IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2008 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.10529 of 1998 Y.Saraswathy ... Petitioner vs. 1. The Collector, Vellore District at Vellore. 2. The Special Tahsildar ADW, Gudiyatham, Vellore District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records on the file of the first respondent in Award enquiry No. 1 of 1997-98 dated 19.12.1997 and quash the proceedings therein as illegal, incompetent, unconstitutional and without jurisdiction and further direct the respondents not to acquire the lands of the petitioner except otherwise in accordance with law. For Petitioner : Mr.V.Raghavachari For Respondents : Mrs.D.Geeta, Addl. Government Pleader O R D E R
The land situated in S.No.57/1A2 at Bathalppalli Village of Gudiyattam Taluk in Vellore District belong to the petitioner having purchased the same on 26.12.1990. In this writ petition, the petitioner challenges the award enquiry and the ultimate award passed in Award No.1 of 1997-1998 dated 19.12.1997 conducted under the Harijan Welfare Scheme Act, 1978 (Tamil Nadu Act 31 of 1978) (in short ‘Act’).
2. The admitted case of the petitioner is that the notice in Form-I as prescribed under Rule 3(1) of the Rules framed under the Act read with Section 4(2) of the said Act was served on the petitioner and the petitioner has also submitted her objections to the second respondent on 21.12.1995. One of the objections raised by the petitioner before the second respondent was that the petitioner herself belong to Harijan community and she is a small farmer and the said property is the only source of livelihood for her and being an agricultural land acquiring such property for the purpose of Harijan Welfare Scheme is not proper. She has also raised another point that she desires to start an Orphanage in the land sought to be acquired. She has also submitted objections to the acquisition officer, the second respondent herein on 21.12.1995. As per Form-I notice issued by the second respondent, the date of enquiry was fixed to 21.12.1995 and it was on the said date, the petitioner has filed her objections.
3. The second respondent by his proceedings dated 31.12.1995 has conducted enquiry and has considered the objections raised by the petitioner including the objection that the petitioner desires to start an Orphanage and gave his opinion that the Village is not fit for starting an Orphanage at all and in that view of the matter recommended to the Collector for completing the acquisition procedures. On receipt of such report from the second respondent, the first respondent by proceedings dated 14.10.1997 directed 4(1) notification to be issued, ultimately 4(1) notification came to be issued on 14.10.1997 and published in the Vellore District Gazette on 05.11.1997. Even though in the writ petition, the petitioner had chosen to challenge the proceedings in respect of the award, it is the contention of the learned counsel for the petitioner that when the proceedings of the acquisition are vitiated, this Court is having jurisdiction to set aside the award proceedings and acquisition proceedings also.
4. The submissions of the learned counsel for the petitioner are:
(i) that as per the requirement of Section 4(1) of the Act, it is only the District Collector who has to satisfy himself that the lands are required for Harijan Welfare Scheme and as per Section 4(2), while conducting enquiry either the District Collector himself can conduct enquiry or he can authorise any officer to call upon the owner or any person who in the opinion of the District Collector or any authorised person is interested in such land, to show cause as to why the property should not be acquired. According to the learned counsel, when the District Collector authorizes any other officer for conducting enquiry under Section 4(2) of the Act, such officer must be duly authorised by the District Collector. According to the learned counsel in the present case, the second respondent has never been authorised by the District Collector to perform the functions of an Officer to conduct enquiry as per Section 4(3)(b) of the Act.
(ii) merely because Form-I which is issued as per Rule 3(i) of the Rules framed under the Act used the words that ‘the Special Tahsildar is authorised by the District Collector’, it does not create a presumption that the Special Tahsildar has in fact been authorised unless and until the same is proved by a specific order of the District Collector.
(iii) even though the Report is submitted by the Special Tahsildar as authorised by the Collector, it is the duty of the Collector to apply his mind and give reason for rejecting the objections of the owner. He would also submit that any order passed by the District Collector in a cyclostyle form would not amount to proper application of mind by the District Collector.
