Madras High Court
Malarkodi vs The Secretary To The Government Of ... on 14 July, 2008
Equivalent citations: AIR 2009 (NOC) 188 (MAD.), 2009 AIHC (NOC) 471 (MAD.)
Author: F.M.Ibrahim Kalifulla
Bench: F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.07.2008
C O R A M:
THE HONOURABLE Mr.A.K.GANGULY, CHIEF JUSTICE
and
THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA
W.A.Nos.562 to 564 of 2008
and
M.P.Nos.1+1+1 of 2008
W.A.No.562 of 2008
1. Malarkodi
2. Aappili
3. Jeeva
4. Malliga
5. Latchumi
6. Mariyayee
7. Kaliammal .. Appellants
-Vs-
1. The Secretary to the Government of Tamilnadu,
Adi Dravida and Tribal Welfare Department,
Fort St. George, Chennai 600 009.
2. The District Collector,
Namakkal District.
3. The District Revenue Officer,
Namakkal, Namakkal Town.
4. The Special Tahsildar,
Adi Dravida Welfare, Namakkal.
5. L.Balasubramaniam
(Impleaded as 5th respondent vide order dated 14.07.2008
passed in M.P.No.2 of 2008 in W.A.No.562 of 2008) .. Respondents.
Writ Appeal No.562 of 2008 filed against the order of this Court in W.P.No.25559 of 2007, dated 30.04.2008.
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W.A.No.563 of 2008
1. Janma
2. Palaniammal
3. Singari
4. Pappathi
5. Pappathi
6. Periakkal
7. Logambal
8. Savithri
9. Vanitha
10. Chittiraiselvi
11. Saraswathi
12. Kala
13. Kuppayyee
14. Savithri
15. Tamilselvi
16. Jegadambal
17. Vanitha
18. Rukmani
19. Anuradha
20. Poongodi
21. Chitra .. Appellants
-Vs-
1. The Secretary to the Government of Tamilnadu,
Adi Dravida and Tribal Welfare Department,
Fort St. George, Chennai 600 009.
2. The District Collector,
Namakkal District.
3. The District Revenue Officer,
Namakkal, Namakkal Town.
4. The Special Tahsildar,
Adi Dravida Welfare,
Namakkal.
5. S.Singaravelu
6. Kamaladevi
7. Vennila
8. Uma
9. Indirani
10. Valarmathi
11. Deviammal
12. Rajammal
13. Vijaya
14. Maheswari
15. Indirani
16. Devi
17. Mariyayi
18. Mekala
19. Baby
20. Tamilselvi
21. Ramayee
22. Gandhimathi
23. Nithya
24. Uma
25. Parvathi
26. Nisha
27. Easwari
28. Sakunthala
29. Karuthamani
30. Kanniammal
31. Annagodi
32. Lakshmi
33. Umadevi
34. Sumathi
35. Radha
36. Mariyayee
37. Saratha
38. Vijaya
39. Kanthamani
40. Vijayakumari
41. Sharmila
42. Chandrika
43. Vijaya
44. Easwari
45. Sarasu
46. K.Rani
47. R.Papathi
48. R.Padmavathi
49. P.Kathayee
50. Bharathi
51. Palaniammal
52. Samboomam
53. Yasodai
54. Latha .. Respondents.
Writ Appeal No.563 of 2008 filed against the order of this Court in W.P.No.23587 of 2007, dated 30.04.2008.
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W.A.No.564 of 2008
S.Rani .. Appellant
-Vs-
1. The Secretary to the Government of Tamilnadu,
Adi Dravida and Tribal Welfare Department,
Fort St. George, Chennai 600 009.
2. The District Collector,
Namakkal District.
3. The District Revenue Officer,
Namakkal, Namakkal Town.
4. The Special Tahsildar,
Adi Dravida Welfare,
Namakkal.
5. L.Balasubramaniam
6. S.Singaravelu .. Respondents.
Writ Appeal No.564 of 2008 filed against the order of this Court in W.P.No.21595 of 2007, dated 30.04.2008.
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For Petitioners
in all the WAs : Mr.V.Ragavachari
for Mr.P.Valliappan
For Respondents 1 to 4
in all the WAs. : Mr.Raja Kalifulla
Government Pleader
For Respondent 5 in
W.A.No.564/2008 : Mr.R.Krishnamurthy,
Senior Counsel
for Mr.S.M.Loganathan
- - - - - -
C O M M O N J U D G M E N T
THE HONBLE THE CHIEF JUSTICE The appellants are aggrieved against the common order passed by a learned Single Judge of this Court dated 30.04.2008, in W.P.Nos.21595, 23587 and 25559 of 2007 and the connected miscellaneous petitions.
2. The issue concerns the land acquisition proceedings in respect of the property situated in Survey Nos.134/2, 137/1A and 137/1B of Pothanur village, Namakkal District. The parties involved are three different groups and for the sake of convenience, the parties are herein after referred to as under:
(i) The appellants in all the three appeals will herein after be referred to as the beneficiaries.
