Madras High Court
M/S. V.G.P.Housing (P) Ltd vs The Secretary To Government on 10 July, 2012
Author: R. Sudhakar
Bench: R. Sudhakar
IN THE COURT OF JUDICATURE AT MADRAS
DATED 10.07.2012
CORAM
THE HONOURABLE MR. JUSTICE R. SUDHAKAR
W.P.Nos. 2055 and 2056 of 2010
......
M/s. V.G.P.Housing (P) Ltd.,
rep. By its Director
Mr.V.G.P. Rajadas,
at VGP Square,
Saidapet, Chennai.15. .. Petitioner (In both Wps.)
-vs-
1. The Secretary to Government,
Industries Department,
Fort St. George,
Chennai.9.
2. The District Collector,
Kanchipuram District,
Kanchipuram.
3. The Managing Director,
SIPCOT,
19-A, Rukmani Lakshimipathy Street,
Egmore, Chennai.8. .. Respondents (In both Wps.)
Prayer: Petition in WP No.2055 of 2010 filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records concerned with the notification bearing No.3/2009/F, dated 27.10.2009 issued by the second respondent and published in the 'Dinakaran' dated 6.12.2009 related to the land measuring 54/1 measuring 0.20.00(pt) Hectares, 54/2 measuring 0.33.5 Hectares 54/3 measuring 0.10.5 (pt) Hectares 54/4A measuring 0.17.0 Hectares 55/1 measuring 0.05.5 Hectares 55/2 measuring 0.05.5 Hectares 55/3 measuring 0.28.0 Hectares 56/1 measuring 0.12.0 Hectares 38 196 sq.ft. And 8,13,022 sq.ft., 56/2A measuring 0.21.0 Hectares 56/2B1 measuring 0.22.5 Hectares 56/2B2 measuring 0.01.5 Hectares 56/3 measuring 0.51.0 Hectares and 0.51.0 Hectares 56/4A measuring 0.38.5 Hectares 56/5 measuring 0.07.0 Hectares, 57/1A1 measuring 0.59.0 Hectare, 57/2A measuring 0.82.0 Hectares, 58 measuring 0.37.0 Hectare, 75/1 measuring 0.27.5 Hectare, 75/2 measuring 0.32.5 Hectare, 75/3 measuring 0.13.0Hectare, 75/4 measuring 0.53.0 Hectare, 75/5A measuring 0.30.5 Hectare, 76 measuring 0.26.5 and part Hectare, 77/3 measuring 0.14.5 Hectare, 77/4 measuring 0.15.5 Hectare, 77/5 measuring 0.19.5 Hectare and in S.No.77/6 measuring 0.36.5 Hectare, in Mathur Village, Sriperumpurdur Taluk, Kancheepuram District as notified in No.3/2009/F, dated 27.10.2009 of the second respondent herein and published in 'Dinakaran', dated 6.12.2009 in Block-II, Mathur Village, Sriperumpedur Taluk, Kancheepuram District and quash the same.
Petition in WP No.2056 of 2010 filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records concerned with the notification bearing No.2/2009/F, dated 9.10.2009 issued by the second respondent and published in the 'daily thanthi', dated 31.10.2009 related to the land in S.No.46/1 measuring 0.35.0 Hectares in S.No.47/2 measuring 0.35.5 Hectares in S.No.49/2 and measuring 0.22.0 Hectares in 50/2 Block-1 Mathur Village, Sriperumpedur Taluk, Kancheepuram District and quash the same.
For Petitioner : Mr. R. Muthukumarawamy
Sr. Counsel for Mr. R.Shivakumar
For Respondents: : Ms.V.M. Velumani R1 & R2
Spl. Govt. Pleader
Mr.M.Devaraj - R3
...........
