Madras High Court
Rangasamy vs The District Collector on 14 December, 2009
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2009
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.Nos.4139, 5343, 6041, 6042 and 6203 of 2001
1.Rangasamy ... Petitioner in W.P.No.4139 of 2001
2.T.Natarajan ... Petitioner in W.P.No.5343 of 2001
3.S.Chinnadurai ... Petitioner in W.P.No.6041 of 2001
4.Perumal ... Petitioner in W.P.No.6042 of 2001
5.K.Radhakrishnan
6.K.Nagarathnam ... Petitioners in W.P.No.6203 of 2001
vs.
1. The District Collector,
Perambalur District.
2. The Special Tahsildar (ADW),
Perambalur, Perambalur District.
3.Tmt.Selvi
4.Tmt.Neelavathi
5.Tmt.Chinnaponnu
6.Tmt.Priya
7.Tmt.Mangayarkarasi
8.Tmt.Selvi
9.Tmt.Selvi ... Respondents in all W.Ps.
Prayer in W.P.No.4139 of 2001: Writ petitions are filed under Article 226 of the Constitution of India for issuance of Writs of Certiorari, to call for the records pertaining to Section 4(1) notification issued by the first respondent in Perambalur District Gazette No.23, dated 06.11.2000 insofar as it relates to the acquisition of lands comprised in Survey No.387/4B & 4C measuring an extent of 0.36.0 and 0.33.0 hectares respectively in Velvimangalam Village and quash the same.
Prayers in W.P.Nos.5343, 6041, 6042 and 6203 of 2001: Writ petitions are filed under Article 226 of the Constitution of India for issuance of Writs of Certiorari, to call for the records pertaining to Section 4(1) notification issued by the first respondent in Perambalur District Gazette No.23, dated 06.11.2000 insofar as it relates to the acquisition of lands comprised in Survey No.387/5A measuring an extent of 0.81.0 hectares (in respect of W.P.No.5343 of 2001), Survey No.387/4B & 4C measuring an extent of 0.36.0 and 0.33.0 hectares respectively (in respect of W.P.No.6041 of 2001), Survey No.387/4A & 4D measuring an extent of 0.36.0 and 0.33.0 hectares respectively (in respect of W.P.No.6042 of 2001) and Survey No.387/5-B measuring an extent of 0.87.0 hectares (in respect of W.P.No.6203 of 2001), in Velvimangalam Village and the consequential award made by the second respondent in Award No.7/2000-2001, dated 05.02.2001 and quash the same.
For Petitioners : Mr.Alagirisamy, SC
for Mr.M.Mohan
For Respondents 1 & 2 : Mr.P.Subramanian,
Additional Government Pleader
For Respondents 3 to 9 : Mr.M.Vijayanarayanan, SC
for Mr.M.V.Muralidaran
O R D E R
The petitioners have challenged the notification under Section 4(1) of the Land Acquisition Act issued by the District Collector, Perambalur District, first respondent, in Perambalur District Gazettee No.23, dated 06.11.2000, insofar as it relates to the Acquisition of land comprised in Survey No.387/5A, measuring an extent of 0.81.0 Hectares in Velvimangalam Village and the consequential award made by the Special Tahsildar, Perambalur District, second respondent, in Award No.7/2000-01, dated 05.02.2001.
2. In all these cases, the petitioners have contended that they are the owners of the lands. They have raised Manila, Kambu, Paddy, etc., crops. The 2nd respondent has issued notices, under Section 4(2) of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, (hereinafter referred to as "the State Act"), calling for objections, if any, to the acquisition of lands and stated that an enquiry under Section 4(2) of the Act would be conducted on 29.8.2000 at Keezha Perambalur Village Administrative Office. But no such enquiry was conducted on that day in the Village. Therefore, the petitioners went in person to the Office of the second respondent and gave their written objections, stating that as no Harijans in the Village are without house or house site of their own. They also submitted that alternative lands are available in the Village. It is the further case of the petitioners that there was only a formal questioning in the Office of the second respondent and the same would not amount to an enquiry, as contemplated under sub-Sections (2) and (3) of Section 4 of the State Act. According to the petitioners, the so-called enquiry conducted by the second respondent, is farce and it was only an empty formality. Even though, no enquiry under Section 4(2) was conducted, as contemplated under the Act, the 2nd respondent orally informed the Petitioners that their objections would be considered and that the acquisition proceedings would be dropped. But to their shock and surprise, they received notices, under Form III, issued under Rule 5(i), dated 5.1.2000, calling upon them to appear for an award enquiry on 24.1.2001 at the office of Keezha Perambalur Village Administrative Office. From the above notices, they came to know that a notification under Section 4(1) of the Act has been passed on 6.11.2000 by the first respondent. Immediately thereafter, the Petitioners approached the official respondents and requested for copies of Gazette and the enquiry report of the second Respondent. But, the respondents have neither furnished the copy of the enquiry report nor the Gazette Publication. However, the Petitioners attended the enquiry on 24.1.2001, putting forth their grievances made earlier before the 2nd respondent. Subsequently, they came to know that an award in Award No.7/2000-2001, dated 5.2.2001 has been passed. The copy of the award has not been furnished to the Petitioners. In these circumstances, they have challenged the 4(1) notification.
3. Tmt.Selvi and others, respondents 3 to 9, impleaded as party respondents have filed counter affidavits. Pleadings and submissions are common in all the Writ Petitions and therefore, they are disposed of by a common order.
4. Mr.K.Alagirisamy, Learned enior counsel for the petitioners that the respondents have grossly erred in issuing the impugned Gazette Notification, without adverting to the scope and ambit of Section 4 of the State Act. He further submitted that when Section 4(2) of the Act r/w. rule 3(1) contemplates show cause notice to the land owners and all the interested persons, notices have not been served to interested persons and hence, the impugned notification and the consequential proceedings are liable to be set aside.
5. Learned Senior Counsel further submitted that the Special Tahsildar (ADW), Perambalur District, second respondent herein, has failed to conduct an enquiry, as contemplated under Section 4(2) of the Act. According to him, no enquiry was held in the Village, but out of their personal interest, they rushed to the office of the second respondent and submitted their objections. Only in his office, the second respondent informed the petitioners and other objectors, that their objections would be considered and that the acquisition proceedings would be dropped. He therefore, submitted that the only opportunity available to the land owners to participate in the enquiry under Section 4(2) has been denied. According to him, when such an enquiry has not been conducted in the manner provided therefor, the entire acquisition proceedings are vitiated.
6. Learned Senior Counsel further submitted that when the enquiry is conducted by the second respondent and his report/recommendation is forwarded to the District Collector, Perambalur, to pass an order under Sub-Section (3) of Section 4, a copy of the enquiry report ought to have been furnished, so as to enable the land owners or interested persons to know as to whether their genuine objections were properly considered by the second respondent. Placing reliance on a Full Bench decision of this Court in Pari, R. v. The Special Tahsildar, (ADW), Devakottai, reported in 2006 (4) CTC 609, he submitted that the copy of the enquiry report/recommendations of the authorised officer, viz., Special Tahsildar (ADW), Perambalur, ought to have been furnished to the petitioners, and failure to do so, amounts to violation of the principles of natural justice.
7. Learned Senior Counsel further submitted that when the enquiry is conducted by a person other than the deciding authority, furnishing of a report is an important facet of the principle of natural justice, because at that stage, it is not known as to what extent the deciding authority would be influenced or guided by the observations made in the report of the enquiry authority, viz., the second respondent. In this context, he relied on a Division Bench judgment of this Court in Loganathan v. State of Tamil Nadu, rep. By its Secretary to Government, Adi-Dravidar Tribal Welfare, reported in 2007 (1) MLJ 157, and submitted that there is a violation of principles of natural justice and the first respondent has grossly erred in issuing the impugned Gazette Notification under Section 4(1) of the Act, without considering the objections of the Petitioner and furnishing a copy of enquiry report of the second respondent.
8. Learned Senior Counsel further submitted that after receipt of a report, the District Collector, ought to have conducted an independent enquiry on the objections of the land owner with reference to the recommendation of the authorised officer, in that, the Collector ought to have given an opportunity of being heard to the land owners and passed orders under Sub-Section 3(b) of Section 4 of the Act. But in the present case, the District Collector, has given a go by to the aforesaid statutory provision and has proceeded to pass the impugned notification, which is arbitrary, illegal and contrary to the statutory provisions.
9. Taking this Court through the objections raised in the Writ Petitions that all the Harijan families in Velvimangalam Village were already provided with house sites, for which, the Government have acquired large extent of lands, for providing house sites to Harijans, in or about 1986 and inviting the attention of this Court to the residential addresses mentioned in the impleading applications of the private respondents that the private respondents are not the residents of Velvimangalam Village and referring to the notification under Section 4(1) of the Act, wherein, the purpose of acquisition was to provide house sites only to the residents of landless harijans in Velvimangalam Village, L Senior Counsel submitted that the lands in Velvimangmalam Village cannot be acquired for providing house sites to non-residents of the said village. He also submitted that when there are promboke lands available in the village in Survey Nos.370 (12 acres), 393 (96 acres) and 411/2 (74 acres), to which there is the road access and suitable for housing purposes, the acquisition proceedings ought not to have been initiated by the respondents to acquire agricultural lands, which would deprive them of their livelihood.
10. Referring to the absence in the averments made in the counter affidavit, as to when the order under Sub-Section (3)(b) of Section 4, was passed by the Collector and taking this Court through the contents of the letter, dated nil, signed by the District Collector, Perambular, on 01.11.2000, addressed to the Branch Manager, Government Press, Thuvakadi, Tiruchirapalli, Learned Senior Counsel for the petitioners submitted that there is absolutely no material either in the files or in the notification under Section 4(1) of the Act or in the counter affidavit, as to whether the District Collector has applied his mind to the objections/representations of the land owners made against the acquisition proceedings and that no reasons have been recorded in writing by the District Collector. He submitted that the the action of the respondents is contrary to the scope and ambit of Section 4(3)(b) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act.
11. Learned Senior Counsel further submitted that the officer authorised by the District Collector, viz., the Special Tahsildar is said to have submitted his report, as contemplated under Section 4(3)(b) of the Act, the District Collector should consider such report independently and pass order, as he may deem fit and only thereafter, he can notify his decision to acquire the lands under Section 4(1) of the Act. In the instant case, the first respondent has neither considered the report of the authorised Officer nor applied his mind with reference to the objections raised by the land owners and hence, the impugned notification and the consequential award passed by the District Collector are unsustainable in law.
12. Learned Senior Counsel also submitted that when the statute contemplates the authority to furnish reasons, while passing the order, however brief it may be, the same should reflect in the order and that he cannot simply overrule the objections by affixing his signature mechanically. He therefore submitted that there is a total lack of application of mind by the District Collector. He submitted that the District Collector has not at all considered the objections. In support of his contentions, Learned Senior Counsel relied on the decisions of this Court in Pari, R. v. The Special Tahsildar, (ADW), Devakottai, reported in 2006 (4) CTC 609, Loganathan v. State of Tamil Nadu, rep. By its Secretary to Government, Adi-Dravidar Tribal Welfare, reported in 2007 (1) MLJ 157, The District Collector, North Arcot and another v. Manickam reported in 2005 (2) LW 199, G.Ramakrishna Naidu, G. v. District Collector reported in 2001 (3) CTC 649, S.K. Thirugnanasambanadam and others v. The Government of Tamil Nadu and others reported in 2001 (1) MLJ 328, V. Kannian v. The Collector, Salem District, Salem and others reported in 2004 (3) MLJ 129, The Land Acquisition Officer and Special Officer (LA) v. R.Manickammal reported in 2002 (2) CTC 1, O.M.Sindha Madhar v. The Special Tahsildar, Adhi Dravida Welfare Land Acquisition, Tenkasi, Nellai Kattabomman District and others reported in 2004 (3) MLJ 262 and Sri Pillappa v. State of Tamil Nadu reported in 2004 (4) MLJ 247.
13. Inviting the attention of this Court to the difference between the Central Act and the State Act, the stage as to when, the vesting of possession of lands in the Government comes into effect, Learned Senior Counsel submitted that under the Central Act, as per Section 16, possession of the land is taken after an award is passed under Section 11 and only thereupon, the lands vests absolutely in the Government free from all encumbrances. Whereas, under the State Act, as per Section 5, when a notice under sub-Section (1) of Section 4 is published in the District Gazette, the land to which, the said notice relates shall, on and from the date on which the notice is so published, vest absolutely with the Government free from all encumbrances. He therefore submitted that the opportunity to challenge the acquisition proceedings starts only after issuance of 4(1) notification and the time available to challenge is too short.
14. Citing a plethora of decisions, on the maintainability of a Writ Petitions filed after passing of an award and the time provided under the Central Act, for finalisation of the land acquisition proceedings from the stage of 4(1) notification, till the passing of the award, i.e., three years and the limited time between Sections 4(1), 5 and 7 of the State Act, Learned Senior Counsel submitted that the decisions rendered by the Supreme Court as well as this Court, non-suiting the land owners from challenging the notifications, issued under Section 4(1) and Section 6 of the Central Act should not be applied to thwart or curtail the rights of the land owners to challenge the acquisition proceedings. According to him, under the State Act, the cause of action to challenge the acquisition proceedings arises only when they are served with 4(1) notification or they became aware of the same. He submitted that in all these Writ Petitions, the petitioners were neither served with the copy of the enquiry report/recommendations of the second respondent nor the copy of the award to the land owner or the person interested, as mandated in sub-Section (3) of Section 7 of the State Act and therefore, it is not open the respondents to seek for an order, to scuttle their rights guaranteed under Article 300-A of the Constitution of India.
15. Inviting the attention of this Court to the absence of the averments in the counter affidavit, as to when the copy of the award was communicated to the land owners and the callous attitude in replying to this Court, that the copy of the award would be furnished to the land owners, if they tender their offer, Learned Senior Counsel submitted that there is a failure on the part of the respondents to follow sub-Section (3) of Section 7 of the Act. Pointing out the difference between the Central Act, wherein, under Section 12(2) of the Act, it is suffice that the Collector gives notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made in contra distinction to statutory obligation on the part of the prescribed authority to furnish the copy of the award under sub-Section (3) of Section 7, of the State Act, Learned Senior Counsel submitted that there is a total non-application of mind on the part of the respondents to make the land owners even aware of the issuance of 4(1) notification or the passing of the award, so as to enable them to challenge the acquisition proceedings within a reasonable time.
16. Taking this Court through the various decisions rendered under the Central Act, which this Court would deal with, at the appropriate place, Learned Senior Counsel submitted that the approach of the Supreme Court as well as this Court in rejecting the Writ Petitions filed after passing of the award, at the threshold, was purely on the grounds of latches and inordinate delay in filing the writ petitions and in none of the decisions, the Courts have adjudicated the rights of the parties and held that the rights of the land owners are extinguished, the moment the award is passed.
17. Inviting the attention of this Court to the dates and events, commencing from the date of enquiry under sub-Section (3) of Section 4 of the Act, till the date of filing of the Writ Petitions, Learned Senior Counsel further submitted that the whole process was completed within a very short time, without due notice and opportunity, giving no room to the land owners or the aggrieved persons to approach this Court to vindicate their grievances. He further submitted that though the report of the second respondent, dated 12.10.2000, was forwarded to the District Collector, the impugned notification was issued on 06.11.2000, copy of which was not furnished to the writ petitioners. They came to know of the same only when they were called upon to appear for the award enquiry under Section 7 of the Act. The award enquiry was fixed on 24.01.2001 and that an award was passed on 05.02.2001. Copy of an award was also not furnished. All the Writ Petitions were filed between 01.03.2001 and 23.03.2001, hardly within 1= months from the date when they came to know of the publication under Section 4(1) of the Act. He therefore, submitted that all the writ petitions have been filed within a reasonable time and that there is no inordinate delay or latches on the part of the writ petitioners and therefore, the decisions rendered under the Central Act, where, a long period is prescribed between Section 4(1) and Section 11, cannot ipso facto be made applicable to the State Act. He submitted that the Writ Petitions are maintainable as they filed within a reasonable time.
18. Learned Senior Counsel further submitted if the enquiry report had been furnished to the land owners or the persons interested they would have had an opportunity to verify as to whether, their objections were duly considered or not and if it is not so, they would have submitted a further representation to the District Collector before passing of the order, which is contemplated under Sub-Section (3) of Section 4 of the Act. He therefore submitted that furnishing of the copy of the enquiry assumes significance and that alone would satisfy the test of reasonableness and principles of natural justice.
19. Placing reliance on a decision in C.Augustine Jacob v. Union of India reported in 2007 (5) CTC 210, Learned Senior Counsel submitted that if there is a violation of mandatory provisions of law, acquisition proceedings can be challenged, even after the passing of an award and that there is no hard and fast rule to curtail the Constitutional right of the land owners, guaranteed under Article 300-A.
