WP/892/1998 of P.PRAGATHESWARAN Vs 1.THE OF T.N., REP. BY SECY., on 27 November 2002

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Heard the counsel appearing for the parties on either side.

2. In this writ petition the petitioner had challenged the acquisition of herland. The petitioner had purchased the disputed property by a registered saledeed on 13.03.1989. Notification under section 4(1) of the Land AcquisitionAct, hereinafter called as the Act, was published in two Tamil Newspapers in"Madurai Mani" and "Kinnaz". It is the specific case of the petitioner thatthese two news papers do not have any circulation in the area where the landwas situated. Further the case of the petitioner is that no notice underSection 5-A of the Act was served on the petitioner. The third contention isto the effect that on the disputed land the coconut tope exists and as such as per the instructions from the Government, the land should not have beenacquired.

3. So far as the publication in the newspaper is concerned, the onlyassertion made in paragraph 13 of the counter affidavit is to the followingeffect. "Both the Tamil Dailies are popularly circulated in the Town." Hence,the contention of the petitioner deserves no consequence.

4. In RAMIAH MOOPANAR Vs. STATE OF TAMIL NADU (2000-I M.L.J. 385) whileconsidering the question of circulation of "Kinnas" which has been publishedin Nagarcoil in respect of the land in Tenkasi taluk, Tirunelveli taluk, itwas observed as follows:

"According to the petitioner, 'Kumari Murasu' and 'Kinnas' both beingpublished from Nagercoil and absolutely there is no evidence for circulationin the local area. In the counter affidavit, the first respondent has merelystated that the published copies of notification were published in thelocality, namely, Piranoor village on 14.10.1992 . The same cannot be termedas sufficient compliance in terms of Section 4(1) of the Act. When thepetitioner asserts that both the dailies have no circulation at all in theirlocal area, it is but proper for the respondents to inform and file a proofregarding the circulation of these dailies in the said local area.Publication of copies of newspapers in the locality is not sufficientcompliance of sec.4(1) of the Act. Accordingly, I accept the secondcontention raised by the learned counsel for the petitioner. I have alreadystated that the respondents failed to serve a notice in Form 3-A and in such acircumstance, in the absence of any proof regarding the circulation of thesedailies in the local area, it is a handicap for the petitioner to raise anyobjection regarding the proposed acquisition of his land in the enquiry underSec.5-A. On this ground also, the acquisition proceeding is liable to bequashed."

5. In the present case, the assertion of the respondents, as already beenextracted above, merely stating that the two dailies had popularly circulatedin the town is not sufficient to hold that the requirement regardingpublication in newspaper having wide circulation in the locality has beenmade. As observed by Justice P.SATHASIVAM, J., in the aforesaid decision suchlacuna alone is sufficient to quash the land acquisition proceedings.6. The second contention raised by the learned counsel for the petitioner isalso acceptable. It has been pointed by the petitioner that no notice hasbeen served on the petitioner. In the counter affidavit it has been statedthat the fact that the petitioner had purchased the property was not known andas such notice was sought to be served on the recorded owner,from whom theproperty had been purchased. In the counter affidavit it has also beenasserted that since the property still continued in the name of Farook Nainarand Asrab Nainar and the petitioner's name has not been recorded in theofficial records and the contention regarding absence of personal noticecannot be accepted.

7. So far as the recorded owners are concerned, the assertion in the counteraffidavit regarding the service of notice is to the following effect."As the registered owners are not residing at Palani, the 5A enquiryNotices were served by affixing of the same in the conspicuous place of theabove said lands on 02.09.1996."

8. The provision regarding service of notice is contained in Section 45 of the Act. After referring to section 45 of the Act in the decision reported inRAMIAH MOOPANAR Vs. STATE OF TAMIL NADU (2000-I M.L.J. 385), it was observedas follows:

"It is clear that as per Sub-Sec.(2) of Sec.45 of the Act, all noticesshall be served on the person concerned. When such person cannot be found, itis open to the authorities to effect service on any adult male member of hisfamily residing with him and if such adult male member is not found, thenotice may be served by fixing a copy on the outer door of the house in whichthe person ordinarily dwells or carries on business, or by fixing a copythereof in some conspicuous place in the office of the Land AcquisitionOfficer or of the Collector or in the court-house. In addition to the abovemode of service, the officer is expected to affix a copy in some conspicuouspart of the land to be acquired. There is no explanation either in thecounter affidavit or in the records regarding compliance of such course asmentioned in Sub-Sec.(3) of Sec.45 of the Act. After holding that the landowner/petitioner herein was not in the village, no effort has been taken bythe officer to serve a copy on the adult male member or affix a copy on theouter door of the house in which the petitioner resides in the village.Affixing a copy in some conspicuous part of the land to be acquired is inaddition to the affixture in the dwelling house or serving on the adult malemember. Even otherwise, as per proviso to Sub-Sec.(3) of Sec.45, the officercould have sent the notice by post in a letter addressed to the petitioner athis last known residence, address or place of business and registered underSecs.28 and 29 of the Indian Post Office Act, 1898. Such recourses has notbeen followed by the respondents."

9. Learned counsel appearing for the respondents submitted that the aforesaiddecision was with respect to the original owner, on whom notice had not beenserved with respect to the provisions contained in the Act, but in the presentcase, the grievance placed not by the original owner but by the purchaser.This contention of the learned counsel for the respondents though prima facieattractive, cannot be countenanced in view of the decision of

K.GOVINDARAJAN,J. Dated 25.07.2000 in (B.NAGARATHINAM Vs. THE DISTRICTCOLLECTOR, MADURAI DISTRICT and ANR.) W.P.No.2033 of 1998. In the said casethe question was raised by the purchaser of the property, whose name had notbeen recorded in the revenue records. It was observed in the said case thatthe service of notice on the previous recorded owner was not found to besufficient and even if the purchaser's name had not been recorded, the landacquisition proceedings was found to be defective in the writ petition filedby the purchaser.

10. During the course of the arguments in the present case the learnedSpecial Government Pleader submitted that the records reveal that the noticewas served on the servant of the previous recorded owners as the recordedowners were away at a different place. Section 4 5 of the Act contemplatesservice of notice on a adult male member of the family and service of noticeon the servant even if it is correct (there is some dispute about this aspectas it has not been specifically stated so in the counter) cannot be said to besufficient as contemplated under Section 45 of the Act. When property issought to be acquired, the procedural requirement as indicated in the statutemust be strictly complied with. For the aforesaid reason also the land acquisition proceedings must be held to be invalid.

11. Learned counsel for the petitioner also contended that the acquired landwas a tope and the same should not have been acquired as per the governmentinstructions. There is some dispute as to whether the acquired land was atope or not. Since I have already found that the land acquisition proceedingswas defective, it is unnecessary to deal with this question.12. For the aforesaid reasons, the writ petition is allowed and thedeclaration made under Section 6 of the acquisition proceedings is quashed.No costs. Consequently, W.M.P.No.1311 of 1998 is closed.

27-11-2002Index-Yes.Internet-Yes.

Sk/-To1.The Secretary,Commercial Taxes & ReligiousEndowment Dept.,Government of Tamil Nadu,Fort. St.George,Chennai-9.

2. The District Collector,Dindigul District.

3. The Special Tahsildar(Land Acquisition),Palani.