Madras High Court
Kamalammal vs The Collector Of Thiruvaroor District on 15 December, 2009
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.12.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.7235 of 2001 1.Kamalammal 2.Tamilchelvi 3.Hamsavalli 4.Manimekalai all represented by their Power of Attorney Rajadurai Radhanarasimhapuram East Street Mannargudi ... Petitioners Vs. 1.The Collector of Thiruvaroor District Thiruvaroor. 2.The Special Tahsildar Adidravidar Department Mannargudi Thiruvaroor District. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari, to call for the records of the first respondent made in proceedings Na.Ka.37016/2000/K.2.dated 18.12.2000 and published in the Government gazette dated 06.01.2001 and amended by the 1st respondent in his proceedings Na.Ka.40848/2000/K.2.dated 26.02.2001 and published in the Government Gazette dated 28.02.2001 in respect of the property comprised in S.No.105/1 Orattur Village, Mannargudi Taluk and quash the same. For petitioners : Mr.C.Ramesh For Respondents : Mr.P.Subramanian, AGP, O R D E R
In this Writ petition, the petitioners have challenged the proceedings dated 18.12.2000, published in the District Gazette dated 06.01.2001, and as amended by the respondents in proceedings dated 26.02.2001, and published in Government Gazette dated 28.02.2001, in respect of property comprised in Survey No.105/01 Orattur Village, Mannargudi Taluk and quash the same.
2. The power of attorney to the petitioners has submitted that land comprised in Survey No.105/1 in No.111 Orattur Village, Mannargudi Taluk, Tiruvarur District, measuring an extent of 2 acres and 82 cents belong to the first petitioner's husband and father of the petitioners, 2 and 3. He died on 15.01.1998, leaving behind the petitioners as his legal heirs. After the demise, the petitioners have inherited the property in succession and they are in the possession of the same.
3. The petitioners have further submitted that they came to know that certain lands, in and around the lands belonging to them were sought to be acquired for the purpose of providing a pathway to the house sites of Adi Dravidars. Their power of Attorney made enquiries and found that the Notification under Section 4(1) of the Land Acquisition Act 1978, for the welfare of Adi Dravidars was issued in District Gazette published on 06.01.2001. The lands described in the Notification were stated to have been comprised in S.No.15/1 of Orattur Village, Mannargudi Taluk, belonging to Rajagopal and that he was represented by his power of attorney Mr.Rajadurai. Subsequently, by another Notification made in the District Gazette dated 18.02.2001, the survey number of the property has been corrected as S.No.105/1 part.
4. The power of attorney of the petitioners has further submitted that the first petitioner's husband died on 15.01.1998, from which date any agency even assuming to be subsisting will automatically come to an end, on the death of the principal. He has also submitted that there was no such power agent appointed by the said Rajagopal during his life time.
5. It is the case of the petitioners that the Notification made under Section 4(1) of the Tamilnadu Land Acquisition for Harijan Welfare Schemes Act 1978, in the name of the dead person is illegal, void ab-initio. The Notification ought not to have been made in the name of the power agent. According to the petitioners, there is already an existing pathway and therefore, the acquisition proceedings are unwarranted.
6. The petitioners have further submitted that their power of Attorney received a copy of the Gazette Notification in the third week of March 2001, and have chosen to challenge the same, on the ground that they are the persons interested and that they were not given adequate notice before the acquisition proceedings. Assailing the impugned Notification, Mr.C.Ramesh, Learned counsel for the petitioners submitted that the Notification issued in the name of the dead person and represented by a power of attorney is untenable in law.
7. Though the petitioners have not raised any specific plea in the affidavit filed in support of the writ petition, regarding the subjective satisfaction of the Collector to be arrived at for acquiring the lands, inviting the attention of this Court, to the impugned Notification, Learned counsel for the petitioners submitted that the Notification do not reflect the subjective satisfaction of the District Collector, before issuing the 4(1) notification as required under the statute and therefore, the impugned notification is liable to be set aside.
