The enquiry under section 5-A of the Land Acquisition Act is mandatory and the failure to give notice of the enquiry to the land owner vitiates the proceedings.

1. The writ petition is for the issue of a writ of certiorari to call for the records relating to the issue of notification under section 9(3) and 10 of the Land Acquisition Act dated 14-8-1986 issued by the second respondent and to quash the proposed acquisition commencing from issue of 4(1) Notification and ending with sections 9(3) and 10 notice of the Act in respect of R.S.No.3918/7 newly sub-divided as R.S.NO. 3918/16 on Chamiers Road, Madras-28, alleging as follows:

The first writ petitioner, since deceased, was the owner of the land and building old No. 42, new No.77 on Chamiers Road, Madras- 28. She received a notice under sections 9 (3) and 10 of the Land Acquisition Act, hereinafter referred to as the Act, in respect of an extent of 1237 sq.ft. near the built area of her bungalow. There was not enquiry under section 5-A. Her husband late Doraiswamy Nadar came to know that section 4(1) Notification had been issued for the purpose of widening the road and for that purpose the extent of 1237 sq.ft. was sought to be acquired. He sent his objections in writing dated 23. 1980 by registered post. He pointed out the hardship that would be caused to him and also the availability of vacant land on the northern side. He sent a reminder dated 31-3-1980 to the second respondent asking him to drop the proposed acquisition setting out his objections in detail. He did not receive any notice of any enquiry under section 5-A of the Act. He died on 21. 1985. He was under the impression that the objections had been accepted and proceedings dropped. However, after his death the first petitioner received the notice under section 9(3) and 10 dated 18. 1986 already referred to. Aggrieved the present writ petition had been filed.

2. Pending the writ petition the first writ petitioner died. Her legal representative D. Gunaseela Rajan filed petition W.M.P.No. 22228 of 1996 for substitution and the same was ordered on 19. 1997.

3. Though no counter was filed, the entire records were made available. From the records, it is seen that the husband of the first petitioner was indeed served with notice of section 5-A enquiry and he sent in his objections on 23. 1980. In the said objections he had stated that if any part of his land on the southern side of Chamiers Road had to be acquired, it should be limited to six feet only as was proposed originally and nothing more and if that was done, the damage proposed to be caused to his building would be minimized. In his objection letter he had specifically stated that he was not in a position to appear in person and adduce evidence in support of his objections on 4. 1980 at 11 a.m. at the office of the Land Acquisition Officer as he had been advised to go to a hill station and take rest on account of his indifferent health. He requested the Officer to adjourn the hearing, so that he could appear before him after his return. This was followed by another letter dated 33. 1980. It is further seen from the records that the Land Acquisition Officer did not grant any time, and he went ahead with the enquiry under section 5-A and rule 3(b) of the Rules framed under section 55 of the Act and for none of which the first petitioners husband got any notice or intimation.

4. No doubt, it is stated in the affidavit in support of the writ petition that the first petitioners husband did not have notice of the 5-A enquiry. This allegation does not appear to be correct. However, the first petitioner might not have been in the know of things. There is some justification in the contention of the learned counsel for the petitioners that neither the first petitioner nor her husband earlier had any notice of section 5-A enquiry subsequent to the latters letters dated 23. 1980 and 33. 1980 . The learned Counsel relies on the following judgments in support of his contention as regards the mandatory nature of the enquiry under section 5-A:

(1) Kadirvelu Mudaliar v. State of Tamil Nadu and another, 1987 W.L.R. 182;