Madras High Court
Sri Venkateswara Educational And vs The Secretary To Government Of ... on 24 April, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.04.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.9557 of 2011 and M.P.No.5 of 2011 Sri Venkateswara Educational and Charitable Trust, having office at New No.36,Venkatachala Naicken Street, Pudupet, Chennai-600 002. represented by its Managing Trustee, Er.D.Sivalingam, Chief Engineer P.W.D (Retd.) .. Petitioner Vs. 1.The Secretary to Government of Tamilnadu, Industries SIPCOT (LA) Department, Fort St. George, Chennai-9. 2.Special Commissioner and Commissioner for Land Administration, Chepauk, Chennai-5. 3.The Chairman and Managing Director, State Industries Promotion Corporation of Tamilnadu Ltd., 19-A,Rukmani Lakshmipathy Road, Egmore, Chennai-600 008. 4.The District Collector, Tiruvannamalai District, Tiruvannamalai. 5.Special District Revenue Officer, SIPCOT (Land Acquisition), Kasikara Street, Cheyyar-604 407. 6.Special Tahsildar, (SIPCOT-LA), at No.9,Pathala Vinayagar Koil Street, Cheyyar-604 407. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned notification issued by the first respondent herein under sub section (1) of section 3 of the Tamilnadu Acquisition of Land for Industrial Purposes Act 1997 in G.O.Ms.No.93, Industries (SIPCOT -LA) Department, dated 14.7.2010 insofar as the petitioner's trust land mentioned below is concerned and the connected order of the sixth respondent dated 13.9.2010 issued under sub section (2) of Section 4 of the Act directing the handing over of the possession of lands of the Trust to the Collector within the time specified thereon and quash the same and forbear the respondents from taking possession of the trust lands belonging to the petitioner trust in the following survey number situated in Mathur village, Cheyyar Taluk, Tiruvannamalai District. Survey No. Description Extent as per 3(2) Notice in Hectares Owner of the land 191A/2A2 Dry 0.28.50 out of (1.50.00) Venkateswara Educational and Charitable Trust 192 Dry 1.09.50 hec Do 193/1A2C Dry 0.62.50 Do 193/1A2D Dry 0.54.00 Do 193/1A2E Dry 0.71.00 Do 193/1B2A Dry 0.07.00 Do 193/1B2C Dry 3.13.50 hec Do 193/1C1 Dry 0.29.50 Do 193/1C2 Dry 0.24.50 Do 193/1C3 Dry 0.36.50 Do 193/1C4 Dry 0.07.50 Do 193/2 Dry 0.52.50 Do 193/1B2B Dry 0.70.00 out of (1.40.50) Do 193/1B2D Dry 0.44.50 out of (0.83.00) Do 194A/1 Dry 0.19.00 out of (1.05.00) Do TOTAL 09.30.00 Hectares (or) 22.97 > Acres For Petitioner : Mr.S.Vadivelu For Respondents : Mr.M.Dig Vijaya Pandian, AGP for RR1,2 4 to 6 Ms.Narmada Sampath for R-3 - - - - ORDER
The writ petition was filed by the petitioner Trust seeking to challenge a notification issued under Section 3(1) of the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (for short TALIP Act) made in G.O.Ms.No.93, Industries (SIPCOT-LA) Department, dated 14.7.2010 insofar as the petitioner's Trust Land mentioned in the prayer relating to different survey numbers to an extent of 09.30.00 hectares and connected orders dated 13.9.2010 issued by the sixth respondent Special Tahsildar (SIPCOT-LA), Cheyyar and to direct the hand over of the possession of land of the Trust to the Collector within the time specified and also to forbear the respondents from taking over the land.
2.When the matter came up on 18.4.2011, an order of interim stay of dispossession alone was granted. This writ petition was admitted on 24.6.2011. A vacate stay application was filed in M.P.No.5 of 2011 together with a supporting counter affidavit.
