Madras High Court
Sundaravalli Ammal vs The Government Of Tamil Nadu on 18 March, 2008
Equivalent citations: AIR 2008 (NOC) 1728 (MAD.) (FULL BENCH), 2008 (4) AKAR (NOC) 611 (MAD.) (FULL BENCH)
Author: F.M. Ibrahim Kalifulla
Bench: A.P. Shah, F.M. Ibrahim Kalifulla, V. Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.03.2008
CORAM:
THE HONOURABLE MR.A.P. SHAH, CHIEF JUSTICE,
THE HONOURABLE MR.JUSTICE F.M. IBRAHIM KALIFULLA
AND
THE HONOURABLE MR.JUSTICE V. RAMASUBRAMANIAN
W.A.Nos.2050, 2051 of 2001 and 726 of 2005
and
W.P.M.P.No.1397 of 2007
W.A.Nos.2050, 2051 of 2001
Sundaravalli Ammal ... Appellant
vs.
1. The Government of Tamil Nadu,
Rep. by its Commissioner
and Secretary to Government,
Adi Dravidar Tribal Welfare Department
Fort, St. George, Chennai-9.
2. The District Collector,
North Arcot Ambedkar District
at Vellore,
North Arcot Ambedkar District.
3. The Special Tahsildar,
Land Acquisition (A.D.W.)
Walajapet,
North Arcot Ambedkar District. ... Respondents
W.A.No.726 of 2005
Nataraja Mudaliar ... Appellant
vs.
The District Collector
Villupuram District and Anr. ... Respondent
Writ Appeal Nos.2050 and 2051 of 2001 are filed as against Order of the learned Single Judge of this Court in W.P.Nos.3356 and 3766 of 1996 dated 10.11.2000 and Writ Appeal No.726 of 2005 is filed as against the Order of the Single Judge of this Court in W.P.No.4045 of 1997 dated 29.1.2003
For Appellants : Mr. R. Subramanian,
[in W.A.Nos.2050 and Senior Counsel for
2051 of 2001] Mrs. Hemalatha
For Appellant : Mr.V. Lakshminarayanan
[in W.A.No.726 of 2005]
For Respondent(s) : Mr. Raja Kalifulla
[in all appeals]
J U D G M E N T
F.M. IBRAHIM KALIFULLA,J.
The Division Bench in its Order of Reference dated 19.09.2007 has passed the following Order:
"Therefore we consider it a fit case to be referred to the Larger Bench. Hence, the registry is directed to place the papers before The Honourable Chief Justice to refer the matter to a Larger Bench to consider the above issue."
2. The issue relates to the question whether the decision of the Full Bench reported in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT AND ANOTHER] conflicts with the decision of the Honourable Supreme Court reported in AIR 1995 SC 2114 [STATE OF TAMILNADU AND OTHERS vs. ANANTHI AMMAL AND OTHERS] and AIR 1968 SC 432 [ABDUL HUSSAIN vs. STATE OF GUJARAJ] as well as the decision reported in AIR 1977 SC 497 [KALUMIYAKARIMMIYA vs. THE STATE OF GUJARAT AND OTHERS]. In the opinion of the Division Bench, neither Sec.5(A) nor any other provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 contemplates, second opportunity to be given to the land owners. The Division Bench also held that in the light of the decision of the Honourable Supreme Court reported in AIR 1995 SC 2114 upholding the validity of the said Act except for Section 11(1) of that Act, insofar as it provided for payment of compensation in instalments, the full bench decision runs counter to the decision of the Honourable Supreme Court and therefore, the constitution of a larger bench is necessitated to decide the issue. Though, no specific question was referred for the consideration of a Larger Bench from the order of reference of the Division Bench dated 19.9.2007, we discern that the ratio laid down by the full bench decision reported in 2007 (2) M.L.J. 706 requires reconsideration.
3. The questions that were posed for consideration before the earlier full bench were as under:
(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?
4. From what has been answered by the full Bench, it is clear that after the initial enquiry held by the authorised officer and his report, no further personal hearing or enquiry need be made by the District Collector. Though the full bench made it clear that the land owner should be furnished with a copy of the report/recommendation of the authorised officer, mere non-furnishing of such report would not ipso facto vitiate the proceedings and the question of prejudice to the land owner has to be considered in each case depending upon the facts and circumstances relating to that case. Further it was held that the non-communication of the reasons of the District Collector while considering the objections of the land owner in the order communicated to him by itself would not vitiate the proceedings, so long as the records reveal that there was application of mind by the District Collector to the objections of the land owner and such objections were rejected for reasons which weighed with the District Collector.
