpattu village, on 19th February, 1975 the second Respondent issued a notification u/s 4(1) of the Land Acquisition Act (hereinafter referred to as the Act) stating that the land was needed for the public purpose of providing house-sites for Harijans. On 11th March, 1978 a declaration u/s 6 was made. The writ petition has been filed to quash the declaration made u/s 6 of the Act.

Mr. R.S. Venkatachari the learned Counsel for the Petitioner raised the following four contentions: (1) The 4(1) notification mentioned the names of all the Petitioners as persons interested in the land. However, no notice was issued to Petitioners 2 to 5 for the enquiry that was held u/s 5-A of the Act. Consequently, all the proceedings following Section 4(1) notification published under the Act had to be quashed (2) While admittedly as per the notification issued u/s 4(1) of the Act, Petitioners 2 to 5 are interested in the land the declaration issued u/s 6 does not contain their names. Therefore Section 6 declaration must be held to be void. (3) the extent of land acquired out of R.S. No. 39/2B is only an extent of 0.10.0 hectares. The portion sought to be acquired has not been particularised in Section 6 declaration. Section 6 declaration merely states that there is a plan kept in the office and that the parties could inspect the plan. (4) The land is being acquired for the purposes of the Social Welfare Department for providing house-sites for the Harijans. The objections filed by the first Petitioner in the 5-A enquiry have not been forwarded to the Social Welfare Department and the re-action of the department obtained. The failure to do so would vitiate the entire acquisition proceedings.

The question for consideration is whether all or any of the contentions of Mr. R.S. Venkatachari could be sustained. The particulars given in 4(1) notification, dated, 19th February, 1975 are as follows:

Government dry S. No. 98 (part) present enjoyers and interested persons (1) K. Sundaram Pillai, son of Kulandaivelu Pillai, (2) Kumar, (3) Madivoli (Nos. 2 and 3 son and daughter of No. (1), (4) Ponni, (5) Kaveri Nos. (4) and (5) minors by guardian father No. (1) 0.25 acre.

The Government Pleader did not dispute the fact that for the 5-A enquiry notice was sent only to the first Petitioner Sundaram Pillai. Admittedly notices have not been issued to Petitioners 2 to 5. The learned Government Pleader specifically admitted that Petitioners 2 to 5 had some interest in the land that is sought to be acquired. This admission fits in clearly with the statement made in 4(1) notification that apart from Sundaram Pillai, his son and daughters are interested persons. Section 5-A of the Act reads as follows:

5-A. Hearing of objections: (1) Any person interested in any land which has been notified u/s 4, Sub-section (1) as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under Sub-section (1) shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further inquiry if any as he thinks necessary, either make a report in respect of the land which has been notified u/s 4, Sub-section (1), or make different reports in respect of different parcels of such land to the appropriate Government, containing his recommendations on the objections together with the record of the proceedings held by him, for the decision of that Government. The decisions of the appropriate Government on the objections shall be final.

(3) For the purpose of this section, a person shall be deemed to be interested in land, who would be entitled to claim an interest in compensation, if the land were acquired under this Act.

It is clear from Section 5-A that the object of the legislature in enacting that section is no final order directing acquisition should be made by Government without giving the owner of the land proposed to be acquired or persons interested in (sic) an opportunity to forward their objections to the proposed acquisition and without the Government considering those objections. It is open to the owner or persons interested in the land to question the very purpose of acquisition on the ground that the purpose sought to be achieved is not a public purpose. Similarly, it will be open to the owner or the person interested in the land to state that the land sought to be acquired will be unsuitable for the purpose for which it is being acquired. It is only after hearing their objections the Government may be in a position to arrive at the subjective satisfaction regarding the purpose and the land required for that purpose. Therefore the right conferred on the owner or a person interested in the land u/s 5-A of the Act is a very precious right. Where an owner of the land sought to be acquired files objections within the time prescribed, he is entitled under Rule 3(b) read with Section 5-A to have the objections heard and enquired into and reported by the Collector. It is settled that the nature of the enquiry u/s 5-A is quasi-judicial and not wholly executive. B.S.O. 90 (9) reads thus:

Objections to acquisition Enquiry - After the publication of the notification u/s 4(1) of the Act the officer appointed to perform the functions of the Collector should give public notice of the proposed acquisition and hold an enquiry into the objection preferred, if any in accordance with the rules framed by State Government u/s 55 of the Act.

