Citation Codes

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Case Number

W.P 580 of 1981

Advocates

Mr. R. Sukantha Raj for Petr.
Mr. N.R Chandran Addl. Govt. Pleader for Respts.

Judges

Mohan, J.

Acts

S. 5-A of the Land Acquisisition Act
3(4) of the Land Acquisition Rules
LAND ACQUISITION ACT

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Smart Summary

Structured Summary of the Opinion (Land Acquisition — G.O.Ms. No. 802 / S.4(1), S.5-A, S.6)

Factual and Procedural Background

The petitioner owned 2.25 acres in R.S. No. 301/3A (Raja Sooriamadai village, Ramanathapuram Taluk) from which 0.75 acre was sought to be acquired for construction of a Micro Wave building and tower. Initially, urgency was invoked and the statutory inquiry under S.5-A was dispensed with; a declaration under S.6 was made by G.O.Ms. No. 989, P.W. (General), dated 28th June 1977 and published on 20th September 1977. The petitioner filed W.P. 3281 of 1977 challenging that declaration; the writ petition was dismissed at admission but in W.A. No. 592 of 1977 (Division Bench, 5th January 1978) the S.6 declaration and dispensation of the S.5-A inquiry were quashed, with observations directing that a fresh S.5-A inquiry be conducted and consideration be given to the petitioner’s request that the acquisition be confined to the back portion.

Subsequent events included: the Sub-Collector taking possession from the Micro Wave department on 18th June 1978; multiple telegrams from revenue authorities asking the petitioner to take possession (the petitioner refused); the Government instructing the Collector on 3rd November 1978 to proceed with S.5-A; an S.5-A inquiry being recorded as conducted on 14th December 1978 (without the petitioner, who refused to participate); the S.5-A report being sent to the Board of Revenue on 21st December 1978, and the Board commenting on 7th January 1979. Thereafter the Government issued G.O.Ms. No. 802, Transport Department, dated 16th July 1980 declaring acquisition under S.6, and this was published in the Tamil Nadu Government Gazette.

The Collector took further administrative steps (including applications C.M.P. 9849, 9850 of 1978 and 12627 of 1979) and the Division Bench on 22nd April 1980 made detailed directions regarding delivery of possession and treatment of a compound wall and well. The Requisitioning Department declined the petitioner’s request that the rear portion be acquired because the alignment would be disturbed. Several further communications and telegrams were exchanged in 1980, and the petitioner continued to refuse to take possession. The present writ petition seeks certiorari to quash G.O.Ms. No. 802 dated 16th July 1980 insofar as it relates to the petitioner’s 0.75 acre.

Legal Issues Presented

Whether the S.4(1) notification was validly framed and sufficiently localised (i.e., whether the notification specified the locality/extent so as to permit valid acquisition).
Whether the S.6 declaration dated 16th July 1980 was invalid because it was made after more than three years from the date of the S.4(1) notification (and whether time spent during court proceedings must be excluded).
Whether a valid S.5-A inquiry had been conducted (procedural compliance, dates, notices and whether the S.5-A report was sent to the Government), and if not, whether the S.6 declaration relying on that inquiry was invalid.
Whether statutory rules/procedures (including Rule 3(4) of the Land Acquisition Rules and related requirement to forward copies and eliciting requisitioning department’s opinion) were followed so as to give the petitioner an effective opportunity to be heard.
Whether failure to deliver possession to the petitioner (despite court directions and requisitions) affected the validity of the S.6 declaration and consequent acquisition steps.

Arguments of the Parties

Petitioner's Arguments

The S.4(1) notification did not localise or specify the precise locality/extent, merely stating '75 cents' and thereby being invalid (relying on Narendrajit v. State of U.P.).
The S.6 declaration was made more than three years after the S.4(1) notification (S.4(1) dated 22nd March 1977 and S.6 dated 16th July 1980), so the S.4(1) notification had expired and could not be used as a reservoir.
The S.5-A inquiry was not properly conducted (conflicting notices, dates, and an unexplained further notice on 24th May 1980) and the S.5-A report was not sent to the Government, so statutory compliance failed.
The procedure under Rule 3(4) of the Land Acquisition Rules was not followed; after objections the copies were not forwarded to the Requisitioning Department and their opinion was not elicited or made known to the petitioner, denying effective opportunity to rebut.
Authority to take possession pursuant to S.9(1) must follow a valid declaration; without proper S.5-A and without delivery of possession per court direction, the S.6 declaration and possession steps are invalid and amount to abuse of process.