COMMON ORDER
Writ petition in W.P.No.2055 of 2010 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records concerned with the notification bearing No.3/2009/F, dated 27.10.2009 issued by the second respondent and published in the 'Dinakaran' dated 6.12.2009 related to the land measuring 54/1 measuring 0.20.00(pt) Hectares, 54/2 measuring 0.33.5 Hectares 54/3 measuring 0.10.5 (pt) Hectares 54/4A measuring 0.17.0 Hectares 55/1 measuring 0.05.5 Hectares 55/2 measuring 0.05.5 Hectares 55/3 measuring 0.28.0 Hectares 56/1 measuring 0.12.0 Hectares 38 196 sq.ft. And 8,13,022 sq.ft., 56/2A measuring 0.21.0 Hectares 56/2B1 measuring 0.22.5 Hectares 56/2B2 measuring 0.01.5 Hectares 56/3 measuring 0.51.0 Hectares and 0.51.0 Hectares 56/4A measuring 0.38.5 Hectares 56/5 measuring 0.07.0 Hectares, 57/1A1 measuring 0.59.0 Hectare, 57/2A measuring 0.82.0 Hectares, 58 measuring 0.37.0 Hectare, 75/1 measuring 0.27.5 Hectare, 75/2 measuring 0.32.5 Hectare, 75/3 measuring 0.13.0Hectare, 75/4 measuring 0.53.0 Hectare, 75/5A measuring 0.30.5 Hectare, 76 measuring 0.26.5 and part Hectare, 77/3 measuring 0.14.5 Hectare, 77/4 measuring 0.15.5 Hectare, 77/5 measuring 0.19.5 Hectare and in S.No.77/6 measuring 0.36.5 Hectare, in Mathur Village, Sriperumpurdur Taluk, Kancheepuram District as notified in No.3/2009/F, dated 27.10.2009 of the second respondent herein and published in 'Dinakaran', dated 6.12.2009 in Block-II, Mathur Village, Sriperumpedur Taluk, Kancheepuram District and quash the same.
2. Writ Petition in WP No.2056 of 2010 is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records concerned with the notification bearing No.2/2009/F, dated 9.10.2009 issued by the second respondent and published in the 'daily thanthi', dated 31.10.2009 related to the land in S.No.46/1 measuring 0.35.0 Hectares in S.No.47/2 measuring 0.35.5 Hectares in S.No.49/2 and measuring 0.22.0 Hectares in 50/2 Block-1 Mathur Village, Sriperumpedur Taluk, Kancheepuram District and quash the same.
3. Theses writ petitions have been filed challenging the notice published under Section 3(2) of the Tamil Nadu Acquisition of Land for Industrial Purposes Act 1997 (herein after referred to as 'The Act') . The petitioner claims to be owners of the land and power of Attorney holder as well.
4. The main issue urged by the petitioner in the writ petition and in the Additional Grounds is that the District Collector/ second respondent has published the notices in terms of Section 3(2) of the Act calling for objections from the owners or any other person interested to show cause as to why the land should not be acquired. While issuing such a notice, the Collector is trying to usurp the power of the Government by conducting the hearing consequent to the objections submitted by the petitioner. Such a power is not vested with the District Collector. According to the senior counsel, as per the Provisions of Section 3 of the Act, in order to issue a notification under Section 3(1) of the Act, power is vested with the Government to pass an order after hearing and considering the cause if any shown by the owner or person interested. This is in terms of Section 3(3) of the Act. Such a plea is raised as additional grounds by way of abundant caution eventhough it is a legal plea based on interpretation of the provisions of Act 10/99. The notice under Section 3(2) as published reads as follows: -
(1)in WP No.2055 of 2010:-
VERNACULAR (TAMIL) PORTION DELETED The contention made by the petitioner is justified on a reading of the impugned notice and the counter affidavit filed by the third respondent.
5. The notice under Section 3(2) form-A as set out above, clearly states that owner or person interested should file their objection within 30 days , if not, it will be presumed that there is no objection. The notice further indicates that the enquiry on objections will be conducted by the District Collector at his office in the following manner.
(1)Na.Ka.03/2009/F, dated 27.10.2009 on 18.1.2010 at 1.00 p.m. (2)Na.Ka.02/2009/F, dated 9.10.2009 on 16.12.2009 at 11.00 a.m. It also states that parties may appear either in person, through authorised representative or by a counsel. The petitioner contented that the Collector does not have the power to conduct the enquiry and therefore, the notice contrary to the Section 3(1) and 3(3) and Rule 6 is bad.