5. Learned counsel for the petitioner would also rely upon various judgements of this Court reported in (i) 2001 (1) MLJ 328 (S.K.Thirugnanasambandam and others vs. The Government of Tamil Nadu and others) (ii) 2004 (3) CTC 261 (K.V.Purushothma Naidu vs. The District Collector, N.A.District,Vellore and another) (iii) 2006 (3) LW 1000 = 2007 (2) MLJ 706 (Full Bench decision) (R.Pari vs. The Special Tahsildar, Adi Dravidar Welfare, Devakottai and another)
to substantiate his contentions that the District Collector has the duty to apply his mind and pass a reasoned order. It is also his submission that as per the judgment of the Full Bench of this Court reported in 2006 (3) L.W. 1000, even though it may not be necessary for the District Collector to communicate the reasons for his satisfaction, a perusal of the file at least should show the application of mind by the District Collector. It is his further submission that the term “prescribed authority” under Section 3(j) of the Act means, any authority or officer authorised by the Government by notification and who is entitled to conduct award enquiry as per Section 14 of the Act and that can never be applicable to Section (4) which is a self contained provision.
6. Admittedly in this case, the petitioner has participated in the enquiry conducted under Section 4(2) of the Act and ultimately the award came to be passed on 19.12.1997 and the present writ petition was filed on 23.07.1998. Learned counsel for the petitioner would contend that under the provisions of the said Act, inasmuch as the property absolutely vest with the Government when once the notification issued under Section 4(1) by the District Collector, the rulings relied on by the respondents in respect of the laches may not be applicable.
7. On the other hand, learned Addl. Government Pleader appearing for the respondents, who has produced the files relating to the land acquisition proceedings has submitted as follows:
(i) the Form-I notice as prescribed by rules and issued by the Special Tahsildar, in categoric terms states that the Special Tahsildar is authorised and that itself is sufficient authorisation and it is not open to the court to probe into the fact as to whether the District Collector has in fact given such authorisation.
(ii) under Section 3(j) of the Act, the prescribed authority can be any authority authorised by the Government under notification and the Special Tahsildar, Harijan Welfare has been authorised to be the prescribed authority under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 by G.O.Ms.No.1628, Social Welfare, dated 21.09.1979, which has been amended by G.O.Ms.No.97, Social Welfare, dated 08.02.1970 and therefore, the authorisation by the Government to the Special Tahsildar as prescribed authority will be sufficient to enable the Special Tahsildar to act as an authorised officer for the purpose of conducting enquiry under Section 4(3)(b) of the Act.
(iii) According to her, as per the records produced by the Collector, there is no specific authorisation given by the Collector, but in any event, the term ‘prescribed authority’ having been explained under Section 3(j) of the Act and the Government having authorised the Special Tahsildar, Harijan Welfare Scheme, there is no necessity for any separate order to be passed by the District Collector authorising the Special Tahsildar.
8. Learned Additional Government Pleader further submitted that the proceedings of the second respondent have been in fact considered by the Collector and even though in the cyclostyled forms, gaps have been filled up, there is no reason to disbelieve that the Collector has not applied his mind. Therefore according to her, the order of the District Collector rejecting the objections of the petitioner is sufficient compliance of the judgment of the Full Bench of this Court reported in 2007 (2) MLJ 706. She would also vehemently contend that law is well settled as it is laid down by the Supreme Court in 2003 (4) SCC 485 (Tej Kaur and others vs. State of Punjab and others) that after the award is passed in the land acquisition proceedings, no writ petition can be entertained and the same has been confirmed in no uncertain terms by the judgments of the First Bench of this Court in 2005 (3) CTC 1 and 2005 (3) CTC 691.
9. I have heard the learned counsel for the petitioner and the learned Addl. Government Pleader for the respondents and perused the records relating to the land acquisition proceedings.
10. The facts which have been enumerated above are not much in dispute. A reference to Form-I issued as per Rule 3(i) of the Rules framed under the Act no doubt contains the words, as follows:
“All persons interested in the land/lands you are accordingly directed to lodge before the Special Tahsildar (ADW), Gudiyattam, N.A.A. District (Officer authorised by the Collector of North Arcot Ambedkar District) under Sub-Section (2) of Section 4 of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978 (Tamil Nadu Act 31 of 1978). ”
But the question to be decided in this case is whether such cyclostyled form which has been prescribed as per the Rules under the Act is sufficient for the Collector to make such authorisation or in addition to that the Collector should specifically authorise the Special Tahsildar for the purpose of conducting enquiry under Section 4(3) (b) of the Act.