Respondents' Arguments (State/Government)

The Division Bench judgment in P.V. Mohamed Ghouse v. State of Tamil Nadu quashed only the S.6 declaration and the dispensation of S.5-A; the S.4(1) notification remained intact, so the Government could proceed to conduct S.5-A inquiry and ultimately a S.6 declaration.
An S.5-A inquiry had been conducted (the State asserts S.5-A was conducted on 12th June 1978 in the course of events, and later the statutory inquiry proceeded) and the petitioner had objected or refused to participate; the State contends the inquiry and reporting procedure were followed in substance.
The S.4(1) notification was not vague: reading the notification permitted identification of the property sought and the petitioner himself had pressed for acquisition of the rear portion, so there was no uncertainty as in Narendrajit or Gunwant Kaur.
The three-year period is subject to exclusion for time during which court proceedings stayed action on the notification (relying on the amendment adding an Explanation to S.6 and on Girdharilal v. State of Gujarat), so the S.6 declaration of 16th July 1980 fell within the permissible period.
The Requisitioning Department actively considered and rejected acquisition of the rear portion on grounds of disturbing alignment (particularly relevant to micro-wave technology), and the State denies that possession was retained improperly to obtain a declaration.
The procedural irregularities alleged (R.3 matters) were either complied with or did not vitiate the declaration in the factual matrix as presented by the State.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
P.V. Mohamed Ghouse v. State of Tamil Nadu, 91 L.W. 175	The Division Bench quashed the S.6 declaration and dispensation of S.5-A and directed that a fresh S.5-A inquiry be held; it also made directions regarding delivery of possession and consideration of acquiring the rear portion.	The court read that decision as quashing only the S.6 declaration and the dispensation of S.5-A, leaving the S.4(1) notification intact; the Division Bench's directions on possession were treated as binding guidance to be followed in subsequent possession orders.
Narendrajit v. State of U.P.	Where the locality/particulars are not specified in the notification, the public purpose may not be fully subserved; an acquisition notification must adequately localise property.	The court held Narendrajit did not apply to the present case because the S.4(1) notification here contained a schedule with particulars (survey number, owner name, boundaries and extent). The court therefore rejected the contention that the notification was vague.
Mandir Sita Ramji v. Governor of Delhi	The necessity of affording an opportunity (principles of natural justice/procedure) in acquisition proceedings.	Cited by the petitioner to argue that opportunity to know the requisitioning department's opinion is essential. The court considered procedural opportunity issues but ultimately found other grounds decisive (i.e., uncertainty about whether a concluded S.5-A had taken place).
State of Mysore v. V.K. Kanga, A.I.R. 1975 S.C. 2190	Related to procedural opportunity and requirements in acquisition matters (as cited with Mandir Sita Ramji).	Cited by petitioner; the court acknowledged the importance of procedural opportunity but did not rest its final conclusion solely on that precedent.
Gunwant Kaur v. Bhatinda Municipality, A.I.R. 1970 S.C. 802	Where demarcation is absent, the party is handicapped and the notification can be void for want of particulars.	The court distinguished Gunwant Kaur on the facts, noting that in the present case the notification included sufficient particulars and demarcation material, so the handicap contemplated in Gunwant Kaur did not arise.
Girdharilal (Girdharilal/Girdharilal) v. State of Gujarat, A.I.R. 1966 S.C. 1408	Where an initial notification or attempt was invalid, the Government could issue a fresh S.6 if the earlier notification did not effectively exercise power; also cited concerning exclusion of time during pendency of proceedings.	The court relied on Girdharilal to support the State's position on the non-exhaustion of power under S.4(1) and the ability to issue a valid S.6 later; the court used its language to show that an invalid earlier step does not always prevent later valid action.
Somawanti v. State of Punjab	Support for the proposition that a notification under S.4(1) is preliminary in character and does not, by itself, affect rights finally.	The court cited Somawanti to underscore that S.4(1) notification is preliminary and could remain intact even when later steps (S.6 or dispensation of enquiry) are quashed; thus S.4(1) was not rendered exhausted or void on these facts.
Doongarsee and Sons v. State	Referenced in argument that a S.4(1) notification might be 'exhausted' in certain circumstances (as relied on by petitioner).	The court rejected the submission that Doongarsee and Sons rendered the S.4(1) exhausted here because the Division Bench had not invalidated S.4(1) and relevant authorities showed S.4(1) remained preliminary and intact in the factual matrix before the court.

