V. Padmavathi and Others vs The Government of Tamilnadu

V. Kanagaraj, J.—Both the above writ petitions have been filed with one and the same object sought to be achieved i.e., to issue a writ of

Certiorari calling for the records of the first Respondent/Government connecting to G.O. Ms. No. 188 Housing and Urban Development dated

6.2.1986 and to quash the same.

At the outset, it is relevant to point out that the parties connected to both the above writ petitions especially the Petitioners being related to each

other and members of one and the same family and the properties concerned with both these writ petitions having originated from the common

ancestor, which ultimately fell to the shares of the Petitioners in both the writ petitions and the Petitioners in W.P. No. 15590 of 1988 being sisters

and Petitioners in W.P. No. 15591 of 1988 being brothers and mother and the properties also since falling under the same S. No. of one and the

same village and the Respondents too being the same in both the above writ petitions, hearing both the above writ petitions jointly, this common

order is passed with proper appreciation.-

In the affidavits filed in support of both the writ petitions, it would be contended that the original owner of both the properties was one K.S.

Ramaswamy Gounder who owned and possessed a total extent of about 21 acres of land in S. Nos. 135 and 136 of Thottipalayam Village,

Tiruppur Town, Palladam Taluk; that by a registered Will dated 26.8.1955, he bequeathed the entire property in favour of Smt. K.C.P.

Muthulakshmi Ammal, the fourth Petitioner in W.P. No. 15591 of 1988 and the mother of the other Petitioners in both the writ petitions; that by

virtue of a Civil Court decree made in O.S. No. 310 of 1965 on the file of the Court of Subordinate Judge, Tiruppur, the fourth Petitioner in W.P.

No. 15591 of 1988 became the absolute owner of the property and subsequently on a family arrangement, the Petitioners in the first writ petition

i.e., W.P. No. 15590 of 1988 became entitled to an extent of 6.63 acres falling in G.S. Nos. 136/1, 135/2 and 135/1 and the Petitioners in the

second writ petition i.e., W.P. No. 15591 of 1988 became entitled to an extent of 5.60 acres in G.S. Nos. 135/1, 135/2 and 136/1-and they

respectively not only became entitled to but also placed in possession and enjoyment of those properties.

The further contentions of the Petitioners are that while so ,the Respondents took steps to acquire the said lands along with certain adjacent

lands for the alleged public purpose of construction of houses for the third Respondent/Housing Board and issued notification u/s 4(1) of the Land

Acquisition Act, 1894 (hereinafter referred to as the ''Act'') and published in the Tamil Nadu Gazette on 26.2.1986.

The Petitioners would further contend that the said notification issued u/s 4(1) of the Act had been issued only in the name of late K.S.

Ramasami Gounder notwithstanding the changes effected in the title of the property; that however, on coming to know about the said proceeding,

the Petitioners objected to the taking over of the said lands on various grounds and all of a sudden, they were issued with the notice u/s 9(3) of the

Act on 10.11.1988 without being aware of any other proceeding especially that of the declaration made u/s 6 of the Act and in spite of praying for

an adjournment of the date of hearing, without conceding the same, the Respondents 1 and 2 carried on with the land acquisition proceedings and

hence left with no alternative, the Petitioners have come forward to file these writ petitions seeking thereby to issue a writ of certiorari calling for the

records connected to G.O. Ms. No. 188 Housing and Urban Development dated 6.2.1986 and quash the same. -

In assessing the facts and circumstances encircling the whole acquisition proceedings as pleaded by parties and having regard to the materials

placed on record and upon hearing the learned Counsel for both, what comes to be known is that the lands of the second Petitioner in the first writ

petition viz.K. Kalavathi have been relieved from the acquisition proceeding thus cancelling the entire acquisition proceeding pertaining to the

second Petitioner in the: first writ petition, in consequence of an order passed by the Government and communicated to the District authorities in

Letter (Ms) No. 425, dated 14.6.1993; that the second Petitioner in the first writ petition has filed a petition in W.M.P. No. 24771 of 19921 to

permit her to withdraw from W.P. No. 15590 of 1988 to the extent of her rights in T.S. No. ll/2-A, measuring about 2.21 acres in Thottipalayam

Village, Palladam Taluk, Coimbatore District and to delete her name from the W.P. No. 15590 of 1988 and the same was allowed by this Court

on 2.9.1993.-

On the part of the Petitioners in both the above writ petitions, the learned Counsel appearing for the Petitioners would contend that there is no

proper purpose or necessity for the Respondents to acquire the entire properties covered in both the above writ petitions; that though it is said to

be for the construction of houses for the Tamil Nadu Housing Board Neighbourhood Scheme, no concrete steps have been taken on the part of

the Respondents towards achieving the said project; that the lands of the second Petitioner in the first writ petition above have been exempted from

the acquisition proceeding; that the other lands belonging to the other Petitioners in both the writ petitions are only contiguous parts of the lands

belonging to the second Petitioner in the first writ petition, without which the Respondents cannot get the site at a stretch and form the scheme; that

moreover what best reasons have been attributed on the part of the Government for granting exemption in favour of the second Petitioner in the

first writ petition in relieving her lands from acquisition proceeding, very well applies to the other writ Petitioners lands also and in such conditions,

these writ Petitioners cannot be discriminated against, since there cannot be any discrimination in the eye of law and thus would pray for quashing

the G.O. in so far as it relates to the lands of the Petitioners in both the writ petitions are concerned.

