IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 08.03.2010 CORAM: THE HONOURABLE MR. JUSTICE M.JEYAPAUL W.P.No.3485 of 2000 1.Kamala 2.Sadasivam ... Petitioners Vs 1.The State of Tamil Nadu, Rep. By its Secretary to Government, Adi Dravida Welfare Department, Fort St. George, Chennai 600 009. 2.The District Collector, Tiruvannamalai District. 3.The Special Tahsildar, Adi Dravida Welfare Department, Tiruvannamalai. ... Respondents Prayer:- Writ petition filed under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorari to call for the second respondent in Na.Ka.K1/49198/98 issued under Section 4(1) of the Tamil Nadu Acquisition dated 30.12.1998 of land for Harijan Welfare Schemes Act XXXI of 1978 and quash the same. For petitioners : Mr.A.Gouthaman for Mr.T.R.Rajaraman For Respondents : Mr.D.Srinivasan, AGP O R D E R
Heard the submissions made by the learned counsel appearing for the writ petitioners and the learned Additional Government Pleader appearing for the respondents.
2. The writ petition has been filed by the land owners aggrieved by the Notification issued by the Collector praying for a Writ of Certiorari to quash the land acquisition proceedings initiated by the second respondent in Na.Ka.K1/49198/98 under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act XXXI of 1978 (Herein after referred to as ‘the Act’).
3. The properties bearing Survey No.64/1A2 measuring 0.56 acres, Survey No.67/1B measuring 0.61 acres and Survey No.67/1D measuring 0.69 acres in Konalur Village, Tiruvannamalai Taluk owned and possessed by the first petitioner Ms.Kamala and the property bearing Survey No.67/1E measuring 0.59 acres in the same Village owned jointly by the first petitioner Ms.Kamala and the second petitioner Mr.Sadasivam are the subject matter of the acquisition proceedings initiated by the second respondent for providing house sites to the Adi Dravidars of Konalur Village, Tiruvannamalai Taluk. The Tahsildar was authorised by the District Collector to submit a report as contemplated under Section 4(2) of the Act, 1978. Though the Tahsildar issued a show cause notice to the petitioners herein, the records would reflect that the petitioners refused to receive the notices and therefore, the service of notices was effected by affixure. But, curiously both the petitioners participated in the proceedings conducted by the Tahsildar under Section 4(3)(a) of the Act, 1978 and raised their objection to the acquisition proceedings initiated by the Collector. Overruling their objections, the Tahsildar submitted a report to the District Collector/the second respondent herein, who having expressed his satisfaction, published the Notification under Section 4(1) of the said Act by wrongly referring that the Government was satisfied with the necessity to acquire lands of the petitioners for the purpose of allotting house sites to the Harijan people. The fact remains that the acquisition proceedings have culminated in passing award by the Collector.
4. At this stage, the Notification published under Section 4(1) of the Act was challenged by the petitioners herein on the ground that no notice under Section 4(2) of the Act was issued to the petitioners and that no show cause notice was issued by the Collector under Section 4(3)(b) of the Act. It is also contended that the respondents did not consider the aspect of the availability of other lands for cheaper rates.
5. The learned counsel appearing for the petitioners would submit that the impugned notification issued under Section 4(1) of the Act would read that the Government was satisfied with the necessity to acquire the subject lands for the purpose of allotting the same to the Harijan people for constructing houses whereas as per Section 4(1) of the Act, the Collector should be satisfied with the necessity to acquire the lands for the public purpose. The learned counsel appearing for the petitioners would further submit that no notice under Section 4(3)(b) of the Act was issued before ever the Collector accepted the report of the Tahsildar authorised by him to enquire into the matter. Therefore, he would submit that the impugned proceeding is vitiated.
6. The learned Additional Government Pleader would submit that though the impugned notification would read that the Government was satisfied with the necessity to acquire the subject lands, for the aforesaid purpose, the file maintained by the Collector would reflect that he was satisfied with the necessity to acquire the lands for the public purpose. Therefore, the wrong reference made in the impugned notification as to the satisfaction of the Collector would not vitiate the impugned proceedings under Section 4(1) of the Act. He would further submit that the petitioners, though not received the show cause notice issued by the Tahsildar authorised by the Collector under Section 4(2) of the Act, they did participate in the enquiry and submitted their objections. Also referring to the Full Bench decision of this Court, he would submit that the question of furnishing of the copy of the report submitted by the Tahsildar to the Collector before ever the Collector takes a decision arises only when the objections raised by the land owners were not adverted to by the Tahsildar in his report. Referring to the report submitted by the Tahsildar, he would submit that the specific objections raised by the land owners were dealt with by the Tahsildar before ever submitting the report to the Collector. The last submission made by the learned Additional Government Pleader is that the challenge made by the petitioners with respect to the Notification issued under Section 4(1) of the Act would not survive inasmuch as the award was already passed by the Collector.
7. The entire file was carefully perused by this Court. The file would reflect that the Tahsildar authorised by the Collector under Section 4(2) of the Act made a sincere attempt to serve the show cause notice on the petitioners herein. But, for reasons best known, to them, the petitioners refused to receive notices and the Tahsildar had no other option except serving the show cause notices on the petitioners by affixure. Records would further disclose that the petitioners in fact participated in the enquiry embarked upon by the Tahsildar under Section 4(3)(a) of the Act. In the objections raised by the petitioners, they had clearly stated that they possessed other lands also. Therefore, it is not as if the petitioners do not have any other lands and the objection with respect thereto was not considered by the Tahsildar, while submitting his report to the Collector. The suitability of the lands for the purpose of acquisition was thoroughly gone into by the Tahsildar in the report submitted by him to the Collector.