Court's Reasoning and Analysis

The court proceeded in a structured manner, addressing each principal contention in turn and applying the factual record and authorities quoted in the file:

Validity and character of S.4(1) notification: The court noted the Division Bench judgment (P.V. Mohamed Ghouse) quashed only the S.6 declaration and the dispensation of S.5-A, leaving S.4(1) intact. The court held that S.4(1) is preliminary in character (citing Somawanti) and that, on the face of the schedule reproduced in the S.4(1) notification (survey number, name of owner, boundaries and approximate extent), the notification was not vague nor lacked localisation — thus Narendrajit did not apply.
Three-year rule and computation of time: Although S.6 dated 16th July 1980 was more than three years after the S.4(1) notification dated 21/22 March 1977 when reckoned literally, the court invoked the statutory amendment adding an Explanation to S.6 which excludes periods during which the notification action was stayed by court orders. The court therefore excluded the period during which court proceedings were pending and concluded the declaration was within time, so that timing per se did not invalidate S.4(1).
Whether a valid S.5-A inquiry occurred: The court traced the chronology: a S.5-A notice on 13th May 1978; petitioner's replies and objections including a refusal to participate; administrative notes halting action; the petitioner’s refusal to accept possession; the Government’s instruction on 3rd November 1978 to proceed; an S.5-A inquiry recorded as conducted on 14th December 1978 without petitioner; report sent to the Board on 21st December 1978; Board comments on 7th January 1979. On this sequence the court initially acknowledged that if matters had stopped there, objection would be difficult. However, the court focused on a later communication dated 24th May 1980 — a Collector’s letter calling on the petitioner to file objections — and treated that communication as inconsistent with there having been a valid, final, concluded S.5-A inquiry. The court reasoned that issuing that notice after the earlier S.5-A inquiry and report suggested that the administration itself had not taken a concluded view and that the Collector may not have appreciated the scope and finality of the powers under the Act.
Procedural compliance (Rule 3 / forwarding requisitioning department's opinion): The court observed that the requisitioning department was consulted (24th May 1980) and replied on 27th May 1980 that acquiring the rear portion was not feasible. The court found it unnecessary to decide fully whether Rule 3(b) compliance or forwarding of the requisitioning department's report was defective, because it had already concluded there had not been a final, valid S.5-A inquiry in light of the 24th May 1980 letter and the consequent uncertainty.
Possession and its effect on validity: The court rejected the absolute contention that absence of physical delivery of possession (the petitioner’s refusal to accept possession) automatically invalidated the S.6 declaration. The court recorded numerous attempts by authorities to have the petitioner accept possession and the petitioner’s obstinacy. Nevertheless, given the other procedural irregularity (the 24th May 1980 notice implying non-finality), the court concluded there had not been a valid concluded inquiry as a basis for a valid S.6 declaration.
Conclusion from analysis: Balancing the chronology, the Division Bench directions, the administrative steps and the procedural irregularity of the later notice, the court held that there was no valid concluded final S.5-A inquiry as a necessary prerequisite to a valid S.6 declaration; on that ground the impugned declaration (G.O.Ms. No. 802 dated 16th July 1980 insofar as it related to the petitioner's land) had to be quashed.

Holding and Implications

Holding: THE WRIT PETITION IS ALLOWED — the impugned proceedings (G.O.Ms. No. 802 dated 16th July 1980) are quashed insofar as they relate to the petitioner's 0.75 acre.

Consequences and immediate implications (as declared by the court in the opinion):

The court made clear that the S.4(1) notification remains intact; the Government is at liberty to proceed further according to law starting from the S.4(1) stage if it so desires.
The petitioner is awarded costs, including counsel's fee of Rs. 250.
The court ordered that delivery of possession shall be strictly in terms of the Division Bench order dated 22nd April 1980 in W.A. 592 of 1977 (i.e., the conditions stipulated by the Division Bench regarding handing over possession, treatment of compound wall and well, compensation and restrictions on demolition must be observed by both parties).
The court further mandated that if the Government chooses to proceed with final acquisition, the final inquiry (S.5-A) shall be conducted within one year from the date of the judgment.

