Madras High Court
S. Sitaraman vs Special Tahsildar Adi Dravida Welfare, ... on 9 July, 1999
Equivalent citations: AIR1999MAD248, 1999(2)CTC761, AIR 1999 MADRAS 428, (1999) 2 LACC 448
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Aggrieved by the 5-A proceedings issued by the respondent dated 15.9.1991 the petitioner has filed the above writ petition.
2. The case of the petitioner is briefly stated hereunder:
According to him he owns lands in R.S.No. 24678 in Kiliyanur village. Varur Taluk, South Arcot District. A notice under Section 4(1) of the Land Acquisition Act (herein after referred to as the Act).. was published in the gazette on 3.7.1991 stating that 0.12.0 hectares was required for a public purpose to wit for the provision of burial ground for the Adi Dravida of Kiliyanur village, Varur Taluk, South Arcot District. The present burial ground for the Adi Dravidas lies south of the odai and west of the Tindivanam Pondicherry Road. The Adi Dravidas have been using this burial ground situated in poramboke lands for generations. The existing burial ground is quite sufficient for burying dead from the Adi Dravida Colony. When notice under Rule 3-A of the Rules served on him he promptly send his objection to the Secretary Adi Dravidar Tribunal Welfare Department with copies to Special Tahsildar and District Revenue Officer, Cuddalore and also Director of Adi Dravidar Welfare, Chepauk. It is stated that he received notice under Rule 3-A asking him to appear for the 5-A enquiry at Kiliyanur Panchayat Union School on 13.9.1991 at 10.00 a.m. At the relevant time he was working as a District Munsif, Manapari and his wife N.G. Seshavardhani is a practicing lawyer at Madras. 13.9.1991 was a Friday and a working day. He had asked his wife to appear before the respondent for 5-A enquiry on 13.9.1991 at Kiliyanur. She reached Kiliyanur from Madras at 9.00 am and she was waiting till 1.00 p.m. in the Kiliyanur Panchayat Union School. The respondent who had issued Rule 3-A notice did not turn up till 1.00 p.m. After waiting nearly four hours at the intimated place, his wife left the place. Therefore, he wrote a letter to the respondent requesting for a fresh enquiry. However the respondent passed the impugned order dated 15.9.1991 overruling his objections and rejected his request for personal hearing which is a mandatory as per Section 5-A of the Act. in such circumstance, having no other remedy according to him has filed the present writ petition.
3. The respondent though served with notice from this Court even on 18.12.1991, for the reasons best known to him has not chosen to file counter affidavit nor send any intimation to the Government Pleader.
4. Heard the learned counsel appearing for the petitioner as well as learned Government advocate for respondent.
5. Mr. M.V. Krishnan, learned counsel appearing for the petitioner contended that, in the light of Section 5-A of the Land Acquisition Act, in the absence of any personal hearing the impugned proceedings of the respondent merely based on the objection raised by the petitioner cannot be sustained. In other words, according to him, as per Section 5-A a duty is cast on the respondent not only to consider the objection of the land owner, he must be given an opportunity of being heard. Section 5-A reads as follows:
"5-A Hearing of Objections.
(1) Any persons interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any any land in the locality as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall after, hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Gov-ernment on the objections shall be final.
6. The reading of the above provision shows that, any person aggrieved by the acquisition proceedings may object to the Collector in writing within 30 days from the date of publication of the notification. On objection being made, the District Collector shall give the objector an opportunity of being heard in person or by any person authorised by him and after hearing all such objections and after making further enquiry he has to proceed further either to accept the objection or make recommendation to the Government together with his views. By pointing out the above said provision Mr. M.V. Krishnan, strenuously contended that the section contemplates.
(1) Personal hearing of the land owner or his authorised person or his pleader;
(2) Consider all objections;
(3) Conduct further enquiry and forward his opinion to the decision of the appropriate Government.
In this regard learned counsel has very much relied on the decision of the Apex Court reported in Mandir Sita Ramji v. Governor of Delhi, . He very much relied on the following observation of their Lordships in that decision.
"The learned single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5A. The duty to afford such an opportunity is mandatory. A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5A is that of the Collector and not of the appropriate Government. It is do doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it, but the requirement of the section is that when a person's property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation."
Again their Lordships have held, "... As the objection raised questions of fact, the Land Acquisition Collector should have enquired into them and should have made his recommendation as provided in Section 5-A. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observation of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser."