In enquiring into the objections the Collector will be guided by the following instructions:

(1) Besides publishing the notice as prescribed in Rule 1 of the appendix I, the Collector should see that individual notices are served as far as possible on every person known or believed to be interested in the land to be acquired in the manner prescribed by Sub-sections (3) and (4) of Section 9 of the Land Acquisition Act I of 1894. In cases in which it has been impossible at the time of the issue of the notification u/s 4(1) so to describe all or any of the lands to be acquired that the persons interested therein can understand that their lands are likely to be needed for the public purpose, the individual notice should be issued as soon as the necessary details are available allowing 15 days thereafter for the presentation of objections to the acquisition.

(2) ....

It will be seen from the above that B.S.O. 90 (9) makes it obligatory that notice of enquiry u/s 5-A should be given to persons interested in the land. The learned Government Pleader contended that since notice had been given to Sundaram Pillai, the first Petitioner no separate notices need be given to Petitioners 2 to 5. The contention of the learned Government Pleader cannot be sustained in view of the fact that 4(1) notification specifically mentions the name of Petitioners 2 to 5 as enjoyers and persons interested in the land sought to be acquired. There is the further fact even before me it is not the stand of the learned Government Pleader that Petitioners 2 to 5 have no interest in the land. Consequently I have no hesitation in holding that the failure to issue notice to Petitioners 2 to 5 for the 5-A enquiry has vitiated both the enquiry as well as the Section 6 declaration.

The next contention of Mr. R.S. Veakatachari was that particulars of the land had not been given in Section 6 declaration. Firstly, he contended that the area sought to be acquired is only an extent of 0.10.0 hectares (25 cents) out of a total of 2.70 acres. The property had not been localised. Secondly, the learned Counsel contended that though the names of Petitioners 2 to 5 had been included in 4(1) notification, their names have been omitted in Section 6 declaration giving rise to an impression that the lands in which Petitioners 2 to 5 are interested were not being acquired.

Section 6 of the Act read as follows:

Declaration that land is required for a public purpose:

(1) Subject to the Provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made u/s 5-A, Sub-section (2) that any particular land is needed for as public purpose or for a Company, declaration shall be made to that effect under the signature of Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification u/s 4, Sub-section (1), irrespective of whether one report or different reports has or have been made whenever required u/s 5-A Sub-section (2),

Provided ....

(2) Every declaration shall be published in the Official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.

(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration (the appropriate Government) may acquire the land in manner hereinafter appearing.

B.S.O. 90 (10) reads as follows:

Preparation, etc. of draft declaration- The Collector should submit to State Government through the Collector of the district and the Board of Revenue the records of enquiry with his final report and a draft declaration u/s 6 of the Act in the form prescribed in Appendix XII (Form 5-A or 5-B or 5-C) as also a copy of it in the regional language of the district....

Form 5-A of Appendix XII contains ten columns in the schedule of land sought to be acquired. Column 5 relates to names of owner/occupier. Column 4 relates to description of land. Columns 6 to 9 deals with boundaries. The words any particular land is needed for a public purpose in Section 6 would clearly enjoin the authorities to particularise the land in the declaration u/s 6. Those particulars are necessary in order to indicate the public and the persons concerned as to which property that is being sought to be acquired. Where the declaration u/s 6 suffers from the defect of want of particularisation of a land sought to be acquired such declaration cannot be deemed to be in accordance with Section 6. In Ram Sewak Vs. State of U.P. and Others, , it is held as follows:

