Madras High Court
S.Kuppusamy vs The District Collector on 10 October, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.10.2014 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI W.P.No.431 of 2006 S.Kuppusamy .. Petitioner Vs. 1.The District Collector, Perambalur. 2.The Special Tahsildar, Adi-Dravidar Welfare, Perambalur. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari, to call for the entire records relating to the impugned order passed by the 1st respondent in District Gazette No.29, dated 01.12.2005 and quash the same insofar as the petitioner is concerned. (Prayer in the writ petition amended as per the order of this Court, dated 09.04.2010, in W.P.M.P.No.262 of 2010 in W.P.No.431 of 2006) For petitioner : Mr.C.Prakasam For respondents : Mr.Suresh Viswath Government Advocate ORDER
The writ petition arises out of the acquisition proceedings initiated under Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act, 1978. The acquisition proceedings is challenged by the petitioner, who is the owner of the property in Survey No.25/12-A, at Odaipadi Village, Kunnam Taluk, Perambalur District, on the following grounds;
(i) the petitioner is not furnished with the copies of the report made by the second respondent the Special Tahsildar, Adi-Dravidar Welfare, Perambalur submitted to the first respondent - District Collector under Section 4(3)(b) of the Act for acquiring the petitioner's land.
(ii) the proceedings are motivated and initiated by mala fide.
(iii) the land in question being cultivable in nature and the petitioner having been carrying on cultivating operation is not suitable for being acquired.
(iv)the physical possession having been continuously with the petitioner and the compensation having been not paid to the landowner, the land acquisition proceedings becomes lapsed under Section 24(1) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 and as per the recent judgment of the Hon'ble Apex Court in 2014 (1) CTC 755 and the judgment of the Division Bench of this Court in Writ Appeal No.918 of 2010 dated 03.04.2010.
2.The learned counsel for the petitioner in support of his contention cited the following authorities;
(a) 2006 (4) CTC 609 Full Bench of Madras High Court (R.Pari Vs. Special Tahsildar, Adi-dravidar Welfare, Devakottai and another);
(b) 2007 (3) CTC 450 (K.Janardhana Singh Vs. Special Tahsildar, Harija Welfare Scheme, Villupuram)
(c) 2014 (2) CTC 331 SC (Vinod Kumar Vs. State of Hariyana and others).
(d) 2014 (1) CTC 755 SC (Pune Municipal Corporation and another Vs. Harakchand Misirimal Solanki and others).
(e) 1998 (1) CTC 281 DB (Tmt.Pusba Bai Bainsingh Vs. the District Collector, Tirunelveli).
(f) 2001 (1) MLJ 238 (S.K.Thirugnanasambandam and others VS. The Government of Tamil Nadu and others).
(g) 2004 (3) MLJ 129 Madras High Court Justice Praba Sridevan (V.Kannian and another Vs. the District Collector, Salem).
3.Before going into other aspects, this Court is inclined to take up the last ground raised by resorting to Section 24(1) of Act 30 of 2013. As section 24(1) is applicable to the land acquisition proceedings initiated under Act 1 of 1984 and as the proceedings involved herein is initiated under Act 31 of 1978, the petitioner cannot take shelter under Section 24(1) of the Act 30 of 2013 and is hence disentitled to get any relief under the same.
4.Regarding the other grounds, it is not in dispute that the first respondent - District Collector who is the appropriate authority must be satisfied that the land should be acquired. The statutory provisions under Section 4 and Rule 3 are silent regarding holding of any enquiry, either by the District Collector or by the authorised officer. The statutory provisions merely contemplate issuance of notice to show cause and the rules contemplate issuance of notice in Form I. It further contemplates that the person interested is at liberty to appear and to adduce any oral and documentary evidence in respect of his objection. Section 4(3)(b) contemplates that the officer authorised by the District Collector shall make an enquiry under Section 4(2) and submit a report to the District Collector containing his recommendations on the cause so shown in the decision of the District Collector. It further contemplates that the District Collector may pass such further order, as he may deem fit, after considering such report. The provisions contained in the Act, Rules and Form I do not specifically envisages as to what are all the records will be placed before the District Collector and they are also silent as to whether the copy of the report of the authorised officer is required to be furnished to the objectors. In view of the same, a Full Bench was constituted for determining the following questions in the context of Act 31 of 1978;
(a) Is it is necessary for the Collector to give a personal hearing to the owners in the context of his objections and the remarks of the Tahsildar?