20. Placing reliance on a decision in Collector of Central Excise v. New Tobbaco Company reported in AIR 1998 SC 668, Learned Senior Counsel submitted that a notification would be a proper publication, only if it is published in such a manner, where the persons interested can acquaint themselves with its contents. He further submitted that if the Publication is through a Gazette, then mere printing of it in the Gazette would not be enough, unless the Gazette containing the Notification is made available to the Public, otherwise the Notification cannot be said to have been duly published. In the instant case, when the impugned notification published through the Gazette is not made available to the general public, it cannot be said to have been duly published in accordance with law.
21. Taking this Court through the contents of the impugned notification issued under Section 4(1) of the Act, Learned Senior Counsel submitted that the notification reflects only the subjective satisfaction of the government and not the Collector, as required under Section 4(1) of the State Act and therefore, the whole proceedings are vitiated. In support of his contention, he relied on a catena of decisions of this Court in The Land Acquisition Officer and Special Officer (LA) v. R.Manickammal reported in 2002 (2) CTC 1, Jainabi v. State of Tamil Nadu, Adi-Dravidar Welfare, Chennai and another reported in 2006 (4) MLJ 71, M.Nagu and others v. The District Collector, Sivagangai District and another reported in 2008 (2) CTC 428, R.Rasappa Goundar v. District Collector, Dindigul District and another reported in 2008 (7) MLJ 314, Rajammal and others v. District Collector, Dharmapuri and another reported in 2009 (1) MLJ 230, Secretary to Government, Adi-Dravidar and Tribal Welfare department, Chennai and others v. P.Dhanapakkiam reported in 2009 (1) MLJ 569. For the above said reasons, he prayed that the impugned orders in these Writ Petitions have to be set aside.
22. The Special Tahsildar (ADW), Perambular District, has filed a detailed counter affidavit. Reiterating the averments made in the counter affidavit, Mr.P.Subramanian, Learned Additional Government Pleader appearing for the official respondents made a preliminary objection to the maintainability of the Writ petitions on the ground that once an award is passed under the State Act, the lands shall vest in the Government and therefore, the land owners or persons interested have no right to challenge the acquisition proceedings. He therefore prayed for dismissal of the Writ Petitions in limini. In support of his contention, he relied on a decision of this Court in Harshavardhan, S. v. State of Tamil Nadu reported in 2005 (3) CTC 691.
23. Learned Additional Government Pleader further submitted that as per Section 5 of Act 31 of 1978, once a notification is issued under Sub Section (1) of Section 4 is published in the District Gazette, the land to which the said notice relates shall, on and from the date on which the notice is so published, vest absolutely with the Government free from all encumbrances. He further submitted that once the land vests in the Government, it is for the Government to utilise the land for the same purpose for which it was acquired and in case the land is not utilised for the said purpose, the Government may utilise the land for any other public purpose. According to him, when such power of the Government is recognised by the Supreme Court in a decision in Government of A.P. and another v. Syed Akbar reported in (2005) 1 SCC 558 and therefore, the Writ Petitions deserve to be dismissed.
24. Placing reliance on the Division Bench decision of this Court in R.Shanmugam and others Vs. State of Tamilnadu represented by its Secretary, Housing and Urban Development Department, Chennai and others, reported in 2006(4) CTC 290, wherein it has been held that the words "vesting in Government" must mean that it is not in regard to title only, but also the possession free from all encumbrances, Learned Additional Government Pleader further submitted that the petitioners are entitled to challenge only the quantum of compensation under the State Act and there is no other provision under the State Act empowering the Government to divest the title which was validly vested in the State.
25. On the facts of the case, Learned Additional Government Pleader submitted that on the request made by the Adi dravidars living in Velvimangalam hamlet of Keelaperambalur village, after satisfaction of the District Collector, Land Acquisition Proceedings were initiated under the Act 31 of 1978. As per rule 3(i), Form-I notices were served on the land owners in the prescribed manner, calling for objections, if any and enquiry under Section 4(2) was posted on 29.08.2000. Except some of the land owners, all appeared for the 4(2) enquiry and submitted their objections for acquisition and that their objections were found to be frivolous.
26. Learned Additional Government Pleader further submitted that the Special Tahsildar (ADW), Perambular District, second respondent forwarded his report/recommendation to overrule the objections and proposed for publication of 4(1) notification. Accordingly, the District Collector, Perambalur, first respondent, has overruled the objections and issued orders for publication of 4(1) notification in the Perambalur District Gazettee on 06.11.2000. He therefore, submitted that the District Collector has satisfied himself as to the necessity to acquire lands for Harijan Welfare Scheme, as contemplated under Section 4(1) of the Act. He further submitted that subsequent to the issuance of 4(1) notification, notices were issued to the land owners for an award enquiry and the same was conducted on 24.01.2001. Some of the land owners appeared for the enquiry and objected to the acquisition. The objections were considered and overruled. Consequently, an award was passed in Award No.7/2000-2001 dated 05.02.2001.
27. Learned Additional Government Pleader further submitted that the Government, entrusted with a solemn duty to provide facilities for the public, is empowered to acquire land, in order to promote public welfare and the economic development, normally known as public purpose. The power to acquire the land owned by individuals hails from the right of eminent domain vested in the State, which is essentially an attribute of sovereign power of the State. Such exercise of power is for public purpose and the individual rights of an owner must yield place to the larger public interest. While the acquisition of land belonging to individuals is inevitable, it has balanced with the rights of the individual whose land is acquired and such individuals are properly compensated.
28. Leaned Additional Government Pleader further submitted that the lands of the petitioners comprised in SF.No.387/4A to 4B, 5A and 5-B are situate adjacent to the existing Natham in S.F.Nos.353 and 354. Moreover, 421, families are living in the existing natham in a congested manner and that there was no other suitable poramboke lands available in that village and therefore, it was decided to acquire the patta dry lands in Velvimangalam village including petitioners' lands. Replying to the arguments of the Learned Senior Counsel for the petitioners, he submitted that as it is essential to provide house site patta to the Adi-Dravidars, the lands in Velvimangalam Village were chosen for that purpose and acquisition proceedings were initiated and finalised. He further submitted that the Government have powers to acquire the lands, in any place, subject to the availability of lands and that the same cannot be questioned by the writ petitioners.
29. Learned Additional Government Pleader denied the contention that there are no Adi-Dravidars in Velvimangalam village, without houses or house site. On the basis of the averments, he submitted that there are 141 families without houses as per census taken by the officers. Further, there is no suitable vacant in natham land for assignment of house sites. Also, there are no other suitable poramboke lands. Only after satisfying these options, the lands owned by the writ petitioners and others lands were selected and accordingly, acquisition proceedings were initiated.
30. Denying the contention of the petitioners that no enquiry was conducted, Learned Additional Government Pleader further submitted that notices were issued to the land owners for the enquiry to be conducted on 29.08.2000 under Section 4(2) of the Act and many of the land owners appeared before the second respondent and submitted their written statements, objecting to the acquisition proceedings. He further submitted that the contentions to the contra, are liable to be rejected.
31. Learned Additional Government Pleader further submitted that an enquiry was conducted on 29.08.2000 and since the objections were frivolours, they were overruled and consequently, 4(1) notification was published in the District Gazette on 06.11.2000. He therefore submitted that the contention of the Writ Petitioners that came to know about the publication of 4(1) notification only after receipt of the Form-III notice, is not correct.
32. As regards furnishing of copies of Gazette notification and the reports, it is the case of the respondents that the lands owners cannot be furnished with the same. According to the respondents, the petitioners are entitled to copies of Orders, G.Os., and not the report of the second respondent. Answering the plea of non-service of Form-I notice issued under Section 4(2) of the Act, Learned Additional Government Pleader submitted that notices in Form-I for 4(2) enquiry were served on all the interested persons. Though one Mr.Chinnadurai alone refused to receive it, but alteron he also attended the enquiry.
33. Learned Additional Government Pleader further submitted that having participated in the enquiry held on 29.08.2000 and submitted their oral and written statements, it is not open to the petitioners to contend that they were not served with Form-I notices. It is the case of the respondents that after 4(2) enquiry held on 29.08.2000, the second respondent recommended for the publication of 4(1) notification to the first respondent, vide letter No.29427/2000 dated 01.11.2000 and if the District Collector, Perambalur finds any falsity in the enquiry, he may point out the same for getting a further report from the second respondent. If the District Collector is satisfied with the report or further report, as the case may be, 4(1) notification will be published by the District Collector.
34. Replying to the contentions regarding the availability of the Gazette Notification to the land owners or interested persons, under the Central Act, Learned Additional Government Pleader submitted that the decision made in Collector of Central Excise v. New Tobbaco Company reported in AIR 1998 SC 668, is inapposite to the present case, under the State Act, where the scope of the same is very limited. On the aspect of furnishing of copy of the award to the land owners, the respondents 1 and 2 have submitted that the copies of awards were already sent to the land owners. If any of them had failed to get the same, it may only be a case of loss in transmit. If they offer again, copies will be furnished to them.
35. Placing reliance on a decision of the Sudesh Kumar v. State of Uttarkand reported in 2008 (2) CTC 76, learned Additional Government Pleader submitted that the decisions relied on by the Learned Senior Counsel for the petitioners rendered under the provisions of the Central Act, will have no relevance, unless the object of the two statutes are in pari-materia. He further submitted that the decisions interpreting the various provisions of one Statute will have no binding force, while interpreting the provisions of another Statute and therefore, submitted that the arguments of the petitioners do not require any consideration.
36. Placing reliance on a decision in Gunasekar and others v. Special Tahsildar, Adi-Dravidar Welfare, reported in 2008 (2) CTC 595, Learned Additional Government Pleader further submitted that there is a vast difference between the Central Act and the State Act and therefore, the decision of the Supreme Court, upholding the State Act and the reasons contained therein alone have to be taken into consideration for the purpose of interpreting the provisions of the Act 31 of 1978. He further submitted that the provisions of the Central Act cannot be referred to for the purpose of interpreting the provisions of the Act 31 of 1978, except to the extent applicable. Placing reliance on C.Augustine Jacob v. Union of India reported in 2007 (5) CTC 210, Learned Additional Government Pleader submitted that once an award is passed, no Writ, challenging the acquisition proceedings, be entertained.
37. Mr.M.Vijayanarayanan, Learned Senior Counsel appearing for respondents 3 to 9, placing reliance on a decision in N.Krishnamachari v. Managing Director, APSRTC, reported in 1994 (6) SCC 74, submitted that the beneficiaries for whose purpose the lands are sought to be acquired are also interested persons and on that basis, he submitted that, while testing the correctness of the impugned notification, the Court has to consider the intention of the legislation and even if there are minor abrasions as regards procedure, the Court should lean in favour of the beneficial legislation.
38. Referring to the grounds made in the Writ Petitions, on the scope and ambit of Section 4(2) enquiry, Learned Senior Counsel submitted that though the objections raised therein proceeded on the basis that there are vast extent of lands in Velvimangalam Village, other than the lands owned and possessed by the writ petitioners, the respondents 1 and 2 have found that there are no poramboke lands available in the Village, in which, the private respondents reside and therefore, the first respondent has chosen to acquire the lands in Velvimangalam Village. He submitted that Vayalapadi Village is an Hamlet of Velvimangalam Village. The private respondents are all poor people, belonging to Adi Dravidar Community and residing at Old Harijana Colony, Vayalapadi, Thungapuram via., Kunnam Taluk, Perambalur District. They have no house sites or place or any land to reside permanently by putting up pucca construction and they are all residing in a Natham Poramboke lands in a very congested manner with more than one family living in a single house.
39. Learned Senior Counsel further submitted that it is task of the Collector to choose the lands depending upon the availability and there cannot be any prohibition of allotment of lands to the houseless Adi-Draviders residing in another Village, where lands are available. Moreover, in the absence of any objections in this regard, submitted to the second respondent by the land owners, it is not open to the petitioners for the first time to raise such an objection in this Court. Nevertheless, such objections are liable to be rejected, in view of the public policy in bringing about the beneficial legislation for giving effect to the directive principles of the State Policy contained in Article 46 of the Constitution of India.
40. Learned Senior Counsel for the private respondents further submitted that the fact that the District Collector has directed the subordinates to effect publication of 4(1) notification by itself would show that he has applied his mind and therefore, it is not necessary to assign detailed reasons. According to him, it is enough if the District Collector records his satisfaction.
41. Placing reliance on the decision in G.Ranganathan & 3 Others v. The State of Tamil Nadu and another reported in 2009 Writ L.R. 37, Learned Senior Counsel submitted that once an award is passed, the land owners have no right to maintain a Writ Petition. According to him, it is the consistent view of the Courts not to interfere with the acquisition proceedings, after an award is passed, no matter whatever be the irregularities in the procedure followed by the authorities. He therefore, submitted that considering the nature of enactment, the impugned notification has to be sustained. According to him, the scheme of the Act is similar to National Highways Act, where the land vests in the Government, the moment the notification is issued under Section 4(1) of the State Act and therefore, it is not open to the land owners to question the same.
42. Inviting the attention of this Court to the sequence of events from 06.11.2000, the date on which, 4(1) notification was issued and the date on which, the award enquiry was fixed, ie., 24.01.2001, Learned Senior Counsel submitted that there was more than two months time between 4(1) notification and the notice for award enquiry under Section 5(i) and therefore, the petitioners could have very well challenged the 4(1) notification, if they were really aggrieved. Pointing out that the award was passed on 05.02.2001, Learned Senior Counsel further submitted that it is not open to the writ petitioners to contend as if there was no time for them to approach this Court from challenging the acquisition proceedings. According to Learned Senior Counsel, the right to challenge the acquisition proceedings, extinguishes the moment the award is passed and there is no provision for condonation of delay, as it would defeat justice.
43. Referring to the Full Bench judgment in Pari's case (cited supra) and a Division Bench judgement of this Court in Thirunavukkarasu, N. v. The District Collector, Thanjavur reported in 2007 (5) CTC 817, Learned Senior Counsel submitted that mere non-furnishing of the copy of the report would not ipso facto vitiate the acquisition proceedings and it should not be construed that in every case, where the copy of the report has not been furnished and opportunity of further representation has been denied and it is sufficient to quash such acquisition. He also submitted that ultimately it is for the Court to judge the prejudice caused to such person, keeping in view of the facts and circumstances of each case. In the absence of any plea and proof of prejudice in the averments or before the authorities, he submitted that the petitioners, who have participated in the enquiry, are not entitled to turn around and contend prejudice. He submitted that once their objections are taken on record and overruled by the competent authorities, they have no say in the Writ Petitions.
44. Learned Senior Counsel further submitted that the purpose of the State Act is to ensure the Constitutional goal enshrined in Article 46 of the Constitution of India and the procedure being summary, those were not diligent in challenging the acquisition proceedings before passing of the award, should not be granted the relief.
45. Learned Senior Counsel for the private respondents submitted that totally 155 families expecting for allotment of the house sites made representations to the respondents and the Government. Considering their request, has taken a decision to acquire the lands from the owners of the property in their village under the Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act 1978 (Act 31 of 78). Accordingly, the writ petitioners' land were acquired, by following the procedure contemplated under the State Act. According to him, the writ petitioners are having more lands than acquired in the village.
46. Learned Senior Counsel further submitted that due to the pendency of the writ petitions, the private respondents are very much suffering for non assignment of lands. The lands acquired are vacant lands, without cultivation for many years. He further submitted that the petitioners are not dependant on the income from the acquired lands.
47. Learned Senior Counsel further submitted that after the issuance of the notice under section 4(1) notification, the respondents 1 and 2 have conducted an award enquiry on 21-01-2000. On 19.02.2001, the respondents 1 and 2 also issued notices, directing the writ petitioners to receive the compensation within 7 days from the date of receipt of the notice and they were further cautioned that in case of failure to receive the amount, no interest would be calculated. One Mr. Kaliyaperumal, whose land in Survey No.337/45 - 4C consisting of 0.69.0 cent land was acquired, has received compensation amount and left the land, but the other land owners including the writ petitioners have approached this Court.
48. Learned Senior Counsel further submitted that the private respondents are all poor schedule caste people. In their village, they are not having any piece of land for their family. Some of them are without any income and are depending on others and that they are struggling to run the family. During the year of 2005 in the month of October and November, there was heavy rain and flood occurred in Chinna River and caused heavy damages in the village. Huts were washed away. Therefore, in these circumstances, the intention of the Collector to provide lands and the proceedings initiated are to be sustained.
49. Learned Senior Counsel further submitted that in and around of village, where the private respondents are residing, the respondents 1 and 2 have acquired the lands and accordingly they were assigned to landless scheduled caste people. When the land owners at Kunnam Village, Vayalapadi village and Nailarikkai Village lands challenged the acquisition proceedings, they were upheld by this Court. Assignments have been made and that the assignees have also put up pucca construction and living peacefully. Whereas, the private respondents alone are deprived their legitimate right of assignment by the writ petitioners. According to them, the respondents 1 and 2 have followed the procedure. For the above said reasons, he prayed for dismissal of the Writ Petitions.
