1. The petitioner is the pattadar of part of S.No. 131, an extent of 0. 20 1/2 cents. The remaining extent of 5. 021/2 acres belongs to one Subramania Gounder. The said lands were proposed for acquisition and necessary notification under Section 4(1) of the Land Acquisition Act was published in the Tamil Nadu Government Gazettee dated 5.3.1983. Thereafter, after due enquiry. declaration under Section 6 of the said Act was published and the award enquiry was also completed. It is the case of the petitioner that he came to know about the acquisition of the property only when the second respondent issued notice to the 5th respondent on 23.9.1989 under the Land Encroachment Act. The 5th respondent is the purchaser of the petitioners land under registered sale deed dated 22.12.1983 i.e., subsequent to the 4(1) notification. Immediately, thereafter, the petitioner has filed this writ petition challenging the acquisition proceedings, since it is not open to the 5th respondent to challenge the same as he is the purchaser of the property subsequent to 4(1) notification.

2. The main ground urged by the learned counsel for the petitioner is that the petitioner was not served with the statutory notice in respect of the enquiry under Section 5 A of the Land Acquisition Act. When it is mandatory on the part of the respondents to serve a personal notice for the enquiry, non-issue of the notice to the petitioner vitiates the proceedings. Equally, the petitioner was not served with any notice for the award enquiry also.

3. The joint Secretary to Government, Adi Dravidar and Tribal Welfare Department, Madras- 9 has filed counter affidavit on behalf of respondents 1 to 4. In the Counter affidavit, it is stated that the petitioner was served by affixture in respect of the notice for 5- A enquiry, as the petitioner was absented himself continuously in his residence. It is admitted that the notice for the award enquiry was also not served on the petitioner, since it was found in the enquiry held under Section 5- A of the Act that the petitioner is not the owner of the property. The Government Pleader also reiterated what is stated in the counter. He, further, contended that the award has been passed and possession has been taken.

4. I carefully considered the contention of the learned counselfor the petitioner as well as the Government Pleader. The petitioner has stated that his name had been shown as the owner of the property in the notification under Section 4(1). A perusal of the notification under Section 4(1) of the Act establishes that the petitioners name has been specified as one of the owner. There is no dispute with regard to this fact. When that being so, it is the duty of the respondents to serve the notice for the enquiry under Section 5- A to the petitioner. In the Counter, it is stated that the petitioner has been served with affixture, as he was absented himself continuously from his residence. Several adjournments have been granted to enable the respondents to produce the records in order to find out whether the statement made in the counter is correct. If, the notice has been served by affixture, naturally the endorsement should contain the reason for such affixture and also the same ought to have been attested by the neighbouring land owners. Even though, several adjournments have been granted,till date, the respondents are not in a position to produce the records. It is represented that the records are not traceable. When the award enquiry is of the year 1984, naturally at the time of the filing the Writ Petition the records might have been available. When the matter is pending from 1989 till date, it is the duty of the respondents to trace out the records and keep them ready for court reference. Without doing so, the respondents are avoiding production of the records. Hence, I am of the view that mere statement in the counter affidavit that the petitioner absented himself for longtime and hence, they resorted to affixture cannot be accepted. It is not the case of the respondents that except the petitioner there is no one else in his house or house is locked.

5. So far as the notice for the award enquiry is concerned, it is the contention of the respondents that during enquiry under Section 5- A, it has been found that the petitioner is not the owner of the property and hence, no notice has been served for the award enquiry. It is not the jurisdiction of the Tahsildar to go into the title of the contesting claimants and give a finding in respect of title. If there is dispute over the title, it must be heard with regard to the ascertainment of the compensation and after ascertaining the compensation, the amount has to be deposited and reference has to be made under Section 30 of the Land Acquisition Act. When the Tahsildar himself has concluded that the petitioner has no title and as such, he is not entitled for any notice for the award enquiry, I am of the view that the entire proceedings is vitiated by assumption of the jurisdiction, which is not vested with the enquiry Tahsildar.

6. In view of this, I am of the view that the entire acquisition proceedings is vitiated. The passing of the award and taking of possession under the invalid proceedings cannot be sustained. Accordingly, this Writ Petition is allowed.