3.By the impugned Government Order, i.e., G.O.Ms.No.93, Industries (SIPCOT-LA) Department, dated 14.07.2010 the State Government had published a notification under Section 3(1) of the TALIP Act for acquiring the land of the petitioner to an extent of 25.71.0 hectares in S.Nos.188 etc., Unit-9, Block No.5 of No.134, Mathur Village, Cheyyar Taluk, Tiruvannamalai as per the annexure to the order approving the acquisition of land for the SIPCOT Industrial Expansion Scheme at Cheyyar. The said notification was directed to be published in the Gazette. The notification set out various survey numbers of lands owned by the petitioner trust. Even before coming to know about the acquisition, it was the case of the petitioner trust that through its Managing Trustee, they had sent a letter to the District Collector, Tiruvannamalai (R-4) on 25.6.2007 seeking for an exemption of 14.69.0 hectares for starting an Engineering College in the said land. They had requested them not to acquire the land owned by the petitioner. This letter of the petitioner was forwarded to the Special Commissioner-cum-Commissioner for Land Administration (R-2) recommending dropping of lands from acquisition by the State Government. On receipt of the proposal sent by the District Collector, the second respondent wrote a letter to the Chairman of the SIPCOT (R-3) informing them that if lands were excluded, it may not affect the contiguity of the acquisition made for the industrial complex expansion scheme.
4.In response to the query, the third respondent SIPCOT wrote a letter to the second respondent that since the District administration is recommending that dropping of land will not affect the SIPCOT expansion, after getting Government's approval if any lands were exempted, the SIPCOT will take further steps to acquire the land to an extent of land excluded. The second respondent thereafter wrote to the Government on 23.11.2007 enclosing its correspondence and requested the Government to delete those lands from the acquisition. But in all these letters, the total land that was sought to be excluded was 14.69.0 hectares. Subsequently, the State Government had asked the District Collector to send a topo sketch of the expansion scheme sought for by the SIPCOT. Once again the petitioner reminded the State Government for the grant of exemption from the acquisition. But, however, the District Collector by proceedings dated 13.2.2009 had issued notice as to why the land in question should not be acquired in terms of Section 3(2) of the TALIP Act. After receipt of notice under Section 3(2), the petitioner had informed the second respondent that since already proposal for exemption is pending, the land should not be acquired by the State Government for another public purpose. Notwithstanding the notification, by a proceedings, dated 8.6.2009, the State Government informed the District Collector to examine the recommendation of the Special Commissioner. This notwithstanding the show cause notice already issued under section 3(2) by the District Collector. Subsequently, it was informed by the Special Tahsildar by a notice dated 17.6.2009 that the enquiry was already postponed and that the enquiry of the land owners will be done on 24.6.2009.
5.It is the case of the petitioner that they sent a representation on 24.6.2009 requesting the Collector to take action for deletion of the petitioner's land from the acquisition. They also sent a letter to the second respondent on 09.11.2009 reiterating their demand for exclusion. The said letter was forwarded by a covering letter by the State Government to the second respondent asking to furnish specific remarks. Notwithstanding these proceedings, the State Government had issued the final notification under Section 3(1) vide G.O.Ms.No.93, Industries (SIPCOT-LA) Department, dated 14.07.2010 as noted already.
6.Pursuant to the notification issued under Section 3(1), the State Government had issued a direction under Section 4(2) of the TALIP Act asking the petitioner Trust to surrender the land by a notification dated 13.9.2010. Even after this notification, the petitioner was corresponding with the State Government. Since no response was forthcoming from the State Government, the second respondent had directed the District Collector, Tiruvannamalai to send an appropriate report to the State Government. This was followed by an another communication dated 7.3.2011 by quoting the earlier order of the State Government reminding him of sending further report. It is at this stage, the writ petition came to be filed.