50. By way of reply, Mr.K.Alagrisamy, Learned Senior Counsel for the writ petitioners submitted that legal objections can be raised at any point of time, even in the absence of pleadings and therefore, prayed this Court to consider the same, while deciding the issues.
51. Heard the learned counsel for the parties and perused the materials available on record.
52. Acquisition of land for Harijan Welfare is for the purpose of giving effect to Article 46 of the Constitution of India contained in the directive principles of state policy. Tamilnadu Acquisition of land for Harijan Welfare Schemes Act 1978 is for giving effect to the policy of the State towards securing the principles laid down in Part IV and in particular to Article 46 of the Constitution. The Prescribed authority as per Section 3(j) of the State Act means, any authority or officer authorised by the Government in this regard, by notification. The Special Tahsildar, Harijan Welfare has been authorised to be the prescribed authority under the Tamilnadu Acquisition of land for Harijan Welfare Schemes Act 1978, as per the notification issued in G.O.Ms.No.1628, Social Welfare Department, dated 21.12.1979.
53. Before adverting to the rival contentions, this Court deems it fit to extract certain provisions and the relevant Forms prescribed under the Statute and the rules framed thereunder. Section 4(2) of the State Act reads that, "Before publishing a notice under sub-Section (1), the district collector or any officer authorised by the District Collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the office so authorised may be interested in such land, to show cause why it should not be acquired."
54. The Procedure to be followed for acquiring the land as per Rule 3 of the Tamilnadu Acquisition of land for Harijan Welfare Schemes Rules, 1979, is as follows:
"3. Procedure for acquiring land. (i) The District Collector or the officer authorised by him in this behalf shall serve a show cause notice in Form I under sub-section(2) of Section 4 individually on the owner or on all persons interested in the land to be acquired. If the owner or any other person interested in the land resides elsewhere than where the land is situated, the show cause notice shall be sent by registered post (Acknowledgment Due) to the last known address of the owner or any other person interested.
(ii) The District Collector, if, after passing such orders as required by sub-Sections(2) and (3) of Section 4, is satisfied that it is necessary to acquire the land, notice in Form II to that effect shall be published in the District gazette."
55. Form-I is the notice issued to the land owner or person interested to submit their objections and it is extracted:
FORM I [See rule 3(i)] Notice is hereby given that the land / lands specified in the Schedule below and situated in ______________________ village _____________ taluk ___________________district is / are necessary to be acquired for the purpose of ____________________ All persons interested in the land / lands are accordingly directed to lodge before the Collector of _________________________ district / Officer authorised by the Collector ______________________ district under sub-Section (2) of section 4 of the Tamilnadu Acquisition of land for Harijan Welfare Schemes Act, 1978 (Tamilnau Act 31 of 1978), within fifteen days after service of this notice, a statement in writing of their / your objections, if any, showing cause why the land / lands mentioned in the schedule below should not be acquired.
The statement of objections, if any, received after the expiry of the time stipulated or sent by a person, who is not interested in the land, is liable to be summarily rejected.
The statement of objections, if any, received within the time stipulated will be enquired into at liberty to appear in the person or represented by pleader and adduce any oral or documentary evidence in support of their / your, objections, failing which, it will be presumed that they / you have no objection whatsoever in respect of the said land / lands to be acquired and action will be taken accordingly.
THE SCHEDULE District :__________________________________ Taluk :___________________________________ Village :__________________________________ Survey No. Description.
Extent.
Reputed owner.
{1} {2} {3} {4}
56. Sub-Sections 3 (a) and (b) of Section 4 of the State Act are as follows:
"(3) (a) The District Collector may, where he has himself called upon the owner or other person to show cause under sub-Section (2), pass such orders as he may deem fit on the cause so show;
(b) Where any officer authorised by the District Collector has called upon the owner or other person to show cause under sub-Section (2), the officer so authorised shall make a report to the District Collector containing his recommendations on the cause so shown for the decision of the District Collector. After considering such report, the District Collector may pass such orders as he may deem fit."
57. Form II notice is the notice issued under Section 4(1) of the Tamilnadu Acquisition of Landfor Harijan Welfare Schemes Act 1978 and it is extracted, FORM II [See rule 3(ii)] NOTICE UNDER SECTION 4(1) OF THE TAMIL NADU ACQUISITON OF LAND FOR HARIJAN WELFARE SCHEMES ACT, 1978.
WHEREAS it appears to the Government of Tamil Nadu that the land / lands specified in the Schedule below and situated in the _____________village,_____________________taluk,_____________ district, is / are needed for the purpose of Harijan Welfare Scheme to writ,_____________________notice to that effect is hereby given to all to whom it may concern in accordance with the provisions of sub-Section (1) of Section 4 of the Tamil Nadu Acquisition of land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978).
AND WHEREAS, it has become necessary to acquire immediate possession of the land / lands in the Schedule below;
NOW, THEREFORE, in exercise of the powers conferred by sub-Section (1) of Section 4 of the said Act, the Collector of _________ district hereby directs that the land / lands be acquired under the provision of the said Secion.
THE SCHEDULE District :________________________________ Taluk :_________________________________ Village :________________________________
1. Description of land, wet or dry, inam or poramboke with Survey / Piamash number
2. Name of the owner / occupier
3. Boundaries of the land required to be taken up ---
North :
East :
South :
West :
4.Extent under acquisition (approximate).
5. Whether arable or waste
6.Details of structures, if any.
7.Number and description of trees, if any.
58. Section 5 of the State Act states that Land acquired to vest in Government free from all encumbrances.--- When a notice under sub-Section (1) of Section 4 is published in the District gazette, the land to which the said notice relates shall, on and from the date on which the notice is so published, vest absolutely in the Government free from all encumbrances.
59. Section 7 of the State Act speaks about determination of amount of compensation to be awarded to the land owner or person interested. As per sub-Section 3 of Section 7, the Prescribed authority shall after holding an inquiry in the prescribed manner determined by order the amount payable under sub-Section 1 of Section 7. A copy of the said order shall be communicated to the owner of such land and every person interested therein. As per rule 5 of the Tamilnadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979, immediately after the publication of the notice under sub-Section 1 of Section 4 of the Act in the District gazette by the District Collector, the Prescribed authority shall serve a notice in Form-III to the owner or persons interested to appear before him on a date to be specified which shall not be earlier than 15 days after the publication of the notice under sub-Section 1 of Section 4 of the Act for inquiry. The notice shall also be displayed at prominent places or near the land under acquisition.
60. Section 12 of the State Act deals with payment of interest andit reads as follows:
Payment of interest:--- When the amount is not paid or deposited on or before taking possession of the land, the prescribed authority shall pay the amount with interest thereon at the rate of six per cent per annum from the time of so taking possession until it shall have been so paid or deposited and such interest shall be paid or deposited by the prescribed authority in the same manner as provided for the amount.
VESTING OF LAND
61. One of the contentions raised by the Learned counsel appearing for the State based on the decision in R.Shanmugam and others Vs. State of Tamilnadu represented by its Secretary, Housing and Urban Development Department, Chennai and others, reported in 2006(4) CTC 290, is that the words "vesting in Government", employed in Section 5 of the State Act must mean that it is not only with regard to title, but also to possession free from all encumbrances and therefore, the land owners are not entitled to challenge the acquisition proceedings, after passing of an award. According to him, there is no provision under the State Act empowering the Government to divest the title which was validly vested in the Government.
62. In R.Shanmugam and others Vs. State of Tamilnadu represented by its Secretary, Housing and Urban Development Department, Chennai and others, reported in 2006(4) CTC 290, the Division Bench, dealing with the word, "Vest" employed in Section 72 of the Housing Board Act, at Paragraph 16, held that, "16. Coming to the word "vest" employed in Section 72 of Housing Board Act, again the said word must be construed in the context it is used. The object of the Act is only to enable the Board to frame a Housing or Improvement Scheme and execute such scheme. In the above context, the word "vesting" may relate to title or possession or some limited purpose of disposing of the same as contemplated under Section 72. As the Board has also the power to sell or dispose of the plots/flats as the case may be, the word "vesting" employed in Section 72 shall be construed to mean and include only the purpose of discharging its functions under the scheme. Such power of vesting cannot be equated to the power of vesting of the land in Government under Section 16 of the Central Act, where the lands acquired shall vest absolutely in Government free from all encumbrances."
63. In F. & V. Merchants Union v. Improvement Trust, Delhi reported in AIR 1957 SC 344, the Supreme Court explained the word, "vest" as follows:
"The word "Vest" has not got a fixed connotation, meaning in all cases that the property is owned by the persons or the authority in whom it vests. It may vest in title or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation."
64. The Supreme Court in the above reported judgment, at Paragraph 19, further explained that, "19. That the word vest is a word of variable import is shown by provisions of Indian statutes also. For example, Section 56 of the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that such property shall thereupon vest in such receiver. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall vest absolutely in the Government free from all encumbrances. In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word vest has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Sections 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them."
65. The word "vest" used in Andra Pradesh (Andra Area) Inam (Abolition and Conversion) into Ryotiwari Act, 1956, (37 of 1956), came up for consideration before the Supreme in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu reported in 1991 Supp (II) SCC 228. After extracting the dictionary meaning of the word 'vest', 'vesting', the Supreme Court held that, the word "vest" bears variable colour, taking its content from the context, in which it came to be used. At paragraph 10 of the judgment, the Supreme Court held that, "10. The word vest clothes varied colours from the context and situation in which the word came to be used in a statute or rule. Chambers Mid-Century Dictionary at p. 1230 defines vesting in the legal sense to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right. In Blacks Law Dictionary, (5th edn. at p. 1401) the meaning of the word vest is given as : to give an immediate, fixed right of present or future enjoyment; to accrue to; to be fixed; to take effect; to clothe with possession; to deliver full possession of land or of an estate; to give seisin; to enfeoff. In Strouds Judicial Dictionary, (4th edn., Vol. 5 at p. 2938), the word vested was defined in several senses. At p. 2940 in item 12 it is stated thus as to the interest acquired by public bodies, created for a particular purpose, in works such as embankments which are vested in them by statute, see Port of London Authority v. Canvey Island Commissioners in which it was held that the statutory vesting was to construct the sea wall against inundation or damages etc. and did not acquire fee simple. Item 4 at p. 2939, the word vest, in the absence of a context, is usually taken to mean vest in interest rather than vest in possession. In item 8 to vest, generally means to give the property in. Thus the word vest bears variable colour taking its content from the context in which it came to be used. Take for instance the land acquired under the Land Acquisition Act. By operation of Sections 16 and 17 thereof the property so acquired shall vest absolutely in the government free from all encumbrances. Thereby, absolute right, title and interest is vested in the government without any limitation divesting the pre-existing rights of its owner."
The word 'Vest' came up for consideration in M. Ismail Faruqui (Dr) v. Union of India reported in (1994) 6 SCC 360. The Constitutional Bench of the Apex Court, with reference to Section 3 of the Acquisition of Certain Areas at Ayodhya Act, 1993, at Paragraph 21, held as follows:
"21. Section 3 provides for acquisition of rights in relation to the area defined in Section 2(a). It says that on and from the commencement of this Act the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government. It is well-settled that the meaning of vest takes colour from the context in which it is used and it is not necessarily the same in every provision or in every context. In Maharaj Singh v. State of U.P., reported in 1977 (1) SCC 155 , it was held: (SCR p.1081 : SCC pp.164-65, para 16) Is such a construction of vesting in two different senses in the same section, sound? Yes. It is, because vesting is a word of slippery import and has many meanings. The context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions. The meaning of vest in Section 3 and in Section 6 is of significance in the context of the constitutional validity of the statute. It can vary in different parts of the statute or even the same section, depending on the context of its use."
66. In the light of the above decisions, let me now consider whether the word "vest" employed in Section 5 of the State Act means "vesting of possession" also, as contended by the State counsel and therefore, the petitioners have right to maintain a writ petition, in the absence of any provision in the statute enabling the government to divest the title.
67. Section 16 of the Central Act deals with the power to take possession. As per the said Section, when the District Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.
Reading of the Section makes it clear that after taking possession of the land by the Collector, it vests absolutely in the Government free from all encumbrances. Section 5 of the State Act also speaks of vesting of land in Government free from all encumbrances. The said Section reads as follows;
"When a notice under sub-section (1) of section 4 is published in the District Gazette, the land to which the said notice relates shall, on and from the date on which the notice is so published, vest absolutely in the Government from from all encumbrances."
68. In yet another provision where the word "Vest" is employed in Section 11(3) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, which has been repealed subsequently. Section 11(3) reads as follows:
"At any time after the publication of the notification under sub-section (1) the competent authority may, by notification in the Tamil Nadu Government Gazette declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified."
69. Further, reading of Section 11(5) and (6) would make it clear that the possession of the land, so declared as excess, has to be taken delivery, if there is any objection to deliver or surrender the possession to the State Government or any person duly authorised by the Government. In case of resistance, the competent authority may use such force as necessary for taking possession. Reading of Section 12 of the State Act would also make it clear that the prescribed authority shall pay the compensation amount with interest thereon at the rate of 6% per annum from the date of taking possession, if the amount is not paid or deposited on or before taking possession of the land. If vesting of possession, as contended by the State counsel, is automatic, the moment 4(1) notification is issued, then the words occurring in Section 12 of the State Act, "taking possession" has no meaning at all. Payment of interest in Section 12 makes it clear that possession has to be taken from the land owner or the person interested. Reading of the various provisions in the statute makes a clear distinction, as to when possession would be vested with the Government free from all encumbrances under the State Act.
70. On comparison of the provisions, which deal with the vesting of lands, it could be seen that under the Central Act, in an unambiguous words, the legislature has clearly distinguished that only after taking possession of the land, it shall thereupon vest absolutely in the Government, free from all encumbrances. But, under the State Act, the usage of the word "vest" is in different connotation. Therefore, this Court is of the view that the word "vest" used in Section 5 of the State Act can relate only to vesting of title and not possession, as contended by the State counsel. In this backdrop, let me now consider as to whether vesting of title as claimed by the State Counsel has been done in accordance with the statutory provisions. If not, whether it confers a valid title and if the title is vested in accordance with law, whether the government or the Collector can proceed further under the State Act.
71. The order of vesting should conform to the provisions of law or under the procedure prescribed under the law. It should have the legal sanction. If vesting is not based on a valid order, then it is non-est in law. It cannot have any consequential effect in the eye of law. As stated supra, what is passed on or vested, when a notification is issued under Section 4(1) of the State Act is vesting of title and not possession. Vesting of land in the Government would arise, when a valid order is passed by the District Collector under Section 4(3)(b) of the State Act and as per Section 5 of the Act, when a notification under sub-Section (1) of Section 4 is published in the District Gazette.
72. The guiding principles laid down in O.M.Sindha Madhar v. The Special Tahsildar, Adhi Dravida Welfare Land Acquisition, Tenkasi, Nellai Kattabomman District and others reported in 2004 (3) MLJ 262 and Pari, R. v. The Special Tahsildar, (ADW), Devakottai, reported in 2006 (4) CTC 609, enjoins a duty on the Court to explore the satisfaction of the District Collector, as to whether he has exercised his statutory duty, considered the objections of the land owners in proper perspective and passed an order, with reasons to be recorded in writing, however brief it may be, either from the order or files. It is trite law that the statutory authorities in all activities, must act within the four corners of the statute, authorising them to acquire lands for public cause, without infringing the rights guaranteed under the Constitution to the land owner that he is not deprived of his property, without any authority of law and given compensation by way of an award. A person, who is served with a notice under Section 4(2) of the State Act, is entitled to file objections and demonstrate and satisfy the authorities that his interests are affected and the said provisions is made in the statute, only to ascertain as to whether the objections are acceptable in law and the purpose for which, it is acquired. When such authority has satisfied the conditions exist for exercise of that power, the satisfaction has to be based on the existence of the grounds to be reflected in the notification or in the order passed by the said authority. In otherwords, the materials or the grounds for rejection, should be stated in the order or it should find place in the files. If the aggrieved person questions the non-existence of the conditions or the materials, required for the exercise of the power, the Courts have to examine the same and it is for the authorities to satisfy the Court, the grounds on the basis of which, the notification is issued.
73. This Court has held that if the respondents have failed to act strictly in accordance with the law and the rules provided, then the acquisition proceedings necessarily have to be quashed. It is also the duty of the respondents to convince the Court that there has been an application of mind on the part of the District Collector and sufficient reasons are recorded in arriving at a such conclusion. It is useful to consider a decision of the Supreme Court in Indian Nut Products v. Union of India reported in 1994 (4) SCC 269, wherein, at Paragraph 10, it held as follows:
"10. It is well-settled that if a statute requires an authority to exercise power, when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned in the statute. The grounds must be made out on the basis of the relevant material. If the existence of the conditions required for the exercise of the power is challenged, the courts are entitled to examine whether those conditions existed when the order was made. A person aggrieved by such action can question the satisfaction by showing that it was wholly based on irrelevant grounds and hence amounted to no satisfaction at all. In other words, the existence of the circumstances in question is open to judicial review."