11. The said legal position came to be decided by this Court in P.S.Subramaniam Mudaliar (deceased) and Manimekalai vs. The Collector and the Special Tahsildar, Land Acquisition (ADW) in MANU/TN/1597/2003 (W.P.No.16210 of 1995) by order dated 21.10.2003. While dealing with Sections 4(1) and 4(2) of the Act, that for issuance of notice in Form-I, the officer authorised must be specifically authorised by the District Collector and such authorisation is a pre-condition to confer the right on such officer to initiate acquisition proceedings under Section 4(2) of the Act. The learned Judge after extracting Section 4 of the Act has made the following observations:
“Sub-section (1) of Section 4 empowers the District Collector to acquire any land by publishing in the District Gazette that he has decided to acquire the land. Before publication of notice in the District Gazette, a notice in Form-I under Rule 3(i) of the Rules should be served on the person interested. For issuance of notice and calling for objections, the power is vested with the District Collector of course, with an exception enabling the District Collector to authorise any officer in his behalf. Such authorisation is a pre-condition to confer a right on the officer to initiate the acquisition proceedings under sub-section (2) of Section 4 of the Act. The said officer so authorised, after considering the objections filed by the person interested, if any, shall again submit his report with recommendations only to the District Collector to enable him to take action under sub-section (1) of Section 4 for publication in the official gazette. This provision is presumably to enable only the District Collector to either initiate the land acquisition proceedings or to pursue further.”
12. On the factual matrix in this case, a reference to the file maintained by the Collector shows that there is no independent order made by the Collector authorising the Special Tahsildar. In view of the same as decided by this Court and as mandated in the provisions of Section 4(2) of the Act, the second respondent has not been duly authorised and therefore, the proceedings of land acquisition suffers from initial illegality. When such is the legal position, the contentions raised by the learned Addl. Government Pleader for the respondents about the laches in filing the writ petition has no meaning. Further, merely because the petitioner has participated in the enquiry conducted by the second respondent under Section 4(2) of the Act, that will not validate or in any way give authorisation to the second respondent to conduct such enquiry in the absence of specific authorisation as required and held to be a pre-condition for the purpose of enabling the Special Tahsildar to conduct the enquiry. Admittedly, in this case there is no authorisation by the District Collector to the second respondent.
13. The contention of the learned counsel for the petitioner that the judgment rendered by the Supreme Court in Tej Kaur and others vs. State of Punjab and others reported in 2003 (4) SCC 485 relates to the Central Land Acquisition Act, wherein as per the provisions, the lands vest with the Government only after award enquiry is completed and award passed under Section 16 of the Act. It was in that context, the Supreme Court has held in the above said case that the owner having participated in the 5(A) enquiry has waited till 6 declaration being issued and one month thereafter filed a writ petition and therefore the petitioner/owner was not having genuine grievance and accordingly refused to interfere with the acquisition proceedings. Even the subsequent judgments of the Honourable First Bench of this Court reported in 2004 (3) CTC 1 and 2005 (3) CTC 691 relate to the acquisition proceedings under the Central Act.
14. On the other hand, a reference to the Act 31/78 shows that on passing of the notification by the District Collector under Section 4(1) of the Act, the lands absolutely vest with the Government. Section 5 of the Act makes it clear that in respect of notification under Section 4(1) of the Act 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. While so, under the Central Land Acquisition Act 1894, it is seen that only after the award is passed by the District Collector under Section 11 of the Act, the Collector shall take possession of the lands and thereafter the lands vest with the Government absolutely and free from all encumbrances. Section 16 of the Land Acquisition Act, 1894 reads as under:
“Power to take possession:- When the 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.”