(ii) The respondents 1 to 4 in all the three appeals can be conveniently referred to as acquisition authorities.
(iii) The respondents 5 to 54 in W.A.No.563 of 2008 and the 6th respondent in W.A.564 of 2008 who got themselves impleaded as party respondents by filing separate applications are herein after referred to as rival claimants to the beneficiaries.
3. The beneficiaries preferred the writ petitions challenging G.O.Ms.(3Pa) No.14, dated 12.04.2007, in and by which, the State Government issued directions to the District Collector, Namakkal to re-convey the acquired lands in S.Nos.134/2, 137/1A and 137/1B to an extent of 2.29 acres to the erstwhile land owners and in its place acquire an extent of 4.03 acres in S.Nos.201/2, 201/4 and 154/1A situated in Edayar West and Veernampalayam villages also belonging to the erstwhile land owners for the purpose of issuing free house site pattas to about 180 persons. The impugned G.O. also states that since the compensation amount of Rs.3,17,851/- in respect of the acquired land to the extent of 2.29 acres having already been deposited with the Sub Court, Namakkal and continuing to remain in deposit, there was no need to seek for repayment of the compensation by the erstwhile land owners.
4. The grievance of the beneficiaries who are stated to be 61 in number can be stated as under:
In 1989 proceedings were stated to have been initiated under Section 4(1) and Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) for acquiring an extent of 2.29 acres in Survey Nos.134/2, 137/1A and 137/1B in Pothanur village, Paramathi Velur Taluk of Namakkal District for the purpose of granting free house site pattas to the land less Adi Dravidars. The acquisition proceedings resulted in Award No.6/92-93 dated 07.12.1992. Since the erstwhile land owners objected to the acquisition, the compensation amount of Rs.3,17,851/- was deposited in the Sub Court, Namakkal under Sections 30 and 31(2) of the Act on 25.01.1993. The erstwhile land owners preferred W.P.No.9795 of 1991 challenging the acquisition which was dismissed by this Court on 15.06.1999. Pursuant to the dismissal of the writ petition, the acquired lands were taken possession of by the Tahsildar, Paramathi Velur on 15.12.1999. Subsequently on 30.04.2003, assignment pattas under the provisions of Board Standing Orders / Revenue Standing Orders came to be issued in favour of the 61 beneficiaries. It is stated that there were complaints apparently at the instance of the rival claimants, who are rival to the beneficiaries, alleging that the assignment pattas granted in their favour should be cancelled.
5. As a sequel to the above referred to complaints, it is stated that the Tahsildar, Paramathi Velur was directed to verify the genuineness of the beneficiaries and based on the enquiry conducted by him in R.O.C. No.7710/2003 dated 20.11.2003, it was reported that most of the beneficiaries were ineligible. Based on the said report, the Acquisition Officer namely the District Adi Dravidar and Tribal Welfare Officer, Nammakkal passed orders in R.O.C.(D1) 35860/99, dated 15.12.2003, cancelling all the 61 house site pattas and instructions were also issued to submit the list of revised beneficiaries after holding a fresh enquiry.
6. According to the acquisition authorities, after the issuance of the assignment pattas dated 30.04.2003, though physical possession of the respective plots in an extent of 2 cents each was not identified and handed over to each of the beneficiaries, all the 61 beneficiaries entered the acquired lands and occupied various plots on their own by putting up thatched structures. Be that as it may, while on the one hand the rival claimants to the beneficiaries were agitating for the cancellation of the assignment pattas dated 30.04.2003, the erstwhile land owners is stated to have moved the acquisition authorities under Section 48-B of the Land Acquisition Act seeking for re-conveying of the lands inter alia contending that there was lack of sufficient income for his family and that they are prepared to surrender certain other lands to an extent of 4.03 acres in S.No.201/2, 201/4 and 154/1A at Edayar West and Veernampalayam villages situated near Pothanur village by accepting compensation amount of Rs.3,17,851/- which had already been fixed and deposited.
7. It is in the above stated background, the impugned G.O. Ms.(3Pa) No.14, dated 12.04.2007 came to be issued by the State Government, which provides for re-conveying of the acquired lands in S.Nos.134/2, 137/1A and 137/1B in Pothanur village to an extent of 2.29 acres to the erstwhile land owners and simultaneously with a direction to acquire an extent of 4.03 acres at Edayar West and Veernampalayam villages in S.Nos.201/2, 201/4 and 154/1A for the very same compensation amount of Rs.3,17,851/- for the purpose of issuing free house site pattas for Adi Dravidars.