7.In the counter affidavit filed on behalf of respondents 1,2,4,5 and 6, dated 30.6.2011 sworn to by the District Collector, in paragraphs 15 and 17, it was averred as follows:
"15....In view of the writ petitioner's schedule mentioned lands are situated in between the acquisition portion and if exempted, the contiguity of the scheme will be affected, as was felt by the requisitioning department, the writ petitioner's objection was rejected. All these facts have been duly recorded appropriately prior to issue Government Notification now sought to be challenged by the writ petitioner. The acquisition has been made for a bonafide public purpose under the provisions of Tamil Nadu Acquisition for Industrial Purpose Act 1997. The writ petitioner's objection do not merit consideration in vie of the facts explained above.
17....As more specifically stipulated in sub-section (3) of Section 3 of the above said Act, the writ petitioner's representation for exemption has been heard and considered, field inspection conducted and the findings of the enquiry duly recorded in the appropriate manner and finally, the Government issued Notification in G.O.Ms.No.93, Industries (SIPCOT-LA) Department, dated 14.07.2010 followed by order dated 13.09.2010 issued under Section 4(2) of the above said Act. Thus, the very purpose of the entire Section 3 and its sub-sections (1) to (3) has been duly satisfied in the appropriate manner."
8.A counter affidavit was filed by the third respondent, dated 10.7.2011 and in paragraph 9, it was averred as follows:
"9....this respondent namely the Chairman and Managing Director of SIPCOT in the letter dated 29.10.2007 has only stated that "Since the District Administration has opined that the exemption of the petitioner lands would not in any way affect the contiguity and compactness of the complex, there may not be any objection to the District Administrations recommendation". This does not mean that this respondent has not objected to the exemption in total. The exemption is only a qualified exemption based on the recommendation of the District administration. It is relevant to state that the actual ground reality is that the lands of the petitioner falls amidst the acquired lands and as such the same would definitely affect the contiguity and compactness of the complex. Hence after field inspection, the 4th respondent has recommended for the rejection of the request of the petitioner and the acquisition was completed."
9.The petitioner had filed a rejoinder dated 22.8.2011 reiterating that it is the Government which has to pass orders under Section 3(2), which argument has already been rejected by this court.
10.Even when the writ petition was pending, the same petitioner Trust filed an another writ petition being W.P.No.21377 of 2011 challenging an order of the State Government in G.O.Ms.No.103, Industries (SIPCOT-LA) Department, dated 5.7.2011 insofar as the petitioner's and in S.No.187/2A3 to an extent of 0.17.0 hectares (2 acres and 47 cents) situated in the same village and the consequential notification issued under Section 4(2) , dated 21.7.2011. When the present matter came up before this court on 24.1.2012, on being informed that the other case is also pending, this court directed that writ petition to be posted along with the present writ petition and also directed the Additional Government Pleader to produce the original records. Thereafter, it was informed that the other writ petition was heard in another court and subsequently disposed of on 01.02.2012 allowing the writ petition filed by the petitioner trust. In view of the said development, this court confines the present writ petition only to the grievance expressed therein.
11.Reliance was also placed upon the order of another learned Judge in W.P.No.21377 of 2011, dated 01.02.2012. In that order in paragraphs 40 to 45 it was observed as follows :
"40....once the Principal Act does authorize delegation of power under Section 3(1), the notification issued under Section 23-A of the Act, therefore, cannot be read to give power of hearing of objections to the Collector before issuing notification under Section 3(1). The reading of Section 3(1) of the Act shows that this power cannot be exercised in absence of hearing under Section 3(3) of the Act. The impugned notification, therefore, being in violation of statutory provisions of law, cannot be sustained.
41.The writ petition also deserves to succeed for the reason that the District Collector, who is said to have been delegated power under Sub section 3(2) and 3(3), has not applied independent mind, and was influenced by the directins issued by SIPCOT. The District Collector proceeded with the presumption that SIPCOT had final say in the matter, therefore, his recommendation to exempt the land from acquisition was to be ignored.
42.The counter further shows that the District Collector, who was delegated with power of the State Government, though delegation was bad, has failed to exercise powers, as delegated of the Government, but has acted as if he was Subordinate to the Special Commissioner and Commissioner for Land Administration and SIPCOT.
43.The procedure adopted, therefore, was totally contrary to statutory requirement under Section 3 before issuing notification.