6. In the counter affidavit, the General Manager of the Sipcot/ Respondent No.3 stated that enquiry was conducted on 18.1.2010, objectors were heard, the District Collector has recorded the same and forwarded the same to the Government for issuance of notice under Section 3(1) of the Act. Respondents 1 and 2 have not filed a counter affidavit inspite of several adjournments and this is recorded in the order of this Court dated 8.6.2010 while admitting the case.
7. Sri. Devaraj, learned counsel appearing for the third respondent, justified the action of the District Collector stating that such power vests with the District Collector in terms of Section 23A of the Act whereby the District Collector is empowered to do certain acts and includes the power to hear objections. Section 23A reads as follows:-
" 23-A . Delegation of powers:- The Government may, by notification, direct that all the powers under this Act except the powers, -
(1)to issue notice under sub-section (1) of Section 3;
(2) to withdraw the land from acquisition under the first proviso to sub-section (1) of section 4; and (3) to make rules under section 25, shall, subject to such conditions, if any, as may be specified in the notification, be exercised by the Collector.)"
He therefore justified the hearing of objections by the District Collector.
At this juncture, it will be relevant to consider the provision of Section 3(1)(2) & (3) of the Act, which is as follows:-
" 3. Power to acquire land (1) If, at any time, in the opinion of the Government, any land is required for any industrial purposes, or for any other purpose in furtherance of the objects of this Act, they may acquire such land by publishing in the Tamil Nadu Government Gazette a notice specifying the particular purpose for which such land is required.
(2) Before publishing a notice under sub Section (1), the Government shall, call upon the owner and any other person, who in the opinion of the Government may be interested in such land, to show cause within such time as may be specified in the notice, why the land should not be acquired. The Government shall also cause a public notice to be given in such manner as may be prescribed.
(3) The Government may pass an order under sub-Section (1) after hearing and considering the cause, if any, shown by the owner or person interested."
Rule 6 (b) (c) of the Tamil Nadu Acquisition of Land for Industrial Purposes Rules, 2001 reads as follows:-
" (6) Hearing of objections by the Government.
(b) If any objections are received from a person interested in the land, within the time prescribed in Rule 3 or 4, the Government shall fix a date for hearing the objections and give notice thereof to the objector or as well as to the department or company requiring the land. Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the Government, a statement by way of answer to the objections and may also depute a representative to attend the enquiry.
(c) On the date fixed for enquiry or any other date to which the enquiry may be adjourned by the Government, the Government shall hear the objector, or a person authorised by him in this behalf, or his pleader and the representative, if any, of the department or 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."
8. The contention of the learned counsel for the third respondent is not justified as it is contrary to the Provisions of Section 3(1) and 3(3) of the Act. Section -3 (1) of the Act mandates that the Government, has to pass the Gazette notification to acquire the land under the Provisions of the Act 10 of 1999. Section 3 (3) mandates that the Government should pass an order under Sub Section 1 of Section 3 after hearing and considering the cause if any shown by the owner or person interested. It is therefore clear that the said exercise can be done only by the Government and not otherwise and Section 3(1) and 3(3) are interlinked that is to say to hear and pass the order. Section 23 (A)(1) of the Act provides that the Government may, by notification, direct that all the powers under this Act be exercised by the Collector except to issue notice under Section 3(1) of the Act. In view of the above, it does not fall within the domain of the Collector to pass the order under Section 3(1) of the Act and therefore, the question of Collector hearing the objection does not arise.
9. The learned counsel for the third respondent tried to justify that the power is retained by the Government only with regard to issuing the gazette notification under sub Section (1) of Section 3. However, for issuing notice under Section 3(2) and for hearing of objections under Section 3(3), the Collector has the delegated power. This plea is not as the provision of Law.