8. Aggrieved by the issuance of the above referred to G.O., the beneficiaries came forward with the above three writ petitions in W.P.Nos.21595, 23587 and 25559 of 2007. By a common order dated 30.04.2008, impugned in these writ appeals, the learned Single Judge has upheld the impugned G.O. holding that actual possession was not handed over to the beneficiaries and that the pattas granted to them were also subsequently cancelled. It was also held that as on date the possession held by the beneficiaries will have to be construed as one of encroachment. The learned Single Judge further held that since the beneficiaries will get alternative site for their housing purpose, their interest is also fully protected and that they have no right to object to the exchange of lands which has resulted in the passing of the impugned G.O.
9. Assailing the order of the learned Single Judge, Mr.V.Ragavachari, learned counsel appearing for the appellants contended that the impugned G.O. is not sustainable in law, in as much as Section 48-B of the Land Acquisition Act does not cover a situation as is mentioned in the order impugned. The learned counsel further contended that when the Award has become final and conclusive and in pursuance of the Award, the Acquisition Authority having taken over possession of the acquired lands, the property vested with the State in the year 1999 and under such circumstances, there was no scope for invoking Section 48 of the Act to drop the acquisition proceedings. It was further contended that the State Governments attempt for re-conveying the lands in the guise of exchange of lands in favour of the erstwhile land owners could not have been passed and the same would not fall within the four corners of the prescription contained in Section 48-B of the Land Acquisition Act. As far as the cancellation of the assignment pattas dated 30.04.2003, by proceedings dated 15.12.2003, the learned counsel contended that in the first place the passing of such an order was behind the back of the appellants and therefore the same will not bind them. The learned counsel also contended that once the assignment pattas have been issued in pursuance to the land acquisition proceedings which is governed by Board Standing Order / Revenue Standing Order 90, the same would be governed by all other consequential stipulations and prescriptions contained in various sub-clauses to the said Standing Order 90. According to the learned counsel, the said prescription contemplates sufficient notice and opportunity to be afforded to the beneficiaries before any cancellation is resorted to at the instance of the Acquisition Authority. It was therefore contended that the cancellation proceedings dated 15.12.2003, without notice to the beneficiaries cannot be relied upon.
10. The learned counsel appearing for the appellants would further contend that in the absence of compliance of such stipulations contained in the Board Standing Order, the so called cancellation of pattas alleged to have been made by an order dated 15.12.2003 is illegal and any action based on such illegal order including the passing of the impugned G.O. dated 12.04.2007, cannot be sustained.
11. It was lastly contended by the learned counsel that all the beneficiaries namely 61 in number were all granted pattas on the Independence Day i.e. on 15.08.2003, by the District Collector in a public function, that as an Annexure to the patta, the plan was attached disclosing the various plots meant for allotment for the 61 beneficiaries and that after the issuance of such pattas to the beneficiaries, they were also put in possession. It was therefore contended that after having been put in possession, the beneficiaries set up their own abode by way of constructions with thatched roof, for which necessary property tax assessment were also made by the Municipal authorities, wherein the beneficiaries have set up their families and living from then onwards. The learned counsel further contended that the impugned order of the State Government in G.O.Ms(3Pa) No.14, dated 12.04.2007, in attempting to dislodge the appellants from their family abode, to which they were validly put in possession, cannot be sustained and therefore the order of the learned single judge calls for interference and consequently the impugned order in G.O.Ms(3Pa) No.14, dated 12.04.2007 is also liable to be set aside. The learned counsel relied upon
(i) AIR 2007 SC 1691
(ii) 1998 4 SCC 387 (para 19 & 24)
(iii) 1994 4 SCC 370 (para 5 & 6)
(iv) AIR 2005 (Mds) 226 (para 25 & 26)
(v) 2007 2 SCC 230 (para 29 to 31)
(vi) 2001 8 SCC 443 (at page 455) in support of his submissions.
12. As against the above submissions, Mr.Raja Kalifulla, learned Government Pleader in his submissions contended that there were complaints as regards the genuineness of 61 beneficiaries and when such complaints were enquired into, it came to light that several of them were in possession of their own lands and that certain other beneficiaries were found to be ineligible by virtue of their place of residence etc., and therefore assignment pattas granted in their favour on 30.04.2003, came to be cancelled by an order dated 15.12.2003.
13. The learned Government Pleader further contended that apart from the 61 beneficiaries there were rival claimants, which were in the order of nearly 120 in number and therefore the Acquisition Authorities and the State Government thought it fit to accede to the claim of the erstwhile land owners, when they came forward to surrender larger extent of 4.03 acres as against the acquired land to an extent of 2.29 acres and thereby the State Government and the Acquisition Authorities would be in a position to accommodate all the 181 persons. According to the Government Pleader, such a step taken by the State Government while issuing the impugned Government Order dated 12.04.2007, being a policy decision of the State, the learned Single Judge was perfectly justified in refusing to interfere with the impugned G.O. The learned Government Pleader also contended that the decision of the State to give up the smaller extent of 2.29 acres which was already acquired, in order to accommodate more number of landless Adi Dravidras by accepting larger extent of 4.03 acres offered by erstwhile land owners without any additional compensation being paid, would satisfy the prescription contained in Section 48-B, as such a step was taken by way of exchange of land in the larger interest of meeting the demand of more number of landless Adi Dravidars. It was further contended that the proposed acquisition of 4.03 acres were also within the vicinity of the already acquired lands and therefore no prejudice would be caused to the beneficiaries.
