Madras High Court
P.Elavarasan vs The State Of Tamilnadu on 9 September, 2021
W.P.Nos.12657, 20422 of 2001, 5097 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.12657, 20422 of 2001, 5097 of 2002
and W.M.P.Nos.30127 of 2001, 7150 of 2002
W.P.No.12657 of 2001:
P.Elavarasan ... Petitioner
Vs
1.The State of Tamilnadu,
Rep. by its Secretary,
Industries Department,
Fort St. George,
Chennai - 600 009.
2.The Revenue Divisional Officer,
Udaiyarpalayam,
Perambalur District.
3.The District Collector,
Perambalur District,
Perambalur.
4.The Tahsildar,
Sendurai Taluk,
Perambalur.
1/24
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
5.The Madras Cements Ltd.,
Rep. by its General Manager,
Alathiyur, Ariyalur District. ... Respondents
(R5 impleaded vide order dated 29.01.2011 made in W.M.P.No.35742 of
2019 in W.P.No.12657 of 2001 by SSSRJ)
W.P.No.20422 of 2001:
Thangarasu Konar ... Petitioner
Vs
1.The State of Tamilnadu,
Rep. by the Land Commissioner,
Land Acquisition, Chepauk,
Madras - 5.
2.The Deputy Collector,
Land Acquisition, Ariyalur.
3.The Revenue Divisional Officer,
Udayar Palayam, Ariyalur.
4.The Madras Cements Ltd.,
Rep. by its General Manager,
Alathiyur, Sendurai Taluk,
Ariyalur District. ... Respondents
W.P.No.5097 of 2002:
Senthamilselvi ... Petitioner
Vs
2/24
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
1.The State of Tamilnadu,
Rep. by Secretary to Government
Department of Industries,
Fort St. George,
Chennai - 9.
2.The Commissioner of Land Administration,
Chepauk, Chennai - 600 005.
3.The District Collector,
Ariyalur District.
4.The Revenue Divisional Officer,
Udayarpalayam,
Ariyalur District.
5.The Madras Cements Ltd.,
Rep. by its General Manager,
Alathiyur, Sendurai Taluk,
Ariyalur District. ... Respondents
PRAYER in W.P.No.12657 of 2001:- Writ Petition is filed under Article
226 of Constitution of India, praying to issue a Writ of Certiorari to call for
the records of the impugned 4(1) Notification in G.O.Ms.No.376 dated
30.10.2000 published in Tamil Murasu dated 09.11.2000 and consequential
5(A) enquiry notice issued by the second respondent in proceedings
Na.Ka.No.A3/644/98 dated 07.12.2000 and quash the same.
3/24
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
PRAYER in W.P.No.20422 of 2001:- Writ Petition is filed under Article
226 of Constitution of India, praying to issue a Writ of Certiorari to call for
the records made in Section 4(1) Notification vide G.O.Ms.No.376 dated
30.10.2000 and the consequential declaration in No.H3/22281/2001 under
Section 6 dated nil.06.2001 issued under the orders of the first respondent
and quash the same.
PRAYER in W.P.No.5097 of 2002:- Writ Petition is filed under Article
226 of Constitution of India, praying to issue a Writ of Certiorari to call for
the records in G.O.Ms.No.378 (Industries Department) dated 30.10.2000 on
the file of the first respondent and the consequential declaration under
Section 6 of the Act in H3/22281/2001 G.O.Ms.(Industries Department) MI
- II dated Nil on the file of the second respondent and quash the same.
