IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-4-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.5697 of 2003 and W.P.M.P.No.1566 of 2007 1. R. Ananthakrishnan 2. A. Bhuvaneswari 3. M. Lakshmi 4. R. Murugesan ... Petitioners Vs. 1. The Secretary, State of Tamil Nadu, Adi Dravidar and Tribal Welfare Department, Chepauk, Chennai - 600 009. 2. The Director, Adi Dravidar and Tribal Welfare Department, Chepauk, Chennai - 600 005. 3. The District Collector, Office of the Collectorate, Ramanathapuram. 4. The Special Tahsildar (ADW), Ramanathapuram. ... Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the respondents to complete the acquisition proceedings by passing an award for payment of compensation in pursuance of Section 4(1) notification No.2 dated 4.3.1996 issued under Tamil Nadu Acquisition of Lands for Adi Dravidar Welfare Act, 1978, and published in Ramanathapuram District Gazette and also the show cause notice (Form No.3) issued under Rule 5(1) of the Tamil Nadu Acquisition of Lands for Adi Dravidar Welfare Scheme Rules, 1978. For Petitioner : Mr.S.V.Ananthakrishnan For Respondents : Mr.M.Dhandapani, Special Govt. Pleader O R D E R
By consent of both parties, the writ petition itself is taken up for final disposal.
2. Prayer in this writ petition is to issue a writ of mandamus directing the respondents to complete the acquisition proceedings by passing an award for payment of compensation in pursuance of Section 4(1) notification No.2 dated 4.3.1996 issued under the Tamil Nadu Acquisition of Lands for Adi Dravidar Welfare Act, 1978, and published in the Ramanathapuram District Gazette.
3. The brief facts necessary for disposal of the writ petition are as follows:
(a) An extent of 2.03.50 H of lands situate in Ward ‘C’ Block 11, T.S.No.1/2A, Soorankottai Village, Ramanathapuram Taluk and an extent of 0.660.0 H in Ward ‘C’, Block 11, T.S.No.3/1 of the said village and Taluk belonging to the petitioners were acquired by the respondents by issuing notification under section 4(1) of the Land Acquisition Act, 1894, on 10.5.1995 and the same was published in the Tamil Nadu Government Gazette and also in the local News Papers. When the said 4(1) notification was in force, the Tamil Nadu Acquisition of Lands for Adi Dravidar Welfare Act, 1978 (Act 31 of 1978) after the same was upheld by the Supreme Court, came into force and as per Section 4(1) of Act 31 of 1978, a notification was issued and published in Ramanathapuram District Gazette on 4.3.1996.
(b) On 11.3.1996 a show cause notice was issued to the petitioners by the Special Tahsildar for enquiry. Petitioners appeared before the special Tahsildar and expressed their consent and requested for early payment of compensation. Thereafter, there was no information from the respondents.
(c) The said land was acquired for constructing houses for Adi Dravidars. The lands are located in between the lands already acquired by the Government Adi Dravidar and Harijan Welfare Department and the petitioners cannot use the said lands for cultivation or any other purpose.
(d) In spite of their giving consent no action having been taken by the respondents for paying compensation, petitioners individually and collectively sent representations to the higher officials. No action having been taken to finalise the compensation amount, the petitioners filed W.P.No.12951 of 2000 before this Court and prayed for issuing a writ of mandamus directing the respondents to acquire the land as per section 4(1) notification and also on the basis of enquiry conducted under Section 5(1) of Act 31 of 1978 and for payment of suitable compensation. This Court by order dated 13.3.2002 directed the first respondent to dispose of the representations sent by the petitioners within a period of six weeks.
(e) On 22.4.2002 petitioners enclosed the said order copy with covering letter. Since there was no response, a counsel notice was issued on 15.9.2002 which was received by the third respondent on 19.9.2002. Thereafter, 4th respondent issued notice for fixing the hearing date on 1.10.2002. The first petitioner appeared on behalf of the petitioners before the 4th respondent on 1.10.2002 and gave a letter requesting the 4th respondent to pay compensation. Even thereafter there was no response from the respondents.
(f) Hence the petitioners have filed this writ petition before this Court on 14.2.2003 by contending that the respondents have no right to abandon the acquisition proceedings once enquiry under section 5(1) of the Tamil Nadu Acquisition of Lands for Harijan Welfare Act, 1978, is issued and after issuance of notification under section 4(1) of the Act, through the District Gazette, the land vests with the Government free from all encumbrances and therefore the respondents are bound to complete the acquisition proceedings and pay the compensation.
