Madras High Court
T.Muthusamy vs The District Collector Of on 15 July, 2019
Author: M.S.Ramesh
Bench: M.S.Ramesh
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.06.2019
Pronounced on : 15.07.2019
CORAM
THE HONOURABLE MR. JUSTICE M.S.RAMESH
W.P.No.8817, 8818 & 9411 of 2005
and
WMP.Nos.9523, 9524, 10251 & 10252 of 2005
1.T.Muthusamy ... Petitioner in W.P.No.8817 of 2005
2.D.Natarajan ... Petitioner in W.P.No.8818 of 2005
3.A.Jayaraman ... Petitioner in W.P.No.9411 of 2005
4.R.Annamalai ... Petitioner in W.P.No.9411 of 2005
Vs.
1.The District Collector of
Perambalur,
Perambalur District.
2.The District Collector (in-charge),
Perambalur District,
Perambalur.
3.The Special Tahsildar,
Adi Dravidar Welfare,
Perambalur.
4.L.Thangaponnu
(R4 impleaded vide order dated 10.01.2019,
made in WMP.40284/18 in WP.No.8817/2005
by SMSJ)
... Respondents in all WPs.
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PRAYER in W.P.No.8817 of 2005: Writ Petition is filed under Article
226 of the Constitution of India, praying for a Writ of Certiorari, calling
for the records of the second respondent herein in his impugned
notification issued under Section 4(1) of the Tamil Nadu Acquisition of
Land for Harijan Welfare Schemes Act, 1978 (Act 31 of 1978) by the
second respondent herein, published in Perambalur District Gazette
No.26, dated 12.10.2004 at page No.2 and to quash the same insofar
as the petitioner's lands are concerned located in S.No.52/1 measuring
to an extent of 0.39.5 hectares of punja lands at Mettupalayam South
Village, Veppamthattai Taluk, Perambalur District.
PRAYER in W.P.No.8818 of 2005: Writ Petition is filed under Article
226 of the Constitution of India, praying for a Writ of Certiorari, calling
for the records of the second respondent herein in his impugned
notification issued under Section 4(1) of the Tamil Nadu Acquisition of
Land for Harijan Welfare Schemes Act, 1978 (Act 31 of 1978) by the
second respondent herein, published in Perambalur District Gazette
No.26, dated 12.10.2004 at page No.2 and to quash the same insofar
as the petitioner's lands are concerned located in S.No.52/2 measuring
to an extent of 0.33.0 hectares of punja lands at Mettupalayam South
Village, Veppamthattai Taluk, Perambalur District.
PRAYER in W.P.No.9411 of 2005: Writ Petition is filed under Article
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226 of the Constitution of India, praying for a Writ of Certiorari, calling
for the records of the second respondent herein in his impugned
notification issued under Section 4(1) of the Tamil Nadu Acquisition of
Land for Harijan Welfare Schemes Act, 1978 (Act 31 of 1978) by the
second respondent herein, published in Perambalur District Gazette
No.26, dated 12.10.2004 at page No.2 and to quash the same insofar
as the petitioner's lands are concerned located in S.No.53/6B
measuring to an extent of 1.43.0 hectares of punja lands at
Mettupalayam South Village, Veppamthattai Taluk, Perambalur District.
For Petitioner : Mrs.Hema Sampath, Sr. Counsel
for Mrs.R.Meenal
in all WPs.
For Respondent : Mr.V.Anandamurthy, AGP
Nos.1 to 3
For Respondent : Mr.G.Prabhu
No.4 for impleaded respondent
in all WPs.
COMMON ORDER
The notification dated 12.10.2004 under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (hereinafter referred to as 'the Act') is under challenge in the present Writ Petitions. Since the petitioners in all these Writ Petitions have challenged the same 4(1) notification, all these Writ Petitions are disposed of through a common order.
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2. Heard Mrs.Hema Sampath, learned Senior counsel appearing on behalf of the petitioners and Mr.V.Anandamurthy, learned Additional Government Pleader appearing on behalf of the respondents 1 to 3 as well as Mr.G.Prabhu, learned counsel for the impleaded fourth respondent.