14. It was also contended by the learned Government Pleader that even though assignment pattas were issued on 30.04.2003, none of the beneficiaries were validly put in possession by assigning the respective plots based on any field Survey made and therefore the possession claimed by the beneficiaries cannot be recognized in law. In support of his submissions he relied upon (i) 2000 8 SCC 262 (para 16 20), (ii) 1998 6 SCC 536 & (iii) 1995 3 Supp SCC 538.
15. Mr.R.Krishnamurthy, learned senior counsel appearing for the erstwhile land owners in his submissions referred to Appendix IV prescribed under sub-para 31(B) of the Standing Order 90 of the Revenue Standing Orders and contended that in para 5 of the said Appendix if any practical difficulties exist in the actual assignment of house sites, the same should be referred to the State Government for orders by the Board of Revenue. The learned senior counsel by referring to Annexure-II of Appendix IV contended that the State Government retain its power to cancel the grant and therefore in exercise of its executive powers prescribed under Article 162 of the Constitution of India, the State Government thought it fit to pass the impugned G.O. in the interest of providing house site pattas for more number of landless poor viz., 181 persons as against the 61 beneficiaries, the Court should not interfere with such an action of the State. The learned Senior Counsel relied upon
(i) 1992 WLR Vol 9 (2)
(ii) 2003 (6) SCC 545 (Para 43)
(iii) 2007 (10) SCC 635 (para 16 & 17)
(iv) 2000 (7) SCC 529 (para 25)
(v) 2001 (1) SCC 610 (para 37) in support of his submissions.
16. Having heard the learned counsel for the respective parties and on perusal of the material papers, we find that the following questions arise for consideration in these appeals.
(i) Whether the order impugned in the writ petitions dated 12.04.2007, directing the acquisition authorities for re-conveyance of the acquired lands is sustainable either under Section 48-B or Section 48 of the Land Acquisition Act, 1894 ?
(ii) Whether the claim of the acquisition authorities in relying upon the proceedings dated 15.12.2003, in and by which, the authorities stated to have cancelled the assignment pattas issued in favour of the beneficiaries is valid and whether any reliance can be placed upon the said proceedings to sustain the impugned order dated 12.04.2007 ?
(iii) Whether it can be held that de hors Board Standing Orders / Revenue Standing Orders 90 and 31(B) and relevant Annexure II of Appendix IV, there is any power vested in the acquisition authorities to cancel the allotment already made to the beneficiaries by granting assignment pattas dated 30.04.2003 ?
(iv) Whether by way of exercise of executive powers under Article 162 of the Constitution of India, the acquisition made under the provisions of the Land Acquisition Act, 1894 which has culminated into an Award in Award No.6/92-93 can be set at naught by an executive order?
QUESTION No.1:-
17. Section 48 of the Act gives liberty to the Government to withdraw from acquisition any land of which possession has not been taken. This is of course subject to Section 36 of the Act. Here we are not concerned with the situation contemplated under Section 36.
18. Sub Section (2) of Section 48 provides whenever the Government withdraws from acquisition, the Collector shall determine the amount of compensation due for the damages suffered by the owner in consequence of the notice or any proceedings thereunder, and shall pay such amount to the person interested, together with costs. Sub Section (3) of Section 48 provides that insofar as Part III of the said Act is concerned the same will apply for the determination of the compensation payable under the said section.
19. It has not been argued by any of the parties that Section 48 of the said Act applies in the present case inasmuch as it is common ground that the Government has taken possession of the land, and sub Section (1) of Section 48 makes it clear that Section 48 will apply only in a case where possession has not been taken by the Government.
20. The case of the acquisition authority is that there is a State Amendment made to Section 48 of the said Act and the same is known as "The Land Acquisition (Tamil Nadu Amendment) Act, 1996" and after Section 48-A of the Act, Section 48-B has come by way of the Tamil Nadu State Amendment which is set out below:-
"48-B. Transfer of land to original owner in certain cases -
Where the Government are satisfied that the land vest in the government under this Act is not required for the purpose for which it was acquired, or for any other public purpose, the Government may transfer such land to the original owner who is willing to repay the amount paid to him under this Act for the acquisition of such land inclusive of the amount referred to in sub Section (1-A) and (2) of Section 23, if any, paid under this Act."
21. A perusal of the aforesaid section would show that the government can act under the said section even in a case where Government has taken possession of the land and the land is vested in the Government. But, the said section prescribes some conditions precedent before the Government can transfer the land to the original owner and there are some conditions subsequent to that exercise also.