(g) It is also stated in the affidavit that the surrounding lands are already acquired for Adi Dravidar, Tribals and Harijan colonies and the petitioners’ lands are also being now used by the said persons as there is no proper approach road to reach the petitioners lands due to the establishment of the colonies. It is further stated that possession having vested with the Government due to issuance of notification under section 4(1) in the year 1996, there is no justification on the part of the respondents to deny compensation for the said acquired lands.
4. The respondents filed counter affidavit by contending that notification for acquiring petitioners’ lands under section 4(1) of the Act 31 of 1978 was published in the Ramanathapuram District Gazette on 4.3.1996 and during the award enuiry, the valuation of the land was assessed, which was found very high as the said lands are situate in the Ramanathapuram Municipal area. The minimum land value approximately worked out to Rs.1.80 lakhs per acre and considering the exorbitant land value and also the possibility of the land owner filing appeal for enhancement of compensation, resulting in further expenditure to the State Government, instructions were issued as to whether the land acquisition proceedings are to be continued or not. The first respondent through its letter dated 18.10.1999 gave instructions not to proceed with the acquisition of land of 2.70.0 H of dry land in Soorankottai village with a direction to select and acquire alternate lands in the said area for a lower rate, pursuant to which the third respondent is taking steps to withdraw the notification and at that stage petitioners have filed this writ petition. It is further contended in the counter affidavit that the power to issue notification to acquire the lands also empowers the third respondent to withdraw the notification and taking note of the welfare of the State viz., high cost of the lands, the third respondent took a decision pursuant to the direction issued by the first respondent to drop the land acquisition proceeding and no order is passed due to pendency of this writ petition.
5. The learned counsel appearing for the petitioners submitted that the Land Acquisition Act viz. Tamil Nadu Act 31 of 1978 being a special enactment and the power of acquisition of the land under the said Act having been given to the District Collector, as and when notification under section 4(1) is issued by the District Collector and published in the District Gazette the said lands vest with the Government without any encumbrance from the owner and the vesting having been taken place already by virtue of handing over possession by operation of law, the said notification cannot be withdrawn as the Government become the owner of the land. Therefore, neither the first respondent nor the third respondent has got any jurisdiction to drop the acquisition proceedings on the alleged ground that the market value of the land acquired is on the higher side. The learned counsel further submitted that even assuming that the respondents have got any power to withdraw the notification, the District Collector having been authorised by the Government to acquire the land, he has to independently apply his mind as to whether the acquisition proceedings can be proceeded with or withdrawn and in this case the first respondent decided to drop the acquisition proceeding through letter dated 28.10.1999 and instructed the District Collector to take steps to withdraw the land acquisition proceeding and the same is improper. The learned counsel further submitted that till date no gazette notification is issued by the third respondent withdrawing the acquisition of the petitioners’ land and now over 11 years have passed and substantial prejudice is caused to the petitioners due to the delay and the adjacent lands having been acquired and Harijan colonies are established, petitioners are unable to enter into their lands and therefore their right to hold the property guaranteed under Article 300A is affected. On the above said grounds, the learned counsel for the petitioner prayed for ordering the writ petition with a direction to arrive at the just compensation for the already acquired land and pay the same.
6. The learned counsel for the respondents on the other hand submitted that the Government having vested with the power under eminent domain, is vested with the discretion to acquire the land as well as to drop the acquisition proceedings by issuing withdrawal notification and the petitioners have no right to compel the Government to continue the acquisition proceeding in spite of the decision of the Government to drop the acquisition proceeding. The learned counsel further submitted that the power of the department to withdraw the acquisition proceeding is an inherent power and the same cannot be questioned by the petitioner merely because section 4(1) notification was issued. The learned counsel further submitted that even though a symbolic possession is vested with the Government after publication of 4(1) notification in the District Gazette in terms of section 4(1) of Act 31 of 1978, petitioners are actually in possession of the land and therefore no prejudice is caused to the petitioners merely because the said notification was issued.
7. I have considered the rival submissions made by the learned counsel for the petitioners as well as respondents.
8. The point for consideration is whether the respondents can withdraw the land acquisition proceeding initiated in the year 1996 under the special enactment called the Tamil Nadu Acquisition of Lands for Adi Dravidar Welfare Act, 1978 (Act 31 of 1978).