3. Under the impugned notification, various extent of lands including the petitioners' land comprised in Survey No.52/1, 52/2 & 53/6B measuring an extent of 0.39.5, 0.33.0 and 1.43.0 hectares respectively at Mettupalayam South Village, Perambalur were sought to be acquired. The notice under Section 4(2) of the Act was issued by the Special Tahsildar, Adi Dravidar Welfare, Perambalur on 22.11.2002, calling upon the interested persons to show cause as to why the lands should not be acquired. On receipt of the objections given by the petitioners, an enquiry came to be conducted and by an order dated 02.10.2004, the District Collector (in-charge), Perambalur, had rejected the petitioners' objections citing reasons. Thereafter, the impugned notification under Section 4(1) of the Act came to be passed stating that “it appears to the Government of Tamil Nadu” that the lands mentioned in the notification are required for issuance of free house-site pattas for the Adi Dravidar Community people. http://www.judis.nic.in 5
4. The learned Senior counsel appearing for the petitioners predominantly embarked on the grounds that the District Collector alone is the competent authority under the Act to satisfy himself with regard to the acquisition and that the District Collector (in-charge) is incompetent to issue the notification under Section 4(1) of the Act. It is also her submission that the District Collector cannot delegate his powers under the Act, as the satisfaction of the District Collector is mandatory and if at all, there is any delegation, it cannot be valid. In support of her contention, the learned Senior counsel relied upon certain decisions which I shall deal with later.
5. The learned Additional Government Pleader appearing for the respondents 1 to 3 submitted that the procedure adopted for acquisition was in conformity with the Act. According to the learned Additional Government Pleader, the Collector has powers to authorise the third respondent herein to issue a notice under Section 4(2) under the Act and there is no infirmity in the notification under Section 4(1) of the Act in stating that “it appears to the Government of Tamil Nadu” that the lands are required for acquisition. http://www.judis.nic.in 6
6. The Writ Petitions came to be filed in the year 2005. On 20.03.2012, this Court had dismissed all these Writ Petitions and by a subsequent order dated 10.07.2012, the Writ Petitions came to be restored. In the meantime, the acquisition proceedings had since concluded, free house-site pattas were allotted to various beneficiaries and the fourth respondent herein is one of the beneficiary to whose favour the patta was granted on 09.05.2012 and therefore, he came to be impleaded as a party respondent by this Court.
7. It is the submission of the learned counsel for the fourth respondent that the patta in favour of the fourth respondent was validly issued when the Writ Petitions were not pending and if the prayer in the present Writ Petitions are entertained, it would cause serious prejudice not only to this respondent but also to various other beneficiaries to whom similar pattas are granted. Apart from such a submission, the learned counsel had also objected to the grounds raised by the petitioners stating that there is no infirmity in the publication issued by the District Collector (in-charge) and the Act empowers the third respondent to issue a notice under Section 4(2), as well as empowers the District Collector (in-charge) to consider the objections and publish the notification under Section 4(1) of the Act. http://www.judis.nic.in 7