8. The Collector, of course, had not furnished the copy of the report submitted by the Tahsildar to the petitioners before he passed the impugned order satisfying himself with respect to the necessity to acquire the lands for the public purpose. But, the fact remains that the objections raised by the petitioners were duly adverted to by the Tahsildar during the course of enquiry.
9. In view of the above, it is found that the petitioners who did participate in the enquiry have come out with a totally false version that they were not served with any notice. Had they not come to know of the show cause notice issued by the Tahsildar under Section 4(2) of the Act, they would not have participated in the enquiry conducted by him.
10. The Full Bench of this Court in R.Pari Vs. The Special Tahsildar, Adi-Dravidar Welfare, Devakkottai (Pasumpon Muthuramalinga Thevar District) and another reported in 2006 (4) CTC 609, with regard to the necessity to serve the copy of the report of the Tahsildar on the land owners before ever the Collector passes an order under Section 4(3)(b) of the Act, observe as follows:
“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.”
The aforesaid decision of the Full Bench of this Court would make it clear that the Court will have to decide two things before ever arriving at a decision as to whether further representation from the land owner to the District Collector is warranted. Firstly, the Court will have to decide as to whether the report submitted by the Tahsildar authorised by the Collector adverts to the objections raised by the land owners. Secondly, the Court will have to decide as to whether any prejudice was caused to the land owners, on account of the non-furnishing of the report of the Tahsildar to enable the land owner to submit his further representation.
11. In the instant case, as already pointed out by this Court, the objections raised by the petitioners were adverted to by the Tahsildar. No prejudice is caused to the petitioners on account of the non-furnishing of the report submitted by the Tahsildar to the Collector. In view of the above, there is no necessity to serve a copy of the report submitted by the Tahsildar to the Collector to make any further representation by the land owner to the Collector before ever he passes the order under Section 4(3)(b) of the Act.
12. It is worth while to refer to the decision of the First Bench of this Court in The land acquisition officer and Special Tahsildar (LA), Adi Dravida Welfare, Coimbatore and another Vs. R.Manickammal and others reported in 2002 (2) CTC 1. That was a case where the Collector of the District expressed his reservation to acquire the lands for the public purpose on the ground that the value of the land was very high and prohibited and therefore, it was not desirable to acquire those lands. At that stage, the Secretary to the Government poked his nose by intervening with a mandate to the Collector to go ahead with the acquisition proceedings, inspite of the report of the Collector to the contrary. Under such circumstances, the First Bench of this Court held that as per Section 4(1) of the Act, if the Collector is satisfied that the lands should be acquired, he will acquire the lands. A decision to acquire a land by the Collector has to be exercised only by the Collector by application of his mind independently and any Governmental intervention is un-warranted and without jurisdiction as regards the satisfaction to be recorded by the Collector under Section 4(1) of the Act.
13. On a careful perusal of the entire file, it is found that the Collector, having thoroughly perused the reports of the Tahsildar authorised by him, recorded his subjective satisfaction as to the necessity to acquire lands for the public purpose.
14. In this context, it is relevant to refer to the following observations made by this Court in K.Sundaram and two others Vs. The District Collector and another in W.P.No.2585 of 1996 dated 19.09.2008.
“13.Though the impugned order cannot be justified by supplementing reasons by way of counter affidavit, in a given case, it is possible for the Collector to produce the Award File in Court and demonstrate that it was his subjective satisfaction which culminated in issuing the notification under Section 4(1) of the Act. If there were sufficient materials in the award file to substantiate the contention of the Collector with regard to the subjective satisfaction arrived at by him, the notification under Section 4(1) would be perfectly valid, notwithstanding the wording in the notification which would project as though the satisfaction was only of the Government in initiating the land acquisition proceedings. Therefore, the production of the award file assumes significance in land acquisition proceedings.”
15. In the instant case the file would reflect that the Collector had arrived at the subjective satisfaction as to the necessity to acquire the lands for public purpose and therefore the wrong reference by over sight made in the Notification issued under Section 4(1) of the Act that the Government was satisfied with the necessity of acquisition does not loom large. The Notification issued under Section 4(1) of the Act, when the Collector had expressed his subjective satisfaction, is perfectly valid. No prejudice was also caused to the petitioners, who did participate in the enquiry with their objections to the acquisition proceedings before the Tahsildar.
16. The District Collector need not refer to each and every aspects dealt with by the Tahsildar in his report before he records his subjective satisfaction.
17. Further, it is found that the Collector has already passed an award in this matter. The First Bench of this Court in S.Harshavardhan and another Vs. State of Tamil Nadu, rep. By the Secretary to Government, Industry Department, Fort St. George, Chennai 600 009 and others reported in 2005 (3) CTC 691 has held referring to the observation of the Supreme Court in Municipal Council, Ahmednagar V. Shah Hyder Beig, reported in AIR 2000 SC 671 that no writ petition would lie challenging the acquisition notices after the award has been passed. On that count also, it is found that the writ petition is not sustainable.
18. In view of the above facts and circumstances, this Court finds that the impugned Notification was rightly issued by the Collector after expressing his subjective satisfaction. Therefore, the question of quashing the impugned Notification does not arise for consideration. The writ petition fails and it stands dismissed. There is no order as to costs.
08.03.2010
Index :Yes
Internet :Yes
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M.JEYAPAUL,J.
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To
1.The State of Tamil Nadu,
Rep. By its Secretary to Government,
Adi Dravida Welfare Department,
Fort St. George,
Chennai 600 009.
2.The District Collector,
Tiruvannamalai District.
3.The Special Tahsildar,
Adi Dravida Welfare Department,
Tiruvannamalai.
W.P.NO.3485 of 2000
08.03.2010