BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/12/2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD).No.8211 of 2007 Periya Rowther ... Petitioner Vs. 1.The District Collector, Madurai District, Madurai - 20. 2.The Special Tahsildar, (Land Acquisition) Adi Dravidar Welfare Unit-I, Officer of the District Collector, Madurai - 20. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of certiorari, to call for the records relating to the impugned notification of the 1st respondent issued under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act (31/1978) published in the District Gazette as a special publication on 31.01.2005 and the consequent award proceedings of the 2nd respondent in reference Na.Ka.No.A/413/04, dated 16.03.2005 in respect of an extent of 0.40.5 hectares in Survey No.285/2 in Periya Ooseri, Madurai District and quash the same in so far as the petitioner is concerned. !For Petitioner ... Mr.K.Mahendran ^For Respondents... Mrs.V.Chellammal, AAG and Mr.M.Rajarajan, GA :ORDER
The 2nd respondent/the Special Tahsildar (Land Acquisition), Madurai, for
the purpose of acquiring lands at Periya Oorseri under the provisions of Tamil
Nadu Acquisition of land for Harijan Welfare Schemes Act, issued statutory
notices to the persons concerned to acquire an extent of 0.40.5 hectares from
from the petitioner’s land in Survey No.285/2. The notice was issued to the
petitioner’s brother A.Shahul Hammed calling for enquiry and in response to the
said notice, the petitioner’s brother appeared for enquiry before the 2nd
respondent and thereafter, published a notification under Section 4(1) of the
Act. Thereafter, the same was published in the District Gazette as a special
publication on 31.01.2005. Immediately after coming to know about the enquiry
proceedings in District Gazette publication, the petitioner made a
representation to the 2nd respondent, stating that no notice was issued in
S.No.258/2 and it is stated that the 4(1) notification issued on 31.01.2005 was
illegal, as there was no notice given to him for holding the enquiry. Further,
after the petitioner’s representation, the 2nd respondent issued award notice
under Section 5(1) of the Act and also final orders were passed in proceedings
No.2/2004-2005 clearly admitting in the award proceedings that the original
notice was issued to his brother and since the 2nd respondent has admitted in
the award proceedings that the notice was issued to the petitioner only in the
award proceedings, it was submitted by the learned counsel for the petitioner
that the 2nd respondent had not issued any notice to the real owner of the land
before the petitioner’s land was acquired. Therefore, it was contended that the
entire acquisition proceedings initiated by the respondent under 4(1)
notification published in the District Gazette and award proceedings dated
16.03.2005, in so far as the petitioner is concerned, are arbitrary, against the
provisions of the Act and also without any jurisdiction.
2. Further, the contention of the learned counsel for the petitioner is
that admittedly, the petitioner being absolute and lawful owner of the land, he
should have been heard in accordance with the provisions of the Land Acquisition
Act. When an objection was given by the petitioner, the said objection was not
even properly considered by the District Collector as per Section 4(3)(b) of the
Act. He further contended that under Section 4(3)(b) of the Act, the District
Collector should consider the report submitted by the Special Tahsildar and pass
order, as he deems fit. Only thereafter, he can notify his decision to acquire
the land as contemplated under Section 4(1) of the Act, but if the authorities
concerned failed to apply their mind under Section 4(3)(b) of the Act, any such
further proceedings initiated under Section 4(3)(b), cannot be sustained
legally. On that basis, the learned counsel for the petitioner urged this Court
to allow the writ petition by quashing the acquisition proceedings in so far as
the petitioner land is concerned.
3. Learned Additional Advocate General appearing for the respondents
submits that the statutory notice in Form-I dated 29.07.2004, as contemplated
under Section 4(2) of the said Act, was issued to all the interested persons
through the VAO, Periya Oorseri village, asking them to appear before the 2nd
respondent herein with their objections if any on 13.08.2004. In response to
that, all the persons interested in the lands covered in the acquisition
proceedings, appeared for the enquiry on 13.08.2004 and expressed their
willingness that they have no objection whatsoever to the land acquisition
proceedings, except one Tmt.Asia Begum, w/o Ibrahim, who objected to the
acquisition proceedings. In the revenue records, namely, ‘A’ Register, ‘Chitta’
and ‘adangal’, since the name of Sahul Hameed, the younger brother of the
petitioner alone, was found as person interested in respect of lands comprising
of an extent of 0.40.5 hectare of land, out of the total extent of 2.92.5
hectares in S.No.285/2 of Oorcheri Village in Patta No.283, the statutory notice
in Form-I as contemplated under Section 4(2) of the said Act, was served upon
him.
In response to the said notice, the petitioner’s brother Sahul Hameed,
also appeared for the enquiry on 13.08.2004 and gave a statement to the effect
that he had no objection whatsoever in the proposed acquisition. Only after the
said enquiry, the proposals were submitted by the 2nd respondent to the District
Collector and thereafter, the 4(1) notification was issued in the Madurai
District Gazette dated 31.01.2005 and as a result, the aforesaid lands vested
with the Government free from all encumbrances. It was also further submitted
that not only the Form-I notice as contemplated under Section 4(2) of the said
Act, the another notice in Form II as specified under Rule 5(1) of Tamil Nadu
Acquisition of Land for Harijan Welfare Rules, 1979, was also served on the said
Sahul Hameed, who is the only interested person of S.No.285/2, for determining
quantum of compensation, as his name alone was shown in the revenue records.