74. In the case on hand, perusal of the notification issued under 4(1) of the Act, does not disclose application of mind to the objections. No specific order has been produced before this Court, passed by the District Collector. Perusal of the files shows that the District Collector has not passed any specific order under sub-Section 3 of Section 4 of the State Act, except to simply affix his initials on the office note prepares pursuant to the receipt of the proposals, dated 12.10.2000 made by the second respondent. Perusal of the proposals, dated 12.10.2000 of the second respondent shows that in respect of S.No.387/4A and 4D, challenged in W.P.No.6042 of 2001, the second respondent himself has rejected the objections. In respect of S.No.387/4B and 4C, to an extent of 0.69.0 Acres, he himself has declared that the above lands as acquired, as there was consent from one Kaliyamoorthy, who is stated to have purchased the above extent of lands. The objections of Chinnadurai, petitioner in W.P.No.6041 of 2001, with regard to the same survey numbers have been recorded as rejected. The objections of Natarajan, petitioner in W.P.No.5343 of 2001 have been rejected. In respect of S.No.387/5B, petitioners in W.P.No.6243 of 2001, the second respondent has recommended for rejection of their objections. Finally, in his proposals, he has recommended for rejection of the objections. There is nothing on record to indicate as to the petitioner in W.P.No.4139 of 2001, has been served with 4(2) notice. The Office Note put up for approval reads as follows:
"354y; 2.70.0 bcwf; epyk; nkw;go fpuhk Mjpjpuhtpl kf;fSf;F ,ytr tPl;L kidg;gl;lh tG';Fk; bghUl;L jeh. epyf; ifafr; rl;lk; 31/78d;go 4(1) tpsk;gu fUj;Jf;fs; bguk;gY}h; khtl;l murpjHpy; tpsk;guk; bra;a ghh;itapy; fhZk; fojk; Kyk; bguk;gY}h; M.jp.e./ jdp tl;lhl;rpah; 4(1) Kd; bghHpt[fs; mdg;gpa[s;sh;. vdnt/ bguk;gY}h; khtl;l murpjHpy; tpsk;guk; bra;ayhk;.
bguk;gY}h; khtl;l murpjHpy; tpsk;guk; bra;a 4(1) fUj;Jf;fs; kw;Wk; foj tiut[ JthFo murpdh; fpis mr;rf nkyhsUf;F/ Mfpait Ml;rpah; mth;fsJ xg;g[jYf;F itf;fg;gl;L;;s;sJ."
75. A reading of the Office Note put up for consideration would clearly show that a decision has already been taken by the second respondent to reject the objections of the land owners or persons interested and what was placed before the District Collector was a leading note for publication of the 4(1) notification. Even in this note, the Office has not indicated that the District Collector has to pass an order under Section 4(3)(b) of the Act and they have simply stated that the second respondent has sent a letter for publication under Section 4(1) of the Act.
76. Immediately thereafter, the District Collector, Perambular, in his proceedings in RC.No.11/248/27/2000, dated nil.10.2000, signed on 01.11.2000, has addressed to the Branch Manager, Government Press, Thuvakudi, Perambalur District, to cause due publication in the extraordinary issue of District Gazette and arrange it to send three published copies to the Collectorate and to the land acquisition officer concerned. Along with the letter, dated 01.11.2000, he has also enclosed the notification under Section 4(1) of the Act, in respect of Survey Nos.387/4A etc., of Velvimangalam Village, Kunnam Taluk, Perambalur District.
77. Examination of the files do not indicate that the District Collector, who is enjoined with a statutory duty to consider the objections of the land owners or persons interested, has applied his mind at all to the same and passed an order, as required under Section 4(3)(b) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act. Except the above letter addressed to the Manager to effect publication and the initials in the Note, granting approval to effect publication in the District Gazette, there are no materials in the files to prove that the District Collector has considered the objections independently and arrived at the subjective satisfaction before issuing the impugned notification. When the statutory rules contemplate the District Collector to furnish reasons, while passing an order, under Section 4(3)(b) of the State Act, however brief it may, it is not open to the respondents to contend that he has passed an order, as required under law, by simply affixing his initials mechanically on the Office Note prepared for publication.
78. It is surprising that the second respondent has sworn to an affidavit that the District Collector has passed an order, when the Note itself is for granting permission to effect publication. It is also to be noted that the District Collector has not come forward to file an affidavit to the effect that he has passed an order under Section 4(3)(b) of the Act. At this juncture, it is to be noted that even in the counter affidavit filed by the second respondent, apparently, no details have been given as to when the District Collector has passed an order under Section 4(3) of the Act. At Paragraph 5 of the Counter Affidavit, the second respondent has stated that, "The District Collector, Perambular has overruled the objections in proceedings No.RC.II/24827/2000, dated 07.08.2000 and ordered to conduct an enquiry under Section 4(2) of the Tamil Nadu Act 31of 1978. Hence, after enquiry, the 4(1) notification was published in Perambular District Gazette on 06.11.2000 at Pages 1 and 2 of Gazette-Extra Ordinary No.23." Again, at Paragraph No.17 of the affidavit, he has stated that, "The first respondent and Special Tahsildar (ADW), Perambular, has sent a detailed report stating that the objections raised by the land owners to the second respondent. After perusing the reports, the first respondent decided to acquire the land and passed orders accordingly. So, the rules laid in Tamil Nadu Act 31/1978, Section 4(3)(b) has followed by the first respondent."
79. As stated supra, there is no specific order in the files. In these circumstances, in the absence of any order under Section 4(3)(b) of the Act, mere issuance of 4(1) notification under the State Act will not confer any title and it cannot be said to have been under the authority of law. Consequently, the determination of the value of the lands and passing of an award, cannot be said to have any legal sanction. When the Government does not acquire a valid title by vesting, the land owner cannot simply be silenced and non-suited on the ground that an award had already been passed and therefore, he cannot question the 4(1) notification. Needless to say that deprivation of property, can be done only by authority of law and that it is a constitutional right.
80. The judgment in R.Shanmugam's case (cited supra) has been rendered in the context of Housing Board Act and the same cannot be imported into the Tamil Nadu Acquisition of Land Harijan Welfare Scheme Act. For the reasons stated supra, the decision in Government of A.P., and another v. Syed Akbar reported in 2005 (1) SCC 558, relied on by the Learned Additional Pleader is inapposite to the facts of this case, insofar as vesting of land absolutely in the Government is concerned. There is no question of the Government divesting the title, as "Vesting" has not been done by an order under Section 4(3)(b) of the State Act.
81. Vesting of land in the Government will arise only when there is a valid order passed by the District Collector under Section 4(3)(b) of the Act. In the case on hand, perusal of the files shows that he has not passed any specific order under sub-Section (3) of Section 4 of the Act, except to simply affix his initials to the request made by the office for effecting publication under Section 4(1) of the Act.
Subjective satisfaction:
82. The authority who has to satisfy, whether it is necessary to acquire any land for the purpose of Harijan Welfare Schemes under the Act is no longer res-integra and it is indisputably the District Collector. In all the decisions relied on by the Learned Senior Counsel for the petitioners on this point stated supra, at Paragraph 21 of the submissions, this Court has consistently held that Harijan Welfare Schemes Act is a self contained code and the District Collector has been 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.
83. In the above legal backdrop, let me examine the notification in Form-III under Section 4(1) of the State Act, which is impugned in the present Writ petitions appended to the typed set of papers as to whether it reflects the subjective satisfaction of the District Collector, as required under law:
"bguk;gY}h; khtl;l/ Fd;dk; tl;lk;/ fPHbguk;gY}h; fpuhkj;jpy; mike;Js;sJk;/ gpd;tUk; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;sJkhd epy';fs; murpd; eyj;jpl;l fhhpaj;jpw;F mjhtJ nts;tpk';fyk; fpuhkj;jpy; trpf;Fk; tPlw;wth;fSf;F tPl;Lkid tH';Fk; bray;nehf;fj;jpw;fhfj; njitg;gLtjhfj; jkpH;ehL muRf;Fj; njhd;Wtjhy;/ mJFwpj;J ,J rk;ge;jg;gl;l midtUf;Fk; jkpH;ehL 1978Mk; Mz;L mhprd epyj;jpl;l';fSf;fhf epy';fisf; ifafg;gLj;Jk; rl;lj;jpd; (jkpH; ehL rl;lk; 31/1978) 4 MtJ gphpitr; nrh;e;j (1) cl;gphptpd; tpjpj;JiwfSf;fpz';f ,jd;Kyk; mwpt[g;g[ bfhLf;fg;gLfpwJ."
84. Though many cases have been cited on the above point, this Court deems it fit to extract a few decisions. In The Land Acquisition Officer and Special Officer (LA) v. R.Manickammal reported in 2002 (2) CTC 1, a Division Bench of this Court held that there is a difference in the scheme of the Act between the Central Act and the State Act. In the Central Act, the Government is the authority to exercise the power and the Government, by notification, can delegate the functions to any authority to perform under the Act and among the authority so delegated, the Collector also is one of the same. The State Act is completely different as the Governmental intervention is not at all contemplated and the donee of the power is the Collector himself and not anybody else . After extracting Section 4(1) of the Act, the Division Bench further held that, "there is no other provision excepting the above provision empowering any authority to deal with the acquisition. 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 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."
85. 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 Nos.18 and 19, 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."
86. 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.
87. In yet another decision in Secretary to Government, Adi-Dravidar and Tribal Welfare department, Chennai and others v. P.Dhanapakkiam reported in 2009 (1) MLJ 569, a Division Bench of this Court, 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."
88. Indisputably, in all these Writ petitions the District Collector, Perambalur District has issued the notification under Section 4(1) of the Act. The notification does not reflect the subjective satisfaction of the District Collector as per the mandate under the State Act and therefore, the impugned notification is not in consonance with the scheme of the Act.
89. Article 300-A provides that no man shall be deprived of his property except by authority of law. Such power can be exercised only by the authority of law. Therefore, the discretion exercised by the State Government in coming to a subjective satisfaction to acquire land, is not done by authority of law and such be the case, the contention of the respondents that as soon as a notice under sub-Section (1) of Section 4 is published in the District Gazettee, the land to which the said notice relate, shall, on and from the date on which, the notice is so published, vest absolutely in the Government free from all encumbrances, cannot be countenanced, as the very foundation of the notification is against the Constitutional provision under Article 300-A. Maintainability of Writ Petition:
90. The issue as to whether a Writ Petition is maintainable after an award is passed under the land acquisition proceedings initiated and finalised under the Tamil Nadu Act 31 of 1978, seemed to have been raised in a Writ Appeal in W.A.No.531 of 2008, dated 25.04.2008 on the ground that there is no provision for issuing a notice under Section 9 and there is no opportunity for the land owners to challenge the acquisition proceedings before the award is passed under the State Act, unlike the land owners, who have an opportunity to challenge the proceedings, even after the declaration of 6(1) notification under the Central Act, after receiving notice under Section 9 of the Central Act. The Division Bench, though observed that there is some substance in the above contention of the appellants therein, on the facts of the above case, held that there is no merit in challenging the acquisition proceedings, intended for providing house sites to Adi-Dravidars and that the District Collector had taken into consideration the objections of the appellants therein, dismissed the Writ Appeal.
91. In Harshavardhan, S. v. State of Tamil Nadu reported in 2005 (3) CTC 691, the acquisition proceedings initiated under Section 4(1) of the Land Acquisition Act (Central Act) and declaration issued under Section 6 as well as award were under challenge. Following the decisions in C. Padma and others v. Deputy Secretary to the Government of Tamil Nadu and others [1997 (2) SCC 627], Municipal Corporation of Greater Bombay v. The Industrial Development Investment Co. Ltd., [AIR 1997 SC 482] , Municipal Council, Ahmednagar v. Shah Hyder Beig [AIR 2000 SC 671], and Tej Kaur v. State of Punjab [2003 (4) SCC 485], the Division Bench, observed that the Writ Petition challenging the above proceedings, was filed belatedly and therefore, suffer from the latches and on the sole ground, upheld the decision of the learned Single Judge. The details of the cases cited supra, are discussed in the later paragraphs.
92. In G.Ranganathan & 3 Others v. The State of Tamil Nadu and another reported in 2009 Writ L.R. 37, relied on by the Learned Senior Counsel for the private respondents, the challenge was under the Central Act, where the acquisition proceedings, were challenged after an award was passed under Section 11 of the Act. Acquisition proceedings were initiated by notification under Section 4(1) of the Central Act in Government Gazettee, dated 14.07.1979 for expansion of bus depot of a transport corporation. On receipt of the objections raised by the appellants therein, acquisition proceedings were dropped. A fresh notice under Section 4(1) of the Act was published on 04.05.1984 and Section 6 declaration was published on 13.10.1986, which came to be challenged in W.P.No.12710 of 1986. The award was passed on 28.03.1988. While dismissing the Writ Petition, a learned Single Judge of this Court, by his order, dated 17.03.1997, directed the petitioners/appellants to submit a representation to the authorities as to whether the land was really intended for transport corporation and whether it could be excluded from the scheme of the land acquisition. No appeal was filed against the decision of the Writ Petition. The request was rejected by the Government. Challenging the same, the petitioners/appellants filed a Writ Petition and the same was dismissed. In these circumstances, the Division Bench, has observed that the challenge to the findings of the learned Single Judge, regarding the correctness of the acquisition proceedings, had already reached its finality, as no appeal was filed and having regard to the fact that the award was already passed on 28.03.1988 and following the Division Bench judgment of this Court in Ramalingam and others v. The State of Tamil Nadu reported in 2005 (2) LW 693, held that the Writ Petition is maintainable.
93. From the facts of the above reported judgment, it is seen that the 4(1) notification under the Central Act was published on 04.05.1984, the award was passed on 28.03.1988 and that there was no challenge to the dismissal of the Writ Petition filed against the notifications. The second round of litigation was only with reference to the rejection of the request for exclusion of the land from acquisition.
94. In Municipal Council, Ahmednagar v. Shah Hyder Beig [AIR 2000 SC 671], a notification, under Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 read with Section 6 of the Land Acquisition Act, 1894 was issued on 15-5-1971. Pursuant to the same, an award was published and possession was taken on 1976. In 1992, the respondents therein filed a Writ Petition before this Court, which initially set aside the award, but subsequently, amended the same, challenging the said notification. The High Court allowed the Writ Petition and directed the Municipal Corporation to make over the possession of the land to the respondents (writ petitioners before the High Court). The High Court further directed the respondents therein to refund the amount of compensation received by them for the acquired land. At paragraph 17, the Supreme Court, by observing that in any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder and on the basis of the consistent view taken by the Apex Court, reiterated in C. Padma v. Dy. Secy. to the Govt. of T.N., reported in 1997 (2) SCC 627, found fault with the decision of the High Court. At Paragraph 14 of the judgment, te Supreme Court held that, "14. The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, delay defeats equity has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise."
95. In C. Padma v. Dy. Secy. to the Govt. of T.N., reported in 1997 (2) SCC 627, a notification under Section 4(1) of the Central Act, was published on 17.10.1962. The acquisition proceedings had become final and possession of the land was taken on 30.04.1964. Pursuant thereto, agreements were entered and transfer of the lands, were also effected. After span of nearly 24 years, the land owners challenged 4(1) notification issued in G.O.Ms.No.1392, Industries, dated 17.10.1962, contending inter alia that since the original purpose, for which, the land was acquired, had ceased to be in operation, the appellants are entitled to restitution of possession taken from them. The High Court, accepting the contention of the State that the lands having already vested with them, held that, the appellants have no right to challenge the notification and the same was confirmed in appeal There was an enormous delay in the challenge to Section 4(1) notification.
96. In Tej Kaur v. State of Punjab reported in 2003 (4) SCC 485, 8 acres of land were sought to be acquired. 4(1) notification of the Land Acquisition Act, was published on 07.05.1991. Objections were filed on 13.06.1991. Section 6 declaration was made on 18.03.1992 and the award was passed on 15.03.1994. Out of 8 acres, 6 acres of land were excluded from the acquisition. Writ Petitions were filed challenging the acquisition proceedings on 12.04.1994. The High Court upheld the acquisition proceedings. When the correctness of the decision was challenged, the Supreme Court, having regard to the fact of exclusion of 6 acres of land, found that the objections filed by the appellants therein were considered by the Collector. The Supreme Court further observed that inspite of Section 6 declaration having been made on 18.03.1992, the appellant allowed the acquisition proceedings to go on till the award was passed. This fact clearly indicated that the appellants therein did not have any grievance against Section 5-A enquiry held by the Collector and therefore, the Apex Court did not interfere with the decision of the High Court. It could be seen from the above decision that the Supreme Court has considered two aspects, one on the merits of the case that objections have been validly considered and secondly, that though Section 6 declaration was made on 18.03.1992, the challenge to the acquisition proceedings was made on 12.04.1994, after the passing of the award, ie., 15.03.1994.