15. In fact, the distinction between the Central Act and the State Act came to be considered by this Court in the case of S.P.Vedanayagam vs. Secretary, Government of Tamil Nadu, Madras & two others reported in 1996 (I) CTC 379, that under the State Act after publication of notification under Section 4(1) of the Act, there is absolutely no opportunity to the land owner to question the acquisition and there is only one opportunity given to the person interested under Section 4(2) of the Act and it is in those circumstances, it was held that the State Act being more stringent, the statutory requirement and compliance therefor should be scrupulously followed. The relevant paragraphs of the judgment of this Court is, as under:
“5. The learned Government Pleader also produced the records before this Court. The records do not show that notice under Section 4(2) has been issued to the petitioner. At the time of hearing, the Government Pleader brought to my notice that pursuant to the award dated 16.10.1995, possession was taken and the lands were allotted and patta were issued to many persons on 30.12.1995 and that the writ petition has been filed only on 22.01.1996 and the interim order was granted on the next day. The said argument cannot be countenanced at all. As already stated the respondents have violated the mandatory provisions of the Act in acquiring the land belonging to the petitioner. It is already held that the entire proceedings initiated by the respondents in respect of the petitioner are illegal and void and therefore it is null and void. In view of the fact that pattas were issued and the pattadors had taken possession pursuant to the illegal award, it will not have any benefit on them. Therefore, respondents have to hand over back possession of the property to the petitioner.
6. Under the provisions of the Tamil Nadu Act 31 of 1978, immediately on the publication of the Gazette the land vests absolutely with the Government free from all encumbrances under Section 5. As rightly pointed out by the learned counsel for the petitioner, the vesting takes place immediately on the publication of the Gazette and not on taking possession of the land and the title to the property itself will be lost immediately on the publication of the Gazette and before the vesting of the property. Therefore, there is absolutely no opportunity for the land owner to question the acquisition after the issue of the notice under Section 4(1) of the Act.
7. Under the Act 31 of 1978, the one and the only opportunity given to the land owner or a person interested is on the issue of the show cause notice under Section 4(2) of the Act. The Act being expropriatory in nature and having regard to the vigour of its provisions, the opportunity to show cause why the land should not be acquired should be given, as it is a statutory requirement and the compliance thereof has therefore to be strictly adhered to.”
16. Considering the said distinction between the Central Act and the State Act in respect of vesting of the ownership of the land on the government, there is no difficulty to come to the conclusion as held by this Court stated supra, that the procedures under the State Act has to be adhered to strictly. As it is ascertained from the file that even the authorisation of the Special Tahsildar by the District Collector has not been made as per Section 4(2) of the Act.
17. I am of the considered view that the delay in filing the writ petition by the petitioner, which is to the extent of 7 months cannot stand in the way of the petitioner in challenging the very basis of the legality of the acquisition proceedings, for it is ultimately the concept of justice and mere technicality shall not be allowed to supersede the concept of justice based on law.
18. The next contention raised by the learned Additional Government Pleader relating to Section 3(j) of the Act is attractive but has no legal basis. Section 3(j) of the Act describes “prescribed authority” as under:
“Prescribed authority” means any authority or officer authorised by the Government in this regard, by notification.”
It is no doubt true that the Government had issued an order specifying the Special Tahsildar, Harijan Welfare Scheme as “prescribed authority”. It is relevant to point out that Section 4 of the Act nowhere used the term “prescribed authority”. That itself is sufficient to hold that the only authority who is contemplated for authorizing any other officer to conduct enquiry under Section 4(2) of the Act is the District Collector.
19. The power of the District Collector to authorise a subordinate including the Special Tahsildar, Harijan Welfare cannot be usurped by the State Government by using the term ‘prescribed authority’ under Section 3(j) of the Act. It is well established that under Section 4 of the Act, except the District Collector no one has got the authority to satisfy that the land is required for Harijan Welfare Scheme. That is also the view taken by the First Bench of this Court in K.V.Purushothama Naidu vs. The District Collector, North Arcot Ambedkar District, Vellore and another reported in 2002 (2) CTC (1). This Court has analysed the Central Act as well as the State Act in respect of the power of the District Collector under Section 4(1) of the Act and held that while, under the Central Act it is for the Government to satisfy the requirements, under the State Act, it is only the Collector and no one else has any power to satisfy himself that the lands are required for Harijan Welfare Scheme. In fact that was the case wherein, the District Collector has recommended that the property was not required, but the Secretary to Government has given a mandate to the District Collector to take over the
property and it was in those circumstances, the Division Bench has heavily come down against such attitude of the State Government holding that except the Collector nobody has any authority.