8. The respondents have not filed any counter affidavit. However, Mr.P.Subramanian, Learned Additional Government Pleader, submitted that the power of attorney has already represented the land owner during the enquiry proceedings and therefore, there is no illegality in issuing the 4(1) notification. He further submitted that the acquisition proceedings cannot be challenged on a different ground, in another writ petition.
9. Heard the learned counsel for the parties and perused the materials available on record.
10. The 4(1) Notification issued on 06.01.2001 reads as follows:
"jpUthU:u; khtl;lk;. jpUthU:u; tl;lk;. 39. bgU';Fo fpuhkj;jpy; mike;Js;sJk; fPH;fhz{k; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;sJkhd epy';fs; Mjpjpuhtplu;fSf;F kahdg; ghij trjpf;F njitg;gLfpd;wd vd;W jkpH;ehL muRf;F njhd;Wtjhy;. me;jg;gof;F 1978 Mk; Mz;L jkpH;ehL Mjp jpuhtplu; eyj; jpl;;;;l epybkLg;g[r; rl;lj;jpd; (jkpH;ehL rl;lk; 31-1978) 4Mk; gphptpd; (1)Mk; cl;gphptpd; tpjpj;JiwfSf;fpz';f bjhlu;g[ila midtUf;Fk; ,jd;K:yk; mwptpg;g[ mspf;fg;gLfpwJ/ nkYk;. fPH;fhz{k; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;s epy';fis cldoahff; ifafg;gLj;jntz;oaJ mtrpakhfpwJ/ Mfnt. nkw;brhd;d rl;lj;jpd; 4Mk; gphptpd; (1)Mk; cl;gphptpd;fPH; tH';fg;gl;Ls;s mjpfhu';fis braw;gLj;jp fPH;fhz{k; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;s epy';fis nkw;brhd;d rl;lj;jpd; tpjpKiwfSf;fpz';f epybkLg;g[ bra;jpl jpUthU:u; khtl;l Ml;rpau; mtu;fs; ,jd;K:yk; fl;lisapLfpwhu;/"
tptu ml;ltiz kd;dhu;Fo tl;lk;
75. Xuj;J}u; fpuhkk;
ed;bra; my;yJ g[d;bra; vd;fpw epyj;jpd; tpthpg;g[k;. g[y vz;Qqk; cl;gphpt[k;/ epyr; brhe;jf;fhuu; my;yJ mDgtjhuu; bgau;
epybkLg;g[ bra;a cs;s epyj;jpd; ehd;F vy;iyfs;
epybkLg;g[ bra;a cs;s gug;g[ (njhuhakhf) jhprh my;yJ gaphplj; jf;fjh ku';fs; fl;ll';fs; fpzWfs; Mfpatw;iwf; Fwpg;gplt[k;
ed;bra;. 15?1(gFjp) uh$nfhghyd;. j-bg/ gf;fphp mk;gyk;.
gtu; V$z;l;. uh$Jiu.
j-bg/nrhK td;dpau;
g[y vz;fs;
tlf;F ? 105?2.
fpHf;F ? 107?1.
bjw;F ? 154.
nkw;F ? 105?4/ bcwf;nlu;/ 1/00/0 gapuplj;jf;fJ/ ,y;iy/ ,y;iy
11. In the Schedule, to the notification the lands sought to be acquired from the petitioner's father Mr.Rajagopal, and stated to have been represented by his power agent Rajadurai, son of somu to an extent of 1 hectare is shown as part of Survey No.15/1 in Orattur Village, Mannargudi Taluk bounded on the North-105-2, East 107-01, South-154 and West-105-4. While issuing the Notification in the District Gazettee under Section 125(2) of the Tamilnadu Panchayats Act, an amendment has been issued which is extracted hereunder:
epyk; ifafg;gLj;Jjy; Fwpj;j mwptpg;gpw;F gpiHj; jpUj;jk;
(e/f/40848-2000-nf2. 26?2?2001) 2001 Mk; Mz;L $dthp jp';fs; 6Mk; ehspl;l jpUthU:u; khtl;l murpjH; rpwg;g[ btspaPL vz;/1. gf;fk; 4?y; btspahfpa[s;s kd;dhu;Fo tl;lk;. 73. Xuj;J}u; fpuhkj;jpy; Mjp jpuhtplu;fSf;F tPl;L kidg; gl;lh tH';Ftjw;fhf epybkLg;g[r; rl;lk; 31-1978?d;go ifafg;gLj;Jtjw;fhf nju;t[ bra;ag;gl;Ls;s g[y vz; bjhlu;ghf fPH;f;fz;lthW gpiHj; jpUj;jk; btspaplg;gLfpwJ/ jpUj;jw;jpw;F Kd;(1)
jpUj;jw;jpw;F gpd;(2)
ed;bra; my;yJ g[d;bra; vd;fpw epyj;jpd; tpthpg;g[k;. g[y vz;Qqk; cl;gphpt[k;/ ed;bra;. 15?1(gFjp) jpUthU:u;.