97. In Aflatoon v. L.T. Governor of Delhi reported in 1975 (4) SCC 285, a notification under Section 4 of the Land Acquisition Act was issued in 1959 for acquiring 34,070 acres of land for the planned development of Delhi. The declaration under Section 6 was published in 1966 and notices under Section 9 in respect of compensation were issued in 1970. The appellants therein challenged the validity of acquisition. The appellants therein did not contend before the High Court that as the particulars of the public purpose were not specified in the notification issued under Section 4, they were prejudiced. As the said plea was not raised by the appellants therein in the writ petitions filed before the High Court and that they have not taken any steps to quash 4(1) notification within a reasonable time and having regard to the fact that they have approached the Court after 11 years, when notices under Section 9 were issued, the Supreme Court, at Paragraph 9, observed that the appellants therein were not diligent. The Apex Court went to say that, "There was apparently no reason why the writ petitioners should have waited till 1972 to come to the Supreme Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid, and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are dismissed on the ground of latches and delay."
98. The Supreme Court in the above reported case, has extracted the concluding portion of the judgment in Munshi Singh v. Union of India reported in 1973 (2) SCC 337, as follows:
"In matters of this nature we would have taken due notice of latches on the part of the appellants while granting the above relief but we are satisfied that so far as the present appellants are concerned they have not been guilty of latches, delay or acquiescence at any stage."
99. In Aflatoon's case, the Government have contended that they had allotted a large portion of the land, after the acquisition proceedings were finalised to Co-operative Societies and to quash the notification at that stage, would disturb the rights of the third parties, who were not before the Court.
100. In State of Mysore v. V.K.Kangan reported in 1976 (2) SCC 895, the 4(1) notification was published in April' 1967 and the objections were filed by the respondents therein under Section 5-A of the Act. The Deputy Commissioner submitted his report to the Government and the Government have overruled the objections. The notification under Section 6 was published in the gazette on October 19, 1968. The writ petition challenging the validity of the notifications was filed sometime in July or August, 1969. The Supreme Court ordered that, "We do not think that the respondent was entitled to challenge the validity of the notification under Section 4 of the act, as the writ petition challenging the notification was filed after an unreasonable lapse of time. If public notice as required by Section 4 of the Act was not given and that would per se vitiate the notification under Section 4, the appellant should have challenged its validity within a reasonable time of the publication of the notification. The respondent knew of the notification and filed objection under Section 5A of the Act. In these circumstances, we see no reason to accept the submission of the counsel. We also see no substance in the argument of the Counsel that the report drawn up under Section 5A(2) was not sent to the Government within the time prescribed and therefore, the proceedings were invalid."
101. In the above reported case, the Supreme was against of the view that the interested person did not challenge the acquisition notification within a reasonable time. The Apex Court did not, in clear terms, say that the Writ Petition filed after Section 6 declaration, is not maintainable in law. The Supreme Court in the above judgment has observed that there was a delay of nearly two years in challenging 4(1) notification.
102. In Improvement Trust, Faridkot v. Jagjit Singh and others reported in 1987 (Supp) SCC 608 and State of Punjab v. Hari Om Co-operative Housing Building Society Ltd., reported in 1987 (Supp.) SCC 687, the High Court allowed the Writ Petitions, challenging the acquisition proceedings, even though it was filed after a long time. While testing the correctness of the decisions arising out of the Writ Petitions, the Supreme Court overruled the decision in Radhey Sham Gupta v. State of Haryana reported in AIR 1982 P & H 519 and set aside the judgments of the High Court. In both the cases, there was long delay.
103. In General Manager, Telecommunication v. Dr.Madan Mohan Pradhan reported in 1995 Supp. (4) SCC 268, a notification under Section 4(1) of the Land Acquisition Act, 1894 was published in January 1973 for providing residential quarters to the staff, telephone exchange, post office, etc. In exercise of the power under Section 17(4) read with Section 17(1), the enquiry under Section 5-A was dispensed with. Before the declaration under Section 6 could be published a representation was made by the wife of the first Respondent therein, requesting to delete 24 decimals of land for construction of nursing home. In the meanwhile, Cuttack Development Authority declared the area to be a commercial zone. In consequence, the appellant therein made an application requesting him to permit construction upto 90 ft. and rest of the land may be permitted to be released for residential purposes. In the meanwhile, the representation made by the wife of the first respondent therein, which was pending. Declaration under Section 6 was published on 30-6-1975. A notice under Section 9 was served on 1-11-1975. Possession of the land was also claimed to have been taken on 12-4-1976 and the same was handed over to the Union of India. The Land Acquisition Officer made his award on 2-11-1976 and paid the amount to all persons who had accepted the award or those, who received under protest and insofar as wife of the first respondent therein, it was kept in deposit. In the mean while, the wife of the first respondent therein died. On 18-8-1979, the first respondent therein filed W.P.No.1139 of 1979, challenging the validity of the notifications under Section 4(1) and Section 6 declaration. The High Court, by order, dated 16-3-1982 disposed of the writ petition, with a direction to the Government to consider the representation of the respondent for exclusion of the land from acquisition. After an elaborate consideration and scrutiny of the necessary material, the Union of India rejected the representation on 3-6-1987. Thereafter, the respondents filed WP.No.435 of 1988 challenging the notifications. The High Court, by the impugned order dated 31-10-1990 quashed the notification under Section 4(1) on the ground that the exercise of the power under Section 17(4) was invalid. In these circumstances, the correctness of the order made by the High Court was tested before the Supreme Court. At Paragraph 4 of the Judgment, the Supreme Court, held as follows:
"the possession having already been taken on 12-4-1976 and vested in the Government free from all encumbrances and many others having accepted the award and some had received the compensation under protest, the High Court was wholly unjustified in interfering with the acquisition. We have seen the plan produced before us which would indicate that the land acquired comprises the establishment of officers building and 2000 electronic exchange. Under these circumstances, it would be highly inconvenient to exclude this land from acquisition. The purpose of enquiry under Section 5-A is only to show that any other convenient and suitable land would be available other than the land sought to be acquired, or there is no public purpose."
In the above reported case, the Supreme Court has also taken note of the fact that the declaration under Section 6 was challenged after the expiry of three years from the date of publication of the same, i.e., on 30.06.1975.
104. In State of Haryana v. Dewan Singh reported in AIR 1996 SC 675, a notification under Section 4 of the Land Acquisition Act, 1894 was furnished on January 22,1981. Notices were given under Section 9 of the Act. The Collector after conducting an enquiry made an award on April 19, 1984 and allegedly took possession of the lands. The respondents therein asserted that they were in possession and filed the writ petition on May 13, 1985 challenging the notification under Section 4(1) of the Act on the ground that dispensing with an enquiry under Section 5-A, exercising power under Section 17(4) of the Act was bad in law, as there was no urgency and the award was, on the face of the case, in valid in law. The Punjab and Haryana High Court, by order, dated May 27, 1985, allowed the writ petition. It was inter alia contended by the appellant therein that though there was a delay on the part of the respondents in challenging the notification, mere delay does not mitigate to take away the valuable right in approaching the High Court. The Supreme Court, at Paragraph 5 of the judgment, held that, "After the award was made, the Court would not be justified to quash the notification under Section 4(1) and declaration under Section 6 for dispensing with the enquiry under Section 5-A."
105. Reading of the above judgment shows that the respondents had challenged the notification under Section 4(1) of the Act, after receiving the compensation under protest and that the said fact was not brought to the notice of the High Court. Application under Section 18of the Act was also filed for enhancement of the compensation and on these facts, the Supreme Court took the view that it was not proper for the High Court to set aside the notification under Sections 4(1) and 6 of the Act.
106. In State of T.N., v. L.Krishnan reported in 1996 (1) SCC 250, the declaration was issued in 1978. Writ Petitions were filed some time in the year 1982 and 1983, when the awards were about to be passed. But they had not filed any objections in the enquiries held under section 5-A and also failed to act soon after Section 6-A declaration was made. In these circumstances, following the decision in Aflatoon v. L.T. Governor of Delhi reported in 1975 (4) SCC 285, the Supreme Court, dismissed the contentions of the aggrieved persons. Here again, there was a delay of nearly four years on the part of the aggrieved persons./land owners, in approaching the Court.
107. Again in Market Committee v. Krishnan Murari reported in 1996 (1) SCC 311, the Supreme Court considered a case, where the acquisition proceedings were initiated under Section 4(1) of the Central Act on 22.01.1981. Declaration under Section 6 was published on 23.01.1981 and possession was taken on 29.04.1981, though it was claimed that the possession was with the respondent. The award came to be passed on 19.04.1984. Compensation was offered as required under Section 31 of the Act. Though the factum of receipt of compensation, it was not mentioned in the High Court, it was submitted before the Supreme Court that the amount was received under protest. The Writ Petition was filed after four months on 19.12.1984. The High Court allowed the Writ Petition on 16.02.1985, holding that dispensing with enquiry under Section 5-A as invalid. In this case also, the Supreme Court held that, the award having been validly made on 19.05.1984 and possession of the lands having been taken, the lands vest in the Government under Section 16 absolutely free from all encumbrances and therefore, the High Court was not justified in interfering with the exercise of power by the Government under Section 17(4) dispensing with the enquiry under Section 5-A at that belated stage.
108. Facts of the above case shows that the notifications were challenged after nearly four years from the date of publication of the notifications issued under Sections 4(1) and 6 of the Act, i.e., at the fag end of completion of three years. In that context, the Supreme Court allowed the Appeal filed by the State.
109. In State of Rajasthan v. D.R.Laxmi reported in 1996 (6) SCC 445, the acquisition proceedings were initiated for publication of 4(1) notification in the State Gazette on 23.03.1977. Enquiry under Section 5-A was dispensed with in exercise of the power under Section 17(4) of the Act and declaration under Section 6 was published on 28.04.1976. Possession was taken on 19.05.1977. The award was passed under Section 11 on 21.03.1978. Reference under Section 18 was sought and made in March 1978 to the Civil Court for enhancement of the compensation. In September 1978, the respondent filed Writ Petition in the High Court seeking to quash the notification under Section 4(1) and the declaration under Section 6. The Division Bench held that the acquired land is not arable or waste land and also observed that the exercise of the power under Section 17(4) of the Act was bad in law. The contentions before the High Court were that the substance of the notification under Section 4(1) was not published in the locality and the notification under Section 4(1) did not mention that it was a waste or arable land. At Paragraph 10, the Supreme Court held as follows:
"10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6."
110. In State of Haryana v. Dewan Singh reported in 1996 (7) SCC 394, a notification under Section 4(1) of the Act was challenged about 13 months after making of an award on the ground of dispensing with the enquiry under Section 5-A. The Supreme Court held that after making an award, the High Court was not justified in quashing notification under Sections 4(1) and 6 of the Central Act. In this case, a notification under Section 4(1) was published on 22.01.1981. Notices were given under Section 9 of the Act. The Collector, after conducting an enquiry, made on award on 19.04.1984 and allegedly took possession of the land on the even date. The respondent asserted that they were in possession and filed the writ petition on 13.05.1985, challenging the notification under Section 4(1) of the Act on the ground that dispensing with an enquiry under Section 5-A, exercising the power under Section 17(4) of the Act was bad in law, as there was no urgency and that the award was, on the face of the case, bad in law. In the above said case, the respondent, in fact, had received the compensation under protest, but that was not brought to the notice of the High Court, but sought reference under Section 18.
111. In Municipal Corporation of Greater Bombay v. I.D.I. Co. Pvt. Ltd., reported in 1996 (11) SCC 501, the Supreme Court considered a case whether the High Court was right in issuing a Writ, after a long lapse of time. The respondents therein approached the High Court after a delay of four years and that too, after the award was made and possession was taken from the owner. The declaration was made on 03.05.1979. The respondents therein, who claimed to be the tenant, had not raised any objection to the proposed scheme or revised plan, which was published even before the notification made under the Act. The award was made on 24.02.1983. Possession was taken on 04.03.1983 and on the same day, it stood transferred to Bombay Municipal Corporation. The Writ Petition came to be filed thereafter on 04.07.1983. Following the decision in State of T.N., v. L.Krishnan reported in 1996 (1) SCC 250 and other decided cases, where there was an inordinate delay in approaching the Court, the Apex Court at Paragraph 29, held as follows:
"29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."
112. In Star Wire (India) Ltd., v. State of Haryana and others reported in 1996 (11) SCC 698, the land acquisition proceedings under the Central Act was challenged long after passing of an award and vesting of land in the State. The delay was 17 years. The Supreme Court, while considering the aspect of delay and latches, recorded the views expressed in State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, wherein, their Lordships have held that, "it is not either unreasonable delay denies to the petitioner the discretionary extraordinary remedy of mandamus, certiorari or any other relief."
113. In Executive Engineer, Jal Nigam, Central Stores Division, U.P., v. Suresha Nand Juyal @ Musa Ram (deceased) by L.Rs. And others reported in 1997 (9) SCC 224, 4(1) Notification was issued on 07.05.1986. Notice under Section 5-A was issued and the objections were filed on 17.12.1986. Declaration under Section 6 was published on 25.08.1987. After conducting an enquiry, the award came to be made on 17.12.1988. The symbolic possession was taken on the same day. The respondents filed the Writ Petition on 19.08.1989. In view of the long lapse of time, i.e., for nearly three years, no action was taken after filing of the Writ Petition, the Supreme Court held that it does not give ground for interference. In this case, there was a delay of three years in challenging the 4(1) notification.
114. In Larsen and Toubro Ltd., v. State of Gujarat reported in 1998 (4) SCC 387, at Paragraph 21, the Supreme Court held that, "21. This Court has repeatedly held that writ petition challenging the notifications issued under Sections 4 and 6 of the Act is liable to be dismissed on the ground of delay and laches if challenge is not made within a reasonable time. This Court has said that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise it would be putting a premium on dilatory tactics. Writ petition (SCA No. 5149 of 1989) is thus barred by laches as well."
115. In the above reported judgment, after the notifications were issued under Sections 4 and 6 of the Act, notices under Section 9 were issued on 01.04.1987. The Writ Petition was filed by the appellant therein on 15.07.1991. The acquisition notification was issued and an award was passed. The land owner moved an application for execution of the award. Subsequently, he challenged the acquisition notification, by filing a Writ Petition. In these circumstances, the Supreme Court held that the High Court erred in allowing the Writ Petition, by ignoring the applicability of the principle of approbation and reprobation.
116. In Northern Indian Glass Industries v. Jaswant Singh reported in 2002 (7) Supreme 607, notification under Section 4 and Section 6 declaration were made for acquisition of the land for providing a private company. The land acquired and claim was settled and possession was taken. But it was not used for the purpose for which it was acquired. The respondents therein challenged the acquisition proceedings after 17 years on the grounds of (i) non-payment of full compensation, (ii) non-usage of acquired lands and (iii) acquisition for a private company. The High Court allowed the Writ Petition. While testing the correctness of the order, the Supreme Court, held that, "in the absence of any satisfactory explanation for the inordinate delay of 17 years and latches on the part of the respondents 1 to 5 in approaching the High Court, the Writ Petition challenging the notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 ought to have been dismissed on the short ground of inordinate delay and latches."
117. In Haryana State Handloom and Handicrafts Corporation Ltd., v. Jain School Society reported in 2003 (12) SCC 538, the notification under Section 4 read with Section 17 of the Land Acquisition Act was issued on 29.10.1976. The award came to be passed on 30.09.1977. Possession of the land was taken and the land vested in the Government on 05.06.1980. The respondents therein filed a reference under Section 18 of the Land Acquisition Act, for enhancement of the compensation. They also field an appeal in the High Court against the judgment of the Reference Court. On 02.02.1999, the respondents filed a Writ Petition challenging the acquisition on the ground that the urgency clause could not have been invoked and the Writ Petition was allowed by the High Court.
118. It was the contention of the respondents in the above reported case, inter alia, that they had patiently waited for all those years in order to see whether the land was put to use for the purpose for which it was acquired. It was also submitted that merely because the respondents had given the State and the acquiring body, time to put the land to use for the purposes for which it was acquired, their right to file the writ petition could not be affected. Rejecting the contentions, the Supreme Court held that, "mere fact that the land was was not put to use for the purpose it was acquired by itself did not justify the delay and latches." Here again, there was a long delay of nearly 12 years in filing the Writ Petition, after the award was passed.