For Petitioner : Mr.K.Balu
in W.P.12657 of 2001
For Petitioner : Mr.R.Venkatesulu for M/s.Usha Raman
in W.P.20422 of 2001
For Petitioner : Mr.P.Sesubalan Raja
in W.P.5097 of 2002
4/24
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
For Respondents : Mr.U.Baranidharan,
Government Advocate
in W.P.12657 of 2001
For Respondents : Mr.U.Baranidharan,
1 to 3 Government Advocate
in W.P.20422 of 2001
For Respondent 4 : Mr.Rahul Balaji
in W.P.20422 of 2001
For Respondents : Mr.U.Baranidharan,
1 to 4 Government Advocate
in W.P.5097 of 2002
For Respondent 5 : Mr.Rahul Balaji
in W.P.5097 of 2002
*********
COMMON ORDER
The W.P.No.12657 of 2001 is filed to issue a Writ of Certiorari to
call for the records of the impugned 4(1) Notification in G.O.Ms.No.376
dated 30.10.2000 published in Tamil Murasu dated 09.11.2000 and
consequential 5(A) enquiry notice issued by the second respondent in
proceedings Na.Ka.No.A3/644/98 dated 07.12.2000 and quash the same.
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
2. The W.P.No.20422 of 2001 is filed to issue a Writ of Certiorari to
call for the records made in Section 4(1) Notification vide G.O.Ms.No.376
dated 30.10.2000 and the consequential declaration in No.H3/22281/2001
under Section 6 dated nil.06.2001 issued under the orders of the first
respondent and quash the same.
3. The W.P.No.5097 of 2002 is filed to issue a Writ of Certiorari to
call for the records in G.O.Ms.No.378 (Industries Department) dated
30.10.2000 on the file of the first respondent and the consequential
declaration under Section 6 of the Act in H3/22281/2001
G.O.Ms.(Industries Department) MI - II dated Nil on the file of the second
respondent and quash the same.
4. The petitioners owned land as follows:
i) The petitioner in W.P.No.12657 of 2001 is the owner of the
Agriculture Lands comprised in Survey No.403/12C measuring an extent of
11 cents (Punja) and in Survey No.404/7A an extent of 89 cents (Nanja) for
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
which the petitioner have assigned with the patta in passbook No.193, 402
issued by the Deputy Tahsildar, Sendurai.
ii) The petitioner in W.P.No.20422 of 2001 is the owner of the land
comprised in R.S.No.389B/10B to an extent of 0.36.5 Hectares in No.3
Thalavai Village, Sendurai Taluk, Perambalur District. The petitioner living
with his two sons in the house constructed in the said land.
iii) The petitioner in W.P.No.5097 of 2002 is the absolute owner of
the lands comprised in Survey Nos.402/5, 402/6, 402/7A and 403/11-A,
measuring 0.14.0, 0.30.5, 0.30.5 and 0.03.0 hectors respectively in Dalavai
Village of Senthurai Taluk, Ariyalur District and the petitioner is in
possession and enjoyment of the lands in her own absolute right.
5. These lands were sought to be acquired by the Government under
Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called as "Act")
approved in G.O.Ms.No.378 dated 30.10.2000 for the purpose of
development of the Cement Factory for the erection of dwelling houses near
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
the factory site for the workmen employed by the company, for the
formation of additional Lorry Parking yard, for extending the existing road
in the Employees Housing Colony up to main road.
6. The 4th respondent submitted proposals to the third respondent for
approval and publication in Tamil Nadu Government Gazette in respect of
the classified land under Section 4(1) of the Act. Thereafter, the draft
notification under Section 4(1) of the Act approved by the Government in
G.O.Ms.No.376 dated 30.10.2000 and the same was published in Tamil
Nadu Government Gazette, supplement issue No.44A Part II Section 2
dated 15.11.2000 substance of the 4(1) Notification was published in the
locality on 02.12.2000.
7. Thereafter, the inquiry conducted under Section 5A of the Act on
18.01.2001. The petitioners appeared for inquiry and submitted their
objections to the acquisition proceedings. Thereafter, the draft declaration
as contemplated under Section 6 of the Act was also approved and the same
was published in the Tamil Nadu Government Gazette on 18.07.2001 and
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
also published in the Tamil Dailies on 05.06.2001 and 06.07.2001.
Substance of the draft declaration was also published in the locality on
31.07.2001.