No broader novel legal principle was laid down that departs from cited authorities; the decision is fact-sensitive and rests primarily on the court's assessment of whether a valid, concluded S.5-A inquiry had been conducted before the impugned S.6 declaration.

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P.V Mohammed Ghouse v. State Of Tamil Nadu, Rep. By The Commissioner And Secretary. Transport Dept, Madras & Ors. Respts

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 O. 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. 301/3A. Land acquisition proceedings were initiated to acquire a portion of this land, viz, O. 75 acres (equivalent to (O. 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 S. 5-A of the Land Acquisisition Act was dispensed with and a declaration under S. 6 was made in G.O.Ms No. 989, P.W (General), dt. 28th June, 1977. This was published in the Tamil Nadu Government gazette, 20th September, 1977. At that stage the petitioner filed W.P 3281 of 1977 to quash the said declaration. The writ petition was dismissed at the admission stage. However in W.A 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 S. 4(1), the direction and the declaration have all been simultaneously published on 20th July, 1977. This is scant respect to the Statutory provisons and the rule of law as embodied therein. Apart from this consideration there is another fundamental aspect. S. 17(2) does not contemplate the application of S. 17(4) for purposes of the acquisition as stated in the notification under S. 4(1) in this case. This merely indicates that there has been no application of the mind to S. 17 at all, before wielding the heavy weapon given to the authority under S. 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 dt. 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 declaration portion is concerned, and so also the dispensing with the enquiry under S. 5-A 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 Mohamed Ghouse v. State of Tamil Nadu . 91 L.W 175.:

“9. Before parting with this case, we would like to record that counsel for the appellant stated that he has no objection to 75 cents of land being taken from the portion of the land lying awy 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.

10. 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 the enquiry should apply his mind to this 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 S. 5-A in the light of the observations made above. This judgment was on 5th January 1978. With regard to the possession, the following events require to be noted. 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 second respondent's file (volume 3). However, the petitioner refused to take possession. On 26th June, 1978, again there was a further (sic) development, and on 3rd November, 1978, the Government instructed Collector to proceed with the enquiry under S. 5-A. On 14th December, 1978, S. 5-A 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, S. 5-A enquiry was conducted without the petitioners. On 21st December, 1978, the report of the 5-A 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. That is available at page 513 of volume III of the records. It is thereafter G.O.Ms 802, Transport department, dated 16th July, 1980, was passed declaring the need for acquisition, which was made under S. 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 C.M.P 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 a compound wall and dug a well, and well costing about Rs. 26,000; and when the department wanted to have over possession to the writ petitioner (respondent herein) along with the compound wall, he refused to take them and demanded that he should be given possession of the property in the same position as it was taken from him. It is at this stage, the Government filed these three petitions, one for a direction to the respondent to take possession of the property comprising 75 cents in R.S No. 301/3-A Rajasooriamadai village, Ramanathapuram district, with the existing constructions and structures and another petition for directing the respondent to maintain the status quo obtaining on the date when possession is given with respect to the building, and the third one for suitable directions to the respondent for taking possession of the land without insisting for the removel.

We think that in the peculiar circumstances of this case, the proper directions in these three petitions will have to be as follows—

1. The department is at liberty to hand over possession either with or without the Compound wall and well.

2. If the Department chooses to hand over possession with the compound wall and well without demolishing the same, the respondent will be entitled to take the property with the compound wall and well as if the compound wall and well belong to him and were in existence even before the S. 14(1) notification;

3. In case the acquisition is proceeded further and completed, the respondent will be entitled to the compensation for the compound wall and well separately as if the compound wall and well were put up by him and they belong to him;

4. Subject to the above conditions, in case the property is handed over along with the compound wall and well, the respondent will not be at liberty to demolish the same for a period of one year from this date, subject to further orders as to extension of time by this Court; and

5. If the Government agrees to acquire the rear portion of the property now sought to be acquired which is offered by the respondent for acquisition, then the respondent will pay a sum of Rs. 26,000 to the Government towards the value of the compound wall and well which are handed over to him. Subject to the above terms, before parting with this case we also want to express our feelings having regard to the facts and circumstances of this case, that in case the rear portion offered by the respondent is found suitable for purposes for which the land is sought to be acquired, the Government may consider acquiring the same, instead of depriving the respondent of the property which is now sought to be acquired which he considers as very valuable and useful to him. This order is also subject to the condition that it will be open to the respondent to have all the defences that are open to him with reference to the acquisition of the property as such.”