10. Section 3 (2) deals with publication of notice viz., show cause notice to the owner or person interest as pre-condition for acquiring the land. It is the Government, which causes the public notice and that power is delegated to the Collector for the purpose of publishing the notice. The power however is specifically given to the Government to pass an order and issue gazette notification under Section 3(1) of the Act. The procedure prescribed under Section 3(3) of the Act clearly mandates that the Government before passing an order namely gazette notification under Section 3(1) of the Act, it should hear and consider the cause if any shown by the owner or person interested. If by delegation of Power under Section 23A of the Act the Collector does not have the power to pass an order and to issue the gazette notification under Section 3(1) of the Act, the question of hearing and considering the cause does not arise as the Collector does not have the power to pass an order under Sections 3(1) of the Act as procedure for passing an order under Section 3(1) is linked with hearing of objections under Section 3(3). Therefore, it will be totally inappropriate to state that the collector under delegated power can hear the objections. The Section 3 (3) specifically provides for hearing and considering the cause shown by the owners of land by the Government before passing the notification under Section 3 (1). That power cannot be and has not been delegated to the Collector. If the Collector assumes such power, it will amount to usurping the power of the Government.
11. Administrative jurisprudence requires that the authority, who hears the cause alone should pass the order. In this case the Collector cannot pass the order under Section 3(1) as it is the Government, which alone is entitled to pass the order and issue the notification under Section 3(1). In the same manner, if the Government has the mandate as per Section 3(1) read with Section 3(3) to hear and pass orders, then, the Government alone has the power to do so. Such power has not been delegated under Section 23(A). Therefore, the said plea is rejected.
12. An authority enjoined by law to pass order cannot delegate the power of hearing to another person and thereafter pass the order. It will amount to abdication of the function of the said authority. The purpose of hearing by the authority as specified in the Act cannot be delegated to another authority. If such an exercise is done and an order is passed, it will amount to non-application of mind by the authority, who is bound to hear and pass orders. Hearing the objections by one authority and passing the order by another authority will be opposed to the spirit of Administrative Jurisprudence, which requires fairness in administrative action and to follow procedure prescribed by law.
13. In the present case, it is for the Government to hear and pass the orders as per the mandate of Section 3(3) and Section 3(1). The hearing of objections before passing such an order cannot be delegated to the District Collector. Therefore the notices issued on those lines is bad and contrary to Sections 3(1) and 3(3) of the Act 10/99 and has been rightly challenged.
14. Hearing of objections by the Government under Section 3(3) of the Act is part and parcel of the exercise, while passing an order under Section 3(1). This is distinct and different from issuing a mere paper publication or notice under Section 3(2). The proceedings under Section 3(2) is purely procedural and can be justified as exercise of a delegated power under Section 23A.
15. The delegation of powers under Section 23(A) to the District Collector does not empower the Collector to pass order under Section 3(1) and as a consequence does not have the power to hear the objections under Section 3(3).
16. Government Order in G.O.Ms.No.513, which is relied upon by the third respondent does not improve the case of the respondents. The Collector for the purpose of Section 3(2) is given delegated power to cause notice and call for objections. This is a specific delegation. It does not empower the Collector to hear and pass an order under Section 3(1). That power vests only with the Government.
17. When the statutory provisions specifically provides that a particular Act should be done in a particular matter, it should be done in that manner and not at all. The Hon'ble Apex Court in J & K Housing Board V. Kunwar Sanjay Krishan Kaul reported in (2011 (10) SCC 714) held as follows:-
" It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefore in the Act. "
Therefore the notice, insofar as it calls upon the petitioners to appear for hearing before the Collector, is bad and will be without jurisdiction. Since, the Collector has not proceeded thereafter in this case, it may not be necessary to set aside the notice as appropriate direction can be given to the Government to deal with the issue as per law.
18. In view of the above, since the petitioner in these two cases have given their objections and further taking note of the stand taken by the Special Government Pleader that the Government will consider and pass orders in accordance with the provisions of the Act 10 of 1999, these writ petitions are disposed of directing the first respondent/ Government to consider the objection if any submitted in writing and hear the objections of the petitioners and thereafter proceed in accordance with the law. It is for the Government to decide if the acquisition is required and pass order as it deems fit. The Government is directed to take a decision on merits and in accordance with law at the earliest. The petitioners in these cases will be given an opportunity of hearing to make their objections in person at the time of hearing by the Government. The writ petition is ordered as indicated above. Consequently, connected miscellaneous petitions are closed. No costs.
ra To
1. The Secretary to Government, Industries Department, Fort St. George, Chennai.9.
2. The District Collector, Kanchipuram District, Kanchipuram.
3. The Managing Director, SIPCOT, 19-A, Rukmani Lakshimipathy Street, Egmore Chennai 8