IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.12.2008
C O R A M :
THE HONOURABLE MR. JUSTICE K. CHANDRU
W.P.No.15454 of 1999
1.G.Lakshmi Ammal
2.Bakthavatsalu Naidu .. Petitioners
-vs-
1. The District Collector,
Villupuram.
2. The Special Tahsildar,
Adi Dravidar Welfare,
Tindivanam,
Villupuram District. .. Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records of the first respondent bearing Proceedings No.M1/39860/98 purported to have been issued under Section 4(1) of Tamil Nadu Acquisition of land for Harijan Welfare Schemes Act 1978 published in the District Gazette dated 12.3.1999 and quash the same.
For petitioners :: Mr.S.Thiruvenkatasamy
For respondents :: Mr.A.Arumugam, Spl.G.P.
*****
O R D E R
Heard both sides and perused the records filed in this case as well as the original records circulated by the learned Special Government Pleader.
2. The petitioners, aggrieved by the acquisition of their lands in Survey Nos.77/3, 77/4 and 77/5 situated at Kadapperikuppam village, Vanur Taluk, Villupuram District under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (for short ‘T.N.Act 31 of 1978’), have filed the present writ petition. Additional grounds were allowed to be raised vide order dated 26.11.2008 in W.P.M.P.No.1553 of 2008.
3. The writ petition was admitted by this Court on 17.9.1999. An interim order against dispossession of the lands from the petitioner was also granted. The interim order came to be made absolute on 01.9.2008. A counter affidavit has also been filed by the second respondent justifying the acquisition of the lands for the purpose of providing house sites and link road to the beneficiaries, who admittedly belong to the Adidravidar Community of that village.
4. The second respondent being the prescribed authority (authorised by the first respondent vide order dated 12.11.1998), initiated proposals for the acquisition of lands for the Harijan Welfare Scheme and the notice under Section 4(2) was issued and served on the owner of the lands. The petitioners received the notice. An enquiry was conducted on 22.1.1999. The land owners sent their objection dated 25.1.1999 through their counsel, which was received by the second respondent on 27.1.1999 which was out of time.
5. The objection given by other owners was considered by the authority concerned. He sent his proposal to the District Collector. The District Collector rejected the objections given by the land owner by his order dated 03.3.1999. Thereafter, a notification under Section 4(1) was published in the District Government Gazette on 12.3.1999. An Award has been passed on 30.9.1999. Further proceedings were kept in abeyance in view of the interim order granted by this Court.
6. The following contentions were raised by the petitioner:- The District Collector did not apply his mind to the objections and he had not personally satisfied himself with the proposal. The notification published under Section 4(1) of the T.N.Act 31 of 1978 itself speaks only about the State Government being satisfied. No personal enquiry was conducted. The land was not usable for the schemes for which it was acquired. The proposal to acquire the land of the petitioner did not take into account the availability of other lands in the village or the lands nearby. The beneficiaries are not in need of the lands and they were assigned lands earlier. The land that is sought to be acquired is the only land by which the petitioners are eking out their livelihood. The District Collector did not give the report of the Special Tahsildar.
7. Before the issues can be decided, it must be stated that this matter was filed at the time when a Full Bench of this Court was called upon to decide conflicting judgments of this Court on the procedure involved under T.N. Act 31 of 1978. P.K.Misra, J., speaking for the Full Bench rendered its opinion on 25.8.2006. It has been since reported in 2006 (4) CTC 609 (R.Pari -vs- The Special Tahsildar (ADW), Devakottai and another). The Full Bench thereafter directed the individual Writ Petitions to be decided on their merits and in accordance with the direction of the Full Bench. Thus, this matter and the connected matters came to be grouped together and were posted before this Court on being specially ordered by the Honourable Chief Justice.
8. In the counter affidavit dated 05.1.2001 filed by the second respondent, it was stated that the petitioners were not living in that village. They have adequate other lands in the village itself. The petitioners’ objection was received after the enquiry was over and hence it was not considered by them. Once the petitioners were given notice of the enquiry and they did not appear for the same, it was not open to them to raise the issue regarding non-consideration of the objection. The acquisition of land for house sites for the Adidravidars of the village was genuine and the provision for a link road was a necessity. There are no other lands available in the village for the purpose. The learned Special Government Pleader also submitted that the gazette notification was issued as per Form II and that by itself will not show the lack of satisfaction by the Collector. The District Collector had applied his mind and rejected the objections raised by the land owners. The Collector was not obliged to consider the objections received after the date of enquiry and there is no provision to give personal hearing. The second respondent is a prescribed authority under the Act and there is nothing wrong in his filing a counter affidavit. Hence, the contentions raised by the petitioner have no substance.