119. In Government of A.P., v. Kollutla Obi Reddy reported in AIR 2006 SC 642, the Supreme, while dealing with the maintainability of the Writ Petition filed long after the notification, at Paragraph 6, 7 and 8, held as follows:
"6. We shall first deal with the plea relating to the maintainability of the writ petition filed after long passage of time. In a catena of decisions this Court has held that High Court should not entertain writ petitions when there is delayed challenge to notification under Section 4(1) and declaration under Section 6 of the Act. (See Aflatoon and Ors. v. Lt. Governor of Delhi (1975 (4) SCC 285), State of T. N. and Ors. v. L. Krishnan and Ors. (1996 (1) SCC 250) and Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. (1996 (11) SCC 501).
7. The High Court was moved in these matters by writ petitions long after Section 4(1) Notification and Section 6 declarations were made. On that ground alone the writ petitions should not have been entertained. Additionally, the respondents clearly accepted that references in terms of Section 18 were pending. The High Court has not even indicated any reason as to why the writ petitions were being entertained when the references in terms of Section 18 were pending. On that score also the High Court's judgment becomes unsustainable.
8. We, therefore, set aside the judgment of the High Court. The references which were pending and have been closed in view of the impugned judgment of the High Court shall be revived. In some of these cases also the fresh awards have been passed. They are set aside and the original reference stands revived. Only references which were pending on the date of the High Court judgment i.e. 14-3-1997 shall stand revived. Other claims and adjudications, if any, pursuant to the High Court's impugned order in these cases shall have no effect.
120. In C.Augustine Jacob v. Union of India reported in 2007 (5) CTC 210, this Court held that once an award is passed, no writ challenging the acquisition proceedings be entertained, except in the case, where the authorities have violated the mandatory provisions of law.
121. In State of Mysore v. V.K.Kangan reported in 1976 (2) SCC 895, the Supreme Court has observed hat the appellant should have challenged the validity of the 4(1) notification, within a reasonable time of the publication. In State of Rajasthan v. D.R.Laxmi reported in 1996 (6) SCC 445, the Supreme Court observed that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, the Supreme Court held that it is not either unreasonable delay denies to the petitioner the discretionary extraordinary remedy of mandamus, certiorari or any other relief. In Larsen and Toubro Ltd., v. State of Gujarat reported in 1998 (4) SCC 387, the Supreme Court held that a writ petition challenging the notifications issued under Sections 4 and 6 of the Central Act is liable to be dismissed on the ground of delay and laches, if the challenge is not made within a reasonable time. In C.Augustine Jacob v. Union of India reported in 2007 (5) CTC 210, this Court held that once an award is passed, no writ challenging the acquisition proceedings be entertained, except in case, where the authorities have violated the mandatory provisions of law.
122. In all the above reported cases, the Supreme Court as well as this Court, while testing the challenge to the notifications issued under the Central Act, observed that a person aggrieved has to approach the Court, within a reasonable time. The catena of decisions cited by the Learned Counsel appearing for all the parties have been rendered under the Central Act, on the sound legal principle of an equitable doctrine that "delay should not defeat equity" in the matter of granting discretionary relief under Article 226 of the Constitution of India.
123. When the Court is approached by an aggrieved person for appropriate relief, pointing out the violations of mandatory provisions of law, the Court has to necessarily pose itself the question, whether the person before the Court has any legal right to be enforced. Further, the role envisaged in the scheme of things and the wide powers conferred on the High Courts are not intended to perpetuate illegalities or improprieties or for scuttling the rights of the person before the Courts. This Court is of the view that the decisions rendered under the Central Act do not run counter to the principle of entertaining a Writ Petition, if it is filed within a reasonable time, an abstract term, not defined under the Statutes.
124. A survey of the plethora of decisions cited supra on the maintainability of the Writ Petition filed after passing of an award, under the Central Act, shows that in all these cases, the land acquisition proceedings, whether under Section 4(1) or Section 6(1) of the Central Act, were challenged after a long lapse of time and in some cases, even after a reference was made under Section 18 of the Act for enhancement of compensation. Therefore, the Supreme Court and this Court have consistently held that a Writ Petition filed after passing of an award is not maintainable, though there is no specific provision in the Central Act, restraining the land owner from challenging the acquisition, after passing of an award. There is a long period of nearly three years between Section 4(1) notification and Section 9 of the Central Act and therefore, Courts have consistently held that the land owner or the person interested, who sleeps over his right or had been sitting on the fence till the proceedings are finalised are not entitled to maintain a Writ Petition for his slackness or negligence in approaching the Courts, after an unreasonable and unexplained length of time, under the circumstances, which permit diligence on his part.
125. Though there is no specific time limit provided for in the State Act to pass an award or in other words, determine the quantum of compensation. Reading of Section 7 r/w. Rules 4 and 5 makes it clear that immediately after the publication of the notice under sub-Section (1) of Section 4 of the Act in the District gazette by the District Collector, the prescribed authority shall serve a notice in Form-III to the owner or persons interested to appear before him on a date to be specified which shall not be earlier than 15 days after the publication if the notice under sub-Section (1) of Section 4 of the Act for inquiry. The said rule only prohibits conducting an inquiry for determination of the amount of compensation within 15 days from the date of publication of notice under sub-Section (1) of Section 4 of the Act, but immediately after the notification under Section 4(1) of the Act, he can issue a notice in Form-III of the rules fixing the inquiry for determination of the amount on the 16th day of publication of 4(1) notice. The Prescribed authority can serve a notice in Form-III fixing the inquiry on the 16th day itself or any other subsequent day to inquire into the objections which the owner or any other person interested may raise in regard to the extent value of the land and the nature of interest of the different claimants to the land and shall determine by order under Section 7 of the Act read with Rule 5(ii) of the rules.
126. Now that the impugned notification issued under Section 4(1) of the State Act has been found as not in accordance with the mandate, which is apparent on the face of it and in such an event, merely because, the acquisition proceedings has culminated into an award under Section 7 of the State Act, whether all the proceedings taken pursuant to the said notification, could be held valid, on the ground of not challenging the same within the reasonable time?
127. Latches or reasonable time are not defined under any Statute or Rules. "Latches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.
128. The words "reasonable time", as explained in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is as follows:
"13. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word reasonable. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the reasonable time is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyars The Law Lexicon it is defined to mean:
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than directly; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
129. As pointed out earlier, there is no specific order passed under Section 4(3)(b) of the State Act to satisfy the mandate, as provided under the State Act. Even assuming that the affixture of District Collector's initial or signature to the proposal, to be an order, there are no reasons recorded for overruling the objections of the land owners or persons interested, however, brief it may be, reflecting application of mind. Such an order has been held to be without jurisdiction and violative of the mandatory provisions in several judgments of this Court, which are dealt with in the latter paragraphs.
130. As rightly contended by the Learned Senior Counsel for the petitioners that the cause of action arises only from the date of 4(1) notification under the State Act. The notice under sub-Section (2) of Section 4 of the Act was fixed on 29.08.2000. The report/recommendations of the Tahsildar was forwarded to the District Collector on 12.10.2000. The 4(1) notification was published on 06.11.2000. The award enquiry was fixed on 24.11.2000 and that the award was passed on 05.12.2000. All the Writ Petitions were filed between 01.03.2001 and 23.03.2001, hardly within 4 months from the date of notification.
131. Under the State Act, when a notice under Sub-Section (2) of Section 4, r/w. Rule 3 is issued by the District Collector or the officer authorised by him in this behalf, a show cause notice in Form-I is issued on the owner or on a person interested in the land to be acquired and the said person, within 15 days, after the service of the notice, should submit the statement in writing, the objections if any. Form-I , which is an integral part of the statutory provision also states that the statement of objections, if any, received after the expiry of the time stipulated or sent by a person, who is not interested in the land, is liable to be summarily rejected. Therefore, from the above, it is evident that for the purpose of any Harijan Welfare Scheme, the District Collector may himself call upon the owner or other person, to show cause under Sub-Section (2), or authorise any other person, to submit their objections, within 15 days and where any officer authorised by the District Collector, has called upon the owner or other person to show cause under sub-Section (2) of Section 4, he can consider the report, containing the recommendations on the show cause notice and pass such order, as he may deem fit.
132. Taking for granted that the objections are received within the stipulated time and a report is also submitted by the authorised officer, along with his recommendations, then the District Collector can pass orders at any time immediately and consequently, effect of publication in the District Gazettee under Section 4(1) of the Act. The whole process contemplated under Section 4 r/w. Rule 3 and the notices issued in Form-I and Form-II, can be completed within a very shortest period of even two months, unless the extent of land sought to be acquired is vast and that there are two many land owners or interested persons, whose individual objections were required to be considered. It is also to be noted that no time limit has been prescribed between Section 4(2) notice and Section 4(1) publication to be made in the District Gazettee. The time between 4(2) notice and 4(1) publication may vary, depending upon the facts and circumstances of each case.
133. Under the Central Act, the land is vested with the Government free from all encumbrances, as per Section 16 and 17 of the Act. Under Section 4(1)of the Central Act, by way of notification, the public are informed that a proposal to acquire the land mentioned therein and three modes of publication are also provided. This is followed by an opportunity of hearing and consideration of the objections under Section 5-A of the Act. Thereafter, when the appropriate Government is satisfied, after considering the report, if any, made under sub-Section (2) of Section 5-A, that any particular land is required for public purpose or for a company, a declaration is made by the Secretary to the State Government or of some officer duly authorised to certify its order. As per Section 7 of the Act, after declaration by the appropriate Government, a direction is issued to the Collector to take order for acquisition of the land. As per Section 9 of the Act, a notice is issued by the Collector for determination of the compensation and after conducting an enquiry into the objections, an award is passed under Section 11 of the Act.
134. The Central Act read with the rules provide a specified period between the date of notification under Section 4(1) and Section 6 declaration. Till the date of passing of the award, the land owner or the person interested has adequate time to challenge the acquisition proceedings. Between Sections 4 and 6, the legislature has provided one year time and likewise, a period of two years is provided under the Statute for making an award under Section 11 of the Act. Such a long time is certainly not available to a land owner or the person interested under the State Act to challenge the acquisition proceedings.
135. Under the Central Act, the Parliament has included Section 17, empowering the appropriate Government to direct the District Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-Section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances. The District Collector can also take possession of any land for the purpose of maintaining any structure or system, pertaining to irrigation, water supply, drainage, road communication or electricity, after publication of the notice mentioned in sub-Section (1) of Section 9, with the sanction of the appropriate government and the lands shall thereupon vest absolutely with the Government free from all encumbrances.
136. Again, under Section 17 of the Act, if in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) of Section 17 are applicable, the appropriate government may direct that the provisions of Section 5-A shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under sub-section (1) of section 4 of the Central Act. It could be seen that no such urgency clause is provided in the State Act, for dispensing with the enquiry under Section 4(2) of the State Act. There is absolutely no quarrel that the State Act is a beneficial Act. But on comparison with the provisions, it cannot be said to be in pari-materia with the Central Act. The differences and dissimilarities have been noticed by the Full Bench of this Court in Pari's case.
137. It is a well settled principles of law that substantive justice and fairness are the test to be applied in adjudicating the inter-se rights and hardship and injustice should be avoided, particularly, when a person is deprived of his property. It is the contention of the respondents that the petitioners have acquiesced to the jurisdiction of the official respondents in participating in the award enquiry and suffered an award and therefore, they cannot maintain a Writ Petition. Per contra, the land owners have contended that the 4(1) notification, is fundamentally against mandate, which goes to the root of the matter and therefore, their participation even with consent will not cure the illegality. On this aspect, extract of few decisions may be useful.
138. As already pointed out, this Court in The Land Acquisition Officer and Special Tahsildar (LA) v. R.Manickammal reported in 2002 (2) CTC 1, has held that, "It is well settled law that when the Legislature did not name any other authority for the exercise of powers and 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."
139. An order passed in violation of statutory rules, whether confers any legal right on the person, in whose favour it is passed, is no longer res integra in Government of A.P., and others v. K.Brahmanandam and others reported in 2008 (5) SCC 241, the Supreme Court held that no legal right accrues in favour of those, who had been appointed in violation of mandatory provisions of the statute or statutory rules. The Supreme Court further held that appointments made in violation of the mandatory provisions of a statute would be illegal and thus, void. Therefore, it is clear that violation of statutory rules do not confer any right and in the present case, any vested right in the lands.
140. In Official Trustee of West Bengal v. Stephen Court Ltd., reported in 2006 (13) SCC 401, the Supreme Court held that the principles of estoppel, waiver, acquiescence or res judicata provide for procedural matter. The said provisions are not applicable to the substantive law. A distinction indisputably exists between an order, which is wrong or void on the one hand, and which having been passed by a court lacking inherent jurisdiction and, thus, being a nullity on the other. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. The Validity of such order can be challenged within a reasonable time.
141. The Supreme Court in Deepak Agro Foods v. State of Rajasthan and others reported in 2008 (7) SCC 748, at Paragraph 17, held as follows:
"17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction. Such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See Kiran Singh v. Chaman Paswan reported in AIR 1954 SC 340) However, exercise of jurisdiction in a wrongful manner cannot result in a nullity-it is an illegality, capable of being cured in a duly constituted legal proceedings."
142. At Paragraph 26 of the judgment in Sardar Amarjit Singh v. Kalra V. Pramod Gupta reported in 2003 (3) SCC 272, the Supreme Court held that, "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.
Again, at paragraph 31, the Apex Court further observed that, "With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it."
143. Though the above observations were made in the context of interpretation of Order 22 of the Civil Procedure Code, this Court of the view that the principles laid down by the Supreme Court, can be made applicable to the facts of this case and that there should not be any denial of substantial and real justice, in the absence of any specific mandate in the statute, that passing of an award under the State Act, would prohibit any challenge before the Court of law.
144. Courts cannot import thrust any time limit or limitation into the State Act to construe that merely because, an award is passed, the right of the land owner or the interested person is automatically taken away and that he cannot question even the acts done without jurisdiction or not authorised by law. When the Division Bench in R.Manickammal's case, has held that the Writ Court had rightly held that the governmental intervention was unwarranted and without jurisdiction, the contention of the respondents regarding acquiescence, cannot be countenanced. His rights cannot be scuttled on the ground of public policy of providing lands under the scheme of the State Act, when particularly the performance of the act, i.e., passing of the award is based on the publication under Section 4(1) of the State Act, which is now declared as illegal.
145. When statutory rules are framed, they have to be given primacy over equity. The authorities cannot be allowed to depart from the mandate of the State Act and transgression of the rule, cannot be allowed to proceed further, just because, there is a logical end to every acquisition proceedings, like, passing of an award, payment of compensation, etc. This Court is of the view that it should not be the role of the Courts to give a stamp of approval to an illegality, so that the orders passed by the authorities, consequent thereto, would get themselves validated automatically. This Court is of the considered view that encouraging such practice or ignoring the constitutional right of the land owners, should be avoided. No doubt, the State in their eminent domain, has got the absolute right to deprive a person of his property, but the same has to be done by authority of law. Action taken in furtherance of a State policy, enshrined in the Constitution of India, have to be reconciled with the rights available to the land owners under Article 300-A of the Constitution of India, although it is not a fundamental right.
146. The failure on the part of the District Collector in arriving at the subjective satisfaction to acquire the land under Section 4(1) of the State Act is apparent on the face of the impugned notification. When the said illegality is brought to the notice of this Court by the person aggrieved, the consequential proceedings culminating into an award, has no legal foundation. Validating an award based on an illegal order, would amount to perpetuation of an illegality. It should be the endeavor of the Court to wipe out or erase not only the order passed without jurisdiction, but also all consequential proceedings. As stated supra, the District Collector has not even passed any specific order under Section 4(3)(b) of the Act or arrived at the subjective satisfaction as required under law. To illustrate, if initiation of a disciplinary proceedings is illegal or without jurisdiction, then the whole proceedings are vitiated. Perusal of the files shows that the Collector had merely appended his initial to the suggestion given in the Office Note for publications of 4(1) notification.
147. The contention that the notification issued under Section 4(1) of the State Act cannot be challenged, the moment the award is passed, if rigidly applied to the facts of this case, then it would produce unacceptable results for the reason that the 4(1) notification itself has been issued by violating the mandate of law and therefore, the further proceedings cannot be legalised. On the facts of this case, if the contentions of the respondents were to be accepted, then it would be against the law declared by this Court in The Land Acquisition Officer and Special Officer (LA) v. R.Manickammal reported in 2002 (2) CTC 1, Jainabi v. State of Tamil Nadu, Adi-Dravidar Welfare, Chennai and another reported in 2006 (4) MLJ 71, and other cases, where this Court has consistently held that the notification under Section 4(1) issued without the subjective satisfaction of the Collector is illegal.
148. It is well settled that every executive action, which operates to the prejudice of any person, must have the sanction of law. In the present case, the impugned action of the State does not satisfy the said criteria. The direct effect of putting an embargo on the land owners from challenging the 4(1) notification, on the mere ground that an award has already been passed, is curtailment of his constitutional right guaranteed under Article 300-A. As stated supra, Courts have consistently held that there should not be inordinate unreasonable delay and latches on the part of the land owners in challenging the notifications.