44.The notifications are further vitiated for the reason that no order was passed by the Collector, rejecting objections filed by the petitioner, rather in the counter filed only shows that the District Collector failed to exercise the statutory jurisdiction, as State in view of delegation of power of the State Government, to arrive at independent decision by considering objections filed by the petitioner. There is also no material on record, showing whether the State Government applied its independent mind to the recommendation made by the Collector.
45.The stand of the petitioner that no report has been filed is also not controverted, nor any report has been placed, therefore, there is no material on record, showing that the State Government considered the report or objections before issuing impugned notification under Section 3(1) of the Act. The second notification impugned, being consequential notification, also cannot be sustained, having been passed in pursuance to acquisition under Section 3 of the Act, which stands quashed." (Emphasis added)
12.In fact, though the learned Judge in that case referred to Section 23-A delegating power under Section 3(1), held in a technical manner that while delegating the power under Section 23-A, the power to issue notice under Section 3(1) cannot be delegated by the State Government. On the other hand, Section 23A itself gives power for the State Government to delegate all powers under Section 3(1).
13.Sections 3 and 23-A of the TALIP Act reads as follows:
"3.Power to acquire land.- (1)If, at any time, in the opinion of the Government, any land is required for any industrial purposes, or for any other purpose in furtherance of the objects of this Act, they may acquire such land by publishing in the Tamil Nadu Government Gazette a notice specifying the particular purpose for which such land is required.
(2)Before publishing a notice under sub-section (1), the Government shall, call upon the owner and any other person, who in the opinion of the Government may be interested in such land, to show cause within such time as may be specified in the notice, why the land should not be acquired. The Government shall also cause a public notice to be given in such manner as may be prescribed.
(3)The Government may pass an order under sub-section (1) after hearing and considering the cause, if any, shown by the owner or person interested.
23-A.Delegation of powers.- The Government may, by notification, direct that all the powers under this Act except the powers,-
(1)to issue notice under sub-section (1) of section 3;
(2)to withdraw the land from acquisition under the first proviso to sub-section (1) of section 4; and (3)to make rules under section 25, shall, subject to such conditions, if any, as may be specified in the notification, be exercised by the Collector,]"
14.The State Government had issued a notification in respect of Section 23-A which reads as follows :
REVENUE DEPARTMENT DELEGATION OF POWERS OF GOVERNMENT TO DISTRICT COLLECTORS UNDER THE TAMIL NADU ACQUISITION OF LAND FOR INDUSTRIAL PURPOSES ACT, 1997.
[G.O.Ms.No.513, Revenue (LAI(1), 2nd September 2005.] No.II(2) / REV / 716(d) / 2005.- In exercise of the powers conferred by section 23-A of the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999), the Governor of Tamil Nadu hereby directs that all the powers exercisable by the Government under said Act except the powers excluded in the said section 23-A shall be exercised by the Collector of the district concerned.
(2)The Notification hereby issued shall come into force on the 2nd day of September, 2005.
[Published in Part II - section 2 of the Tamil Nadu Government Gazette (Extraordinary), dated 2nd September 2005, Issue No.199]." (Emphasis added)
15.Therefore, the learned Judge who dealt with the case was of the opinion that the power under section 3(1) was not exercised properly by the State Government. The objections which will have to be heard by the Collector was not considered by him. The State Government will have to issue a show cause notice calling upon parties to file objections. Hence the notice issued by the Deputy Collector in that case was valid only to an extent of calling for objections. But the objections will have to be heard only by the State Government. After holding that there was a delegation of power under Section 3(1) and also that under Section 3(2) the District Collector could even call for objections, the matter was quashed only on the ground that the State Government did not issue the show cause notice and did not consider the objections. In that case, the objections were heard in an enquiry conducted by a Special Tahsildar and those allegations made were not denied through a counter affidavit. Hence the statutory authority did not apply his mind and the order was quashed. But, on the other hand, no liberty was given to the State Government to pursue the matter afresh and straight-away after quashing the proceedings, the writ petition was allowed with cost ordered against the State.