5. When we peruse the decision of the full bench we find that the full bench made a careful analysis of the decision of the Honourable Supreme Court reported in AIR 1995 SC 2114 (Ananthi Ammal Case) and was also fully conscious of the ratio desidendi of the said decision while answering the reference made before it. The full bench did not agree with the conclusion of the Division Bench of this Court reported in 1998(1) CTC 281 [THIRUMATHI PUSHPA BAI BAINSINGH vs. DISTRICT COLLECTOR, TIRUNELVELI], in having held that a further personal enquiry/hearing before the collector was contemplated and that such a conclusion would result in duplication of enquiry i.e., one by the authorised officer and another by the District Collector which was not envisaged under the Act.
6. The full bench however, held that where the enquiry is held by the authorised officer, the report of such officer should be made available to the land owner to make a further representation to the District Collector, instead of insisting upon a second enquiry. The full bench also made it clear that while furnishing a copy of the report to enable the land owner to make a representation no delay much less undue delay would be caused in as much as even while sending a copy of the report, a time limit of two weeks can be fixed in order to arrest any attempt to drag on the proceedings. While stating so, the full bench highlighted that in view of the extending horizons of the principles of natural justice, extended application of such principles can be equally made applicable to the acquisition proceedings. When it was contended on behalf of the land owner that if the initial enquiry was held by the authorised officer and the District Collector is to take a decision, a further opportunity of personal hearing would be really needed, the full bench after making a detailed reference to the decisions of the Honourable Supreme Court reported in AIR 1964 SCC 648 [JAYANTILAL AMRATLAL SHODHAN vs. F.N. RANA AND OTHERS] and AIR 1971 SC 1188 [PARSHOTTAM JADAVJI JANI vs. THE STATE OF GUJARAT AND OHTERS] which were rendered in the context of the enquiry under Section 5(A) of the Land Acquisition Act concluded that the extent to which the principles of natural justice can be applied would be by holding that furnishing of a copy of the report of the authorised officer and an opportunity to make a representation in connection with the said report would meet the ends of justice. While holding that the second opportunity by the District Collector is not warranted, the full bench also noted that in any event the land owner can as a matter of right seek for a copy of the report of the authorised officer in the light of the provisions contained in the Right to Information Act 2005.
7. As far as the necessity of furnishing reasons by the District Collector to the objections of the land owner is concerned, the full bench relied upon the Division Bench decision of this Court reported in 2005(2) L.W.199 in the case of THE DISTRICT COLLECTOR, NORTH ARCOT AMBEDKAR DISTRICT, VELLORE AND ANOTHER vs. MANIKCKEM, wherein the Honourable Chief Justice M. Katju as he then was, while delivering the judgment stated in no uncertain terms that though the collector need not write an elaborate order like a Judgment of a Court of law, while rejecting the objections of the land owner, he must atleast mention the brief reasons as to why he rejected the representation so that the land owner would be satisfied that his objections were considered and that the court will also be satisfied that the District Collector applied his mind to such objection. While referring to the above Division Bench decision, the full bench went on to add as under in paragraph 41.
"41. So far as the first part of the observation regarding the necessity for the District Collector to give second opportunity of hearing is concerned, such aspect has been dealt with while considering question Nos.1 and 2. However, so far as the latter part of the observation laying down the necessity of the District Collector to apply mind to the objection made by the land owners and to indicate the reasons, however brief the reasons may be, must receive our approval without much demur. In view of the power of eminent domain the State obviously cannot be denied such right. However, right to land being a constitutional right recognised under Article 300-A of the Constitution, such right can be denied only in accordance with law. Law which provides for such acquisition of land obviously should stand the test of lack of arbitrariness as otherwise such law may fly in the face of Article 14 and may be Article 21. Even though the substantive right of the State to acquire land cannot be denied, such law providing for acquisition of land should satisfy the test of procedural reasonableness and it is therefore apparent that the authority acquiring such land (in the present case the District Collector) must be satisfied about the necessity to acquire such land and while arriving at such satisfaction, the authority is also required to consider the objections raised by the land owner. The authority must be alive to the requirement of balancing the need of the State as well as peculiar disadvantages to be suffered by the land owner. As observed by the Division Bench even though the authority is not expected to write "reasoned judgment", the materials on record must indicate that the authority has applied its mind. Obviously the magic incantations of the words used in the Act or the Rules would not indicate that mind has been applied and therefore, it is always desirable for the authority to indicate the reasons why such authority is taking a decision to acquire the land and rejecting the objection of the land owner. As a matter of fact, to be fair to the learned Additional Advocate General, he has stated in no uncertain term that the need to give reasons for the decision has to be read into the enactment. In the aforesaid context, the learned Additional Advocate General has also referred to the decision of a learned Single Judge of this Court in V. Kannian v. The Collector, Salem District, Salem and others, 2004 (3) MLJ 129. Therefore, in our opinion, the requirement to give reasons however brief the reasons may be, must be read into the provisions and this requirement is not merely confined to the cases where the Collector is considering the reports submitted by the authorised officer, but such requirement is also necessary while the Collector himself is dealing with the matter by holding an enquiry."