22. The conditions precedent are that the Government must be satisfied that the land vested in the Government under this Act is (a) not required for the purpose for which it was acquired; or (b) not required for any other public purpose. The conditions subsequent is that the Government can transfer such land to the original owner who is (a) willing to repay the amount paid to him under the Act for such acquisition; and (b) this amount would include also the amount referred to in sub Section (1-A) and (2) of Section 23 of the said Act, if any paid.
23. Now, if we look at the impugned order dated 12.04.2007 it will appear that the said order does not contain any reference to Section 48 or Section 48-B. But, in paragraph 5 of the said order it has been stated as follows:-
"The Namakkal District Collector has recommended to the Government for acquisition of 4.03 acres of land for distribution of free house site pattas to 180 beneficiaries and for return of land measuring 2.29 acres to the land owner in view of the fact that the land owner had agreed to give 4.03 acre land to the government in lieu of the land of 2.29 acres acquired by the Government, that the demand made by the land owner's heirs being just, in the present circumstances chances of issuing free house site patta for more beneficiaries being bright, in the event of getting more land, it is possible to wipe out the difference of opening between the beneficiaries, as the heirs of the land owner agree to accept the compensation amount offered for 2.29 acres (based on the market value in prevalence) as compensation for the substitute land measuring 4.03 acres. So also the recommendation made by the Director, Adidravidar Welfare Department, to the Government."
24. From paragraph 6 of the impugned order it appears that upon consideration of the said recommendation by the Namakkal District Collector and the recommendation by the Director, Adidravidar Welfare Department, Government issued orders to the District Collector, on the basis of the reasons set out in paragraph 5 above, to take speedy steps for return of property measuring 2.29 acres to erstwhile land owner which was acquired and taken possession of by the Government in 1999.
25. Both in paragraph 5, which has been set out above, and in paragraph 6 of the impugned order, which has been passed on the basis of the so-called reasons in paragraph 5, the Court has searched in vain for any recital to the effect that the purpose for which the land was acquired and vested in the Government, does not any longer exist or that there is no existence of any public purpose for acquisition of the said land. Rather any person of ordinary prudence on a plain reading of paragraph 5, on which paragraph 6 is based, would come to the conclusion that the public purpose for which the land was acquired namely., acquisition of the land for distribution of free house site pattas on that land to Adidravidars still survives. The learned Government Pleader also could not refuse these facts.
26. That being the clear factual position, this Court cannot persuade itself to hold that the order for return of the land to the original owner has been passed in accordance with the provisions under Section 48-B of the Land Acquisition (Tamil Nadu Amendment) Act, 1996.
27. Learned Government Pleader being confronted with this position sought to argue that the Government has inherent right to return the land to the original owners and Section 48-B cannot stand in the way. He also argued that from the impugned order it is clear that the Government is trying to act in public interest by giving land to 180 beneficiaries and for the said purpose additional land which had been offered by the owners would be taken and the original land which was acquired will be returned. He further argued that even assuming that Section 48-B applies, it is a matter of satisfaction on the part of the Government as to how the requirement of the said section is to be complied with, and Section 48-B has vested the government the absolute power to act on its subjective satisfaction. The Court may not normally interfere with such exercise of power when the exercise is in furtherance of public interest.
28. The Court is unable to accept the aforesaid contentions for the reasons discussed hereinafter.
29. It is well established in our Administrative Law when power is conferred on the government in similar terms as has been conferred under Section 48-B, the action of the government even in such cases has to be on objective standards, even if the conferment of such power is in subjective terms. As early as in 1974 the Hon'ble Supreme court in the case of M.A.Rasheed and others Vs. The State of Kerala, AIR 1974 SC 2249 held -
"where powers are conferred on public authorities to exercise the same when 'they are satisfied' or when 'it appears to them' or when 'in their opinion' a certain state of affairs exists the Courts will not readily defer to the conclusiveness of an executive authority's opinion on the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated". (See paragraph 7)
30. In paragraph 9 of the said judgment Chief Justice A.N.Ray, speaking for the Court held -
"Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The Courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or on the facts in a material respect." (emphasis supplied)
31. And the learned Chief Justice has further held -
"the standard of reasonableness to which the administrative body is required to conform may range from the Court's own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The Courts must find out whether conditions precedent to the formation of the opinion have a factual basis".
32. In coming to the said conclusion the learned Chief Justice referred to the decision of the Supreme Court in the case of Rothas Industries Ltd. Vs. S.D.Agarwal, AIR 1969 SC 707.