On the part of the learned Government Advocate, it would be contended that the original second Petitioner in the first writ petition above, on

valid and tangible grounds approached the Government, the first Respondent herein, and the Government in consideration of the genuineness of the

case had arrived at the conclusion to exempt the lands of the second Petitioner in the first writ petition and the same privilege cannot be claimed as

of right by the other Petitioners also; that if the remaining lands belonging to these Petitioners have also been relieved from the acquisition

proceedings, then the Respondents may not be in a position to formulate the scheme; that all the procedures have been thoroughly followed so far

as the acquisition of the lands of the Petitioners is concerned and would ultimately pray for dismissing the above writ petitions as not on valid

grounds.

It would be strongly argued on the part of the Petitioners in both the writ petitions that what applies to the case of the second Petitioner in the

first writ petition applies to all the Petitioners; that very likely the second Petitioner in the first writ petition, these Petitioners have also not been

served with proper notices at the appropriate time especially regarding the enquiry u/s 5-A of the Act and at the time the declaration was made u/s

6 of the Act though the enquiry u/s 5-A and the declaration u/s 6 of the Act are crucial stages, wherein the genuine grievances of the land owners

could be redressed; that since the name of the original owner K.S. Ramsiswamy Gounder was published in the Section 4(1) Notification, proper

notices were not served on the Petitioners; that the Petitioners were ignorant and they could not do anything about regarding the role of the

acquisition proceeding testifying the validity of the same at each and every point and after all only at the time of enquiry u/s 9(3) of the Act, they

were served with notices and hence would contend that what applies to the case of the second Petitioner in the first writ petition very well applies

to the other Petitioners also. That the property of the second Petitioner in the first writ petition being an integral part of the whole extent measuring

about 12 acres, what logic or norm that applies to the said land, very well applies to the lands of the other Petitioners also and hence they cannot

be discriminated and would cite a judgment of the Apex Court delivered in Amarnath Ashram Trust Society and Anr. v. Governor of Uttar

Pradesh and Ors. reported in AIR 1998 S.C.477 wherein it is held;

... the acquisition could not have been sustained as for a public purpose, is based upon misconception of legal position and such a decision of

withdrawal has to be regarded as arbitrary and not bona fide. In respect of an acquisition for a company under Chapter VII of the Act, law does

not require that the state should also bear some cost of the acquisition to make it an acquisition for public use. Particularly in a case where as a

result of a decision taken by the Government, other party is likely to be prejudicially affected, the Government has to exercise its power bona fide

and not arbitrarily.

Citing the above judgment, the learned Counsel for the Petitioners would exhort that the case in hand squarely falls within the observation of the

Apex Court.

It is quite evident and almost an admitted case on the part of the Respondents that there was no proper notice to the Petitioners. What is

argued on the part of the teamed Government Advocate representing the Respondents 1 and 2 is that to the persons, whose names were found in

the Revenue Records, they issued notices and since the name of Mr. Ramaswarny Gounder had been found notice had been sent in his name by

the authorities, having left with no option. They had to carry on with the acquisition proceeding.

The Government in its notification, while granting exemption to the lands of the second Petitioner in the first writ petition, has shown the lack of

notice in her favour since she had been a resident of Canada and had gone upto the extent of relieving her properties from the land acquisition

proceedings. Even though the other Petitioners in both the above writ petitions are said to be residing in India, the same analogy that has been

applied to the case of the second Petitioner in the first writ petition above, for relieving her properties from the acquisition proceedings very well

applies to them also since they have also not been served with the notices at each and every stage of the acquisition proceedings. In any event,

these Petitioners cannot at all be segregated or treated separately from the second Petitioner in the first, writ petition for any purpose. Once the

properties of the second Petitioner in the first writ petition, in the estimate of the Government, becomes liable to be exempted from the acquisition

proceedings, in law, automatically, the properties of her sisters, brothers and mother, all being continuous stretch falling under three survey

numbers, also become liable for exemption since these Petitioners would also become liable to be entitled to the benefit of the same treatment that

had been extended in favour of the second Petitioner in the first writ petition above. Hence, on ground of lack of opportunity for making proper

representations on account of non service of notices on the Petitioners, especially for Section 5-A enquiry and at the time of declaration made u/s 6

and on discriminatory ground, these Petitioners are also entitled to the same benefit as the second Petitioner in the first writ petition above and

hence this Court is left with no option but to allow both the above writ petitions treating the other Petitioners in both the above writ petitions on par

with the original second Petitioner in the first writ petition thereby relieving their lands also from the land acquisition proceedings since for all

purposes, these Petitioners are sailing in the same boat along with the second Petitioner in the first writ petition.

In result, both the above writ petitions succeed and they are allowed.

G.O. Ms. No. 188 Housing and Urban Development dated 6.2.1986, so far as it is concerned with the properties of the Petitioners in both the

above writ petitions is quashed.

However, in the circumstances of the case, there shall be no order as to costs.