Writ Petition No. 580 of 1981. Case: P.V. Mohammed Ghouse Vs State of Tamil Nadu, represented by The Commissioner and Secretary, Transport Department and Ors.. High Court of Madras (India)

Case NumberWrit Petition No. 580 of 1981
CounselFor Appellant: R. Sukuntharaj, Adv. and For Respondents: Adv. General, assisted by, N.R. Chandran, Additional Government Pleader
JudgesMohan, J.
IssueLand Acquisition Act, 1894 - Sections 4(1), 5A, 6, 6(3), 9(1), 17, 17(2), 17(4); Land Acquisition Rules - Rules 3, 3(4)
CitationILR 1983 (3) Mad 157
Judgement DateAugust 23, 1982
CourtHigh Court of Madras (India)

Order:

Mohan, J.

  1. This writ petition is for certiorari to quash the G.O. Ms. No. 802, Transport Department, dated 16th July, 1980 in so far as it relates to the Petitioner's land of an extent of 0.75 acre comprised in R.S. No. 301/3-A, No. 44, Raja Sooriamadai Village, Ramanathapuram Taluk, Ramnad District.

  2. The facts are as under, The Petitioner is the owner of the land of an extent of 2.25 acres in R.S. No. 301/3-A. Land acquisition proceedings were initiated to acquire a portion of this land, via,. 0.75 acres (equivalent to 0.35.5 hectare) for a public purpose to wit, for the construction of Micro-wave building and Tower.

  3. In view of the urgency, the statutory enquiry Under Section 5A of the Land Acquisition Act was dispensed with and a declaration Under Section 6 was made in G.O. Ms. No. 989 P.W. (General), dated 28th June, 1977. This was published in the Tamil Nadu Government Gazette, dated 20th September 1977. At that stage, the Petitioner filed Writ Petition No. 3281 of 1977 to quash the said declaration. This writ petition was dismissed at the admission stage. However, in Writ Appeal No. 592 of 1977, the Division Bench quashed the said G.O. Ms. No. 989, P.W. (General), dated 28th June, 1977 and made the following order:

    ...In this case, the notification Under Section 4(1) the direction and the declaration have all been simultaneously published on 20th July, 1977. This is scant respect to the statutory provisions and the rule of law as embodied therein. Apart from this consideration there is another fundamental aspect. Section 17(2) does not contemplate the application of Section 17(4) for purposes of the acquisition as stated in the notification Under Section 4(1) in this case. This merely, indicates that there has been no application of the mind to Section 17 at all before wielding the heavy weapon given to the authority Under Section 17(4). Such an action borders on arbitrariness if not on perversity. In such circumstances, We are constrained to interfere by issue of necessary directions. We consider that interests of justice demand that the notification, dated 28th June, 1977 which is at page 7 of the typed set of papers, must be quashed in toto, that is, as far as the decimation portion is concerned, and so also the dispensing with the enquiry Under Section 5A is concerned. We do so.

    However, certain observations were made with regard to delivery of possession and the relevant portions of the judgment reported in paragraphs 9 and 10 at page 177 are as follows vide P.V. Mohammed Ghouse v. State o f Tamil Nadu 1978 (91) LW 175.

  4. Before parting with his case, we would like 1o record that counsel for the Appellant stated that he has no objection to 75 cents of land being taken from he portion of the land lying away from the road and that he has no objection to the whole of that 75 cents being taken, and he only wants his interest being safeguarded. The portion lying adjacent to the road, it is said, is necessary for the purpose of opening a cinema theatre which he proposes to do so. It is not disputed that only 75 cents is required for the purpose for which public acquisition was resorted to. In the light of these statements made by counsel on behalf of the Appellant, it seems to us to be possible to have the enquiry concluded without any delay, because the land is available to the Government, and only its location need be determined.

  5. We direct that notice be given of the enquiry and the Appellant given an opportunity to state his case and his claim that the acquisition be confined to the back portion. that is, the portion lying away from the road, be considered. The authority conducting he enquiry should apply his mind to the question and pass proper orders before proceeding further with the acquisition proposed.

    The effect of this as I understand is to direct a fresh enquiry Under Section 5A in the light of the observations made above. This judgment was on 5th January, 1978. With regard to possession, the following events require to be noted.

  6. On 18th June, 1978, the Sub-Collector, Ramanathapuram had taken possession of the land from the Micro Wave Department. On 19th June, 1978, a telegram was issued calling upon the Petitioner to take possession on 21st June, 1978. This is seen from page 395 of the second Respondent's file (volume 3). However, the petition refused to take possession. On 26th June 1968, again there was a further circumstance, on 3rd November, 1978, the Government instructed the Collector to proceed with the enquiry Under Section 5A. On 14th December, 1978, Section 5A enquiry was conducted as seen from pages 929 and 931 of the second Respondent's file (volume 2) produced by the learned Government Pleader. On 6th December, 1978 communication was sent by the Petitioner through his Counsel refusing to participate in the enquiry. This is obtained at page 931 of volume II of the records. On 14th December, 1978, Section 5A enquiry was conducted without the Petitioners. On 21st December 1978, the report of the 5A enquiry was sent to the Board of Revenue by the Collector (within the meaning of the Act). On 7th January, 1979, the Board has made a report. This is available at page 513 of volume III of the records. It is thereafter G.O. Ms. No. 802, Transport Department, dated 16th July,1980,was passed declaring the need for acquisition, which was made Under Section 6 of the Act. This is available at page 889 of volume II of the records. It was published in the Tamil Nadu Government Gazette, which publication is available at page 893 of volume II of the records. On 22nd April, 1980, applications in Civil Miscellaneous Petition Nos. 9849 and 9850 of 1978 and 12627 of 1979 were taken out by the Collector and the following order was passed by this Court.:

    In the order in Writ Appeal the State was directed to hand, over possession of the property sought to be acquired to the writ Petitioner immediately. But it appears that after taking possession of the property, the Government have put up compound wall and dug a well, costing about Rs. 26,000 and when the department wanted to hand-over possession to the writ Petitioner (Respondent herein) along with the compound wall and well, he refused to take them and demanded that he should be given possession of the property in the same petition as it was taken from him. It is at this stage, the Government have filed these three petitions, one for a direction to the Respondent to...

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