Madras High Court
Sri Venkateswara Educational And vs The Secretary To Government Of Tamil ... on 1 February, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.21377 of 2011 Sri Venkateswara Educational and Charitable Trust, having office at New No.36, Venkatachala Naicken Stree, Pudupet, Chennai-600 002. Rep. by its Managing Trustee, Er.D.Sivalingam, Chief Engineer P.W.D.(Retd.) ... Petitioner. - vs - 1. The Secretary to Government of Tamil Nadu Industries SIPCOT (LA) Department, Fort St.George, Chennai-9. 2. The 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 Lakshmikpathy 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. The Special Tahsildar, (SIPCOT-LA) No.9, Pathala Vinayagar Koil Street, Cheyyar-604 407. ... Respondents. Prayer: Writ petition is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorarified Mandamus, calling for the records relating to the impugned notification issued by the 1st respondent under Sub Section (1) of Section 3 of the Tamilnadu Acquisition of Land for Industrial Purposes Act, 1997 in G.O.Ms.No.103, Industries (SIPCOT-LA) Department, dated 05.07.2011 insofar as the petitioner's trust land in Survey No.187/2A3 to an extent of 0.17.0 Hectares (2 acres and 47 cents) situated in Mathur Village, Cheyyar Taluk, Tiruvannamalai District is concerned and the connected order dated 21.07.2011 issued by the 6th respondent under Sub Section (2) of Section 4 of the Act, directing the handing over of the possession of the lands of the Trust to the Collector within the time specified therein and quash the same and forbearing the respondents from taking possession of the trust lands belonging to the petitioner trust in Survey No.187/2A3 to an extent of 0.17.0 Hectares (2 acres and 47 cents) situated in Mathur Village, Cheyyar Taluk, Tiruvannamalai District. For Petitioner : Mr.S.Vadivelu For Respondents : Mr.R.Ravichandran, AGP Mrs.Narmada Sampath for SIPCOT O R D E R
M/s. Sri Venkateswara Educational and Charitable Trust prays for issuance of a writ in the nature of Certiorari to quash the notification issued vide G.O.Ms.No.103, Industries (SIPCOT-LA) Department, dated 05.07.2011, under Sub Section (1) of Section 3 of the Tamilnadu Acquisition of Land for Industrial Purposes Act, 1997 (hereinafter referred to as 'the Act'), and the notice issued by the State Government in exercise of power under Sub Section (2) of Section 4 of the Act, directing the petitioner to surrender the possession of the acquired lands to the Collector.
2. The petitioner has also prayed for a writ in the nature of prohibition, restraining the respondents from taking possession of the trust lands falling in Survey No.187/2A3 to an extent of 0.17.0 Hectares (2 acres and 47 cents) situated in Mathur Village, Cheyyar Taluk, Tiruvannamalai District.
3. The petitioner is the registered trust, formed with an object to run Technical Institutes, Dental College, Medical College and Pharmacy Institution with no profit motive. The petitioner perfected the title to the lands by means of Gift Deed No.1696 of 2002 dated 14.02.2002 and sale deed No.87/2002 dated 14.02.2002.
4. The petitioner, on coming to know that there was a proposal to acquire the land for industrial complex for Cheyyar Industrial expansion scheme by SIPCOT in Mathur Village, Cheyyar Taluk, represented to the District Collector for exempting the trust lands.
5. The reason for seeking exemption was that the petitioner proposed to establish Saraswathi (Ramadoss) Engineering College. It was also conveyed that it was a Public Charitable Trust without profit motive and that the requisite applications had been filed with the authorities for granting of approval for running the College. It was also mentioned in the representation that the plan had been approved for construction of College building by the President of Panchayat on 27.02.2002, and a letter to the Director of National Council for Technical Education had also been sent.
6. The District Collector agreed with the representation / objection of the petitioner and vide Letter dated 28.08.2007 recommended exemption of the lands from acquisition. The reason for exemption by the District Collector was that the petitioner had already approached the All India Council for Technical Education, New Delhi, the Director of Technical Education and Anna University, Chennai. It was also pointed out that the petitioner's other trusts were also running Education Institutions. The District Collector felt that in case the land was not exempted, then there would be no Engineering Collect, which cannot be in the interest of poor persons of the area. Finally, it was stated that in the recommendation by the District Collector that out of 2300 acres of land, it was proposed to be acquired for SIPCOT, the exemption of 33.43 acres of land was not likely to affect the scheme.