16.Mr.S.Vadivelu, learned counsel for the petitioner strongly relied upon the order passed by this court and also contended that the matter should be quashed at the stage of Section 3(1) and Section 3(2) itself notwithstanding an order was issued also under Section 4(2). But, however on the adjourned date, i.e., 27.3.2012, the learned Additional Government Pleader produced a Government order in G.O.Ms.No.71, SIPCOT-LA Department, dated 27.03.2012 rejecting the request for exemption sought for. The exemption was rejected on the ground that exemption if any granted will disturb the contiguity of the scheme area acquired for an industrial expansion. After considering the proposal sent by the District Collector and the Commissioner, the State Government held that there was no case for grant of exemption.
17.The State Government had exercised its power under Section 3(1). By delegation, all powers other than under Section 3(1) can be delegated to subordinate officers. Accordingly, the State Government had delegated all powers to the District Collector except the power exempted under Section 23-A of the Act. In essence, Section 3(1) is a power by which the State Government can form its opinion that if the land can be acquired for an industrial purpose or for any other purpose in furtherance of object of the Act and may proceed to acquire such land by publishing a gazette notification.
18.In the present case, the notification had already been issued under Section 3(1) by the State Government by G.O.Ms.No.93, SIPCOT-LA Department, dated 14.7.2010. Insofar as Sections 3(2) and 3(3) is concerned, the power is now solely delegated to the District Collector. Therefore, the reasoning given by the learned Judge may not be of any assistance. Reference made to the judgments arose under Tamil Nadu Act 31/1978, i.e. judgment in Rajammal and others -vs- District Collector, Dharmapuri and another reported in 2008 (5) CTC 154, M.Nagu and others -vs- The District Collector, Sivagangai District and another reported in 2008 (2) CTC 468 and The Land Acquisition Officer and Special Tahsildar (LA) and another -vs- R.Manickammal and others reported in 2002 (2) CTC 1 (DB) will have no bearing in this case because there was no question of delegation of power arose in those cases. In Tamil Nadu Act 31/1978, the power has to be exercised only by the District Collector whether it was under section 4(1) or Section 4(2) of the Act. But notwithstanding the power exercised by the District Collector, notifications were wrongly issued on the basis of a printed format which were also published in the gazette. Therefore, in that context, it was held that if the satisfaction was that of the District Collector, it cannot be expressed by the State Government. The State Government did not come into the picture under Tamil Nadu Act 31/1978.
19.But this court subsequently in many orders found that it was this printed form kept by the Collectorate for the Central Act and copies verbatim in the State Act which caused the mischief to allege that the satisfaction was not that of the Collector and hence the acquisition was bad. In this context, this court also referred to the judgment of this Court in R.Pari -vs- The Special Tahsildar (ADW), Devakottai and another reported in 2006 (4) CTC 609 and held that satisfaction need not be found from the notification issued in the gazette or the order issued by the District Collector. It has to be seen in the file whether the competent authority was satisfied or not.
20.In the present case, Section 3(1) notification issued by the State Government which was sought to be impugned. The Collector had passed orders under Sections 3(2) and 3(3) which was once again sought to be challenged by stating that the State Government must pass an order. On the other hand, the said contention is misconceived because such power had already been delegated to the District Collector in terms of the statutory notification issued under Section 23-A. It is unfortunate that these facts were not noted in W.P.No.21377 of 2011.
21.Though by the order of delegation within Section 3 to a delegate, certain amount of confusion exists, the Court must strive to make 'purposive interpretation' and not to take a stand akin to throwing the baby with bath water. If the delegation has to be effective then the enquiry even for Section 3(1) can be conducted by subordinates and a final order can be passed under Section 3(1) of the Act by the Government.