8. Thereafter, the draft direction under Section 7 of the Act was also
approved by the third respondent on 01.09.2001, thereafter the Award
inquiry was conducted on 30.10.2001. The Award inquiry notice was duly
served to the petitioners on 03.10.2001 and even then they did not appear
for Award inquiry. Thereafter, the award was passed by the Revenue
Divisional Officer on 21.01.2002 and the same was intimated as
contemplated under Section 12(2) of the Act and to receive the
compensation amount, failing which the compensation amount would be
kept in the Revenue Deposit.
9. Though the learned counsel for the petitioner raised so many
grounds, before recommending for issuance of 4(1) Notification the
Revenue Divisional Officer was conducted inquiry as contemplated under
the Land Acquisition (Companies) Rules, 1963. According to the
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
petitioners, no inquiry was conducted from the land owners before
Notification under Section 4(1) of the Act. It is relevant to extract the Land
Acquisition (Companies) Rules, 1963 Rule 4 hereunder:
"4. (1) Whenever a company makes an
application to the appropriate Government for
acquisition of any land, that Government shall
direct the Collector to submit a report to it on the
following matters, namely :— (i) that the company
has made its best endeavour to find out lands in the
locality suitable for the purpose of the acquisition;
(ii) that the company has made all reasonable
efforts to get such lands by negotiation with the
person interested therein on payment of reasonable
price and such efforts have failed; (iii) that the
land proposed to be acquired is suitable for the
purpose; (iv) that the area of land proposed to be
acquired is not excessive; (v) that the company is
in a position to utilise the land expeditiously; and
(vi) where the land proposed to be acquired is
good agricultural land, that no alternative suitable
site can be found so as to avoid acquisition of that
land. (2) The Collector shall, after giving the
company a reasonable opportunity, to make any
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
representation in this behalf, hold an enquiry into
the matters referred to in sub-rule (1) and while
holding such enquiry he shall :— (i) in any case
where the land proposed to be acquired is
agricultural land, consult the Senior Agricultural
Officer of the district whether or not such land is
good agricultural land; (ii) determine, having
regard to the provisions of sections 23 and 24 of
the Act, the approximate amount of compensation
likely to be payable in respect of the land, which, in
the opinion of the Collector, should be acquired for
the company; and (iii) ascertain whether the
company offered a reasonable price (not being less
than the compensation so determined), to the
persons interested in the land proposed to be
acquired. Explanation.— For the purpose of this
rule “good agricultural land” means any land
which, considering the level of agricultural
production and the crop pattern of the area in
which it is situated, is of average or above average
productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry
under sub-rule (2), the Collector shall submit a
report to the appropriate Government and a copy
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
of the same be forwarded by that Government to
the Committee. (4) No declaration shall be made
by the appropriate Government under section 6 of
the Act unless— (i) the appropriate Government
has consulted the Committee and has considered
the report submitted under this rule and the report,
if any, submitted under section 5A of the Act; and
(ii) the agreement under section 41 of the Act has
been executed by the company."
10. Accordingly, the Collector shall, after giving the company a
reasonable opportunity to make any representation in this behalf, hold an
inquiry into the matters referred under Sub-Rule (1) and while holding such
inquiry. Accordingly, no declaration shall be made by the appropriate
Government under Section 6 of the Act. Unless consulted with committee
and the report submitted under this rule.
11. The learned counsel for the petitioner relied upon the Judgment
reported in 1993(4) SCC 255 Shyam Nandan Prasad and others -vs- State
of Bihar and others held as follows:
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
"15. But that is not the be-all and end-all for
the company. In order to approach the Government
with a request for acquisition the company has to
satisfy the provisions of the Rules also. Rule 4
enjoins as under:
4. Appropriate Government to be satisfied with
regard to certain matters before initiating
acquisition proceedings:-(1) Whenever a Company
makes an application to the appropriate
Government for acquisition of any land, that
Government shall direct the Collector to submit a
report to it on the following matters, namely-
(i) that the company has made its best endeavour to
find lands in the locality suitable for the purpose of
acquisition;
(ii) that the company has made all reasonable
efforts to get such lands by negotiations with the
persons interested therein on payment of
reasonable price and such efforts have failed;
(iii) that the land proposed to be acquired is
suitable for the purpose;
(iv) that the area of land proposed to be acquired
is not excessive;
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
(v) that the company is in a position to utilise the
land expeditiously; and
(vi) where the land proposed to be acquired is
good agricultural land, that no alternative suitable
site can be found so as to avoid acquisition of the
land.