7. The recommendation of the District Collector, as translated, reads as under:
"The efforts that are being taken by Sri Venkateswara Educational and Charitable Trust and SIPCOT organization are found to be of the same nature. If this engineering college is started, every year, thousands of students would be awarded with the engineering degree and they will be prepared for the welfare of the public and that if the SIPCOT Industrial Estate is commence it would offer the job opportunities to the public and also would lead to the economical growth and that as the extent of 33.40> acres is being allotted to the Engineering College the extent of 33.40> acres, out of the total extent of 2300 Acres, which is being acquired by SIPCOT is very less extent and that in Mathur village, even though the extent of 33.40 > acres is deducted there is proposal to acquire the land situated in Azhinjalpattu Village, which are situated in contiguity and that further, if the exemption is granted, the contiguity of the land acquisition for the SIPCOT will not be affected and that if the Industrial Estate and also the Engineering College are started in Mathur Village, it will lead to the progress of the people under the poverty line and that hence, as the request of the petitioner is liable to be considered. I hereby inform that it may be recommended to government that the acquisition of land to the extent of 33.40 > acres as mentioned above for SIPCOT could be dropped."
8. Thereafter, vide Letter dated 29.10.2007, the Chairman, SIPCOT accepted the recommendation of the District Collector (though it was not necessary as Chairman, SIPCOT has no role to play with regard to acquisition of land under the Act). Thereafter, the Special Commissioner and Commissioner for Land Administration, by relying upon the letter dated 29.10.2007 of the Chairman, SIPCOT, recommended to the Government to delete lands measuring 33.43 acres.
9. On the recommendation of the Special Commissioner and Commissioner for Land Administration, the State Government asked for TOPO Sketch from the District Collector, showing details. The petitioner also made request to the State Government for exempting the land owned by the petitioner from acquisition.
10. On 13.02.2009, the District Collector issued notice under Section 3 (2) of the Act to the petitioner to show cause as to why the land falling in S.No.187/2A3 should not be acquired for industrial expansion scheme.
11. In reply to the show cause notice, the petitioner filed objections by placing reliance on the recommendation made by the District Collector for exempting the lands from acquisition. On 08.06.2009, the Secretary to the Government, after taking note of the recommendations of the Special Commissioner and Commissioner for Land Administration, recommended exemption of lands to the extent of 33.43 acres, ordering that the recommendation be examined before issuing notification under Section 3 (2) under the Act.
12. On 17.06.2009, enquiry was fixed by the Tahsildar, wherein the petitioner filed objections again requesting of deletion of land from acquisition to the District Collector. Section 3 of the Act reads as under:
"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."
13. The submission of the petitioner is that under Section 3, it is for the Government to consider objections to the proposed acquisition, otherwise the acquisition proceedings stand vitiated. It is the submission of the petitioner that on the objections raised by the petitioner, no order rejecting objections has been passed till date nor a copy of it has been supplied to the petitioner.
14. It is also submission of the petitioner that by ignoring he recommendation of the District Collector and Commissioner, the State Government issued notification under Sub Section (1) of Section 3 of the Act for acquisition of lands for industrial purpose. This notification was followed by the notification under Sub Section 2 of Section 4 of the Act, directing the petitioner to hand over possession of the land notified under Section 3(1) of the Act.
15. The writ petition is contested by respondents by submitting that the Government of Tamil Nadu, vide order No.281, Industries (SIPCOT-LA) Department dated 05.12.2007, has accorded administrative sanction for acquisition of patta to an extent of 716.88.5 hectares and also for alienation of Government Poramboke lands for an extent of 214.52.5 hectares for expansion of SIPCOT Industrial Complex. It is further submitted that the Special District Revenue Officer (LA), SIPCOT, vide letter No.A/3/08 dated 11.03.2008, allocated 123.75.5 Hectares for land acquisition in 134, Mathur Village in five blocks.
16. The statutory notice under Section 3 (2) of the Act was issued to each of the land owners / interested persons by registered post on 10.02.2009, calling for objections, if any, from the land owners / interested persons within 30 days of the publication. It is also submitted by the respondents that enquiry under Section 3 (2) was conducted by the District Collector on 24.06.2009, and field verification carried out on 22.10.2009. The stand of respondents is that the decision to acquire the land was taken for the following reasons:
"...In this instance, the requisition department was asked to offer their remarks. The Chairman & Managing Director SIPCOT, Chennai, in his letter No.LA/Cheyyar/Expansion/2008 dated 25.11.2009, has rejected the petitioner's request because the petitioner has not initiated any construction or improvement work for the Engineering College and all the lands in Mathur Village which are situated opposite to the existing SIPCOT Industrial Complex should be taken for SIPCOT expansion. Moreover, these lands lie in between the acquisition portion and if exempted, the contiguity of the scheme will be affected. Hence, the survey numbers 192 etc., are included in this 3(1) proposals."