8. I have given careful consideration to the submissions made by the respective counsels.
9. With regard to the grounds raised by the petitioner that the proposed acquisition should be to the satisfaction of the District Collector and not the Government of Tamil Nadu is concerned, it is seen that the impugned notification under Section 4(1) states that the lands to be acquired “appears to the Government of Tamil Nadu” to be required for the purpose of providing free house-site pattas to the Adi Dravidar Community people. By placing reliance on a decision of the Hon'ble Division Bench of this Court in 2002 (2) CTC 1, in the case of The Land Acquisition Officer and Special Tahsildar (LA), Adi Dravida Welfare, Coimbatore and another V. R.Manickammal and others, the learned Senior Counsel submitted that when Section 4(1) of the Act specifically provides for the satisfaction of the District Collector for the purpose of acquisition, the satisfaction of the Government is impermissible and against the very object of the provision. The relevant portions of the said decision reads as follows:
“There is no other provision excepting the above provision empowering any authority to deal with the acquisition. The provision is http://www.judis.nic.in 8 absolute in so many words that if the Collector is satisfied that the lands should be acquired, he will acquire the land and then when a notification is issued, the land vests absolutely with the Government free from all encumbrances as contemplated under Section 5 of the Act. A decision to acquire a land by the Collector has to be exercised only by the Collector by application of his mind independently and the Legislature did not provide any power of delegation. This Legislature did not even reserve any power in the State to have a supervisory role as is provided in the Central Act. In view of the amending Act 68/84, the Land Acquisition Act of 1894 (Central Act), the Governmental role is increased, as, before passing the award, there is every right for the Government to probe into the award and direct the Land Acquisition Officer to modify the award. Even with regard to the finality of the acquisition, the report under Section 5A has to be sent to the Government and even if the report is against the acquisition, the Government can overrule the said decision of the Land Acquisition Officer and direct the publication of declaration under Section 6 of the Act. Such contingency is not provided in the State Act. It is well settled law that when the Legislature did not name any other authority for the exercise of powers and http://www.judis.nic.in 9 names only a particular authority, only that particular authority has to exercise the power and nobody else. In this view of the matter, the learned single Judge has rightly held that the Governmental intervention was unwarranted and without jurisdiction.” In connection with the same proposition, the learned Senior counsel relied on the decision of a learned Single Judge of this Court in the case of K.V.Purushothma Naidu V. The District Collector, North Arcot Ambedkar District, Vellore and another reported in 2004 (3) CTC 261.
10. On the facts in R.Manickammal's case (supra), the District Collector had initiated proceedings and issued a draft notification under Section 4(1) which came to be Gazetted later. After the enquiry, the Collector had opined that the lands were not desirable for acquisition. However, the Government had intervened in the matter and issued a direction to the Collector to go ahead with the acquisition. Such an intervention of the Government was challenged before the High Court and in this background, the Division Bench had held that the decision to acquire has to be exercised only by the Collector and the Act did not empower the State to have a supervisory role as provided under the Central Act.
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11. Whereas in the present case in hand, the 4(1) notification reads that “it appears to the Government of Tamil Nadu” that the lands were required for the purpose of acquisition. Just because the 4(1) notification states that “it appears to the Government of Tamil Nadu” to proceed with the acquisition, it cannot be construed that such an opinion reflected in the notification is not to the satisfaction of the Collector. In other words, the opinion of the Government reflected in the 4(1) notification would not mean or be construed to be without the satisfaction of the Collector.