It is true that this Section (Section 6) does not say that the number of the plots sought to be acquired or the names of the persons whose property is sought to be acquired should be mentioned, but in Sub-section (1) of Section 6 the words used are: ''any particular land needed for a public purpose''. In other words the law requires the land to be particularised in the notification u/s 6. It requires definiteness in the matter and it is clear that in the present case definitness is wanting. It is not necessary that in every case the number of the plots should be given or the names of the persons whose land is sought to be acquired should be given. If such particulars are given which would indicate to the public and to the persons concerned as to which property is being acquired, it would be sufficient compliance of the provisions of Section 6 of the Act. In my judgment the impugned notification in the instant case suffers from the defect of want of particularity and not in accordance with the law. The petition must therefore succeed on this ground alone.

In that particular case, the number of plots and the names of persons whose plots were sought to be acquired had not been mentioned. All that was mentioned was that total area of the land to be acquired and the village pargana and the district. It was, in those circumstances the question arose whether the notification was in conformity with the provisions of Sections 4(1) and 6 of the Act.

In Iftikhar Ahmed Vs. State of Madhya Pradesh and Others, a Bench of the Madhya Pradesh High Court observed as follows:

The notification u/s 4 and 6 are an essential part of the acquisition proceedings. They are in the nature of jurisdictional facts which give power to the land acquisition authorities to act further and in the absence of which subsequent proceedings would be ultra vires. Although at the stage when a notification u/s 4 of the Act is issued, the Government is not in a position to say definitely which particular piece of land is proposed to be taken, all the same, the locality in which the land to be acquired has to be given which should be reasonably a small one to show the whereabouts of the land. u/s 6, it is the particular land that should be specified in the notification. Where all that the notifications under Sections 4 and 6 stated was that an area of six acres of land in Bhopal City was proposed to be acquired the proceedings for acquisition were rendered invalid by the omission to specify sufficient particular of the land.

In this particular case Section 6 declaration reads as follows:

Under Section 6 of the Land Acquisition Act, 1894 (Central Act I of 1894) the Governor of Tamil Nadu hereby declares that the lands specified in the scheduled below and measuring 2.78.0 hectares to be the same a little more or less, are needed for a public purpose, to wit, for the provision of house-sites to the Harijans of Varakalpattu village, Cuddalore taluk South Arcot district. A plan of the lands is kept in the office of the Special Tahsildar (Harijan Welfare) Chidambaram and may be inspected any time during office hours.

Schedule

Government, dry R.S. No. 39/2B belonging to K. Sundaram Pillai, son of Kulandaivelu Pillai, bounded on the north and east by R.S. No. 39/2A south by R.S. No. 62 and west by R.S. No. 30-0.10.0 hectare.

From the above it will be seen that only 0.10.0 hectare (25 cents) out of a total extent of 2.70 acres in R.S. No. 39/2B is declared to be needed for the public purpose. The declaration does not localise the exact 0.10.0 hectare (25 cents) that is sought to be acquired. The declaration states that there is a plan kept in the office of the second Respondent it could be inspected by the public. The learned Government Pleader drew my attention to a plan. The learned Government Pleader was not in a position to convince me from the said plan as to which portion of the total extent of 2.70 acres of R.S. No. 39/2B was taken in by 0.10.0 hectare mentioned in Section 6 declaration. The learned Government pleader did not dispute the fact that Section 6 declaration did not contain the names of the Petitioners 2 to 5. I am, therefore, of the opinion that in this particular case, Section 6 declaration is defective in the sense that necessary particulars to identify the land have not been given in the declaration issued u/s 6 of the Act.