(b) Is the owner entitled to a copy of the report of the Tahsildar or not?
(c) Should the Collector record his reasons in his order while dealing with the objections of the owner?.
5.The Full Bench of our High Court has in the judgment reported in 2006 (4) CTC 609 (R.Pari Vs. The Special Tahsildar, Devakkottai and another), after detailed analysis and after referring to the earlier judgments, arrived at a conclusion as follows;
The owner should be furnished with a copy of the report / recommendation of the authorised officer. Thereafter, he should be given two weeks' time to make further representation, if any, before the District Collector. It is not necessary for the District Collector to give further personal hearing or make any further enquiry. However, mere non furnishing of the report would not have the ipso facto effect of vitiating the proceedings and the question of prejudice to the land owner is required to be considered in each case depending upon the facts and circumstances. The District Collector is expected to reflect the reasons, but merely because the communication to the land owner does not contain the reasons, the decision of the Collector is not ipso facto vitiated and it would always open to the concerned authority to prove before the Court, if such action of the Collector is challenged, that there has been application of mind and the reasons are available in the relevant records relating to such acquisition. The necessity to record the reasons is applicable where the Collector himself makes the enqujiry and also where the Collector takes an appropriate decision on the basis of the report / recommendation made by the authorised officer.
6.One of the judgments referred to by the Full Bench is the earlier Division Bench judgment of our High Court reported in 1998 (1) CTC 281 (Thirumathi Pushpa Bai Bainsingh V. District Collector, Tirunelveli), wherein the order impugned was the order of the District Collector based on the report filed by the Tahsildar. One of the objections raised therein was that the Collector passed the order on the basis of the report filed by the Tahsildar without giving an opportunity to establish the objections raised by the land owners. The Division Bench has upheld the objections and set aside the order of the District Collector and directed the District Collector to pass an order after giving an opportunity of being heard to the appellants. Whereas the Full Bench in the latest order was of the view that the owners should be furnished with the copy of the report of the authorised officer and to be given two weeks time to make further representation before the District Collector. The District Collector was also directed to consider the same and to pass appropriate order by assigning his reason.
7.The Principal laid down by the Full Bench is applied by the learned Brother Judge Justice R.Sudakar in the judgment reported in 2007 (3) CTC 450 (K.Janardhana Singh Vs. The Special Tahsildar, Harijan Welfare Scheme, Villupuram District). However, in both the cases above referred to, the order of the District Collector was set aside and the matter was remanded back to proceed with the same afresh from the stage at which it was held to be vitiated.
8.In the other judgment referred to above, the learned Brother Judges of this Court have emphasised the mandatory procedure to be followed by the District Collector. It is categorically laid down in all the cases that the District Collector should consider the report of the authorised officer and there should be an application of mind and there should be a record of satisfaction of the Collector that the acquisition is necessary, and any order passed without due application of mind with reference to the objections raised by the land owners cannot be sustained.
9.In this case, it is the specific case of the petitioner that the report of the Special Tahsildar, submitted to the District Collector under Section 4(3)(b) is not furnished to the petitioner and the petitioner is not given an opportunity to file his objections and the order of the District Collector does not reflect the reasons for accepting the report of the Tahsildar that the land acquisition is necessary in this case.
10.The counter filed by the second respondent - Special Tahsildar for himself and on behalf of the first respondent is totally silent on this aspect, except stating that the Pattadars appeared before the Land Acquisition Officer for enquiry under Section 4(2) and submitted their objections and the Land Acquisition Officer, after considering their objections, sent his report along with his recommendation to the District Collector and thereafter, the Revenue Divisional Officer and the District Adi-Dravidar Welfare Officer, Perambalur have under the direction of the District Collector jointly inspected the acquisition sites and sent their remarks. The District Collector has also inspected the said lands on 10.09.2005 and rejected the objections raised by the land owners and granted permission vide proceedings dated 25.11.2005 to acquire the lands in question by holding that they are not suitable for cultivation and they are only suitable for providing the house sites.
11.No specific whisper is made in the counter that the copy of the report of the Tahsildar is furnished to the land owners in compliance of the principles laid down by the Full Bench of this Court. The perusal of the impugned order of the District Collector do not also indicate due application of mind on the objections raised by the petitioner. On this score alone, the impugned order is liable to be set aside and the matter is liable to be remanded back for fresh disposal.