(2) The Collector shall, after giving the company a
reasonable opportunity to make any representation
in this behalf, hold an enquiry into the matters
referred to in Sub-rule (1) and while holding such
enquiry he shall-
(i) in any case where the land proposed to be
acquired is agricultural and consult the Senior
Agricultural Officer of the district whether or not
such land is good agricultural land;
(ii) determine, having regard to the provisions
of Sections 23 and 24 of the Act, the approximate
amount of compensation likely to be payable in
respect of the land, which, in the opinion of the
Collector, should be acquired for the Company;
and
(iii) ascertain whether the company offered a
reasonable price (not being less than the
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
compensation so determined), to the persons
interested in the land proposed to be acquired.
Explanation-For the purpose of this rule "good
agricultural land" means any land which,
considering the level of agricultural production
and the top pattern of the area in which it is
situated, is of average or above average
productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry
Sub-rule(2) the Collector shall submit a report to
the appropriate Government and a copy of the
same shall be forwarded by the Government to the
Committee.
(4) No declaration shall be made by the
appropriate Government under Section 6 of the Act
unless-
(i) the appropriate Government has consulted the
Committee and has considered the report submitted
under this rule and the report, if any, submitted
under Section 5A of the Act; and (ii) the agreement
under Section 41 of the Act has been executed by
the company.
16. Under Rule 3, a Land Acquisition Committee is
constituted for the purpose of advising the
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
appropriate Government in relation to acquisition
of land under Part VII of the Act, which is required
to tender its advice within one month from the date
of which it is constituted though the time can be
extended by two months. Here again the Collector
is required to hold an enquiry in a quasi-judicial
sense and would give not only to the company a
reasonable opportunity to make good its
representations in that behalf but would also, to
fulfill the needs of rules of natural justice, give
sufficient opportunity to the land owners to refute
the case of the company at least in so far as the
matter like negotiation of price is concerned, as
also on other relevant matters. That Rule 4 is
mandatory and essential to be complied with has
been ruled by this Court in various decisions.
Reference may be made to some of them
being: State of Gujarat and Anr. v. Patel
Chaturbhai Narsibhai and Ors. , State of Gujarat
and Ors. v. Ambalal Haiderbhai and Ors. , and
General Govt. Servants Cooperative Housing
Society Ltd. and Ors. v. Sh. Wahab Uddin and
Ors."
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
12. The Hon'ble Supreme Court of India held that the Collector is
required before an inquiry in a quasi-judicial sense and would give not only
to the company a reasonable opportunity to make good its representations in
that behalf but would also, to fulfill the needs of rules of natural justice,
give sufficient opportunity to the land owners to refute the case of the
company at least in so far as the matter like negotiation of price is
concerned, as also on other relevant matters.
13. In this regard this Court called for the original files from the
Revenue Divisional Officer. The files brought before this Court by
Mr.C.Annadurai, The Zonal Deputy Tahsildar, Sendurai Taluk Office. The
report of the Revenue Divisional Officer is extracted below:
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
Kf;f p a efu';f Sf ; F uapy ; n t ntfd;f s p y ; Vw ; w p
mDg;g[tjw; F VJthf ,izg; g [ r ; r h i y mikf;ft [k ;
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gph pt [ 40( 1 ) y ; fhqk; epg e ; j i d f i s
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vLf ; f g ; g l ; l Ka w ; r p gyds p f ; ft p y ; i y/
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epy';fis cld o a h f nkny Fwpg; g pl;l fhhp a';f S f ; F
gad ; g L j ; j p f ; b f h s ; s jahh ; epiya p y ; cs;s d h ;/
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
5) ifafg ; g L j ; j f ; nfhh p a [ s ; s epy';fs ;
ePz ;l f h y k h f jhpr hf cs;s d vd; W k ; ghr d Mjhuk;
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ep W t d j ; j h h p d ; rpbkz ;l ; M i y i a xl;o mike; J s ; s J/ ifaf
epy';fisr ; R w ; w p Y k ; mth;fs J epy';fs ; cs;s d/ kjuh! ;
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epy tpgu ml;ltiz M f p a t w ; i w m D g ; g p a[s ; s h h ; f s ;/
ml;ltiz a p y ; fz; L s ; s epy';f Sf ; F ,j;Jl d ; m D g ; g p a [ s ; s
gph pt [ 4(1) d ; fP H h d tiut[ tpsk; g u j ; j p i d xg; g [ j y ;
mspj ; J jkp H ; e h L mur pj H ; kw; W k ; jkp H ;
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14. It reveals that the Manager of the Madras Cements Limited was
examined and his statement was recorded. However, no notice was given to
the land owners namely the petitioners and no inquiry was conducted
among the land owners. Therefore, it is clear violations of principles of
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
natural justice.