22.Mr.S.Vadivelu, learned counsel placed strong reliance on the fact that the authority below had recommended for an exemption, but that was not considered in the impugned order due to non application of mind. When once valid proceedings were initiated, even the State Government cannot interfere with the question of acquisition since the provisions of the Land Acquisition Act were specifically made not applicable to the proceedings initiated under the TALIP Act in terms of Section 21 of the TALIP Act. Under Section 22, a non obstance clause was introduced to override the provisions of any other Act. Therefore, the petitioner cannot seek for exclusion of his land from the acquisition.
23.Therefore, the only question for consideration in this writ petition is whether the application of mind of the District Collector was seen in the file. Even the application made by the petitioner to the State Government was also negatived by G.O.Ms.No.71, Industries (SIPCOT-LA) Department, dated 27.3.2012 as referred to above. In fact in a communication sent by the first respondent to the learned Additional Government Pleader, dated 17.2.2012, it was stated as follows:
"4.In this connection, the District Collector's report has been called for. In his report the District Collector, Tiruvannamalai has stated that in respect of the Trust lands 3(2) notification was approved and issued on 10.2.2009. The objection petition was received on 5.3.2009. The District Collector has conducted an enquiry on 24.6.2009 on the objection petition and overruled the same stating that there is no construction activities take place on the lands in question, if exemption is granted the land acquisition proceedings will be affected. Further the District Collector has stated that the Chairman and Managing Director, SIPCOT has also recommended on 11.6.2009 to overrule the objections raised by the said Trust. In the circumstances 3(1) proposals have been send to the Government. The Government have accepted the same and issued orders in G.O.(MS)No.93, Industries (SIPCOT-LA) Department, dated 14.7.2010 and also published the same in the Tamil Nadu Government Gazette No.211, dated 14.7.2010. Further 'E' form notices were also issued to the land owners interested persons. At this juncture, if exemption is granted the land acquisition proceedings will be affected. Therefore, the District Collector, Tiruvannamalai has stated that it is impossible to grant exemption to the Trust lands from land acquisition proceedings. The above recommendations of the District Collector is under examination of the Government. It will take some more time to pass final orders in the above matter. "
24.The topo sketch furnished also showed that the land which was sought to be exempted come very much within the contiguous nature of the scheme. The District Collector in his letter dated 31.5.2010 had opined as follows:
".....since the requisition department had rejected the petitioner's request on the grounds that the Educational Institution had not done any development or any construction work over the lands and the lands were lying barren, and more over the lands were situated opposite to the existing SIPCOT area and hence these lands were necessarily required for SIPCOT expansion area, and by accepting the recommendation of the requisition department, necessary 3(1) proposals for the acquisition of lands including the above mentioned lands measuring an extent of 14.69.0 hectares in Mathur Village, Cheyyar Taluk, owned by Venkateswara Education and Charitable Trust, Cheyyar were sent to the PS/CLA, Chennai....."
25.In the communication sent on 4.3.2011 by the District Collector to the State Government, he had also stated that he made an enquiry on 24.6.2009 and found that in the lands in question there was no construction activity and that the SIPCOT had opined that it will affect their expansion programme if any exemption was granted.
26.In view of the above, there is no case made out to entertain the writ petition. This court is satisfied that necessary statutory procedures have been followed before invoking the power under the TALIP Act. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
24.04.2012 Index : Yes Internet : Yes vvk To
1.The Secretary to Government of Tamilnadu, Industries SIPCOT (LA) Department, Fort St. George, Chennai-9.
2.Special Commissioner and Commissioner for Land Administration, Chepauk, Chennai-5.
3.The Chairman and Managing Director, State Industries Promotion Corporation of Tamilnadu Ltd., 19-A,Rukmani Lakshmipathy Road, Egmore, Chennai-600 008.
4.The District Collector, Tiruvannamalai District, Tiruvannamalai.
5.Special District Revenue Officer, SIPCOT (Land Acquisition), Kasikara Street, Cheyyar-604 407.
6.Special Tahsildar, (SIPCOT-LA), at No.9,Pathala Vinayagar Koil Street, Cheyyar-604 407.
K.CHANDRU, J.
vvk ORDER IN W.P.No.9557 of 2011 24.04.2012