2001 gpg;uthp 26 ed;bra; my;yJ g[d;bra; vd;fpw epyj;jpd; tpthpg;g[k;. g[y vz;Qqk; cl;gphpt[k;/ ed;bra;. 105?1(gFjp) br/ckhr';fu;
khtl;l Ml;rpau;
12. The Writ petition has been filed on 30.03.2001, within three months from the date of 4(1) Notification. Record of proceedings shows that this Court has granted interim stay on 12.04.2001, which has been made absolute. No counter affidavit has been filed as to whether, the land owner Rajagopal or his power of attorney was served with any notice under Section 4(2) read with rule 3 of the Tamilnadu Land Acquisition Act 1978, as to how the lands in Survey No.105-1 part, and whether he has represented during the enquiry proceedings. In the notification issued under Section 4(1) of the Act dated 06.01.2001 S.No.15/1 and the boundaries of the land sought to be acquired, were mentioned, but, no materials have been placed before this Court as to whether the boundaries relate to survey No.105-1 part which has been amended subsequently. The mistake in the earlier notification may be even due to bonafide reasons. But the respondents have not explained that the lands sought to be acquired in both the notifications are one and the same.
13. Though the petitioners have not made any specific plea, on the aspect of subjective satisfaction to be arrived at by the District Collector, in view of the mandate of law and the settled legal position in various decisions of this Court, this Court is of the considered view, that when violation of law is pointed out, the same cannot be ignored, even if not is pleaded in the affidavit. Needless to say that before issuing a Writ of Certiorari, it is the duty of the Court, to ascertain itself as to whether an administrative order satisfies the test of reasonableness, jurisdiction and whether it is in conformity with the statute or rule. It is apparent on the face of the impugned notification that the subjective satisfaction of the District collector required under Section 4(1) of the Act is not reflected and therefore, the impugned proceedings are not in consonance with law.
14. Useful reference can be made to the decisions of this Court in M.Nagu and others Vs. The District Collector, Sivagangai District and another, reported in 2008 (2) CTC 428. Addressing the legal issue as to whether the Collector has applied his mind for acquisition of land or that the discretion has been exercised only by the Government, a learned single Judge of this Court at Paragraph No.18 and 19 in the Judgment has held that, "18. Even though the said 4(1) notification was signed and issued by the District Collector on 18.06.1998, a reading of the same shows that it was not to the satisfaction of the District Collector as required under Section 4(1) of the Act, but to the satisfaction of the Tamil Nadu Government. The reason in the form of an excuse given by the respondents to the said statement is that the District Collector is working under the government and therefore, the satisfaction of the Government should be treated as the satisfaction of the District Collector. According to the learned Government Advocate, it can be taken to be a technical error. In The land Acquisition Officer and Special Tahsildar (LA), Adi Dravidar Welfare, Coimbatore and another v. R.Manickammal and others, 2002 (2) CTC 1, a similar issue arising under the same Act 31/78 was considered by a Division Bench of this Court consisting of B.Subhashan Reddy, Chief Justice (as he then was) and A.Subbulakshmy, J. That was a case wherein the District Collector, under Section 4(1) of the Act, after enquiry, has opined that the value of the site to be acquired is high and prohibitive and therefore not desirable to acquire for the purpose. However, the Secretary to the Government has intervened and issued a mandate to the Collector to go ahead with the acquisition and ultimately, the notification was issued under Section 4(1), and a question was raised about the jurisdiction of the Government to intervene on the ground that it was the District Collector to exercise his function and the Government has nothing to do with the same. The Division Bench while distinguishing the Central Act (Land Acquisition Act, 1894) from the State Act (Act 31/78) with reference to Section 4(1), has clearly held that under the Central Act, the Government is the authority to issue notification which can delegate its function to any other person including the Collector, whereas in the State Act, the Government's intervention is not at all contemplated since the entire power has been vested with the Collector himself and not with anybody else. The Division Bench has categorically held that the decision to acquire land under the Act 31/78 should be exercised only by the District Collector by applying his mind independently and there is no delegation of the same to anybody else. The relevant portion of the judgment of the Division Bench is as follows:
"The provision is 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 nay 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."