149. If the contentions of the learned counsel for the respondents/land owners were to be accepted, then a restriction would be imposed on the rights of the land owner or person interested to challenge the acquisition proceedings only between two dates, viz., the date of issuance of Section 4(1) notification and determination of the amount under Section 7 of the Act, which in a given case, could be achieved, even within a period of two months. On the one hand, it is the statutory right of the beneficiaries to seek for conferment of the rights under the State Act and on the other hand, it is the constitutional right of the land owners, whose lands are sought to be acquired.
150. In the case on hand, the District Gazette under Section 4(1) notification was published on 06.11.2000. The award enquiry was fixed on 24.01.2001. Though the learned counsel the respondents submitted that the petitioners could have challenged the 4(1) notification immediately after the publication, the said contentions cannot be countenanced for the reason that after submission of their objections on 29.08.2000, the petitioners were not given the copy of the report of the second respondent. Admittedly, the petitioners and the private respondents are all villagers and the copy of the District Gazette notification is not expected to be served on them. It is also to be noted that even in the counter affidavit, the official respondents have submitted that the copies of the Gazette notification, will not be furnished to the land owners. The cause of action for filing these Writ Petitions, arise only after publication of Gazette notification under Section 4(1) of the State Act. Though Section 4(3)(b) contemplates an order to be passed by the District Collector, after considering the objections of the land owners or persons interested to the acquisition proceedings, as stated supra, no specific order has been passed by the District Collector.
151. If a statutory authority sends a report/recommendation to another to pass an order prejudicial to the interest of the land owner or person interested, more particularly, where there is a deprivation of a property, a copy of the same should be furnished to him, so that he can verify as to whether his grievances and objections have been duly considered or not. As orders were not passed in terms of Sub-Section 3(b) of Section 4 of the State Act, as rightly contended, the land owners or persons interested would have come to the knowledge of passing of a notification under Section 4(1) of the Act, only when they were summoned to appear for the award enquiry, which was fixed on 24.01.2000. The award was passed on 05.02.2000. It is the specific case of the writ petitioners that they had requested for the copy of the Gazette notification published under Section 4(1) of the Act, whereas, the official respondents contend that there is no necessity in law to furnish a copy of the same. If the land owners or persons interested are not served with the order passed, under sub-Section 3(b) of Section 4 of the Act or furnished with the copy of the Gazette, then they cannot be expected to presume that an order has been passed against them. As the order under Section 4(3)(b) is prejudicial to the interests of the land owners or persons interested, this Court is of the view that they should be served with the copy of the order in the manner known to law. Like in the case of non-furnishing a copy of the enquiry of the report/recommendations of the authorised officer, there is also a violation of principles of natural justice, if the order passed under Section 4(3)(b) is not served on them. The impugned notification in respect of each of the Writ Petitions has been challenged within three months from the date of fixing the award enquiry, ie., 24.01.2000. Even computing the time from the date of passing of the award, i.e., 05.02.2000 and the period during which the Writ Petitions have been filed, i.e., between 01.03.2001 and 23.03.2001, it is hardly within 1= months from the date of passing of the award. There is no hard and fast rule that Writ Petitions filed after passing of an award should be dismissed in limini, even though the judgments of the Supreme Court do not run contrary to the principle that the Writ Petition can be filed within a reasonable time.
152. It is the duty of the Court to see whether the land owners or the persons interested or guilty of latches and thereby, delay does not defeat equity. When the mandate of law is violated, equity has to pave way. Enforcement of law is the primary duty of the Courts. On examination of the sequence of events under the facts and circumstances of this case, this Court is of the considered view that there is no unreasonable, unexplained delay or latches on the part of the petitioners. Reasonable time means that such length of time that has been fairly and reasonably be allowed and required to do an act, as necessary under the circumstances. In the absence of furnishing the copies, the petitioners would have certainly taken some time to collect the gazette copy and other particulars before instituting the present writ petitions. If no reasonable time is not given to the land owners to challenge the acquisition proceedings, then they cannot seek for enforcement of their constitutional right guaranteed under Article 300-A. In view of the above, on the facts and circumstances of the case, this Court is not inclined to subscribe to the contentions of the respondents that a Writ is not maintainable, after an award is passed under the State Act.
Non-furnishing of copy of the report of the authorised officer and failure to consider the objections of the land owners:
153. The contentions as regards, (i) non-consideration of the Collector independently to the objections of the land owners or the persons interested, (ii) furnishing of a copy of the report/recommendation of the authorised officer, (iii) providing a personal hearing in the context of the objections of the land owners, with reference to the remarks of the Tahsildar, (iv) recording of reasons, while dealing with the objections of the land owner, have been considered by this Court in various decisions relied on by the Learned Senior Counsel for the petitioners. However, few decisions are extracted hereunder.
(a) Subjective satisfaction of the Collector:
154. In Kannian v. The Collector, Salem District, Salem, reported in 2004 (3) MLJ 129, lands were sought to be acquired for providing house-sites for Adi-Dravidars. Notices were issued under Section 4(2) of the State Act. Objections were lodged. Thereafter, reports of the land Acquisition Officer and Special Officer were forwarded to the District Collector, indicating that he was personally satisfied 'that the notice was served and published in the manner prescribed. The District Collector recorded his acceptance of the report of the Special Tahsildar for acquisition of the land on the ground that there were no objections to the said acquisition. This was in a cyclostyled form duly filled up. When the said acquisition proceedings were challenged on the ground inter alia that 4(1) notification did not indicate the satisfaction of the District Collector and therefore, the the exercise of sovereign power of eminent domain was not in accordance with the Statute and authority of law, this Court, rejecting the contention of the State to the contra, at Paragraphs 12 and 13, held as follows:
"12. In the present case, it is obvious that the notice does not say that the Collector is satisfied. From the mere fact that the words refer to the notice being one under Sec.4(1), the Court cannot presume that the Collector was satisfied. When the Section mandates that the Collector should be satisfied, then there should be a record of the satisfaction of the Collector. If the notice does not indicate such satisfaction then atleast the records should show that the Collector is indeed satisfied with the recommendations of the Special Tahsildar that the acquisition was necessary.
13. In view of the decision referred to above, it will not be possible to hold that the notice itself as invalid if the records indicate satisfaction. But in the absence of materials to show satisfaction, Sec.4(1) cannot be said to have been complied with. As observed by the Supreme Court in the decisions cited supra, if the notice itself expresses the satisfaction, then it is for the land owner to prove that there was no real satisfaction, then it is for the Government to prove that there was satisfaction. In this case, there is no evidence to show that the Collector was satisfied since as we have seen from the records, cyclostyled forms have been filled up."
155. Facts of Kannian's case, shows that after vesting of the land under Section 5 of the said Act, the Special Tahsildar, submitted the cost statement, recording that there were trees, structures in the land, sought to be acquired and that there was no Well. Even then, the Writ Petition has been entertained by this Court and having regard to the fact that there was no material to prove that satisfaction as required under Section 4(1) of the Act and the mechanical way of overruling the objections, by filling up the cyclostyled forms and acquisition proceedings were set aside.
156. In O.M.Sindha Madhar v. The Special Tahsildar, Adhi Dravida Welfare Land Acquisition, Tenkasi, Nellai Kattabomman District and others reported in 2004 (3) MLJ 262, at Paragraphs 10 and 11, held as follows:
"10. In the present case, it is obvious that the notice does not say that the Collector is satisfied. From the mere fact that the words refer to the notice being one under Sec.4(1), the Court cannot presume that the Collector was satisfied. When the Section mandates that the Collector should be satisfied, then there should be a record of the satisfaction of the Collector. If the notice does not indicate such satisfaction, then at least the records should show that the Collector is indeed satisfied with the recommendations of the Special Tahsildar that the acquisition was necessary.
11. In view of the decisions referred to above, it will not be possible to hold the notice itself as invalid if the records indicate satisfaction. But, in the absence of materials to show satisfaction, Sec.4(1) cannot be said to have been complied with. As observed by the Supreme Court in the decisions cited supra, if the notice itself expresses the satisfaction, then it is for the land owner to prove that there was no real satisfaction. If the notice does not indicate satisfaction, then it is for the Government to prove that there was satisfaction. In this case, there is no evidence to show that the Collector was satisfied since as we have seen from the records, cyclostyled forms have been filled up."
(b) Consideration by the Collector to the objections of the land owners or persons interested:
157. In S.K. Thirugnanasambanadam and others v. The Government of Tamil Nadu and others reported in 2001 (1) MLJ 328, the District Collector authorised Special Tahsildar, Land Acquisition, to submit his report. The Authorised Officer submitted his report contemplated under Section 4(3)(b) of the Act. But the Collector has not considered the report with reference to the mandate as required under the Act effectively for the purpose for which, it has been provided. The order was passed in cyclostyled form by filling up of the name of the villagers and the particulars of the lands, which were held to be not passed, after considering the report of the Officer, so authorised or by applying his mind with reference to the objections raised by the land owners/petitioners.
158. In G.Ramakrishna Naidu, G. v. District Collector reported in 2001 (3) CTC 649, impugned notification was in a cyclostyled form, where the District Collector, merely stated that he had accepted the recommendations of the Tahsildar and that the objections of the land owners to the acquisition proceedings as overruled. Remaining text of the cyclostyled form was nothing but formal directions to the subordinates to proceed further with the acquisition proceedings. Following the decision in S.K. Thirugnanasambanadam and others v. The Government of Tamil Nadu and others reported in 2001 (1) MLJ 328, this Court held that, "The District Collector should apply his mind independently to the objections and pass detailed order dealing with objections. The provision of Act 31 of 1978 is summary in nature compared to the provision of the Central Act and it is, therefore, incumbent on the part of the authorities to strictly comply with the terms of the Act instead of adopting the very informal and causal way of dealing with the objections."
159. In Sri Pillappa v. State of Tamil Nadu reported in 2004 (4) MLJ 247, the charge was with reference to the notification under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978. It was inter alia contended by the land owner that the District Collector had not applied his mind and failed to consider the objections and has mechanically signed the proposal forwarded by the subordinate officers for acquisition of the land and for issuing notification under Section 4(1) of the Act. After perusal of the files, this Court observed that, ".......after holding the enquiry the Special Tahsildar had recommended that the land may be acquired. A perusal of the record indicates that the Collector seems to have mechanically accepted the proposal. There is no material available on record to show that in fact, the Collector has applied his independent mind to the entire facts and circumstances including the objections filed on behalf of the petitioners. It is of course true that the Special Tahsildar had recommended that the objections are not acceptable."
160. While considering the importance of the statutory duty conferred on the District Collector, this Court held that, "But, under the Act, the statutory duty is cast on the Collector to take an independent decision in the matter. Neither in the official record nor in the final order passed by the Collector, there is any indication regarding independent consideration by the Collector, more particularly, with respect to the various objections raised on behalf of the petitioners. It is obvious that the matter has been dealt with rather mechanically by the Collector."
161. In the above reported case, the Collector had merely appended his signature in the suggestion given in the Office Note or in the Cyclostyled form that has been issued. Finding that there was nothing to indicate that the Collector had independently applied his mind, the Writ Petition was allowed, quashing the 4(1) notification. Yet another factor to be considered in this case, is that at Paragraph 6 of the judgment, the learned Judge has further ordered that since the notification under Section 4(1) of the Act has been quashed, the consequential steps taken during the award enquiry, were also automatically quashed. Applying the said judgment to the present case, it cannot be said that the Court has no powers to quash the award proceedings, if there is a manifest illegality committed by the respondents.
162. In The District Collector, North Arcot and another v. Manickam reported in 2005 (2) LW 199, which was one of the Division Bench judgments, which gave raise to the reference answered in Pari's case, the order of the District Collector, was passed without proper application of mind, by merely filling up the cyclostyled form. The Division Bench, at paragraph 8, held as follows:
"8. In the present case, it appears that the order of the District Collector was passed in a mechanical manner without proper application of mind by merely filling up a cyclostyled form. We cannot approve of such kind of orders. It may be that the Special Tahsildar, who was authorised by the District Collector, considered the objections of the land owners, but in our opinion the District Collector must also consider those objections and apply his own mind to those objections, as has been held in the Wednesbury case (see quotation above). Though we agree with the learned Special Government Pleader that if opportunity of hearing has been given by the person authorised by the District Collector under Section 4(2) of the Act (in this case the Special Tahsildar) it is not necessary for the District Collector to give a second opportunity of hearing, yet in our opinion the District Collector must certainly apply his own mind to the objections made by the land owner to the acquisition as they affect his very valuable rights. The Collector need not write an elaborate order like a judgment of a Court of Law while rejecting the objections of the land owner, but he must at least in brief mention the reasons why he is rejecting the objections so that the land owner may have the satisfaction that his objections have been considered, and this Court also may be satisfied that the District Collector had applied his mind to such objections."
163. In the said reported judgment, the District Collector has said that the objections of the land owner to the acquisition are overruled. In such situation, the Division Bench observed that, "......it is very difficult for us to decide whether the Collector had really applied his mind to the objections of the land owner or not. Unless a brief mention of the objections and the reasons why they are being rejected are mentioned in the order of the Collector, we have no option but to hold that the Collector has not applied his mind to such objections, and has acted arbitrarily."
164. In R. Pari v. Special Tahsildar, Adi-Dravidar Welfare reported in (2006) 4 CTC 609, where, the Full Bench of this Court was posed with the following questions under reference for determination in the context of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, as to (1) Whether the owner of the land should be furnished with the copy of the report/recommendation of the authorised officer; (2) Whether it is necessary for the District Collector to give a personal hearing in the context of his objections and the remarks of the Tahsildar; and (3) Whether the District Collector should record his reasons while dealing with the objections of the owner.
165. While considering the issues, at Paragraphs 17, 18, 19, 20 and 24, the Full Bench has analysed the provisions of the Central and State Act and noticed the important distinctions and dis-similarities in the procedure set out in both the Acts as follows:
"17. In the Central Act, Section 5-A itself contains detailed provision enabling the person interested to object to the land acquisition, as apparent from Section 5-A(1). Under Section 5-A(2), every such objection is required to be made before the Collector (which means the Land Acquisition Collector as defined) and such provision itself expressly contemplates that the Collector shall give the objector an opportunity of being heard. Thereafter the Collector is empowered to make reports together with record of the proceedings held by him for the decision of the appropriate Government. Section 5-A(2) itself contemplates that the decision of the appropriate Government on the objection shall be final. Under the Land Acquisition (Tamil Nadu Amendment) Act, 1996 (Act XVI of 1997), certain amendments have been effected in respect of Section 5-A(2) of the Central Act and as per such Tamil Nadu Amendment, the report is required to be made to the Government, where the notification under sub-section (1) of Section 4 was published by the Government and to the Commissioner of Land Administration, where the notification under sub-section (1) of Section 4 was published by the Commissioner of Land Administration or by the Collector. In exercise of power conferred under Section 55(1) of the Central Act, Rules have been amended as per Land Acquisition (Tamil Nadu) Rules. Under Rule 4(b), notice is required to be given to the objector as well as to the Department or the Company requiring the land and the copies of the objections are required to be forwarded to such Department or Company and such Department or Company is permitted to file statement by way of answer to the objections. Under Rule 4(c), on the date fixed for enquiry, the Collector is required to hear the objector as well as the department or the company and record any evidence that may be produced by both in support of the objections and in support of the need for acquiring the land. Under Rule 5, on completion of the enquiry, the Collector is required to submit the case for the decision of the Government through the Commissioner of Land Administration in the manner provided in Section 5-A(2) of the Land Acquisition Act and under Rule 6:
On consideration of the objections and the reports thereon, if Government decide that the land should be acquired, the draft declaration under Section 6 shall be approved by the Government and published in the Tamil Nadu Government Gazette as required under sub-section (1) of the said Section in two daily newspapers circulating in that locality. It is thus obvious that the statutory provisions including the Rules contain the detailed provisions in the manner in which such enquiry is to be held and the extent to which the principles of natural justice are required to be followed.