33. The argument of the learned Government Pleader that State has inherent power to return the land to the original owners in spite of the provision of Section 48-B cannot be sustained for various reasons. Factually such assertion is not correct inasmuch as in the common counter field by the second respondent, the District Collector, Namakkal (at p.p43-48 of the typed set in W.A.No.564 of 2008) it has been averred that the acquired land can be re-conveyed under Section 48-B of Land Acquisition Act (Tamil Nadu Amendment) Act, 1996. Assuming but not admitting that there is no such factual assertion even then there are various difficulties in accepting the aforesaid contentions. One of such difficulties, is a time honoured legal principle which found its most glorious enunciation in the words of Lord Jessel, Master of the Rolls in Taylor Vs. Taylor, (1875) 1 Chancery Division 426. At page 431 of the report it is clearly stated when a statutory power is conferred. and the mode of exercising it is pointed out, it means that no other mode is to be adopted. The aforesaid principle was first applied in India by Lord Roche in Nazir Ahmad Vs. King Emperor, AIR 1936 PC 253 at p.257. Since then this principle had been accepted in our jurisprudence and the Honble Supreme court had applied the same in innumerable cases, some of which are mentioned below.
(a)State of Uttar Pradesh Vs. Singhara Singh, AIR 1964 SC 358, p.361
(b)Dhananjay Reddy Vs. State of Karnataka, AIR 2001 SC 1512, pp.1518 & 1519
(c)A.K.Roy Vs. State of Punjab, AIR 1986 SC 2160
(d)Mayurdhwaj Co-op. Group Housing Society Ltd. Vs. P.O. Delhi Co-op., AIR 1998 SC 2401, p.2415
(e)Chandra Kishore Jha Vs. Mahabir Prasad, AIR 1999 SC 3558, p.3562
34. Therefore, the State Government cannot circumvent the provision of Section 48-B by relying on its inherent executive power. In fact, Mr.R.Krishnamurthy, learned senior counsel for the land owner, who supported the governments stand has also advanced the argument as the Government Pleader by referring to Article 162 of the Constitution.
QUESTION No.4:-
35. Article 162 deals with the extent of executive power of the State as Article 73 deals with the extent of the executive power of the Union. Both the Articles provide for the distribution of the executive power between the Union on the one hand and the State on the other. But neither Article 73 nor Article 162 throws any light on the validity of the exercise of executive power. It is well settled while the executive authority exercising power on the strength of Article 162 of the Constitution, cannot infringe the right of the citizen merely because the Legislature of the State has the power to legislate in regard to the subject on which executive order is issued. (See the Constitution Bench judgment of the Supreme Court in State of Madhya Pradesh Vs. Thakur Bharat Singh, AIR 1967 SC 1170 at paragraph 6 at page 1174 of the report)
36. Therefore, this Court holds even if Section 48-B is not referred to in the impugned order whereby land which was acquired and vested in the State was purported to be returned to the erstwhile owner, the State has no independent power to return such land. The State has to act within the four corners of Section 48-B. The impugned order is therefore violative of Section 48-B.
37. Learned Government Pleader relied on a few judgments of the Supreme Court in support of his contention. Reliance was first placed on the decision of the Supreme Court in the case of U.P.State Sugar Corporation Ltd. Vs. State of U.P. and others, 1995 Supp (3) SCC 538. That was a decision under Section 48 of the Land Acquisition Act. The facts of that case are totally different. Here, admittedly, we are governed by Section 48-B of the said Act, and the decision in U.P.State Sugar Corporation Ltd. was given in the facts of that case, and no legal principle in the facts of that case was required to be laid down and was not laid down. Learned Government Pleader, then relied on the decision of the Registrar, Co-operative Societies Vs. Maharshi Dayanand Co-operative Housing Society and others, (1998) 6 SCC 536. This Court fails to appreciate the relevance of the said decision to the facts of the instant case. The question of return of land to the original owner was not in issue in that case, and the said decision was also confined to the facts of that case, and no principle as such was laid down.
38. Reliance was also placed by the learned Government Pleader on the decision of the Supreme Court in Netai Bag Vs. State of West Bengal, (2000) 8 SCC 262. In paragraph 16 of the said decision, the learned Judges noted that there is no statutory provision mandating the State to adhere to a specified procedure in the matter of transfer of its property either by way of sale or lease. Learned Judges, further noted, in the absence of any statutory restriction on the State, the Court has to examine whether the action of the State in transferring its land is against public interest or it is actuated by extraneous considerations. In paragraph 20 of Netai Bag (supra) it was stated that the government is entitled to make pragmatic adjustments in policy decision which may be necessary under certain situations, and the Court cannot strike down a policy decision merely because it feels that another decision would have been fairer or wiser. There can be no dispute about those principles laid down in Netai Bag, but before laying down these principles, the Supreme Court in paragraph 16 of the report, as pointed out above, has made it very clear that there is no statutory provision mandating the State to adopt a particular procedure. But, in the instant case Section 48-B gives a clear statutory mandate on the State defining the circumstances under which the land which had been acquired and vested in the State can be returned to the erstwhile owner. So there is a fundamental distinction both on facts and law between this case and those considered in Netai Bag (supra). Therefore, the decision in the Netai Bag (supra) has no application to the present case.