Assuming that the plan which is said to be kept in the second Respondent''s office did localise the extent of the land that is sought to be acquired the question still arises whether the availability of such a plan will exonerate the second Respondent from particularising the land in Section 6 declaration. A similar question arose for the consideration of the Calcutta High Court in Abdul Jabbar v. State of West Bengal 71 C.W.N. 129, In the case before the Calcutta High Court Section 6 declaration did not give the area individually either as regards the plots to be acquired is full or as regards the plots whose parts were sought to be acquired. There was a plan kept in the office of the collectorate which was available for inspection by the public or the persons whose lands were sought to be acquired. The challenge to Section 6 declaration was made on the basis that no particulars of the area or boundaries had been given in the declaration. That was met by the state of West Bengal stating that the Petitioner could get the particulars by inspecting the plan in the office of the Collector. The learned Judge observed as follows: "As regards a declaration u/s 6, I have given my reasons in several previous decisions including the one reported in Pramatha v. State of West Bengal 70 C.W.N. 503 why non-particularisation of the lands in the declaration invalidates it, and those reasons may be taken as a part of the instant decision, nevertheless, I shall summaries them, in brief: (1) Though Sub-section (2) of Section 6 provides for an inspection of the plan of land to be acquired where made it does not exonerate the authority to specify the approximate area of the land to be acquired. This is a requirement separate from the requirement to give the description, and, in the absence of the area, the declaration becomes ultra vires Section 6(2), as regards those plots whose area is not given. In the instant case, no area is given, individually, either as regards the plots to be acquired in full or as regards the plots whose parts are sought to be acquired. Now, so far as the first category is concerned, the defect may be excused because the plot numbers given are of the cadastral survey and their areas are manifest in the record of rights which are public documents. But in the case of the plots of which parts are intended to be acquired there being no description given of the portions so intended it is not possible to ascertain the quantum of the portions of each of those plots sought to be acquired from the area recorded in the C.S. Records. There is, thus a patent non-compliance with Section 6(2) in regard to C.S. plots 237, 300, 305 and 337, 2038, which are mentioned in the second category in the declaration u/s 6(ii) it has been held that apart from the specific requirement to give the area, want of sufficient particulars and description of the lands to be acquired invalidates a declaration u/s 6 Ram Sewak Vs. State of U.P. and Others, because, it would lead to the conclusion that Government has not applied its mind (Somawanti v. State of Punjab AIR 1963 S.C. 1510) to its duty of satisfying itself as to the particular land Section 6(1) which is needed, before issuing the declaration u/s 6 State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, per Wachhoo and Mudholkar, JJ. Ashas been observed by Mehrotra, J. in T.D. Corporation Ltd. v. State of Assam AIR 1961 Gau 133 such particulars must be given in the notification u/s 6 without which the specific lands sought to be acquired are not identifiable. In the case of a portion of a plot this can be done only by giving boundaries of the portion required or some other description of like nature. When the lands cannot be identified the acquisition proceedings would be void Wali Mohammad and Others Vs. Gyan Prakash Naga Babaji and Others, and Iftikhar Ahmed Vs. State of Madhya Pradesh and Others, . To say that the person affected himself refer to the plan to ascertain the particulars does not meet the above reasons, in as much as the preparation of a plan is not obligatory before the making of the declaration u/s 6 and this is clear from the words where a plan shall have been made of the land in Section 6(2) and if no plan has been made there of in Section 8. It is only at the stage of award of compensation under Sections 8 and 9 that the making of a plan is compulsory." I am in respectful agreement with the opinion expressed by the learned Judge of the Calcutta High Court. Even assuming that the plan Kept in the office of the second Respondent has particularised the land included in Section 6 declaration, that fact will not exonerate the acquisition officer from particularising the land in Section 6 declaration. In the circumstances, I hold that Section 6 declaration in the instant case is vitiated by a failure on the part of the second Respondent to comply with the requirements of Section 6 of the Act.

The next contention of Mr. R.S. Venkatachari the learned Counsel for the Petitioner, which merits consideration is the fact that the second Respondent failed to forward the objections filed by Sundarm Pillai to the proposed acquisition to the Social Welfare Department at the whose instance the land is being acquired for the provisions of house sites for the Harijans. Rule 3(b) of the Madras Land Acquisition Rules reads as follows:

If any objections are received from a person interested in the land and within the time prescribed in Sub-section (1) of Section 5-A the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land where such department is not the Revenue Department. Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the Collector a statement by way of answer to the objections and may also depute a representative to attend the enquiry.