On 24th May, 1980, the Requisitioning department was contacted to consider whether the rear portion of the land could be acquired as requested by the petitioners. To this, there was a reply on 27th May, 1980 by the Requisitioning department that the same was not feasible since the alignment throughout is likely to be spoiled. On 9th June, 1980 a telegram was issued by the Revenue Divisional Officer to the petitioner calling upon him to take possession. On 11th June, 1980, the petitioner replied refusing to take possession. A further correspondence followed between the parties as seen from page 855 of volume I of the records. Then on 20th June, 1980 the Collector informed the Government of the position. The Revenue Divisional Officer again issued a telegram on 6th July, 1980 to the petitioner as seen from page 873 of volume II of the records. To that, the Counsel for the petitioner replied on 8th July, 1980 about his client's inability to take possession. That is seen from the page 879 of volume II of the records. It was in these circumstances, the present writ petition has come to be preferred for the above said relief.

5. The following grounds, are urged in support of the prayer—

(1) S. 4(1) notification does not specify or localise the extent excepting merely to state that 75 cents of land is required. This is therefore, not a valid notification. As laid down in Narendrajit v. State of U.P if the locality is not specified, the public purpose cannot be said to be fully subserved.

(2) In the instant case S. 4(1) notification was made on 22nd March, 1977 and ultimately S. 6 declaration came to be made on 16th July, 1980. Therefore, reckoned from that date it is beyond three years. This again will be a reason to hold that S. 4(1) notification is invalid. S. 4(1) notification cannot be used as a reservoir as it is well settled in law. Looked at from that point of view, the notification will have to fall to the ground.

(3) S. 5-A enquiry has not been conducted properly on 13th May, 1978 and 20th November, 1978, the notices were issued fixing the hearing date as 14th December, 1978. However on 24th May, 1980 a further notice was issued. Therefore, what exactly was the enquiry one is not in a position to determine. This apart, the report of the S. 5-A enquiry was not sent to the Government, as a result of which there has not been a recompliance of the statutory provision.

(4) The next argument is that the procedure laid down under R. 3(4) of the Land Acquisition Rules framed under the Act have not been followed in that after the objections of the petitioner were filed, the copies were not forwarded to the Requisitioning department and their opinion elicited. Unless that opinion is made known to the petitioner, there cannot be an effective opportunity of putting forth the objections. As a matter of fact, the affording of an opportunity is essential as has been laid down in Mandir Sita Ramji v. Governor of Delhi, and State of Mysore v. V.K Kanga . A.I.R 1975 S.C 2190..

6. If under S. 6(3) the acquisition is in the manner contemplated under the Act and possession can be taken only in accordance with S. 9(1), which will be pursuant to a valid declaration, here the declaration itself not being valid, without a proper S. 5-A enquiry, the same cannot be done at all. In other words, what the learned counsel for the petitioner wants to contend precisely is that when, there is a clear direction from this Court to deliver possession, unless and until the delivery of possession takes place, there cannot be a valid S. 6 declaration much less taking possession under S. 9(1) of the Act. Failure to deliver possession is the grossest abuse of process having no respect for the decision of this Court.

7. In meeting these contentions, it is argued for the respondents represented by the learned Advocate General that the effect of the ruling P.V Mohamed Ghouse v. State of Tamil Nadu . 91 L.W 175. is not that a fresh S. 5-A enquiry should be conducted. Actually S. 4(1) notification was left intact and what was quashed was only the S. 6 declaration and dispensation of enquiry under S. 5-A by the invocation of the urgency provisions. On 12th June, 1978, in this case S. 5-A enquiry was conducted to which the petitioner objected stating that unless and until he was delivered possession, S. 5-A enquiry could not be proceeded with. This is not a case of failure to localise or specify the extent sought to be acquired Actually, reading S. 4(1) notification, one is in a position to know what exactly is the property that is sought to be acquired. As a matter of fact, the petitioner himself had been asking that instead of front portion being acquired, the rear portion of the same extent be acquired and, therefore, it does not suffer from any vagueness nor is it correct to contend that S. 4(1) notification once issued is exhausted in view of the clear ruling of the Division Bench of this Court reported in P.V Mohamed Ghouse v. State Tamil Nadu. In Gunwant Kaur v. Bhatinda Municipality . A.I.R 1970 S.C 802. the demarcation of the land was not found and therefore, the party was handicapped. Here there is no such handicap and consequently, it is not possible for the petitioner to contend otherwise. As regards the three years limit, the argument of the respondents is that the time taken during the pendency of the writ petition will have to be necessarily excluded in view of the amendment. If so excluded, then S. 6 declaration is well within time. Girdharilal v. State of Gujarat . A.I.R 1966 S.C 1408. is clearly against the petitioner and his contention that S. 4(1) is sought to be used as a reservoir is without any susbstance.