15. That apart, the learned counsel for the petitioner also relied upon
the Judgment reported in 2009(3) CTC 545 Vijaya and 14 others -vs- State
of Tamil Nadu rep. by its Secretary to Government, Housing and Urban
Development Department, Fort St. George, Chennai 9 and another held as
follows:
"15. The respondents have not come
forward to show to the satisfaction of the Court
that the lands under acquisition in respect of the
petitioners will really hamper the entire scheme if
the lands of the petitioners are excluded. Further
it is an admitted case that the petitioners have
produced copies of the sale deeds in having
purchased the lands in question before the
enquiry under section 5A of the Land Acquisition
Act and they had also participated in the said
enquiry and objected to the acquisition. These
objections have not received due consideration. In
the present case the acquisition is for a public
purpose of providing an housing scheme and not
for any other purpose. The fact that the
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
petitioners had obtained an interim stay for the
last ten years and are also living in the said land
all these years will show that the neighbourhood
scheme put up by the second respondent can exist
even without these lands in question."
16. In the case on hand, the acquisition proceedings was initiated in
the year 2000 and the petitioner filed this writ petition in the year 2002 and
obtained stay. Even till today the petitioner is in possession and enjoyment
of the respective subject land. The Acquisition is for a public purpose of
providing houses near the factory site for the workmen employed by the
company, for the formation of additional Lorry Parking yard, for extending
the existing road, in the Employees Housing Colony up to main road etc.,
and not for any other purpose. The factory remains that the petitioner by
obtained interim order and for the past 19 years the writ petition is pending.
17. It will show that the General Manager of the Madras Cements
Factory is running the factory land without acquiring the petitioner's land.
Therefore, the entire acquisition proceedings are vitiated on the ground that
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
it was initiated in violations of principles of natural justice.
18. In view of the above discussions, these writ petitions are allowed.
The land acquisition proceedings are quashed. No order as to costs.
Consequently, the connected miscellaneous petitions are closed.
09.09.2021
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
rna
To
1.The Secretary,
Industries Department,
Fort St. George,
Chennai - 600 009.
2.The Revenue Divisional Officer,
Udaiyarpalayam,
Perambalur District.
3.The District Collector,
Perambalur District,
Perambalur.
4.The Tahsildar,
Sendurai Taluk,
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
Perambalur.
5.The Land Commissioner,
Land Acquisition, Chepauk,
Madras - 5.
6.The Deputy Collector,
Land Acquisition, Ariyalur.
7.The Commissioner of Land Administration,
Chepauk, Chennai - 600 005.
8.The District Collector,
Ariyalur District.
9.The Revenue Divisional Officer,
Udayarpalayam,
Ariyalur District.
10.The General Manager,
Alathiyur, Ariyalur District.
G.K.ILANTHIRAIYAN,J.
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W.P.Nos.12657, 20422 of 2001, 5097 of 2002
rna
W.P.Nos.12657, 20422 of 2001, 5097 of 2002
and W.M.P.Nos.30127 of 2001, 7150 of 2002
09.09.2021
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