12. The Hon'ble Division Bench of this Court in a decision reported in 2019 (1) CWC 97 [P.Ayyasamy & 4 others V. District Collector, Perambalur District, Perambalur, Special Tahsildar (ADW), Perambalur District, Perambalur & Jamuna Rani] had an occasion to deal with this proposition and held as follows:-
“22. The next submission of the learned Senior Counsel appearing for the appellants/writ petitioners is with regard to the satisfaction to be arrived at by the District Collector before issuing Notification under Section 4(1). According to him, the District Collector in the instant case did not http://www.judis.nic.in 11 arrive at the satisfaction before issuing such Notification under Section 4(1) and it only contains the satisfaction of the Government, which is not the intention of the Legislature while drafting the Act. As contended by the learned Special Government Pleader appearing for the respondents 1 and 2, from the records it is seen that it has been clearly established that there is application of mind by the District Collector in issuing the proceedings based on the proposal sent by the Special Tahsildar on 16.10.1996 referred to therein. The objections of the land owners were rejected by the District Collector, by exercising his powers under Section 4(3)(b) of the Act. The proceedings dated 18.09.1997 was also communicated to the land owners. Relevant passage of the rejection of the objections by the District Collector, reads as follows:
“bguk;gY}h; khtl;l Ml;rpj; jiyth; mth;fspd;
bray;Kiwfs;
Kd;dpiy/ jpU/aj;jPe;jpuehj; !btd;/. ,/M/g. e.fa1/25951/97 ehs;/18/09/1997 bghUs; ? Mjp jpuhtplh; eyk; ? epyk; ifafk; ? ntg;ge;jl;il tl;lk; / gpuk;gY}h; k$%uh kutej;jk; fpuhk Mjp jpuhtplh;fSf;F tPlL; kid tH';f g[y vz;/405/4V Kjyhdtw;wpd; 2/68 t/bwf;nlhpd; epyk; ifafk; ? epy chpikahsh;fspd; Nl;nrgizia epuhfhpjJ ; ? MizapLjy; / http://www.judis.nic.in 12 ghh;it ? bguk;gY}h; (Mjpe) jdp tl;lhl;rpahpd; e/f/m2- 1184-93 / ehs; 16/10/1996/ ghh;itapy; fz;l fojj;jpd; ntg;ge;jl;il tl;lk;/ gpk;gYhh; fpuhk k$%uh kutej;jk; fpuhk Mjp jpuhtplhfSf;F tPlL ; kid tH';f g[[y vz; 405-4V Kjyhdtw;wpd; 2/68/5 bcwf;nlh;!; gl;lh g[";ir epy';fs; ifafk; bra;a bguk;gYhh; (Mjpe) jdp tl;lhl;rpah; fUj;Jf;fs; rkh;g;gpj;Js;shh;/ mthpd; ghpe;Jiufis Vw;W. fPH;ff; z;lthW Mizaplg;gLfpwJ/ g[y vz;/405-4V?apd; epy chpikahsh; ifafj;jpwF ; Ml;nrgiz Vjkpy;iy vd thf;FKyk; mspjJ ; s;shh;/ g[y vz;/405-5V apd; epy chpikahsh;fSf;F ,f;fpuhkj;jpy; kl;Lk; bkhj;j 4/41/5 bcwf; epy';fs; cs;sd/ vdnt. ,th;fs; tPL fl;l epyj; njit vdf; Twpa Ml;nrgizfs; epuhfhpf;fg;gl;lJ/ g[y vz;405-5rp. 7?gp?apd; epy chpikahsUf;F ,f;fpuhkj;jpy; kl;Lk; bkhj;jk; 2/19/5 bcwf;. epy';fs; cs;sd/ ,tUf;F tPL fl;l epyk; njit vdf; Twpas [ ;s Ml;nrgid epuhfhpf;fg;gLfpwJ/ kw;Wk; g[y vz;/405-6/8. 406-V. 4gp. 4?rp. 406-4V. 4?rp. 406-5 Mfpatw;wpd; epy chpikahsh;fs; midtUk; xl;L bkhj;jkhf tPL fl;l epyk; njitg;gLtjhy; ifafj;jpw;F Ml;nrgiz bjhptpg;gjhf Twpas [ s ; dh;/ ifaf epyk; nghf kPjKs;s epy';fs; ,th;fSf;F tPL fl;l nghJkhdit vd;gjhYk;. ,th;fs; ifafj;ij vjph;nehf;Fk; nehf;fj;Jlndna ,t;thW Ml;nrgpg;gjhftk;. fUjp ,th;fsJ Ml;nrgid epuhfhpf;fg;gLfpwJ/ xk;-/F /aj;jPe;jpuehj; !;btd;
khtl;l Ml;rpj; jiyth;
bguk;gY}h;”
25. As laid down in the above decision and being observed by the Full Bench, if at all any prejudice is caused to the land owners, and if any valid point has been ignored by the Authorised http://www.judis.nic.in 13 Officer and if any deficiency is pointed out in the report of the Authorised Officer, then only the land owner is entitled to get a further opportunity to highlight such aspect before the District Collector, that too it has to be dealt with based on the facts and circumstances of each case. In the case on hand, no prejudice is caused to the land owner and each and every aspect of the matter has been taken into consideration by the District Collector while overruling such objections before issuing the Notification under Section 4(1) of the Act.
26. Further, in the present case, the objections of the appellants/writ petitioners/land owners indicating the aspect that they are small farmers and they require the land for their use, was considered by the District Collector and the objections of the land owners have been overruled on the proposal of land acquisition sent on 16.10.1996 by the Special Tahsildar.
27. Moreover, as per the Notification under Section 4(1) of the Act, the District Collector has satisfied himself about the acquisition proceedings and the Notification had also been published in the District Gazette after following the provisions of the Act. The satisfaction of the District Collector is contemplated under Section 4(3)(b) of the Act.