19. In view of the categoric pronouncement of the legal position by the Division Bench that the Government is different from the Collector in the matter of arriving at the satisfaction for acquiring land for Harijan Welfare Schemes under the Act 31/78, the contention of the learned Government Advocate that the District Collector also forms part of the Government and there is no distinction is only a fallacy. Therefore, looking into at any angle, I have no hesitation to conclude in this case that apart from non-service of notice under Section 4(2) read with Rule 3(1), the notification under Section 4(1) is bad in law, since it is clear from the records that it is only the Government which has satisfied itself as to the requirement of the Harijan Welfare Schemes and not the District Collector as required under the law.
In view of the reasons stated above, the Writ petition stands allowed. No costs."
The said decision has been reiterated and affirmed by the Division Bench of this Court in Secretary to Government, Adi Dravidar and Tribal Welfare Department, Chennai and Others Vs. P.Dhanapakkiam reported in 2009 (1) MLJ 569 and dealing with the above said aspect, the Division Bench at Paragraph Nos.5 to 7, has held as follows:
"5. A perusal of the said notification shows that the satisfaction or the necessity to acquire the land for the purpose of Harijan Welfare scheme was only at the level of the Government of Tamil Nadu and not of the District Collector. The question as to whether the satisfaction arrived at the level of the Government would constitute sufficient compliance of the provisions of Section 4(1) came up for consideration before a Division Bench of this Court in the judgment in Jainabi v. State of Tamil Nadu rep. by its Secretary to Government, Adi-Dravidar Welfare, Chennai and Another (2006) 4 MLJ 71 : 2006 Writ L.R.653. After referring to the provisions of Section 4 of the Act, namely, the power to acquire the land, this Court found that a plain reading of the said Section would show that the satisfaction must be that of the District Collector and the acquisition is also by the District Collector by publishing a notification in the District Gazette. The very same issue came up for consideration before another Division Bench of this Court in the judgment in R.Rasappa Gounder S/o.Rasappa Gounder v. District Collector, Dindigul District and Another (2008) 7 MLJ 314 : (2008) Writ LR 585 and on consideration of Section 4 of the Act, the Division Bench has observed as follows at p.316 of MLJ:
"6.A perusal of the aforesaid provision makes it amply clear that it is the District Collector who is required to take an appropriate decision in the matter. The relevant portion of the notification, which has already been extracted, indicate as if the satisfaction was that of the Tamil Nadu State Government. There is no indication in such notification that the District Collector was satisfied regarding the requirement to acquire the land. Under the Act, power has been statutorily conferred on the Collector to consider the requirement for the acquisition. But, in the present case, notification issued by the Collector indicates as if the satisfaction was that of the State Government. Thus, it is obvious that notification suffers from the vice of non-application of mind."
6. In view of the above two Division Bench judgments, the impugned notification issued under Section 4(1) of the Act is liable to be set aside, as it does not indicate the satisfaction of the District Collector, who alone is competent to apply his mind as to whether a particular land should be acquired for the purpose of providing burial ground or house sites to the needy persons under the Act.