39. Section 48-B came up for consideration before the Honble Supreme Court in the case of Tamil Nadu Housing Board v. Keeravani Ammal, AIR 2007 SC 1691. The learned Judges held in paragraph 11 at page 1695 of the report that once a piece of land has been duly acquired under the Act, the land becomes the property of the State, and the State can dispose of the property thereafter or convey it to any one if the land is not needed for the purpose for which it was acquired, but only for the market value that may be fetched for the property as on the date of the conveyance. This according to the learned Judges is the general proposition. The learned Judges further held that Section 48-B was introduced into the Act in the State of Tamil Nadu as an exception and such provision has to be strictly construed and strict compliance with its terms should be insisted upon (see paragraph 11 at page 1696). Therefore, the impugned order cannot be sustained under Section 48-B. QUESTION No.2:-
40. So far as the second question is concerned the proceeding dated 15.12.2003 for cancellation of patta also cannot be sustained by this court. It is an admitted position that the pattas were granted under Revenue Standing Order 90. In RSO 90 paragraph 31 B provides for grant of such pattas, and it provides for the rules and instructions for the acquisition and assignment of house sites for the communities eligible for ameliorative measures by the Harijan Welfare Department and for landless labourers. Those rules and regulations in Appendix IV contain instructions for the grant of ameliorative measures to the communities eligible for such grant by Harijan Welfare Department. Certain conditions are given in Annexure II which prescribe the statutory Form of Assignment. Clause 12 of the said Form suggests that in the event of breach by the grantee of any of the conditions or in the event of the grantee leaving the house unoccupied for a period of one year, the State or any officer authorized in that behalf may, unless the grantee furnishes valid reasons for such breach or for leaving the house unoccupied, cancel such grant. Therefore, cancellation, from the very nature of Clause 12, suggests a procedure of hearing and a kind of show cause upon the grantee asking him to explain why he has not complied with the conditions of grant. In the instant case, admittedly, the purported cancellation has been made without giving the grantees any chance of recording their say in the matter. This is clear from the cancellation order dated 15.12.2003.
41. It is rather too late in the day to argue that the Revenue Standing Orders do not confer any right on the grantee. In fact, in a Division Bench judgment of the Madras High Court reported in 1992 WLR 25 (L.Krishnan Vs. State of Tamil Nadu, rep. by the Commissioner and Secretary to Govt. Housing and Urban Development Department, Madras) it has been held that the status of Revenue Standing Orders is that of quasi law and are enforceable. Therefore, without giving the allottees a hearing, the order of cancellation of patta cannot be passed by the District Adi Dravidar and Tribal Welfare Officer, Namakkal by the impugned order. Therefore, the cancellation order which has been passed in total violation of the principles of natural justice is void and a nullity in the eye of law.
42. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416, the Honble Supreme Court held that principles of natural justice are an inbuilt content of Article 14. Justice Madon, while delivering the majority judgment, posed the question whether the rules of natural justice form part of Article 14 and, if so, how? (See paragraph 87 at page 1457). After considering various judgments of the Honble Supreme Court the learned Judge came to the conclusion in paragraph 95 to the following effect:
the principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that Article.
43. That being the settled position in law, it can no longer be said that before cancelling patta no hearing is necessary. In the instant case, admittedly hearing was not given. As such, the order of cancellation cannot be upheld. Apart from that it is an admitted stand of the government that the order of cancellation was never dispatched by the State Government. So it had not been served on the persons whose pattas are allegedly cancelled. It is well settled that an order which has not been communicated but is kept in the file, is of no effect [See State of West Bengal Vs. M.R.Mondal and Another, (2001) 8 SCC 44, Para.16, page 455 of the report). Factually also, the order of cancellation does not stand on a sound footing. Even in the counter affidavit filed by the 4th respondent, who is the Special Tahsildar, Adi Dravidar Welfare Department, Namakkal in (W.P.No.23587 of 2007 at page 145 of the typed set filed in W.A.No.563 of 2008), it has been averred that as per the order of District Revenue Officer, Namakkal the then Special Tahsildar (ADW), Namakkal conducted enquiries about 61 persons and reported that out of 61 beneficiaries 50 persons are eligible. Thereafter, the list of so-called ineligible 11 persons were verified by another Special Tahsildar (ADW), Namakkal and he has sent the list of 11 persons, and it was approved by the District Adi Dravidar and Tribal Welfare Officer, Namakkal. But, the house pattas of the 50 persons and remaining 11 persons could not be issued in view of the writ petition filed before this Court. This is the stand taken in the aforesaid counter affidavit filed in July, 2007, which is after the cancellation order dated 15.12.2003.
44. In view of the aforesaid factual and legal position, the order dated 15.12.2003 cannot be sustained. Since, the order dated 15.12.2003 is invalid in law, the order dated 12.04.2007, which is passed on the basis of the aforesaid order dated 15.12.2003 cannot be upheld.