12.As far as the second ground raised on the side of the petitioner that it is mala fide and is motivated, the same is also not considered by the District Collector in proper perspective.
13.The learned counsel for the petitioner has, at this juncture, drawn the attention of this Court to the copy of the report of the Tahsildar, Kunnam Taluk, Perambalur District, dated 02.07.2010 and report of the second respondent, dated 03.11.2010 communicated to the first respondent, District Collector. These reports are the outcome of the order passed in W.P.No.10506 of 2010, dated 12.05.2010, filed by one Murugan, who is one of the proposed beneficiaries. It appears that the proposed beneficiary has made a representation to the District Collector, Perambalur and the Special Tahsildar, Adi-Dravidar Welfare to stop acquiring the land in question and not to issue patta in waterways / Lake for construction of the houses. The contention raised in his representation is that the lands acquired are low lying lands and are nearby Lake and the Lake water is being used for irrigation and 20 feet water is available in the said lake and it is not fit for construction of houses. On the failure of the District Collector to consider the objections regarding the nature of the property and to pass appropriate orders on his representation, he approached this Court by way of W.P.No.10506 of 2010 and the writ petition was disposed of on 12.05.2010 by a Division Bench of this Court by directing the respondents to dispose of his representation within six weeks from the date of receipt of a copy of the order.
14.In pursuance of the same, the Regular Tahsildar (Revenue) and Special Tahsildar, Adi-Dravidar Welfare, have duly inspected the property, along with VAO, Revenue Inspector, etc. and duly sent the reports to the District Collector, Perambalur on 02.07.2010 in Na.Ka.No.A1/8720/2010 and 30.11.2011 in Na.Ka.No.A/ 2126/2010 respectively. Both the reports do clearly state the present state of affairs and non-suitability of the land for being converted for using it as residential area. It is also stated by them that there are other suitable lands available. However, till date no revised order is passed by duly considering the reports of the Revenue Officials concerned.
15.The learned counsel for the petitioner has also relied on the judgment of the Hon'ble Apex Court reported in 2014 (2) CTC 331 (Vinod Kumar Vs. State of Hariyana and others), wherein the Hon'ble Apex Court has found fault with the Government for not duly considering the report of the District Collect against the acquisition before passing the declaration under Section 6. In the case dealt with by the Hon'ble Apex Court, the Land Acquisition Officer, after considering the objections, sent report stating that well laiden beautiful residence has been constructed and the land may not be acquired, but the Government has not considered the report of the District Collector before passing declaration under Section 6. The declaration made by the State does not reflect any reason for arriving at a decision contrary to the report sent by the Land Acquisition Officer. It is also held by the Apex Court that the basic protection to which the land owners are entitled to under the Act through Section 5-A is violated and the process of the acquisition of the land of the appellant is tainted with malafide and is therefore, liable to be set aside and accordingly the land acquisition notification under Sections 4 & 6 of the Act in relation to the appellant's land and the action taken thereon were quashed by the Apex Court.
16.Relying on the observation of the Hon'ble Apex Court, this Court is of the view that it is the duty of the District Collector to consider all the objections in proper perspective and on the failure of the competent authority to do so, the impugned order of the District Collector is on totally non-application of mind and is liable to be set aside and the matter is to be remitted back for fresh disposal.
17.In the result, the writ petition is allowed by setting aside the order of the first respondent, dated 01.12.2005 insofar as the petitioner is concerned and the matter is remitted back to the first respondent District Collector, Perambalur. The first respondent is directed to furnish a copy of the report of the Special Tahsildar, dated 06.01.2004, in Na.Ka.No.2126/2002 and to give sufficient opportunity to the petitioner to submit his objections and to pass appropriate orders, in accordance with law, by duly considering the objections, if any, by the petitioner and the report of the regular Tahsildar (Revenue), Kunnam, dated 02.07.2010, in Na.Ka.No.A1/8720/2010 and the Special Tahsildar, Perambalur, dated 30.11.2011, in Na.Ka.No.A/2126/2010, in respect of the petitioner's land. No costs.
Index : yes / No 10.10.2014
Internet : yes / No
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K.B.K.VASUKI, J.
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To
1.The District Collector,
Perambalur.
2.The Special Tahsildar,
Adi-Dravidar Welfare,
Perambalur.
W.P.No.431 of 2006
10.10.2014