9. Admittedly the District Collector issued notification under section 4(1) of Act 31 of 1978, which was published in the District Gazette on 4.3.1996. Under section 5 of the Act 31 of 1978, when a notice is issued under sub-section (1) of section 4 is published in the District Gazette, the lands 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 encumbrance. Thus it is evident that on and from 4.3.1996, the lands of the petitioners are vested with the Government free from all encumbrances and the Government has become owner of the said lands.
10. In the decision reported in 2004 WLR 682 (V. Panchavarnam Pillai & another v. The State of Tamil Nadu, etc., and another), the very same question was considered and in paragraph 6 it is held as follows:
“6. Coming to the State Act, the District Collector is empowered to acquire the land for the purpose of any Harijan Welfare Scheme. In this regard, he is empowered to direct the publication in the District Gazette a notice to the effect that he has decided to acquire the land. Before publishing such a notice, the District Collector or any officer authorised by him in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the officer so authorised may be interested in such land, to show cause why it should not be acquired. Where the District Collector authorises any officer to conduct enquiry, a detailed procedure to be followed is prescribed under clause (b) of sub-section (3) of Section 4. As per the said clause, the officer so authorised after considering the explanation from the person interested shall make a report to the District Collector containing his recommendations. After considering such report, the District Collector may pass such orders as he may deem fit. Once the District Collector satisfies to acquire the land, notification under sub-section (1) of Section 4 is published in the District Gazette. The State Act entitles the person interested for a notice in Form-I under sub-section (2) of Section 4. In the absence of such notice, notification under Section 4(1) is bad in law. Immediately after 4(1) notification, the land sought to be acquired shall vest with the Government and the person interested will lose the title to the property itself immediately on publication of the notification in the District Gazette. In fact there is no question of taking over possession of the land as the vesting of the land with the Government is by virtue of the notification under Section 4(1).”
Thus it is beyond doubt that the petitioners are not the land owners of the said property after publication of the notification under section 4(1) in the District Gazette. During the enquiry also petitioners gave their consent and requested the respondents to pay the compensation. Section 6 of the Act clearly states that every person having any interest in any land acquired under the said Act, shall be entitled to receive and be paid the compensation as determined under section 7. The procedure remains to be complied after vesting of the lands with the Government is only the determination of the compensation amount. In other words the determination of compensation arises under Act 31 of 1978 only after vesting of the land with the Government.
11. It is an admitted case that while determining the compensation only the third respondent found that the land acquired from the petitioners are more valuable than the adjacent lands and if the adjacent lands are acquired by dropping the acquisition proceedings initiated against petitioners’ lands, the Government will be benefitted. The said decision or assessment of probable value of the lands could have been made by the respondents before finalising the acquisition proceedings viz. before issuing notification under section 4(1) in the District Gazette. As rightly contended by the learned counsel for the petitioners, as and when Section 4(1) notification is issued, Government becomes the owner of the land and the petitioners became ex-owners, who are entitled to get compensation alone. Further under Act 31 of 1978, the District Collector is the competent authority to acquire the lands and the Government having delegated the said power of acquisition to the District Collector, he alone can take decision either to continue with the acquisition proceedings or to drop proceedings even assuming that a power is vested with him. The power to acquire land is vested with the District Collector as per section 4 of the Act. Thus, the legislature thought fit to vest the power of acquisition for the Harijan Welfare Schemes with the District Collector and he being the acquiring authority, it is for the District Collector to proceed with acquisition.
12. Act 31 of 1978 being a special enactment and admittedly there is no provision for dropping the notification already issued under section 4(1) of the Act, it has to be ascertained whether the respondents have any right to issue withdrawal notification for any reason. Even though the power of reconveyance is vested under the Central Act and after vesting of the land with the Government free from all encumbrances, whether it can be reassigned or reconveyed to the original owner as a matter of right, was considered by the Supreme Court in the decision reported in (2005) 1 SCC 558 (Govt. of A.P. v. Syed Akbar) and in paragraphs 10 and 14 the Supreme Court held as follows:
“10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State of Kerala v. M. Bhaskaran Pillai para 4 of the said judgment reads: (SCC p. 433)
4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the directive principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value.
14. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilised for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be reassigned or reconveyed to the original owner merely on the basis of an executive order. (Emphasis supplied)
Even under the Central Act, Section 48(1) clearly says that the Government shall be at liberty, except in the case provided for in section 36, to withdraw from the acquisition of any land of which possession has not been taken. Thus, legal position emerges is that if the possession of the land has been taken, the de-notification is not legally possible. The Supreme Court in the decision reported in (1988) 1 SCC 50 (Special Land Acquisition Officer v. Godrej and Boyce) in paragraph 5 held as follows:
“5. ……. Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although it may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land. So long as possession is not taken over, the mere fact of a notification under Section 4 or declaration under Section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments. Again, such a notification does not either confer on the State Government any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safeguard the interests of the original owner of the land. It is in view of this position, that the owners interests remain unaffected until possession is taken, that Section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken. ……….”
Here in this case, there is a specific legislation to the contrary under section 4(1) of Act 31 of 1978, specifically stating that as and when the notification is issued under section 4(1) of the Act, the land vests with the Government, free from all encumbrances, including that of the original owner.
13. The issue as to whether the power is vested with the Government or with the District Collector and who can exercise the discretion is considered by a Full Bench of this Court in the decision reported in (2007) 2 MLJ 706 (R.Pari v. Special Tahsildar, Adi Dravidar Welfare) and in paragraph 6 the Full Bench held thus,
“6. The statutory provisions thus make it clear that the District Collector is the authority to exercise the power of eminent domain. As per Section 4(1), it is required that the Collector should be satisfied that the land is required for the purpose of any Harijan Welfare Scheme. Notice is required to be published in the District Gazette regarding the decision of the Collector to acquire the land. However, before taking such action, under Section 4(1), the District Collector or any officer authorised by the District Collector is required to call upon the owner or any other person, who, in the opinion of the District Collector or authorised officer may be interested to show cause why such land should not be acquired. Under Section 4(3)(a), after the cause is shown, the District Collector, where notice has been issued by him, may pass such orders as he may deem fit. However, under Section 4(3)(b), where such notice is issued by the Authorised Officer, such officer is required to make a report to the District Collector containing his recommendations on the cause shown, for the decision of the District Collector and the District Collector may pass such orders as he may deem fit after considering such report.”
Thus it is manifest from Act 31 of 1978 as well as Full Bench decision of this Court that the District Collector alone is the competent authority to decide the issue to proceed with the acquisition. Here in this case, admittedly the District Collector has not decided to drop the proceeding and the first respondent through DO letter No.31758/LA3/98-10, dated 28.10.1999 has instructed the District Collector not to proceed with acquisition of lands and select an alternate site. The said action of the first respondent is also without jurisdiction in the light of section 4, read with Full Bench decision cited supra.
14. Further this writ petition is filed by the petitioners only in the year 2003 i.e, on 14.2.2003. Even though a formal decision at the instructions of the Government was intimated to the third respondent, till date no withdrawal notification is published in the gazette i.e., for the past over 11 years. The acquisition proceedings is allowed to continue and the petitioners are no longer the title holders of the lands. Along with the counter affidavit a letter of the District Collector bearing Na.Ka.No.2/18094/95, dated 26.11.999 is enclosed wherein it is stated that acquisition proceedings are dropped. Neither the said letter can be treated as decision and even assuming that it is a decision, admittedly the same is not published in the District Gazette till date. It is well settled in law that merely passing an order is not sufficient and unless it is communicated to the concerned persons, the order cannot be treated as valid order. Further the notification having been issued already acquiring the petitioners’ lands, even if there is power to drop the proceeding, withdrawal notification should also be published in the District Gazette. The said procedure is not followed in this case.
15. Hence on any account, as of now the acquisition proceeding is not dropped and the Government is the owner of the lands. The possession having been vested with the Government as early as in the year 1996, it is not open to the respondents now to contend that the said lands are not required and the petitioners are not entitled to get compensation for the lands already acquired.
16. In the light of the above statutory provisions and in view of the fact that no power is vested with the Government or with the District Collector to drop the proceedings and also in the facts and circumstances of this case, I am of the view that the petitioners are entitled to succeed in the writ petition and the third respondent is bound to determine the compensation and pay the same to the petitioners.
17. The writ petition is allowed with direction to the respondents to finalise the compensation amount payable to the petitioners and pay the same within a period of six months from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed.
vr
To
1. The Secretary,
Adi Dravidar and Tribal Welfare Department,
Chepauk, Chennai – 600 009.
2. The Director,
Adi Dravidar and Tribal Welfare Department,
Chepauk, Chennai – 600 005.
3. The District Collector, Office of the Collectorate,
Ramanathapuram.
4. The Special Tahsildar (ADW),
Ramanathapuram.