17. The stand of the respondents is that no distinction is drawn in the Act regarding ownership of land to be acquired. The only criteria being that in the opinion of the Government, it should be satisfied, that the land is required for industrial purpose or any other purpose in furtherance to the Act.
18. In the counter, the District Collector has not denied that he had recommended to exemption of the land of the petitioner from acquisition. The reasons for changing the opinion were disclosed in the counter as under:
"14. With regard to the contentions made in para 7 to 14 of the writ affidavit, it is respectfully submitted that in the matter of acquisition of lands under Section 3 of the above said Act, the main parties involved in the process are the Requisitioning Department and the land owners. All other Government agencies, including the fourth respondent herein, are merely facilitators for furtherance of the object of the Act. Even if it is true that this respondent recommended exempting these lands from acquisition, the view of the SIPCOT Authorities, being end-users of the acquired lands, will prevail over the views of the other respondents. The petitioner's land are situated in the middle of the scheme area and it was felt by the requisitioning department that if the above lands are exempted, the scheme will be affected and hence, the writ petitioner's objection was rejected. In this connection, it is pertinent to note that the extent of the acquisition lands is 0.17.0 hectares and it is a vast stretch. If an Engineering College or any other educational institution is allowed to function in the midst of an industrial complex like SIPCOT, the contiguity of the project will be greatly affected. Since the writ petitioner's land is lying in the midst of the SIPCOT Unit area, the Government has no other alternative than to reject the writ petitioner's representation to exempt their land from acquisition.
15. With regard to the contentions made in paras 15 and 16 of the writ affidavit, it is respectfully submitted that the Government and the SIPCOT Authorities, being end-users of the acquired lands, have the final say in the matter of accepting or rejecting the representations for exempting any land from acquisition. In the case of the writ petitioner's land, even though this respondent had recommended exempting the writ petitioner's land from acquisition, the SIPCOT Authorities for the aforesaid reasons have rejected the recommendation for exemption. If the writ petitioner's lands are now exempted for running an educational institution, then each and every owner of the acquired lands would come forward with similar requests for exemption for setting up of this or that industry; then, the very SIPCOT Expansion programme will be defeated. Further, the writ petitioner has thoroughly misunderstood and depth and content of Section 3(3) of the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997. As stipulated under Section 3(3) of the Act, the writ petitioner's representation was heard. The writ petitioner's lands are lying in the midst of the SIPCOT Unit area, the Government has no other alternative than to reject the writ petitioner's representation to exempt the schedule mentioned lands from acquisition. The reasons for rejection of the writ petitioner's representation have been duly recorded in the appropriate manner. Section 3(3) of the above said Act reads as follows:
(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."
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.103, Industries (SIPCOT-LA) Department, dated 05.07.2011 followed by order dated 21.07.2011 issued under Section 4(2) of the above said Act. Thus, the very purpose of the entire Section 3 and its sub-section (1) to (3) has been duly satisfied in the appropriate manner. In these circumstances, the observations of the Supreme Court of India in Union of India vs. Dr.Kushala Shetty JT 2011 (8) SC 160 at Page No.170 are not relevant to the facts and circumstances of the present writ petition.
16. With regard to the contentions made in para 17 to 19 of the writ affidavit, it is respectfully submitted that the reasons for rejecting the writ petitioner's representation for exemption have been duly recorded after conducting enquiry under Section 3(3) of the Act. The Government and the SIPCOT Authorities, being end-users of the acquired lands, have the final say in the matter of accepting or rejecting the recommendation for exempting any land from acquisition. In the case of the writ petitioner's lands, even though this respondent had recommended for exempting the writ petitioner's land from acquisition, the SIPCOT Authorities for the reasons aforesaid have rejected the recommendation for exemption acquisition. In the case of the writ petitioner's lands, even though this respondent had recommended for exempting the writ petitioner's land from acquisition, the SIPCOT Authorities for the reasons aforesaid have rejected the recommendation for exemption duly recording the reasons therefore. Only after following the procedures laid down under the provisions of law, Section 4(2) Notice was issued to the writ petitioner calling for them to hand over possession of the acquired lands to the Collector within 30 days. No representation received after service Section 4(2) Notice will be entertained. In these circumstances, there is no violation of the well-acclaimed principle of audi alteram partem nor were there any undue haste and hurry exhibited by the District Collector in submitting report to the Government by wholesale disposal of the objections by him. Each objection was considered with due application of mind and in due appreciation of the merits with reference to Law and facts before passing final orders. In these circumstances, it is inappropriate to attempt to equate the observations of this Hon'ble Court made in judgment of the Division Bench in 2011 Writ Law reporter at page 505 (519) Besides, the writ petitioner's are entitled to get suitable compensation for the acquire land."