45. Learned counsel for the 5th respondent, the erstwhile land owner, has argued an additional point by saying that assuming the impugned order dated 12.04.2007 is invalid even then this Court should not quash the same in order to revive another illegal order. In support of the said contention, learned counsel cited the decision of the Supreme Court in Chandra Singh Vs. State of Rajasthan, (2003) 6 SCC 545 and Raj Kumar Soni Vs. State of U.P., (2007) 10 SCC 635. Learned counsel also relied on the decision of the Supreme Court in Aligarh Muslim University Vs.Mansoor Ali Khan, (2000) 7 SCC 529.
46. The principles laid down in the aforesaid three cases to the extent that the High Court in exercise of its certiorari jurisdiction under Article 226 of the Constitution cannot quash an order if the effect of cancellation is to revive another illegal order. This principle is well known, and this Court fails to understand how this would apply to the facts of this case. As discussed above, both the orders dated 12.4.2003 and 15.12.2003 are quashed by this Court for the reasons discussed above. Therefore those principles are not attracted to the facts of this case.
47. Learned counsel for the 5th respondent also tried to argue that in view of the provisions under Section 31(1), 31(3) and 31(4) of the Act, the order re-conveying the original acquired land to the erstwhile owner is a valid order. Section 31 provides for payment of compensation or deposit of the same in Court. Section 31(1) makes it clear that after an award is madeunder Section 11, the Collector shall tender payment of compensation to the persons entitled thereto and shall pay it to them unless prevented by someone or some of the contingencies mentioned in the next sub-section. Learned counsel has not placed reliance on Section 31(2), but by placing reliance on sub-sections (3) and (4) of Section 31 it was urged that the Collector instead of awarding the money may, with the sanction of the appropriate government, make any arrangement with a person having a limited interest in such land. This may be either by grant of other lands in exchange or by remission of land revenue on other lands held under the same title, or in some other way as may be equitable and having regard to the interest of the parties. And sub-section (4) empowers the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.
48. This argument may appear a little attractive on the first blush. But has no application to the facts of the case on hand. It is nobodys case that here the erstwhile land owners have limited interest in the land. On the other hand, have full title which was extinguished with the vesting of the land on the State Government in view of the aforesaid acquisition proceedings.
49.In the instant case, a specific provision has been made under Section 48-B under which the lands can be transferred to the original owner. When specific statutory provisions have been made, equity has no place.
50. Reference in this connection may be made to the judgment of the Supreme Court in the case of Raghunath Rai Bareja v. Punjab National Bank reported in 2007 (2) SCC 230. In paragraphs 29, 30, 31, 32, 33 and 36, the learned Judges of the Supreme Court referring to various decisions of the Supreme Court itself pointed out that equity can only supplement law, but it cannot supplant or over ride it. Equity cannot override the express provisions of a Statute which applies. Here Section 48-B squarely covers the situation.
51. Apart from that, the Supreme Court held in the case of Jaipur Development Authority v. Radhey Shyam and others, 1994 (4) SCC 370 that Section 48 is the only power which enables the Government to de-notify the lands before possession is taken (see para.7 at page 374 of the report). In that paragraph, the learned Judges considered sub-sections (3) & (4) of Section 31. After considering those provisions vis-`-vis Section 48, the learned Judges held that in the scheme of the Act, the Land Acquisition Officer has no power to create an encumbrance or right in the erstwhile owner to claim possession of a part of the acquired land in lieu of compensation. The learned Judges have cautioned by saying that if such power is exercised by the Land Acquisition Officer, the same would be self-defeating and subversive of public purpose. In other words, Section 31(3) has been specifically made applicable in respect of persons having a limited interest in the land. This is made clear in paragraph 5 at page 373 of the report. In the instant case, the 5th respondent did not have any limited interest in the land but had full title in the property. Therefore, the aforesaid argument is of no avail.
52. In view of the aforesaid discussion, the second and third question have already been answered and this Court holds that de-hors Board Standing Orders there is no power in the acquisition authorities to cancel the allotment of pattas already made to the beneficiaries by granting assignment patta dated 30.04.2003. Therefore, the pattas which have been granted to the beneficiaries would continue unless they are specifically cancelled in accordance with law and by giving the beneficiaries some opportunity of hearing.
53. For the reasons stated above, the appeals are allowed. The order of the learned Judge of the writ court is set aside. The impugned orders dated 15.12.2003 and 12.4.2007 are quashed. There will be no orders as to costs. Consequently, connected miscellaneous petitions are closed.
(A.K.G., C.J.) (F.M.I.K., J.)
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Index: Yes / No Internet: Yes / No kk/sm/pv Copy to:-
1. The Secretary to the Government, Adi Dravida and Tribal Welfare Department, Fort St. George, Chennai 600 009.
2. The District Collector, Namakkal District.
3. The District Revenue Officer, Namakkal, Namakkal Town.
4. The Special Tahsildar, Adi Dravida Welfare, Namakkal.
THE HONOURABLE CHIEF JUSTICE and F.M.IBRAHIM KALIFULLA, J.
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sm/ Pre-Delivery Judgment in W.A.Nos.562 to 564 of 2008.
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