8. In the instant case, the Requisitioning department was actually moved to find out whether it was possible for them to acquire the rear portion. But, such a request could not be complied with because the Requisitioning department was of the view that it would cause disturbance of alignment, which is most important having regard to the sophisticated machinery involved in micro wave technology. No doubt, on 24th May, 1980 a notice was issued to the petitioner by the Collector to file his objections and it was only with a view to elicit further opinion, but that will not in any way militate against the validity of S. 6 declaration.

9. Throughout, the petitioner was unwilling and non-co-operative in regard to taking possession. He would go to the extent of saying that he would not take possession at all in spite of the specific orders of this Court in C.M.P 9849 of 1978, etc., and the repeated telegrams of the Revenue Divisional Officer did not bear any result with regard to taking of possession. Therefore, it is incorrect to contend that possession was retained end S. 6 declaration was made.

10. In fact, the report of the S. 5-A enquiry is not absolutely essential, because law says ‘report, if any,’ and in this case, there is no such necessity to send the report. Factually the report had been sent. That the procedure under R. 3 has been followed is clear from the averments made in paragraph 10 of the counter-affidavit,

11. I will take up the points one by one. Whether S. 4(1) notification is valid? 1 have already extracted the relevant portions of the judgment of the Division Bench reported in P.V Mahomed Ghouse v. State of Tamil Nadu. From a reading of that judgment it is very clear that what the Division Bench quashed was only the declaration made under S. 6 and the dispensation of enquiry under S. 5-A. No doubt, there were directions issued by this Court for handing over possession, which 1 will consider in the later part of this judgment. Once that was the position, viz., 5. 4(1) notification was left in tact and the Government were enabled to conduct the S. 5 enquiry, I am unable to see how a contention could be raised on the basis of Doongarsee and Sons v. State that S. 4(1) is exhausted. It is not as if the Government cancelled the S. 6 declaration, but it was quashed by an order of the court, but that would not invalidate S. 4(1) notification, which had come to be issued by independent powers contained in the section. It is well setled that such a notification under S. 4(1) is purely preliminary in character without affecting the rights of the parties. For this no authority is needed. However, if any authority is needed, one has to refer to the decision reported in Somawanti v. State of Punjab. Therefore, in this case, the effect of it is that S. 4(1) notification has remained intact. Whether, the procedure laid down in S. 4(1) has been followed or not is a different question, which will be taken up as the next point. Suffice it to bold here that this not a case where S. 4(1) notification could ever be said to be exhausted. Nor I am persuaded to accept the contention that the locality of the extent to be acquired is not specified actually, as S. 4(1) notification contained the following schedule—

“District … Ramarathapuram taluk

Taluk … Ramanathapuram

Village … Rajasoorimadai

Description of land, Wet or dry, Inam or poromboke with servey on paimash number Name of the owner or occupier Boundaries of the land required to be taken up Extent under acquisition (approximate) Whether arrable or waste North, East, South, West Ground rent S. No. 301/3A P.V Mohamed Ghouse S/o Varusai Mohamed Ramnad-Madurai Road 301/4, 301/3B, 301/2 O. 75 Ground rent land

From a leading of the above, it is clear that the ratio of the ruling in Narendrajit v. State of U.P, will not apply. Of course, where there is no specification of the property the party would be handicapped by the absence of the particulars as has been held in Gunwant Kaur v. Bhatinda Municipality. The actual position is entirely different in that case. As a matter of fact, I may now refer to Girdhartlal v. State of Gujarat. Paragraph 4 in that decision reads as follows—

“Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961, the power of the State Government to issue a notification under S. 6 was exhausted and the Government could not issue a fresh notification under S. 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under S. 6. In the circumstances, the Government could well issue the fresh notification under S. 6, dated August 14, 1964.”