8. We also find that the various decisions referred to in the present order of reference including the decisions reported in AIR 1968 SC 432 [ABDUL HUSAIN TAYABALI, ETC., vs. STATE OF GUJARAT] as well as AIR 1977 SC 497 [KALUMIYA KARIMMIYA vs. THE STATE OF GUJARAT] were duly considered by the full bench which took the view that the ratio of the said decisions of the Supreme Court may not be applicable and the persons likely to be affected should be given a further limited opportunity of making a further representation to the District Collector on the report/recommendation of the authorised officer. In other words we find that the above referred to decisions of the Honourable Supreme Court referred to in the order of reference by the Division Bench while expressing its desire for consideration by a larger bench were duly considered by the full bench elaborately while answering the questions referred to it. Having regard to the detailed consideration made by the Full Bench in its decision reported in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT AND ANOTHER] while answering the questions referred to it, we do not find any need or necessity for reference to a larger Bench. The decision of the Full Bench in having made a detailed reference to ECIL case of the Supreme Court for extending the application of the principles set out therein for the limited purpose of application of principles of natural justice in a land acquisition proceedings, by itself cannot be held to have caused any conflict in order to re-reconsider the ultimate answers to the questions referred to it.
9. In fact in the present order of reference, the Division Bench has directed the registry to get orders from the Honourable Chief Justice to straightaway make a reference to a Larger Bench. In this context, we wish to be guided by the decisions of the Honourable Supreme Court reported in 2002 (1)SCC 1 [PRADIP CHANDRA PARIJA v. PRAMOD CHANDRA PATNAIK] and 2005(2) SCC 673 [CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY v. STATE OF MAHARASHTRA]. In the first case, i.e., in Pradip Chandra Parija v. Pramod Chandra Patnaik, 2002 (1) SCC 1, the question that was considered by the Hon'ble Supreme Court is:
"Whether two learned Judges of this Court can disagree with a judgment of three learned Judges of this Court and whether for that reasons they can refer the matter before them directly to a Bench of Five Judges?"
After hearing the learned counsel on either side, including the learned Attorney General, the Supreme Court has concluded:
"(6) In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five-Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier Judgement of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out as has been done here, the reasons why it could not agree with the earlier Judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier Judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified."
In the second case viz., Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2005 (2) SCC 673 (supra), which is also a Constitution Bench, after considering all the earlier decisions, including Pradip Chandra Parija v. Pramod Chandra Patnaik, 2002 (1) SCC 1, summarised the legal position:
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions:
(i) the above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) in spite of the rules laid down herein above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir singh and Hansoli Devi.
13) So far as the present case is concerned, there is no reference made by any Bench of any strength at any time for hearing by a larger Bench and doubting the correctness of the Constitution Bench decision in the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp. (2) SCR 496. The order dated 18.3.1994 by the two-Judge Bench cannot be construed as an order of reference. At no point of time has the Chief Justice of India directed the matter to be placed for hearing before a Constitution Bench or a Bench of seven-Judges.
14) In the facts and circumstances of this case, we are satisfied that the matter should be placed for hearing before a Constitution Bench ( of five-Judges) and not before a larger Bench of seven Judges. It is only if the Constitution Bench doubts the correctness of the law laid down in Sardar Syedna Taher Sifuddin Saheb case that it may opine in favour of hearing by a larger Bench consisting of seven-Judges or such other strength as the Chief Justice of India may in exercise of his power to frame a roster may deem fit to constitute." (Emphasis added) The above two decisions of the Honourable Supreme court makes it clear that the Full Bench decision is binding on the Division Bench. If at all this Full Bench comes to a conclusion that the earlier Full Bench decision is incorrect, then a reference can be considered for being made to a Larger Bench. In other words, only if this Bench doubts the correctness of the law laid down in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT AND ANOTHER] there is no scope for making a reference to a Larger Bench.
10. Keeping the above said legal position in mind when we refer to the order of reference made by the Division Bench dated 19.9.2007, we are of the view that it was not appropriate for the Division Bench to direct the registry for placing the papers before the learned Chief Justice straightaway to make a reference to a larger bench to consider the issue raised before it.
11. We hold that having regard to the dictum of the full bench decision reported in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT AND ANOTHER], the Division Bench ought to have applied the ratio laid down in the said decision and disposed of the matter. If at all the Division Bench felt any doubt as to the correctness of the said full bench decision, in all fairness the Division Bench could have directed the registry to place the matter before the learned Chief Justice for his consideration as to whether a further reference is called for for referring the issue to a Larger Bench.
12. Since we have found as stated in paragraph-8 of this Order that the conclusion of the Full Bench decision reported in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT AND ANOTHER] has laid down the law appropriately and that there is no flaw in the said decision, we hold that the order of reference to a Larger Bench is uncalled for. The said Full Bench decision is therefore binding on the Division Bench. We accordingly, direct the registry to place the matter before the Division Bench to decide the appeals on merits.
ggs.