Madras High Court
Rajangam vs The District Collector on 18 February, 2013
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:18-02-2013
CORAM
THE HON'BLE MR.JUSTICE VINOD K. SHARMA
WRIT PETITION No.280 of 2008
and
M.P.No.1 of 2008
Rajangam .. Petitioner
vs
1. The District Collector,
Nagapattinam
2. The Revenue Divisional Officer,
Mayiladuthurai
3. The Special Tahsildar
(Adi Dravidar Welfare) cum
Land Acquisition Officer
Sirkali
Nagapattinam District .. Respondents
Writ Petition filed under under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the proceedings of the first respondent in the proceedings in Na.Ka.No.53711/2007/K6 dated 29.11.2007 published in Nagapattinam District Gazette dated 4.12.2007 and quash the same.
For petitioner : Mr.S. Sounthar
For respondents : Mr.R. Ravichandran
AGP
ORDER
The petitioner prays for issuance of Writ in the nature of Certiorari to quash the Notification issued vide Na.Ka.No.53711/2007/K6 dated 29.11.2007 under Sec.4(1) of Tamil Nadu Harijan Welfare Land Acquisition Act (Act 31 of 78).
2. The petitioner is a cultivating tenant of agricultural land in S.No.227/2A1 in 17, Mammakudi village, Tharangambadi taluk. The land is under the ownership of Arulmigu Datchinapureeswara Swamy koil. The petitioner, being a statutory tenant is protected from eviction under the Tamil Nadu Cultivating Tenants Protection Act read with the provisions of Tamil Nadu Public Trust Act.
3. It is pleaded that the beneficiaries under the land acquisition i.e., Harijans had encroached the very land on May 2007 and for this act Porayar police registered a criminal case vide Cr.No.200/2007 on the petitioner's complaint against one Simpson and 55 others.
4. Due to the law and order problem, the Revenue Divisional Officer, Mayiladuthurai convened a Peace Committee meeting on 18.5.2007 in which it was decided that an alternative site for providing house site to Adi Dravida Community people is to be selected and after such selection the encroachment by the beneficiaries be removed by following due process of law.
5. A muchalika was executed incorporating the terms of resolution passed in the meeting and was signed by all the parties concerned including the government officers, Revenue Divisional Officer, Mayiladuthurai, Deputy Superintendent of Police, Sirkali, and Tahsildar, Tarangambadi.
6. Thereafter, in compliance of terms of Muchalika the land owner offered alternative site and the encroachment by the beneficiaries was removed by concerned officials on 2.6.2007.
7. With regard to the untoward incident that had occurred on 28.6.2007 at the time of removal of encroachment, Porayar Police has registered a criminal case vide Cr.No.269 of 2007 on the complaint of the Tahsildar.
8. The petitioner, was, thereafter, served with notice by Special Tahsildar under Sec.4(2) of Tamil Nadu Harijan Welfare Land Acquisition Act (Act 31 of 78) showing the intention of the State Government to acquire 81 acres of land in Survey No.227/2A1 in Mamakudi village for providing house sites to persons belonging to Adi-Dravidar community.
9. In response to the show cause notice, the petitioner filed objections to the third respondent. The 3rd respondent held enquiry, wherein, the submission of the petitioner was recorded.
10. Thereafter, another notice was issued under Sec.4(2) of the Act, to which, the petitioner again submitted objection. The objection was overruled and based on the recommendation of the third respondent, the impugned Notification under Sec.4(1) was issued on 29.11.1987 to acquire the land.
11. The petitioner, being aggrieved by the Notification under Sec.4(1), has challenged it on the ground that the reading of the notice under Sec.4(1) would show that it has been issued on the satisfaction of the State Government and not the District Collector, who is the competent authority under statute to form an opinion to acquire the land before issuing notice under sec.4(1).
12. The contention of the learned counsel for the petitioner, therefore, is that once no satisfaction has been found by the District Collector to acquire the land the notification deserves to be quashed on this sole ground.
13. In support of this contention, the learned counsel for the petitioner has placed reliance on the Division Bench of this Court in the case of Secretary to Government vs P. Dhanabakkiam, reported in (2009) 1 MLJ 569, wherein the Division Bench held as under:
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 vs 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 vs District Collector, Dingidul 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, indicates as if the satisfaction was that of the Tamil Nadu State Gvoernment/ 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 is sued 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 Sec.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.
14. The second ground of challenge is that before issuance of Notification under sec.4(1) of the Act, the petitioner though interested being a statutory tenant, was not supplied with the copies of recommendation of the Tahsildar so as to enable the petitioner to file his objections for consideration by the District Collector.