7. The next question that arises is as to whether the impugned notification is liable to be set aside on the ground of non application of mind. There is no dispute that the preamble of the impugned Section 4(1) notification refers that the acquisition is for the purpose of providing burial ground to Adi-dravidars / Arunthathiars and the schedule refers the public purpose as one of providing house sites. By the 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. Only 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 refers to two different public purposes, it not only reflected the non application of mind, but also such non application of mind occurred in view of the fact that the District Collector has not actually applied his mind as to the actual public purpose. On both the above grounds, he notification issued under Section 4(1) of the Act is liable to be set aside. Accordingly, the order of the learned single Judge requires no interference. The writ appeal, is therefore, dismissed as devoid of any merit. Consequently, interim order is vacated and M.P.No.2 of 2006 is also dismissed. No costs."
On the very same issue, in a recent decision in Rajammal and Others Vs. District Collector, Dharmapuri and Another, reported in (2009) 1 MLJ 230 : (2008) 5 CTC 154 at paragraph Nos. 9, 12 and 21, this Court held as follows:
9. The acquisition in question in the present matter has been resorted to under the provisions of the Tamil Nadu Acquisition of lands for Harijan Welfare Scheme Act. The Harijan Welfare Scheme Act is a self contained code and the District Collector is given the authority to acquire the land on the basis of his subjective satisfaction that the land is required for the purpose of Harijan Welfare Scheme. Unlike the provisions of the Land Acquisition Act, 1894, Act 31 of 1978 gives clear authority to the District Collector to proceed with the acquisition, even without reference to the Government.
12. The procedure prescribed under Act 31 of 1978 is very stringent inasmuch as the safeguards available to a land owner in a proceeding initiated under the provisions of the Land Acquisition Act, 1894 is not available in respect of acquisition under Act, 31 of 1978. Since the reason for introducing the special enactment is for the purpose of early acquisition of property for the benefit of Harijans, the lengthy procedure contemplated under the Central Act has not been incorporated under the Special Act. Since the Harijan Welfare Scheme Act permits the District Collector to acquire the property, after resorting to a summary procedure contemplated under the Act, the provisions of the said Act has to be interpreted in a stringent manner. When the statute mandates that a particular thing has to be done in a particular manner, it shall be done in that manner. When the Collector is given the authority to consider the question of acquisition of the property, the satisfaction should be that of the Collector himself and the satisfaction arrived at by the Government cannot be a substitute for the satisfaction to be arrived at by the Collector. In the notification issued under Section 4(1) of the Act, it is found that the satisfaction has been arrived at by the Government and the Collector was acting only in accordance with the decision taken by the Government to acquire the land. Even though the District Collector can be termed to be a representative of the Government, but by no stretch of imagination, the Collector can be termed to be the Government. The legislature in their wisdom thought it fit to give power to a lower grade officer of the state administration and such conferment of power was granted for the specific purpose to conclude the land acquisition proceedings without waiting for the approval at various levels of the Government as done under the Land Acquisition Act, 1894.
21. Even though it is possible for the Government to delegate some of the functions to the Collector as per the provisions of the relevant statute, it is not possible for the Government to take up the function of a Collector when the statute clearly mandates that the power has to be exercised by the Collector himself. Though the officers like the Collectors are also the limb of the Government, in matters wherein subjective satisfaction of the collector has to be arrived at for a particular purpose, the Government cannot substitute its opinion or views in the place of the Collector. The legislature was very conscious of the fact that in case Government is entrusted with the responsibility to acquire the land, it will take its own course as the file has to be rooted through different departments at various levels and the ultimate decision would be taken only after considerable delay.
15. The Writ petition has been filed within 3 months from the date of 4(1) notification and that there is no latches on the part of the writ petitioners. The decisions relied on by the learned counsel for the petitioners are squarely applicable to the facts of this case. For the abovesaid reasons, the impugned orders are liable to be set aside and accordingly, set aside. The Writ petition is allowed. No costs.
nb Sd/-
Asst. Registrar //True Copy// Sub Asst. Registrar To
1.The Collector of Thiruvaroor District Thiruvaroor.
2.The Special Tahsildar Adidravidar Department Mannargudi Thiruvaroor District.
+ 1 cc to Mr.C.Ramesh, Advocate SR No.69002 + 1 cc to Government Pleader, SR No.68934 BK(CO) SR/29.12.2009 order inW.P.No.7235 of 2001