19. The averments made in the writ petition that enquiry was conducted on 17.06.2009 by the Tahsildar is not denied. The stand taken is that the land was acquired by strictly following the provisions of law, in letter and spirit and that every decision was taken after issue of statutory notice under the provisions of law.
20. Learned counsel for the petitioner vehemently contended that the impugned notification is liable to be set aside, as the State Government or Collector has failed to pass any order on the objections filed by the petitioner. In support of his contention, which was mandatory, reliance in support was placed on the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Dr.Kushala Shetty, JT 2011 (8) SC 160, wherein it was held as under:
"Any person interested in the land can file objection within 21 days from the date of publication of the notification in the official Gazette. Such objection is required to be made to the Competent Authority in writing. Thereafter, the Competent Authority is required to give the objector an opportunity of hearing either in person or through a legal practitioner. This exercise is to be followed by an order of the Competent Authority either allowing or rejecting the objections."
21. Learned counsel for the petitioner also referred to the counter filed by the respondents, to contend that the Collector, the competent authority to consider objections by giving personal hearing, has failed to apply his independent mind, and was guided by directions issued by SIPCOT authorities, being end user. It is submitted that all other Government agencies, including the District Collector, was merely facilitators, to achieve that object.
22. The contention was that the authority under Statute has not applied his independent mind to the objections being influenced by non statutory authorities, which vitiates acquisition proceedings.
23. Learned counsel for the petitioner also vehemently contended that the District Collector having admitted that the recommendations were made for exempting lands of the petitioner, it was not open to him to change his opinion on the asking of SIPCOT, as the matter was required to be considered by the Government independently, uninfluenced by the stand of SIPCOT.
24. Learned counsel for the State and SIPCOT on the other hand vehemently contended, that the procedure laid down under the Statute was duly followed. The objections raised by the petitioner were considered and keeping in view the fact that no construction or improvement had been carried out by the petitioner, it was decided to acquire the land. No fault can be, therefore, can be found with the acquisition. It was also contended by the learned counsel for the respondents, that SIPCOT, being the end user, was the authority to represent about its requirement, and no fault can be found with the Collector accepting the stand of SIPCOT.
25. Learned counsel for the petitioner challenged the acquisition also on the ground that under Section 3 of the Act, the power to acquire the lands is only to be exercised by the Government, and that the District Collector has no jurisdiction to recommend acquisition by considering objections independently. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Rajammal and others, 2008 (5) CTC 154, wherein while interpreting Section 4 (1) of Tamil Nadu Acquisition of Lands for Harijan Welfare Scheme Act, 1979, it was held that the acquisition proceedings initiated on basis of satisfaction arrived at by Government does not satisfy requirement of law, therefore, liable to be quashed .
26. The reason for coming to this conclusion was that under Section 4 of Tamil Nadu Acquisition of Lands for Harijan Welfare Scheme Act, 1979, the power is vested with the District Collector for acquiring the land and not with the Government.
27. Reliance is also placed on the judgment of this Court in the case of M.Nagu and others vs. The District Collector and another, 2008 (2) CTC 468, where again, this Court was pleased to lay down that the competent authority to issue notification, being the District Collector, therefore, he was required to be satisfied that the land was required for the purpose of Harijan Welfare Scheme. The satisfaction by the Government, was not good in law.
28. Learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Division Bench of this Court in the case of The Land Acquisition Officer and Special Tahsildar (LA), Adi Dravida Welfare, Combatore and another vs. R.Manickammal and others, 2002 (2) CTC 1, where agin, the Hon'ble Division Bench of this Court was pleased to lay down that decision of Collector regarding desirability of acquisition of land was to be decided by the Collector and the State Government could not override such decision.
29. Learned counsel for the respondents on the other hand placed reliance on the Government notification dated 02.09.2005, wherein in exercise of powers under Section 23-A of the Act, the powers of the Government were delegated to the Collector of the District concerned. The notification reads as under:
"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, Issued No.199].