7. Before considering the above legal position, let us consider whether the petitioner had attended the enquiry, made any objection etc., It is the definite case of the petitioner that since at the relevant time he was working as District Munsif, Manaparai, Trichy District and the day being a working day (Friday) he has asked his wife who is also a practicing lawyer at Madras to appear before the respondent at the 5-A enquiry on the said date viz., on 13.3.1991 at Kiliyanur. In para 8 of the affidavit it is asserted by the petitioner that his wife Tmt. Seshavardhini reached Kiliyanur from Madras at 9.00 a.m. and she was waiting in the Kiliyanur Panchayat Union School till 1.00 p.m. According to him the respondent who had issued 3-A notice did not turn up at the intimated place till 1.00 p.m. After waiting for, nearly four hours at the announced venue, his wife left the place since the respondent never came. For this as stated earlier, even though rule nisi from this Court had duly served on the respondent even on 18.12.1991 he has not taken any effort to file counter affidavit or placing the relevant information to this Court. However, in the 5-A impugned proceedings dated 15.9.1991 it is stated that, neither the land owner-petitioner herein nor any one turned up for the enquiry. However, inasmuch as the petitioner had submitted his objection in the petition dated 7.6.1991 the same was considered by the respondent. It is further seen from the impugned proceedings that the respondent after considering all the seven objections raised in the petition dated 7.6.1991 rejected the same as unacceptable and recommended to the Government for declaration under Section 6 of the Act. Apart from the specific assertion by the petitioner regarding the presence of his wife on 13.9.1991 at the announced venue till 1.00 p.m., his wife Smt. Seshavardhini, practicing lawyer at Madras has also filed an affidavit dated 7.10.1991 ie., even at the time of filing of the writ petition. In that affidavit she asserted that, the petitioner herein received notice from the respondent asking him to appear on 13.9.1991 Friday for enquiry at 10.00 a.m. It is further stated that, since 13.9.1991 was a Friday being a working day, her husband who has serving at Manaparai could not attend the 5-A enquiry asked her to represent him at Kiliyanur. Accordingly she reached Kiliyanur from Madras at 9.00 a.m. and she was present at the venue ie., in Kilianyur Panchayat Union School from 9.00 a.m. to 1.00 p.m. The respondent did not turn up at all. Since she had some urgent work at Madras, she left the place at 1.00 p.m. In such circumstance, according to her she could not therefore make representation on behalf of her husband. The said affidavit is dated 7.10.1991 and the same is a part and parcel of the affidavit filed by the petitioner herein.
8. In the light of the categorical assertion made by the petitioner who was District Munsif, Manaparai at the relevant point of time and the supporting affidavit of, his wife Trot. Seshavardhini, practicing advocate at Madras, in the absence of counter affidavit by respondent or any information either to the Court or to the Government Pleader. I do not find any reason to reject the case of the petitioner. The respondent being an Officer of the Government is duty bound to send and place all the relevant facts to the Courts. I am of the view that in this case the concerned officer has failed to discharge his duty and committed grave mistake in not sending any information either to this Court or to the Government Pleader.
9. No doubt, the impugned 5-A proceedings show, that all the objections raised by the petitioner were duly considered and rejected as unacceptable. In the light of the language used in Section 5-A(2) of the Act, a duty is cast on the Collector to give the objector an opportunity of being heard in person, Even, though wife of the petitioner had reached the place of enquiry on 13.9.1091 and waited till 1.00 p.m. she was not heard because of the absence of the respondent. As rightly contended by the learned counsel appearing for the petitioner, mere considering the objection of the land owner may not be sufficient and the land owner or his authorised person or his pleader must be heard in person before taking any decision with regard to the objections made. It is settled law that whenever a statute provides certain thing to be done, the same have to be done strictly. As observed by their Lordships in Mandi Sita Ramji v. Governor of Delhi, , the observance of the procedure laid down by the statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. Accordingly, I hold that giving personal hearing to the owner of the land who is sought to be acquired is a mandatory requirement under Section 5-A. Further the proceedings under Section 5-A of the Act are quasi judicial and not merely executive. The denial of an opportunity of being heard to the petitioner to make his objections vitiates the impugned order passed by the respondent. When the provisions of Section 5-Ai of the Act have been fully complied with, undoubtedly declaration made by the Government under Section 6 of the Act and all subsequent proceedings are without jurisdiction and liable to be quashed.
10. In the light of what is stated above, the impugned proceedings of the respondent dated 15.9.1991 is quashed. Consequently the writ petition is allowed with costs. Counsel fee Rs. 1,000.
11. In view of the disposal of the main writ petition connected WMP. is closed.