These observations are clearly against the petitioner.

12. In the instant case, S. 4(1) notification was issued on 21st March, 1977. Ultimately after the proceedings, which culminated in writ appeal as reported in P.V Mohamed Ghouse v. State of Tamil Nadu, S. 6 declaration was issued on 16th July, 1980. Reckoned from the date of S. 4(1) notification, it is clearly beyond three years. However, the Act itself makes provision for exclusion of time taken during the pendency of any proceeding. That is because of the amendment of S. 6 wherein the following Explanation has been added.—

“In computing the period of three years specified in this proviso, any period during which any action or proceeding to be taken in pursuance of the notification issued under sub-S. (1) of S. 4 is held up on account of stay or injunction by an order of court shall be excluded.”

Therefore, the period during which the proceedings were pending has to be necessarily excluded, if so excluded, it is well within time. Accordingly, there is no legal infirmity attached to S. 4(1). It does not suffer either from want of vagueness nor it has been exhausted nor again it is beyond three years.

13. Coming to the validity of S. 5-A enquiry, I have already referred to the important dates. The ruling of the Division Bench reported in P.V Mohamed Ghouse v. State of Tamil Nadu, is dated 5th January, 1978. After this a notice under S. 5-A was issued to the petitioner on 13th May, 1978 calling upon him to file his objections within 15 days from the receipt of the notice. To this, petitioner replied on 31st May, 1978 referring to the proceedings of this Court stating that the proposed conducting of the enquiry under S. 5-A was illegal. On 6th June, 1978 the Sub-Collector makes the following note:

“The notice referred to in the reference cited has been received in this office and further action has been stopped.”

On 12th June, 1978, when S. 5-A enquiry was sought to be conducted, the petitioner objected. On 18th June, 1978, the Sub Collector called upon the petitioner to take possession and issued a telegram, dated 19th June, 1978 to take possession on 21st June, 1978 (page 395 of volume III of the records produced by the Government Pleader). The petitioner refused to take possession. A further request was made to that effect. That was also refused. It was on 3rd November, 1978, the Government instructed the Collector to proceed with the statutory enquiry under S. 5-A and on 6th December, 1978, the petitioner through his counsel replied refusing to participate in the enquiry. On 14th December, 1978, the enquiry was conducted without the petitioner, having regard to his refusal to participate in the enquiry. On 21st December, 1978 the report of the enquiry under S. 5-A was sent to the Board of Revenue. The Board made its comments on 7th January, 1979 to the following effect—

“… Thus, it is clear from the above facts that the Land Acquisition Officer was ready to deliver the possession to the land owner but the land owner has refused to take over possession of the land”

Then comes S. 6 declaration. If the matter had stood at that stage, I do not think any one could have quarrelled. Unfortunately, it was possession which was a thorn in the flesh of the Government. They seem to have been irked by the attitude of the petitioner, which certainly is not warranted. A person who is deprived of his land has every right to fight and he can fight to the last, I am not for a moment saying that there was any lack of public purpose. Nevertheless, if law requires a particular procedure to be followed, it has to be necessarily followed. What I mean by this will be evident when I refer to a few more facts.

14. I have already alluded to the fact that C.M.P 9849 and 9850 of 1978 and 12627 of 1979 were filed by the Collector and a Division Bench of this Court made an order. This was on 22nd April, 1980. On the basis of this order, the Collector writes to the petitioner on 24th May, 1980 as follows—

“In accordance with the instructions of the High Court, Madras I am to inform you that you may file objection, if any, for the acquisition of your land in S. No. 301/1A of Rajasoorimedai village, Ramnad taluk, for Micro Wave Project, to the Revenue Divisional Officer, Ramanathapuram who is the Land Acquisition officer, in this case before 31st May, 1980 and send a copy of your objection”.