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28. In the instant case, the very scheme of the Act, i.e. Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, is that the Notification under Section 4(1) should be preceded by the satisfaction of the District Collector, who shall consider the objections of the land owners and if not satisfied, he may overrule the objections, which was done in this case on 18.09.1997. Therefore, the Notification was also published in the District Gazette and the publication was made only in the name of the District Collector. Since it is stated in the said Notification that, “it appears for the Government of Tamil Nadu”, does not mean that without the satisfaction of the District Collector, the Notification under Section 4(1) was issued. In this regard, a reference is made by the learned Special Government Pleader to a decision of a Division Bench of this Court reported in 2009 (1) MLJ 569 (Secy. to Government Vs. P.Dhanabakkiam), wherein the Writ Appeal filed by the State was dismissed, on the ground that the Notification therein was issued for providing burial ground to the Adi Dravidar Arunthathiars. The preamble of the impugned Section 4(1) Notification therein refers that the acquisition is for the purpose of providing burial ground to Adi Dravidars/Arunthathiars and the schedule therein http://www.judis.nic.in 15 refers the pubic purpose as one of providing house-sites. By two different versions in regard to the public purpose, it must be held that there is no application of mind as to the very public purpose. Hence, it was held in that decision that in order to find out the actual public purpose, the provisions of Section 4(1) contemplate that the satisfaction must be that of the District Collector and not of the Government. Therefore, when the impugned Notification therein refers to two different public purposes, it only reflected the non-application of mind that occurred in view of the fact that the District Collector has not actually applied his mind as to the actual public purpose. Those facts in that decision are distinguishable to the case on hand, as the public purpose is only carefully worded in all places of the Notification, proceedings, etc., i.e. for providing house-sites to Adi Dravidars. Further in that decision, the satisfaction arrived at by the District Collector based on the records of the acquisition, was not brought to the notice of the Division Bench therein. Therein the Writ Appeal was dismissed on two grounds, namely that the impugned Notification therein shows that the satisfaction to acquire the lands was only at the level of Government of Tamil Nadu and not the District Collector and also on the ground that the http://www.judis.nic.in 16 said Notification contain the said two purposes of acquisition. In the present case, the satisfaction arrived by the District Collector is based on the materials available on record. We find no infirmity in arriving at such satisfaction by the District Collector.” Thus, it can only be summed up that a mere reference that “it appears to the Government of Tamil Nadu” that the lands are required for acquisition, cannot be construed to be without the satisfaction of the Collector and therefore, the first ground raised by the petitioners is negatived. In view of the decision of the Division Bench in P.Ayyasamy's case (supra), the reliance placed by the learned counsel for the petitioners on the decision of a learned Single Judge of this Court in K.V.Purushothma Naidu's case also cannot be sustained.
13. The second submission of the learned Senior counsel for the petitioners is that the District Collector (in-charge) is not empowered to issue the 4(1) notification when such powers are conferred only on the District Collector. Reiterating such a submission, the learned Senior counsel submitted that the powers conferred on the District Collector cannot be delegated to the District Collector (in-charge) under Section 4(1) of the Act. In support of her contention, the http://www.judis.nic.in 17 learned Senior counsel placed reliance on the decision of the Hon'ble Division Bench of this Court in 2006 (5) CTC 163 in the case of Jainabi Vs. State of Tamil Nadu, rep. by the Secretary to the Government, Adi-Dravida Welfare Department, Fort St. George, Chennai-600 009 and another.