9. Since the ruling of the Full Bench in R.Pari’s case (cited supra) is the guiding factor, it is necessary to refer to the following passages found in paragraphs 37, 42 and 43:-
”37. The desirability of furnishing a copy of the report to enable the land owner to make a further representation to the District Collector does not mean that in every case, where such report has not been furnished, the ultimate order passed by the District Collector deciding to acquire the land is automatically vitiated. The scope for judicial interference in the matter relating to acquisition of land obviously being very limited, the Court in each case is required to find out whether non-furnishing of the report in any way has prejudiced the person concerned. The object of furnishing the report and affording further opportunity to the land owner to make a further representation is obviously to pinpoint any deficiency in the report of the authorised officer. If any particular aspect has been highlighted by the land owner and has not been considered by the authorised officer, the land owner would get a further opportunity to highlight such aspect before the District Collector. In other words, if the authorised officer has considered the relevant aspects indicated by the objector and made his recommendation, merely because a copy of such report is not furnished and no further opportunity is given to the land owner, may not be a ground to quash the land acquisition proceedings. On the other hand, if important aspects, which have been highlighted by the land owner, have been ignored by the authorised officer, it may be reasonable to infer non-furnishing of such report and non-offering of opportunity to make further representation might have vitiated the ultimate decision of the District Collector. These are matters to be considered on the basis of the facts and circumstances in each acquisition and it should not be construed that as a matter of law in every case where copy of the report has not been furnished and opportunity of making further representation had been denied, it is sufficient to quash such acquisition. Ultimately the Court has to judge the prejudice caused to such person by keeping in view the facts and circumstances in particular case.
.. ..
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 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.
43. In view of the aforesaid discussion, our conclusions are as follows:-
”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.”
(Emphasis Added)
10. The other contention that the District Collector was not satisfied and it was the Government’s satisfaction, it must be stated that the original file produced shows that there is no reference to any Government’s intervention in this case. On the other hand, the District Collector’s personal satisfaction is clearly reflected in the file. The Gazette Notification produced by the petitioner cannot be the basis for determination of the issue. As directed by the Full Bench in R.Pari’s case, (cited supra), it is ultimately that the file must reflect the satisfaction of the Collector and the Court must be satisfied with the procedure adopted by the respondents (see the extracts reproduced in para 9).
11. The Supreme Court vide its decision in Delhi Administration -vs- Gurdip Singh Uban reported in (2000) 7 SCC 296, dealt with the question of recording reasons in case of declaration issued under Section 6 of the Land Acquisition Act, 1894. The Supreme Court in that decision in para 49, had observed as follows:-
”No reasons or other facts need be mentioned in the Section 6 declaration on its face. If the satisfaction is challenged in the Court, the Government can show the record upon which the Government acted and justify the satisfaction expressed in Section 6 declaration”.
These observations will apply in its entirety to the case on hand.
12. Notwithstanding the binding precedents referred to above, the following decisions were cited at the bar in support of their submissions regarding the lack of satisfaction by the District Collector before issuing the notification under section 4(1) of the T.N.Act 31 of 1978:
i.2002 (2) CTC 1 (DB) (The Land Acquisition Officer and Special Tahsildar (LA) and another -vs- R.Manickammal and others);
ii.2004 (3) CTC 261 (K.V.Purushothma Naidu -vs- The District Collector, North Arcot Ambedkar District, Vellore and another);
iii.2008 (2) CTC 468 (M.Nagu and others -vs- The District Collector, Sivagangai District and another);
iv.2008 (5) CTC 154 (Rajammal and others -vs- District Collector, Dharmapuri and another);
v.Unreported judgment of the Division Bench in W.A.No.2050 of 2001 and other cases, dated 16.4.2008 (Mrs.Soundaravalli -vs- Government of Tamil Nadu and others).
13. In the above five cases, the first and second cases were delivered before the decision of the Full Bench. In the last two decisions, there is a reference to the Full Bench but those decisions were confined to the facts of that case. In the third decision cited above, there is no reference to Full Bench.
14. In order to appreciate the decisions cited at the Bar, it is necessary to refer to the relevant passages from these decisions:-
14.1. In the decision reported in 2002 (2) CTC 1 (cited supra), the passage found in para 3 (extracted below) will show that in that case there was a governmental intervention contrary to the opinion of the District Collector:
”3. … the Collector has initiated proceedings and issued draft notification under Section 4(1), which has been gazetted on 17.7.1997. Objections were raised against the acquisition and the Collector has made an enquiry into the same. The Collector has opined that the value of the land was high and prohibitive and it was not desirable to acquire the lands for the public purposes notified. But the Secretary to Government has intervened in the matter and issued a mandate to the Collector to go ahead with the acquisition, in spite of the report of the Collector to the contra. A question was raised before the learned Single Judge challenging the jurisdiction of the Government to intervene on the ground that it was for the Collector to exercise the said power and the Collector having been satisfied that the lands should not be acquired, the Government ought not to have interfered in the matter.”