15. I am totally unable to understand the purpose of issuing a notice of this kind. If really S. 5-A enquiry had been made and a valid S. 6 declaration had also been emanated why such a notice came to be issued on 24th May, 1980 remains unexplained. It is not for me to dwell into the file and make out reasons. The question of filing any objection to the acquisition does not arise at all. The order of the Division Bench extracted above does not even warrant filing of objections. It was only concerning possession which required the Government to consider the request of the petitioner to acquire the rear portion, if possible. Therefore, when the Collector by the communication extracted above, calls upon the petitioner to file his objections and the Revenue Divisional Officer to whom a copy of this communication was marked, is directed to transmit the objection, if any, received from the land owner through a special messenger addressed in a named cover to the Additional Personal Assistant to the Collector of Ramanathapuram, I have no other option but to conclude that the head of the revenue hierarchy in a district who is in charge of administration is not in a position to understand the power wielded by him under the Land Acquisition Act. It is needless for me to emphasise that the power of eminent domain is a very valuable power, causing serious Inroads into the fundamental rights of the land owners in so far as they are deprived of their lands. Such power should be exercised with great caution and restraint. What has now been done is just calling upon the petitioner to file objections. Is the Court to conclude that there was a valid S. 5-A enquiry or not? I have already referred to the fact that S. 5-A enquiry was concluded as disclosed by the files on 14th December, 1978 and the report was sent to the Board of Revenue on 21st December, 1978. on which the Board made its comments. After all this, the Government issued S. 6 declaration. The effect of issue of S. 6 declaration is final and conclusive. Therefore, having regard to this notice, one is to conclude that neither the Government had made up its mind notwithstanding the finality attached to S. 6 declaration nor again the Collector was aware of the scope of powers which he was wielding under the Land Acquisition Act.

16. In a highly contentious matter of this kind where the petitioner has been fighting and both sides have been resorting to court for some guidance or other, one desires that the Collector had taken proper legal advice before the issue of the above letter, 24th May, 1980. After all the Government has its own legal advisers at its elbow and it is more surprising that an attitude of this kind should have been taken. I am not for a moment criticising the Collector with regard to delivery of possession. Of course, the petitioner has been adopting an obstinate attitude, but that will not relieve the Collector of the application of mind, while exercising his duty properly. Therefore, on the basis of this letter, when it requires the petitioner to file his objections, if any, for the acquisition of his land, I am to necessarily conclude that there has not been any valid and concluded S. 5-A enquiry, if that be so, it follows a fortiorari that there cannot be a valid S. 6 declaration as well. That is the conclusion on the second point.

17. In view of this, it is unnecessary for me to go into the question whether the procedure under R. 3(b) has been followed or not. But, it appears that the Requsitioning department was contacted on 24th May, 1980, to consider the feasibility of acquiring the rear portion to which the reply by the Requisitioning Department on 27th May, 1980 was that it could not be complied with, since it was likely to disturb the alignment. However, the report of the Requisitioning department could not be furnished to the petitioner, since his attitude is one of complete obstinacy from S. 5-A enquiry. In the instant case, a report has been sent by the Collector to the Board of Revenue. Therefore, I am unable to accept the argument of the petitioner that a report ought to have followed S. 5-A enquiry.

18. I am unable to accept the contention of the petitioner that because possession was not parted with, there cannot be any valid S. 6 declaration. I have already referred to the various proceedings including certain telegrams dated 9th June, 1980 and the letter of the Collector, dated 24th May, 1980 and the further telegrams of the Revenue Divisional Officer to the petitioner, dated 6th July, 1980 requiring him to take possession, which he refused to comply with for reasons best known to him. On that score, I cannot say that there was any invalidity attached to the acquisition proceedings.

19. In the result, holding that there has been no valid concluded final enquiry as a follow-up of which there could be no valid S. 6 declaration, the impugned proceedings are quashed. I make it very clear that S. 4(1) notification will remain in tact, which means, if and when the Government is desirous, they could further proceed according to law from the stage of S. 4(1) notification. The writ petition is allowed in the above terms. The petitioner will be entitled to costs. Counsel's fee Rs. 250.

20. Order: The matter having been set down for being spoken to:— The delivery of possession will be strictly in terms of the order of the Division Bench, dt. 22nd April, 1980 in W.A 592 of 1977 which means, all the conditions stipulated by the Division Bench shall be observed by both the parties except as regards the time. However, should the Government be inclined to proceed further with the acquisition and do the final enquiry the same shall be done within one year from today.

VCS.

P.V Mohammed Ghouse v. State Of Tamil Nadu,...