20. The term “prescribed authority” is used only in Section 14 of the Act that relates to the power of the prescribed authority in relation to the determination of the amount of compensation. Section 14 of the Act states as follows:
“Power of prescribed authority in relation to determination of amount:
(1) The prescribed authority may, for the purpose of carrying out the provisions of this Act, by order, require any person to furnish such information in his possession relating to any land which is acquired under this Act.
(2) The prescribed authority shall, while holding an inquiry under this Act, have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act V of 1908) …”
In the absence of use of the word “prescribed authority” under Section 4 of the Act and the specific use of the word under Section 14 relating to determination of compensation, it cannot be said that the prescribed authority under Section 14 should also be deemed to be the officer authorised by the District Collector under Section 4(3)(b) of the Act. Therefore, the contention of the learned Additional Government Pleader on the basis of the terms “prescribed authority” under Section 3(j) of the Act 31/78 is not sustainable.
21. The next point relates to the application of mind by the District Collector. In this case, as it is seen that during the 4(2) enquiry, the petitioner has in fact given her objections on 21.12.1995 and thereafter, the second respondent in his proceedings dated 31.12.1995 addressed to the District Collector has no doubt considered the objections of the petitioner that she desires to start an Orphanage, but gave opinion that the said Village is not fit for starting such Orphanage. When the said proceedings dated 31.12.1995, which came to be considered by the District Collector as it is seen in the Collector’s Proceedings Rc.K.10/5192/96 dated 14.10.1997 in page 219 of the file, the District Collector considered the report of the Special Tahsildar and filled up in the stereotyped form, the Survey Number and the name of the Village. The District Collector has stated that “the recommendations of the Special Tahsildar (LA) (ADW), Gudiyattam has been examined. As the lands are essentially required for the above said purpose, the objections raised for the proposed acquisition by the land owners and the interested persons are hereby over ruled and the orders are hereby issued under Section 4(3)(b) of the said Act.”
22. On the face of the cyclostyled form which has been filled up by the Collector, I do not think there is any possible inference that the Collector has in fact applied his mind. In the Full Bench decision of this Court in R.Pari vs. The Special Tahsildar and another reported in 2006 (3) L.W. 1000, wherein a similar argument was advanced that the application of mind must be read into the enactment recording the fair submission made by the learned Addl. Advocate General that the reason need to be given and it has to be read into the enactment.
23. The Full Bench has held that it is mandatory on the part of the District Collector to assign reasons for rejecting the objections raised by the land owners. Further, such reasons need not be disclosed to the owners, but at least in the file the application of mind by the District Collector by giving reasons must find place. The Full Bench while considering the decision of the Honourable First Bench of this Court rendered by the Hon’ble The Chief Justice Markandey Katju, (as His Lordship then was) in The District Collector, North Arcot Ambedkar District and another vs. Manickam reported in 2005 (2) L.W. 199, wherein the First Bench has heavily come down against the conduct of the officers who are dealing with the valuable rights in a stereotyped manner which can never be considered as a proper application of mind. The relevant paragraph is extracted as under:
“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.”
24. The Full Bench has however held that the function of the District Collector being administrative in nature, it is futile to expect furnishing of the details to the party concerned. But it is necessary to enter such reasons in the file, otherwise the proceedings would stand vitiated. The relevant portion of the observation of the Full Bench of this Court is as follows:
“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. ”
25. Applying all the rulings laid down to the facts of the present case and after referring to the file relating to the proceedings of the District Collector in rejecting the objections of the petitioner, there is no difficulty to come to the conclusion that there is no evidence to show that the Collector has independently applied his mind except to fill up the cyclostyled forms.
In view of the above, the writ petition stands allowed and the acquisition proceedings initiated in respect of the property in S.No.57/1A2 at Bathalppalli Village of Gudiyattam Taluk in Vellore District is held invalid. No costs.
abe
To:
1. The Collector,
Vellore District at
Vellore.
2. The Special Tahsildar ADW,
Gudiyatham,
Vellore District.