14. This ground on the face of it cannot be tenable, in view of the well settled proposition that an Authority in-charge of a post will have all the powers to discharge the statutory functions of the said post. In the case of A.Savariar V. The Secretary, TNPSC and another reported in 2013 SCC On-Line SC 157, the Supreme Court had held that the Officer, who is holding the post in-charge have powers to discharge the statutory functions of the said post. Likewise, this Court on the same lines in the case of Sugunapri V. The District Collector, (Inspector of Panchayats), Cuddalore District, Cuddalore & another in W.P.13291 of 2008 had also held that unless there is a specific prohibition through a Government Order or a statutory prohibition, an officer holding the position in-charge has got full powers to exercise the statutory functions attached to the said posts. The relevant portions of the decision reads as follows:
“8. The contention of the learned counsel appearing for the petitioner is that a Collector of http://www.judis.nic.in 18 Revenue District is not automatically conferred the powers of Inspector of the Panchayats, but should be appointed by the Government to exercise and perform such duties and the power to appoint such officer is given under Section 199 (1) of the Act. No doubt, the impugned notice has been issued from the office of the Assistant Director (Panchayat), Cuddalore. In the penultimate, portion of the order below the signature of the officer, it has been mentioned as Inspector of Panchayat cum District Collector (Incharge), Cuddalore. Therefore, the test would be as to whether the signatory to the notice was empowered to act as the Inspector of Panchayat cum District Collector (Incharge). In this regard, if the Government order in G.O.Rt.No.1534 is perused, it is seen that the regular Collector of Cuddalore District proceeded on leave and the Government directed the District Revenue Officer (the signatory to the impugned notice) to hold full additional charge of the post of Collector, Cuddalore District, during the absence of the regular Collector. Therefore, the signatory to the impugned notice was empowered by the Government to exercise all powers as that of the District Collector of Cuddalore District. The Hon'ble Full Bench of this Court in the case of a A.Savariar referred above interpreted the word http://www.judis.nic.in 19 "incharge" and held as follows:-
"7. Under such circumstances, unless contrary intention is expressed by the Government either by way of a statutory provision or by way of an executive instruction, a Government servant who holds the post as in-charge has got power/to discharge the statutory functions and responsibilities of the said post.
8. Besides since already this issue has been covered by the judgment of the Honourable Apex Court report in Gopalji Kanna V.Allahabad Bank, 1996 AIR SCC 1729 as referred above, we are of the opinion, the view of the Division reported in C.Baskaran V. The District Collector, Trichy, 1997 Writ L.R. 33 rendered in W.a.No.1054 of 1983 is not a correct law. Consequently, we hold that an officer-in-charge of a post has got power to discharge the powers and statutory functions of the said post.
9. Consequently, as far as the point of reference is concerned, we hold that the Officer who is holding the post in-charge has got power to discharge the powers and statutory functions of the said post."
9. Thus, an officer, who is holding the post incharge has got full powers and could exercise http://www.judis.nic.in 20 all statutory function attached to the said post, unless, he has been specifically prohibited under the relevant Government order or if there is a statutory prohibition. As already seen that the officer concerned has been given full additional charge of the post of Collector of Cuddalore District, therefore, it cannot be stated that the impugned notice is without jurisdiction.
The aforesaid observations of this Court are self-explanatory to the effect that the person, who is in-charge, is construed to be holding the posts in his full capacity and therefore, will have all the powers to discharge the statutory functions attached to the said posts.
15. The reliance placed by the learned Senior counsel in Jainabi's case may not be of any help to her, since the case relates to one where the powers delegated to the Collector under Section 4(1) was extended to the Additional Collector and it is in this context that the Division Bench had held that the Government cannot delegate powers of the District Collector to the Additional Collector. This is not the case where the Government had delegated the powers to District Collector to District Collector (in-charge) or is there any such authorization. On the other hand, the District Collector (in-charge) was performing the powers vested to the District Collector under the Act. http://www.judis.nic.in 21
16. The learned Senior counsel also tried to impress this Court stating that the notice prior to the acquisition was issued by the Special Tahsildar, who has no powers. Such submission also cannot be sustained. Since 4(2) of the Act empowers the Collector to authorise any officer to issue a show cause notice for the proposed acquisition. Therefore, the notice issued by the Special Tahsildar under Section 4(2) of the Act can be sustained.
17. For the foregoing reasons, I do not find any reasons to interfere with the notification under Section 4(1) of the Act. Accordingly, all the Writ Petitions stand dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
15.07.2019 DP Index:Yes Order: Speaking http://www.judis.nic.in 22 To
1.The District Collector of Perambalur, Perambalur District.
2.The District Collector (in-charge), Perambalur District, Perambalur.
3.The Special Tahsildar, Adi Dravidar Welfare, Perambalur.
http://www.judis.nic.in 23 M.S.RAMESH, J.
DP Order made in W.P.No.8817, 8818 & 9411 of 2005 and WMP.Nos.9523, 9524, 10251 & 10252 of 2005 15.07.2019 http://www.judis.nic.in