4. At this juncture, the petitioner has sent a letter dated 21.02.2005
stating that the portion, wherein survey demarcation work is being taken up,
actually belongs to him by way of oral partition between himself and his brother
Sahul Hameed and subsequently, his name was also included in the patta as joint
pattadar on 01.02.2005. Therefore, he asked for deletion of land from the
acquisition proceedings. Since the 4(1) notification was published on
31.01.2005 and thereupon, the possession was also taken on the date by passing
award on 16.03.2005, the petitioner’s representation stating that as per oral
partition statement, the property covered under acquisition was owned by him
only on 21.02.2005, was also considered by the Collector. Since petitioner has
filed the writ petition only on 24.09.2007, after a lapse more than two years
from the date of award, it was forcibly submitted by the learned Additional
Advocate General for the respondents that in the light of ratio laid down by the
Apex Court in AIR 2000 SC 671, no writ petition can be filed challenging the
acquisition notice or against any proceedings thereunder, that too, two years
after the award was passed.
5. Moreover, the writ petition having been filed only after two years from
the date of award and in the meanwhile, since 50 beneficiaries have been
selected and house site patta also have been issued to them, the writ petition
on the ground that the conditions enunciated under Section 4(3)(b) of the Act
have not been complied with, cannot be entertained, in fact, when the Collector
has also duly considered the petitioner’s objection in his proceedings passed in
Na.Ka.No.ADW7/96235/2004, dated 15.01.2005.
6. The proceedings dated 15.01.2005 passed by the District Collector in
Na.Ka.No.ADW7/96235/2004 clearly indicate that the District Collector has
rightly considered the objections as contemplated under Section 4(3)(b) of the
Act.
7. In the present case, the Tahsildar, who is the authorised officer, has
issued show cause notice to the owner of the land and after receiving the
objection filed by the petitioner, the 2nd respondent sent his remarks to the
District Collector for his decision. After receipt of the remarks from the 2nd
respondent, the District Collector has considered the objections of the owner,
namely, the petitioner herein. Since the District Collector was of the opinion
that the revenue records did not disclose the name of the petitioner, he has
rightly overruled his objection and therefore, the petitioner cannot have any
grievance that Section 4(3)(b) of the Act has not been complied with.
Accordingly, the judgments cited by the learned counsel for the petitioner in
the case of Chinna Gounder Vs. District Collector, Salem and Another ((2006) 4
MLJ 1328), to say that in view of this judgment, the entire land acquisition
proceedings initiated by the respondents under Section 4(1) of the Act is
illegal for the reason that the District Collector, who alone can consider the
objection of the land owner, but unfortunately, the procedure adopted by the
respondents have not complied with Section 4(3)(b) of the Act, does not advance
his case any further, in view of the proceeding dated 15.01.2005 passed by the
District Collector, Salem.
In fact, the Tahsildar has sent his report, after receipt of the
objections from the petitioner, the same was also duly considered by the
District Collector in the said proceedings. Therefore, I am of the view that
the respondent has exercised the authority in issuing the notification after
satisfaction about the necessity of acquiring the lands in question to provide
house sites to the landless downtrodden and poor adidravidars residing in Periya
Oorseri Village and the action of the 2nd respondent in rejecting the claim of
the petitioner in the award enquiry is therefore perfectly legal.
8. Further, when the petitioner’s brother Sahul Hameed has sent a
representation dated 07.03.2005, stating that the entire lands covered under the
acquisition in S.No.285/2 stood registered only in his name at the time of
issuance of the statutory notice under Section 4(2) of the said Act. Therefore,
his consent for acquisition of the land has been properly considered and
thereafter, the 4(1) notification was published in the Government Gazette on
31.01.2005. Till the publication of 4(1) Notification on 31.01.2005, the
petitioner has neither brought to the notice of the respondents the subsequent
inclusion of his name as a Joint Pattadar by virtue of alleged oral family
settlement nor his legal claim. In as much as, as per Section 5(1) of the said
Act, the lands stood in the name of his brother, also vested with the Government
free from all encumbrances with effect from the date of publication of 4(1)
Notification in the Government Gazette on 31.01.2005, hence, I do not find any
merit in the writ petition.
9. Similarly, another judgment relied on by the learned counsel for the
petitioner reported in (2001) 1 MLJ 328 also deals with only the compliance of
Section 4(3)(b) of the said Act. As I already held that the above said
provision has been duly complied with, the said judgment cannot be relied on by
him.
10. That apart, the respondents had already identified 50 beneficiaries
and they have also granted house site pattas on 15.08.2006 during the
Independence Day Celebrations and many of the beneficiaries who were all
identified as houseless adidravidars, have constructed small huts and house and
living therein and in any event, since the writ petition came to be filed 2
years from the date of passing of the award, as per the ratio held by the Apex
Court in AIR 2000 SC 671, no writ petition can be filed challenging the
acquisition notice two years after the passing of the award.
11. Accordingly, this Court, for the aforesaid reasons, finding no merit
in the writ petition, dismisses the same. No Costs.
rkm
To
1.The District Collector,
Madurai District,
Madurai – 20.
2.The Special Tahsildar,
(Land Acquisition)
Adi Dravidar Welfare Unit-I,
Officer of the District Collector,
Madurai – 20.