30. Reliance was placed by the respondents on the judgment of the Hon'ble Full Bench of this Court in the case of R.Pari vs. The Special Tahsildar, Adi-Dravidar Welfare, Devakkottai (Pasumpon Muthuramalinga Thevar District) and another, 2006 (4) CTC 609, wherein the following questions were considered and answered as under:
"1. The questions referred to the Full Bench for determination in the context of Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978) hereinafter referred to as "the Act" are as follows:
i) Is it necessary for the Collector to give a personal hearing to the owner in the context of his objections and the remarks of the Tahsildar?
ii) Is the owner entitled to a copy of the report of the Special Tahsildar or not?
iii) Should the Collector record his reasons in his order while dealing with the objections of the owner?
43. In view of the aforesaid discussion, our conclusions are 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 a 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 enquiry and also where the Collector takes an appropriate decision on the basis of the report/recommendation made by the authorised officer."
31. The reading of conclusion arrived at by the Hon'ble Full Bench shows that it does not support the case of the respondents, as it has been authoritatively laid down that the District Collector is expected to reflect reasons for rejecting objections. The only liberty given in judgment is that the reasons can be justified by the reasons, available on record, relating to such acquisition.
32. However, it may be observed here that all these cases deal with acquisition under Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1979, which is not a parametria with this Act, as the power under Section 4 to acquire the land is with the State Government and not with the Collector.
33. On consideration, I find that this writ petition deserves to succeed. The reading of Section (3) shows that before publication of notice under Sub Section 1 of Section 3, the Government has to issue show cause notice within such time, as may be specified in the notice, calling upon the party interested to show cause as to why the land should not be acquired. Section 3 requires that the Government may pass orders under Sub Section (1) after hearing and considering the cause, if any, shown by the owner or person interested. The power under Section, therefore, has to be exercised by the State Government.
34. Section 23-A of the Act reads as under:
"23-A. Delegation of powers The Government may, 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."
35. The reading of Section 23-A of the Act shows that the power to issue notice under Sub-Section 1 of Section 3 cannot be delegated by the State Government. The reading of Section further shows that in view of Sub Section (3), the Government, before issuing notice under Sub Section (1) of Section 3, is required to give hearing and it is after considering the objections, if any, shown by the owner or person interested, that notice under Section 3(1) can be issued.
36. The notification of the State Government, delegating powers to the Collector, therefore, would not amount to delegating power of hearing and considering the objections by the District Collector, as Sub Section 3(1) cannot be read in isolation of Sub Section (3) of Section 3.
37. In this case, the objections have not been considered by the State Government, but by the Collector. The delegation of power under Sub Section (2) of Section 3 of the Act, requires the State Government to issue show cause notice, calling upon the parties to file objections. The notice issued by the Deputy Collector would be, therefore, valid, but limited to power for calling of objections. The objections thereafter are required to be heard by the State Government and not by the Collector, as under Sub Section (3), the statutory duty cast on the State Government to hear and consider the objections before issuing notice under Sub Section (1). The power under Sub Section (1) of Section 3 cannot be delegated by the State Government in view of Section 23-A of the Act.
38. The Hon'ble Supreme Court in Marathwada University v. Seshrao Balwant Rao Chavan, 1989 (3) SCC 133, has been pleased to lay down as under:
"20. Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice-Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol. I, 4th End., para 32) summarises these principles as follows:
32. Sub-delegation of powers. In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.
39. The Hon'ble Supreme Court again in M. Chandru v. Member-Secretary, Chennai Metropolitan Development Authority, (2009) 4 SCC 72, has been pleased to lay down that the State Government can delegate its power provided there exists provision in the Act. The power to delegate, thus, being a statutory requirement must find its place in the Principal Act itself and not in the Regulations.
40. In view of the settled law by the Hon'ble Supreme Court, 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 directions 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 delegatee 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.
46. The proceedings held and the procedure adopted shows that the petitioner has been unnecessarily harassed, and land of petition was acquired by violating the statutory provisions, rather then by following it.
47. Consequently, this writ petition is allowed. The impugned notifications are set aside. The petitioner shall also be entitled to the costs of litigation, which are assessed as Rs.20,000/- (Rupees Twenty Thousand only).
48. Connected miscellaneous petitions are closed.
ar To
1. The Secretary to Government of Tamil Nadu Industries SIPCOT (LA) Department, Fort St.George, Chennai-9.
2. The 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 Lakshmikpathy 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. The Special Tahsildar, (SIPCOT-LA) No.9, Pathala Vinayagar Koil Street, Cheyyar 604 407