18. Under the State Act, the statutory provisions in the shape of Section 4 and Rule 3 are silent regarding holding of any enquiry (either by the District Collector or by the authorised officer). The statutory provisions merely contemplate issuance of notice to show cause and the Rules only contemplate issuance of notice in Form I. However, such Form I specifically contemplates the statement of objections, if any, received within the time stipulated will be enquired into at a particular place on a particular date at the office of a particular officer, to be specified in such notice. The Form-I further contemplates that the person interested is at liberty to appear and to adduce any oral and documentary evidence in support of his objection. It is no doubt true that such a notice in the statutorily prescribed form can be considered as part of the Rules. However, the procedure to be followed by the authorised officer is not specifically laid down, save and except as contained in Section 4(3)(b). This clause only contemplates that the officer authorised shall make report to the District Collector containing his recommendations on the cause so shown for the decision of the District Collector. It further contemplates that the District Collector may pass such orders as he may deem fit after considering such report. The provisions contained in the Act, the Rules or in Form-I do not specifically envisage as to which record will be placed before the District Collector. Similarly the provisions are silent as to whether the copy of report of the authorised officer is required to be furnished to the objectors. The principles of natural justice regarding furnishing of copy of report can be considered as super added to such provisions. It cannot be said that merely because the Form-I does not specifically prescribe any further opportunity, such opportunity is impliedly proscribed. Since the Central Act had specifically and in detail made certain provisions, it is reasonable to conclude that the Central Act has exhaustively laid down the manner in which and the extent of principles of natural justice is required to be complied with and impliedly excluded any other extension of principles of natural justice; whereas under the State Act the statutory provisions and the Rules being silent, the scope and extent of natural justice to be followed need not be confined to whatever has been described in the Form-I.
19. Under the Central Act, the power of eminent domain is with the appropriate Government, which obviously would mean an officer of very high rank and experience, whereas under the State Act it is with the Collector, who obviously is an officer of much inferior rank and less experience as compared to the Secretary to the Government. Since enormous power and responsibility have been vested with a comparatively less senior and less experienced officer, to lessen the possibility of any arbitrary and immature decision being taken, it is always desirable to strengthen the procedural safeguard by reading into the provisions, the principles of natural justice in the shape of at least giving an opportunity of making a further representation to the Collector on the recommendation/report of the authorised officer.
20. This aspect can be viewed from another angle. Neither in Section 4 nor in the Rules or even in the Form-I, there is any guideline prescribed as to when the matter would be delegated to the authorised officer or when the matter is to be retained by the Collector. Under the provisions of the State Act, certain power can be exercised by the prescribed authority. According to Section 3(j), Prescribed Authority means any authority or Officer authorised by the Government in this regard, by notification. However, authorised officer as contemplated in Section 4(2) or (3) is an officer to be authorised by the District Collector and may be different from the prescribed authority. This is clear from the expression contained in Section 4(3)(b) to the effect Where any officer authorised by the District Collector has called upon the owner or other person to show cause under sub-section (2), the officer so authorised shall make a report to the District Collector ... The question as to whether the proposal to initiate acquisition proceedings is to emanate from the District Collector or an officer authorised by the District Collector is thus left to the discretion of the District Collector. If the District Collector deigns it fit to issue notice himself, the concerned owner or the interested person will have the privilege of filing his objection and having the matter enquired into by the District Collector and can thus avail the benefit of enquiry and personal hearing before the District Collector, whereas if the District Collector for whatever reason thinks it proper to delegate such power to the officer authorised by him, such objection is to be filed before the authorised officer and the enquiry is to be held by such authorised officer and thereafter the report is to be submitted before the District Collector. Under the Central Act, there is no such possibility as the enquiry under Section 5-A is statutorily required to be made by one authority, namely, the Collector (The Collector as defined in the Land Acquisition Act, 1894).
24. Apart from the above, subtle and yet important distinctions between the two Acts, there are other dissimilarities, particularly after the amendment of the Central Act by Act 29 of 1984, which can be noticed hereunder:
Under the State Act, no time limit is fixed for completion of the enquiry either before the District Collector or before the authorised officer and for taking any appropriate decision, whereas under the Central Act, specific time frame is contemplated, including the time fixed for completion of award enquiry. Under the State Act, solatium payable is significantly less than the solatium payable under the Central Act after such amendment has been effected. Similarly there is no provision corresponding to Section 23(1-A) and the interest payable remains unaltered notwithstanding the fact that under the Central Act interest payable has been increased. These are the matters which are required to be considered by the State Government. Since the State Government is expected to discharge its duty as an ideal State, it is obvious that the State is required to balance different factors and to come to an appropriate decision. We are conscious that mere disparity in payment of solatium and other benefits may not be a ground for questioning the validity of an Act. However, as an ideal State, it is obviously always the duty of the State to dispel any doubt regarding inequality. In this context, it has to be remembered that the State Government has also power to acquire lands for the purpose of rehabilitation of the persons belonging to other backward communities or most backward communities, in which event, the State is required to take resort to the provisions contained in the Central Act. Even though the object of acquisitions under these two Acts may be similar, that is to say, to rehabilitate the deprived persons of the society, the resultant compensation may vary to great extent, which is again a matter required to be considered by the State Government.""
166. The questions posed before the Full Bench were answered in Paragraphs 38, 41, 42 and 43 follows:
"38. So far as Question No. 2 is concerned, since it is construed by us that it is necessary for the Collector to give opportunity to the owner to file further representation on the report/recommendation made by the authorised officer, such copy of the report/recommendation is required to be furnished. We also add that in view of the provisions contained in the Right to Information Act, 2005 the owner would be entitled to copy of the report of the authorised officer.
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 suffere d 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.
42. However, it is necessary to enter a small caveat. The observation made by the Division Bench or the single Judge regarding requirement to indicate reason while passing the order has to be understood in the context of non-application of mind. Even though in a given case the order which is communicated to the land owner does not indicate any reason why the objection has been rejected, if the application of mind is reflected in the file even by way of notings and endorsements, the ultimate decision to acquire the land cannot be said to be vitiated merely because the order which is communicated to the land owner/objector does not contain any detailed reasons. The requirement is that the materials on record, that is to say the relevant file, should indicate application of mind to the relevant facts and circumstances and not passing of a formal reasoned order as is required in judicial or quasi-judicial proceedings. The function obviously being administrative in nature, it is futile to expect furnishing of detailed reasons in the order which is communicated to the person. It is necessary to enter such caveat lest it may be construed that in every case, where the order of rejection communicated to the land owner does not contain the reasons, the proceeding stands vitiated. Ultimately the Court is required to find out in each case whether there has been application of mind. Therefore, the brief reasons, which are contemplated, can be given either in the file in the shape of notings, endorsements, etc. or even can be reflected in the order. But, mere non-reflection of reasons in the order communicated or in the notice published in the Gazette, would not be sufficient to hold that there has been non-application of mind and the question as to whether there has been application of mind or non-application is required to be considered on the basis of the return filed and the relevant file to be produced before the Court."
(c) Furnishing a copy of the report of the authorised officer and prejudice:
167. In R. Pari v. Special Tahsildar, Adi-Dravidar Welfare reported in (2006) 4 CTC 609, the Full Bench held that, "The owner should be furnished with a copy of the report/ recommendation of the authorised officer. Thereafter, he should be given two weeks time to make further representation, if any, before the District Collector. It is not necessary for the District Collector to give a further personal hearing or make any further enquiry. However, mere non-furnishing of the report would not have the ipso facto effect of vitiating the proceedings and the question of prejudice to the land owner is required to be considered in each case depending upon the facts and circumstances. The District Collector is expected to reflect the reasons, but merely because the communication to the land owner does not contain the reasons, the decision of the Collector is not ipso facto vitiated and it would always open to the concerned authority to prove before the Court, if such action of the Collector is challenged, that there has been application of mind and the reasons are available in the relevant records relating to such acquisition. The necessity to record the reasons is applicable where the Collector himself makes the enquiry and also where the Collector takes an appropriate decision on the basis of the report/recommendation made by the authorised officer."
168. In Loganathan v. State of Tamil Nadu reported in 2007 (1) MLJ 157, the land owner inter alia contended that he is entitled to the copy of the report of the Tahsildar and that the same was objected on the ground that there is no obligation on the part of the Collector, to do so. Another contention which was raised by the land owner was that under Jawahar Employment Scheme, house sites were also allotted to Adi-Draviders of Nandimangalam Village, in which, lands were sought to be acquired and as per the Census, no Adi-dravider families were living without house sites. It was the grievance of the land owners that objections were not taken note of by the Tahsildar as well as District Collector. Following the Full Bench of this Court in R.Pari's case, the Division Bench rejected the contentions of the Government, at Paragraphs 12 and 13, held as follows:
"12. The learned Government Advocate, by drawing our attention to the conclusion arrived at by the Full Bench, submitted that in the absence of any prejudice shown by the petitioners/land owners, there cannot be any interference, merely because, the copy of the report of the Tahsildar was not furnished. In our case, as pointed out above, the notice was issued by the third respondent-Special Tahsildar on the directions of the second respondent-District Collector. It is not in dispute that the petitioner has submitted his objections. Pursuant to the same, the third respondent forwarded his report to the Collector. We have already referred to the objections of the petitioner. In view of the seriousness in the objections and of the assertion of the petitioner that Adi Dravidars in the village in question have already been provided with house sites and also of the assertion that several vacant lands/plots are available in the same village, we are of the view, it is but proper on the part of respondents 2 and 3 to furnish a copy of the report to the petitioner.
13. It is not in dispute that as per notification under Section 4(1) of the Act, the District Collector, after considering the report/recommendation of the Tahsildar, take a decision and publish the same in the Government Gazette to the effect that he has decided to acquire the land. Though the learned single Judge elaborately referred to the pleadings of the parties and various decisions, there is no specific reference to the order of the District Collector. Even before us, the order said to have been passed by the District Collector is not available. As per the Full Bench decision, it is the duty of the respondents to convince this Court that there has been application of mind on the part of the District Collector and sufficient reasons are afforded in arriving at such a conclusion. As stated earlier, we have no opportunity to verify the decision of the District Collector to find out whether he has applied his mind with reference to the objections raised by the petitioner. As pointed out by the Full Bench, if sufficient materials/reasons are available in the relevant records relating to the acquisition in question, even in the absence of service of copy of the report, the order can be sustained."
169. In Loganathan's case, the Division Bench having regard to the objections that Adi Dravidars in the village in question have already been provided with house sites and also of the assertion that several vacant lands/plots are available in the same village, observed that it is proper on the part of the respondents to furnish a copy of the report of the Tahsildar to the land owner.
170. The petitioners have submitted their objections to the notice under Section 4(2) of the Act. The authorised officer has himself assumed the jurisdiction of the District Collector and he has overruled the objections on his own, except in one case, where he has recommended for rejection. Had the report been furnished to the land owners or persons interested, they would have had an opportunity to question his authority and bring it to the notice of the Collector to either reconsider the report/recommendations or independently consider their objections without being influenced by his report/recommendations. Further, in the counter affidavit, the respondents have stated that the copy of the report cannot be granted. If the land owners have objected to the acquisition proceedings that their agricultural lands should not be acquired, but based on the report from the Village Administrative Officer, the authorised officer has rejected their objections. Had the petitioners been furnished with a copy of the report/recommendations, they would have had an opportunity to putforth their objections on the report of the Special Tahsildar (ADW), Perambular, second respondent. Though the petitioners have contended that they are other lands available in Velvimangalam Village suitable for acquisition, their objections do not reflect the same. But the fact remains that materials obtained behind their back have been considered. In that context, this Court is of the view that there is prejudice caused to the petitioners.
(d) Personal hearing:
171. The contention of the Learned Senior Counsel for the petitioner that the land owners/persons interested should be given personal hearing, cannot be countenanced, as the said plea has already been negatived by the Full Bench of this Court in Pari's case (cited supra).
(e) Copy of the Award to be furnished:
172. As per Section 12(2) of the Central Act, the Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives, when the award is made. On the contrary, a duty is cast on the prescribed authority to determine, by order, the amount payable under sub-Section (1) of Section 7 and the copy of the said order, shall be communicated to the owner of the said land and several persons interested therein. When there is a statutory obligation on the part of the prescribed authority, files do not disclose any material to prove that the copy of the award in respect of each of the writ petitioners, either communicated or served. The contention of the respondents that their might have been chances in lost of draft, is unacceptable. In these circumstances, this Court is of the view that there is a failure to discharge the statutory function.
173. Perusal of the impugned notification shows that the lands acquired are for the residents of landless harijans in Velvimangalam Village and the contention of the writ petitioners is that the private respondents are not the residents of the said village, but they are the residents of Vayalavadi Village. It is submitted by the petitioners that the lands in Velvimangalam Village cannot be acquired for providing house sites to non-residents of Velvimangalam Village and that the District Collector has failed to apply his mind to the said fact, while issuing the 4(1) notification. Per contra, the official respondents have submitted that the Government or the District Collector have the powers of eminent domain and to ensure the constitutional objective, they can choose lands in any village for the purpose of providing house sites to the landless harijans. Going through the objections from the files, this Court does not find that the land owners or the person interested have made any objections in that direction and therefore, it is not open to the petitioners to raise such objections for the first time in this Court. However, it is apparent from the contents of 4(1) notification that the Collector has failed to consider as to whether, the would be beneficiaries, belong to Velvimangalam village or not. He has mechanically affixed his approval for Gazette publication. At the same time, this Court cannot approve the contention of land owners of Velvimangalam Village that the landless persons of Vayalavadi Village, cannot be provided with house sites in Velvimangalam Village. Their contention on the basis of "sons of soil", is untenable, when the Government takes a decision to ensure enforcement of Article 46 of the Constitution of India.
174. The contention of the Learned Senior Counsel for the private respondents that the mere fact that the District Collector had directed the Branch Manager, Government Press, Thuvakudi, Perambalur District, to effect publication of 4(1) notification itself, would go to show that he had applied his mind and therefore, it is not necessary to assign reasons, is not tenable, in the light of the decisions stated supra.
175. Consideration of the objections of the land owners or interested persons in proper perspective with reference to the remarks/recommendations offered by the authorised officer, so as to enable the District Collector to apply his mind independently and to arrive at a subjective satisfaction, as required under Section 4(1) of the State Act, is not an empty formality in the light of the constitutional guarantee under Article 300-A of the Constitution of India. The objections of the land owners or persons interested, cannot be simply be brushed aside by a mere direction of the District Collector to publish a notification under Section 4(1) of the Act.
176. The further contention of the Learned Counsel for the respondents that being the beneficial legislation, the procedural irregularities committed by the official respondents, if any, should not be given undue weightage, also cannot be countenanced for the reason that deprivation of property of an individual, contrary to the mandate of law cannot be construed as a minor abrasion. Even in C.Augustine Jacob v. Union of India reported in 2007 (5) CTC 210, this Court has clearly held that a Writ challenging the acquisition proceedings, can be entertained, where the authorities have violated the mandatory provisions of law.
177. In Sudesh Kumar v. State of Uttarkand reported in 2008 (2) CTC 76, at Paragraph 15, held as follows:
"The Court would not construe a Section of a statute with reference to that of another statute unless the latter is in pari materia with the former. Therefore, a decision made on a provision of a different statute will be of no relevance unless underlying objects of the two statutes are in pari materia . The decision interpreting various provisions of one statute will not have the binding force while interpreting the provisions of another statute."
The above said judgment relied on by the learned Additional Government Pleader is inapposite to the facts of this case.
178. In Gunasekar and others v. Special Tahsildar, Adi-Dravidar Welfare, reported in 2008 (2) CTC 595, the question before this Court was regarding payment of Court fee in the appeal to be filed under Section 9 of the Act 31 of 1978 against an award. The contention raised before this Court was that the Court Fee is not payable in terms of Section 51 of the Tamil Nadu Court Fees and Suit Valuation Act. On facts, the above said judgment is not applicable to the present case. Further, a Full Bench of this Court in R.Pari's case (cited supra), has analysed the distinction and dissimilarities in both the State and Central Acts and by interpreting Section 4 of the State Act, has held that, "the land owner should be furnished the copy of the report/recommendations of the authorised officer and thereafter, he should be given two weeks time to make further representation, if any, before the District Collector."
179. A Full Bench of this Court in M/s.Sharp Tools v. State of Tamil Nadu reported in AIR 2007 Mad. 37, to which, I am a party, held that, forms and notices devised to achieve the object contemplated in the provisions of the statute should not be in a way defeating or confusing the very objection of the provisions. As per Section 4(1) of the State Act, it should be the subjective satisfaction of the District Collector to acquire land for the purpose of any harijan welfare scheme and not the Government. Courts have consistently held that the said satisfaction should reflect in the order passed under Section 4(3)(b) and in 4(1) notification of the Act. Perusal of Form-II issued under Section 4(1) of the State Act makes it clear that it is not in conformity with the statute, as it proceeds on the basis of satisfaction of the Government of Tamil Nadu and not the District Collector, as required under law. Form-II prescribed under Rule 3(ii) is not in conformity with the statutory provisions and therefore, this Court is of the view that the State Government may take immediate steps to amend Form-II, so as to bring it in conformity with Section 4(1) of the State Act and 3(ii) of the rules made thereunder.
180. In the result, the impugned notification and award are set aside and the Writ Petitions are allowed. No costs.
.12.2009 skm S. MANIKUMAR, J.
Skm To
1. The District Collector, Perambalur District.
2. The Special Tahsildar (ADW), Perambalur, Perambalur District.
W.P.Nos.4139, 5343, 6041, 6042 and 6203 of 2001 .12.2009