14.2. In the decision reported in 2004 (3) CTC 261 (cited supra), the learned Judge did not have the benefit of the Full Bench decision in R.Pari’s case, (cited supra). Yet the passages found in paragraphs 9 and 10 (extracted below) will show that the decision had turned out on its own facts:-
”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 Section 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.
10. 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, Section 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.”
14.3. In the decision reported in 2008 (2) CTC 468 (cited supra), though was rendered subsequent to the Full Bench in R.Pari’s case, there is no reference to it. Hence, the notification issued under Form II (Rule 3(ii)) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 (for short ‘the Rules’) came to be quashed on the face of the notification as can be seen from the passages found in para 19, which is as follows:-
”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”
Hence, the said decision cannot be said to be laying down the correct proposition of law.
14.4. In the decision reported in 2008 (5) CTC 154 (cited supra), the learned Judge has correctly applied the ruling of the Full Bench in R.Pari’s case, (cited supra) and as found in para 27 (extracted below), the file produced did not indicate the satisfaction of the District Collector and hence the notification was quashed:
”27. There is no indication in the counter affidavit filed by the second respondent that the matter was examined by the Collector independently and arrived at a subjective satisfaction for the purpose of acquiring the property of the petitioners. Even though due opportunity was given to the learned Government Advocate to verify the land acquisition file and to submit as to whether there were materials available in the file to indicate the subjective satisfaction arrived at by the Collector to acquire the property, the learned Government Advocate was not able to produce any material to show such satisfaction by the Collector. Hence, it is evident that the Collector was merely implementing the decision taken by the Government”.
14.5. The unreported decision of the Division Bench (W.A.No.2050 of 2001 dated 16.4.2008) followed the Full Bench opinion. After perusing the original file, found that it did not reflect the satisfaction of the District Collector. A reference to para 7 of the order is extracted below to show that the case went by its own facts:-
”7. We have perused the reports of the Special Tahsildars and there are absolutely no consideration and finding on the above objections with supporting materials. In fact the Special Tahsildar has made a reference to the statement of one Gopal Reddy representing the appellants in W.A.Nos.2050 and 2051 of 2001 to the effect that there are other lands available and the business is also run by the family members. However, we do not find any materials to support the said statement and the Special Tahsildar in a mechanical way had rejected the objections made by the appellants. In these circumstances, unless the copies of the report are furnished, the appellants will not be in a position to know whether their objections are considered or not so as to make their further objection to the District Collector for his consideration. Hence, on the facts of this case, we find that the landowners are certainly prejudiced by the non-furnishing of the reports”.
15. In the case on hand, in the original file produced by the learned Special Government Pleader, there is neither any reference to any Government’s instruction nor the Collector being directed by the Government. On the contrary, it clearly shows the Collector’s independent application of mind as required under the Tamil Nadu Act 31 of 1978.
16. The statutory notification issued under section 4(1) and published in the District Gazette gave rise to this mischief and gave an handle to the petitioner to raise such an issue. Form II prescribed under Rule 3(ii) of the Rules was clearly responsible for the same.
17. Form II in which the notification is issued may be reproduced below:-
FORM II
(See rule 3(ii))
NOTICE UNDER SECTION 4(1) OF THE TAMIL NADU ACQUISITION 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 the 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 section.”
(Emphasis Added)
18. The Form II prescribed is a mechanical reproduction of the Form used under the Central Act 1 of 1894. That is why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition. It is high time the State Government modifies the Form prescribed in tune with the spirit of the T.N. Act 31 of 1978.
19. In any event, the issue raised by the learned counsel for the petitioner based on the printed Form cannot clinch the issue in favour of the petitioner for the reasons stated above.
20. In the light of the above, the writ petition is misconceived, devoid of merits and accordingly will stand dismissed. No costs.
21. Before it is concluded, it must be noted that the constitutional validity of T.N.Act 31 of 1978 was upheld by the Supreme Court in the year 1995 and a Full Bench of this Court has settled the controversy on the modalities of the procedure involved in the Land Acquisition for Harijan Welfare Schemes in the year 2006. It is a pity that these cases which are filed one decade before have virtually frustrated the welfare scheme conceived for the welfare of Dalits. Thirty years have gone by and the law conceived for the Dalits remains a paper proposition.
22. A number of anti-discrimination statutes and positive-benefit provisions exist in Indian law for the protection and benefit of dalits, tribals, and other backward classes of society. But the implementation and enforcement of these laws is poor. Dalits face social, linguistic and systematic barriers that become virtually impossible to overcome in the face of an often hostile system and an insensitive civil administration. The entire system is designed to exclude and ostracize Dalits.
23. Hence, the respondent District Collector is directed to expedite the implementation of the scheme in right earnest.
js
To
1. The District Collector,
Villupuram.
2. The Special Tahsildar,
Adi Dravidar Welfare,
Tindivanam,
Villupuram District