It will be seen that the above rule enjoined the Collector to forward the copy of the objections received from the person interested in the land to the department for whose purpose the land is being acquired. It will be open to the department to file before the Collector a statement by way of answer to the objections filed by the person interested in the land. This rule came up for consideration before the Supreme Court in State of Mysore and Others Vs. V.K. Kangan and Others, . Before the Supreme Court it was argued that the provision contained in Rule 3(b) which obliged the issue of a notice for the 5-A enquiry and the forwarding of objections filed by the person interested in the land to the department for which the land was being acquired was only directory and not mandatory. After holding that the rule was mandatory, the Supreme Court observed as follows:

The proceedings of the Collector are quasi-judicial and it is only proper that he should be appraised of the attitude of the department requiting the land in the light of the objections filed. If the department requiring the land thinks in the light of the objection, that the land sought to be acquired is not necessary for the purpose for which it was required to be acquired or that more suitable land is available in the vicinity it is only fair that the Deputy Commissioner (Collector) is informed about it. The answer of the Department to the objection filed by the objector even, if adverse to the objector, would at any rate enable the Collector to bring a more informed and rational approach to the controversy before him.

The Collector has to send his recommendation to Government on the bans of his finding together with the record of the proceedings for the ultimate decision by the Government. It would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view points. Hence such a rule is not aultra vires Section 5-A(2).

A similar question came up for consideration before Koshal, J. (as he then was) in K.N.E. Jaganatha Iyer Vs. State of Madras and Others, . After extracting Rule 3(b) the learned Judge observed as follows:

In view of the fact that the acquisition was made by the Government for a public purpose as held above it was incumbent on the R.D.O. to give notice of the objections by the Petitioner to the concerned department which in this case was the Housing Department. That no such notice was given is admitted on all hands. The provisions of Sub-rule (b) being mandatory, the absence of the notice to the concerned department would vitiate the proceedings as laid down in State of Mysore and Others Vs. V.K. Kangan and Others, . No. such notice having admittedly been given, the proceedings held by the R.D.O. subsequent to the presentation of the objections by the Petitioner u/s 5-A of the Act must be held to be illegal and liable to be struck down.

The net result of the analysis is that Section 6 declaration in the instant case is vitiated for the following reasons:

(1) The failure on the part of the second Respondent to issue notice u/s 5-A to Petitioners 2 to 5, who have been admitted to be enjoyers and persons interested in the land sought to be acquired.

(2) The omission to give necessary particulars to identify the extent of 0.01.0 hectare (25 cents) sought to be acquired out of the total extent of 2.70 acres comprised in R.S. N0. 39/2B in the declaration u/s 6 of the Act.

(3) The failure to issue notice of 5-A enquiry to the Social Welfare Department for whose purpose the land is being sought to be acquired and to get their report on the objections filed by the first Petitioner Sundaram Pillai.

In the result Writ Petition No. 1338 of 1978 has to be allowed and is allowed. All proceedings subsequent to (sic) 4(1) notification are quashed. However, it will be open to the authorities to proceed further in accordance with law. There will be no order as to costs.

Is so far as Writ Petition Nos. 1178 and 1271 of 1978 are concerned the only objections that was effectively raised is that the objections to the acquisition filed by the Petitioners have not been forwarded to the Social Welfare Department at whose instance the acquisition proceedings were initiated, it is not disputed that the objections filed by the Petitioners were not forwarded to the Social Welfare Department and the re-action of the said Department was not obtained. I have already found that the failure to forward the objections of owners and persons interested in the lands sought to be acquired to the concerned Department and obtain their reaction would viria(sic)e the acquisition proceedings. In the circumstances the acquisition proceedings in those writ petitions viz., Writ Petition Nos. 1178 and 1271 of 1978 are also quashed from the stags of Section 4(1) notification. It will be however open to the Respondents to proceed de hors from the stage of 4(1) notification. The writ petitions are allowed. No costs.