15. In support of the contention that it is mandatory for Tahsildar to supply copies of recommendation for enabling the petitioner to file objections to District Collector, reliance is placed by the Hon'ble Full Bench of this Court in the case R. Pari vs The Special Tahsildar, Adi Dravidar Welfare, Devakottai reported in 2006 (4) CTC 609, wherein the Hon'ble Full Bench has held as follows:
23. Either way the situation does not appear to be happy and there is no apparent guideline in the matter. Even though the validity of such provision does not appear to have been challenged on account of excessive and unbridled delegation, the manner can be regulated by laying down well defined guideline in the shape of statutory rules rather than leaving it to the untrammeled discretion of the Collector. At any rate, the possibility of such challenge can be waived by following a definite procedure to the effect that the cases where the objections are required to be filed before the authorised officer and enquiry is to be held by such authorised officer, the persons likely to be affected can be given some semblance of equality in treatment by giving them opportunity of filing further representation to the District Collector by pointing out the perceived shortcomings in the report of the authorised officer and by highlighting their own grievances.
25. These being some of the important distinctions, it cannot be said that both the statutes are in pari materia in all aspects and we venture to observe that ratio of the decisions of the Supreme Court in Abdul Husain vs State of Gujarat, AIR 1968 SC 432 and Kalumiya Karimmiya vs The State of Gujarat and others, AIR 1977 SC 497, may not be made applicable and the persons likely to be affected should be given further opportunity of making a further representation to the District Collector on the report/recommendation of the authorised officer.
26. The Division Bench decision in Thirumathi Pushpa Bai Bainsingh vs District Collector, Tirunelveli, 1998 (1) CTC 281, contemplated giving a further personal enquiry/hearing before the Collector. In our opinion, such a conclusion cannot be envisaged because in such an event there will be duplication of enquiry inasmuch as one enquiry will be held by the authorised officer and another enquiry will be held by the District Collector. Therefore, it would be reasonable to conclude that where the enquiry is held by the authorised officer, the report of such officer shall be made available to enable the person interested to make a further representation to the District Collector instead of insisting upon a second formal enquiry.
27. It was submitted on behalf of the State that if copy of the report of the authorised officer is to be furnished and opportunity of making a further representation to the District Collector would be given, the proceedings may be delayed and the object of the Act for speedy acquisition may be defeated.
We do not think that by furnishing a copy of the report/recommendation of the authorised officer and giving opportunity of making a further representation would unduly delay any such proceedings. In our opinion, if the copy of the report/recommendation of the authorised officer is given to the owner at the time when such report/recommendation is sent to the District Collector and the owner is called upon to make further representation, if any, within a period of two weeks from the date of receipt of such report, the proceedings would not get unduly delayed.
16. The learned Additional Government Pleader opposed the writ petition, on the ground of locus standi of the petitioner to maintain this writ petition, for want of ownership in the land. It is contended that it is the petitioner being tenant cannot question the acquisition.
17. It is also contended, that though in the notification satisfaction is shown to be that of State Government, but in fact the notification was issued on satisfaction of the District Collector which may be recorded in the file, but no such file was produced in Court.
18. On consideration, I find that the defence raised by the learned Additional Government Pleader deserves to be rejected. The petitioner, being the statutory tenant, has interest in the land, therefore, being interested has the locus-standi to challenge the acquisition proceedings.
19. The second contention of the learned Additional Government Pleader that the satisfaction by the District Collector is recorded in the file, does not advance the case of the State as in the notification it has been mentioned that it is on the satisfaction of the State Government, which had no role to play for acquiring the land under Act 31 of 1978.
20. The contentions of the learned counsel for the petitioner, therefore deserves to be accepted, in view of the authoritative pronouncement of the Division Bench holding that when the acquisition of land was without the satisfaction of the District Collector, the action suffers from non-application of mind, and that the notification cannot be sustained in Law as statutory power to form opinion vests with the District Collector and not with the State Government.
21. The learned counsel is also right in contending that this acquisition deserves to be quashed for want of supply of copies of the recommendation by Tahsildar for allowing the petitioner to file his objections for consideration by the District Collector. The impugned Notification also suffers from vice of non-compliance of principles of natural justice, as held by the Hon'ble Full Bench of this Court in the case R. Pari vs The Special Tahsildar, Adi Dravidar Welfare, Devakottai (supra).
22. Consequently, the writ petition is allowed, the impugned notification dated 29.11.2007 is ordered to be quashed.
Consequently, connected MP is closed.
No costs.
sr To
1. The District Collector, Nagapattinam
2. The Revenue Divisional Officer, Mayiladuthurai
3. The Special Tahsildar (Adi Dravidar Welfare) cum Land Acquisition Officer Sirkali Nagapattinam District