IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06/04/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice J.A.K.SAMPATHKUMAR
Writ Appeal No.1304 of 2000
1. S.Radhakrishnan
2. S.Lakshminarayanan
3. S.Kalyanasundaram
4. S.Thyagarajan - Appellants
-vs-
1. The District Collector,
Thanjavur.
2. The Special Tahsildar for
Land Acquisition (Adi-Dravidar
Welfare) Department,
Kumbakonam, Thanjavur District. .. Respondents
Appeal under Clause 15 of the Letters Patent against the order dated
18.07.2000 made by the learned single Judge (KGJ) in W.P. No.1430 of 1998.
!For Appellant : Mr.G.Rajagopalan,
Senior Counsel for Mr.K.K.Senthil
^For R-3 : Mr.D.Krishnakumar,
Special Government Pleader.
. . . . .
:J U D G M E N T
P. SATHASIVAM, J.
The above Writ Appeal has been filed against the order of the learned
single Judge dated 18.07.2000 made in W.P. No.1430 of 1998.
2. For convenience, we shall refer the parties as arrayed in the Writ
Petition.
3. According to the petitioners they own lands in S. Nos.111/1A and
110-2A in Thepperumai Nallur Village, Thirvidaimaruthur Taluk, Thanjavur
District. The 2nd respondent/Special Tahsildar for Land Acquisition
(Adi-Dravidar Welfare) Department, Kumbakonam, issued Form-I notice under Rule
3(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules,
1979. The said notice was issued to all the petitioners and, on receipt of
the same, they gave representation to the second respondent on 23.07.1997,
07.8.1997 and 14.08.1997. Enquiry was conducted on 14.08.1997 and report was
sent to the District Collector, Thanjavur, the first respondent herein.
Subsequently, the first respondent issued proceedings dated 24.12.1997,
directing acquisition of agricultural lands of the petitioners under the Tamil
Nadu Acquisition of lands for Harijan Welfare Schemes Act, 1978. In the Writ
Petition, the petitioners mainly contended that though they were given
opportunity to put forth their representation, the District Collector, who is
the authority under the Act, has not given opportunity by supplying copy of
the report of the Special Tahsildar and did not conduct the enquiry before
ordering publication of notification in the District Gazette in Form-II.
4. The District Collector filed counter affidavit before the learned
single Judge, wherein, it is stated that the enquiry under Section 4 (2) of
the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, was
conducted on 14.08.1997 by the Special Tahsildar ( ADW), Kumbakonam, after due
service of notice in Form-I on the respective land owners. The land owners
filed objection petitions through their lawyer during the enquiry. The
objection petitions were received from them on 13.05.1997, 10.05.1997,
21.7.1997 and 07.08.1997 prior to the above enquiry. The objections raised by
them were considered in detail and proposals under Section 4(1) were submitted
by the Special Tahsildar (ADW), Kumbakonam, to the Collector, Thanjavur, in
his Rc.No.8/96-A dated 20.10.1997. After considering the objection raised by
the land owners to the acquisition and the remarks offered by the Special
Tahsildar, Kumbakonam, to the same, the Collector rejected the objection
raised by the land owners, accepted the proposal submitted under Section 4(1)
by the Special Tahsildar and ordered for publication of notification in Form
II in the Special issue of Thanjavur District Gazette, in his proceedings
dated 24.12.1997. The notification issued by the Collector in Form-II was
published at page-3 of Special issue No.49 of Thanjavur District Gazette dated
29.12.1997. As per Section 5 of the Tamil Nadu Acquisition of Land for
Harijan Welfare Schemes Act 31 of 1978, the lands in question, by virtue of
publication in the District Gazette, stands vested in the Government, free
from all encumbrances on land from the date of publication in the District
Gazette.
5. The learned single Judge, by order dated 18.07.2000, after
considering the above referred contentions; and after finding that the
petitioners were given opportunity to put forth their case and that the
District Collector, only after considering the objection of the petitioners as
well as the Report of the Special Tahsildar, passed an order for publication
of the notification in the District Gazette; dismissed the Writ Petition,
hence, the land owners have preferred the present Writ Appeal.
6. Heard Mr.G.Rajagopalan, learned Senior Counsel for the
petitioners/appellants and Mr.D.Krishnakumar, learned Special Government
Pleader for the respondents.
7. Learned Senior Counsel for the petitioners mainly contended that
though the petitioners were granted opportunity to put forth their objections,
they were not given copy of the report of the Special Tahsildar and no enquiry
was conducted by the District Collector before causing publication in the
District Gazette. He also contended that though suitable alternate land of
the petitioners is available, the same was not considered by the authorities.
According to him, there is a violation of principles of natural justice and
the acquisition proceedings are liable to be quashed.
8. Learned Special Government Pleader met the above contentions by
placing relevant records.
9. In support of the first contention, learned Senior Counsel heavily
relied on a Division Bench decision of this Court reported in 1997 TNLJ 311
(Thirumathi Pushpa Bai Boinsingh v. The District Collector, Tirunelveli
Kattabomman District and another). It is also a case of acquisition under the
Tamil Nadu Acquisit ion of Land for Harijan Welfare Schemes Act. The Writ
Petitioner therein challenged the order passed by the District Collector,
Tirunelveli Kattabomman District, dated 17.2.1997. The said order, dated
17.2.1997, was based on the report filed by the Tahsildar. Before the
Tahsildar, the writ petitioner appeared and also gave a written
representation. It was the case of the petitioner that she had no other land
except the one under acquisition and that in the said land there are coconut
yielding trees. A contention was made before the Division Bench that without
giving an opportunity to establish the petitioner’s case, the Collector passed
the order on the basis of the report filed by the Tahsildar. The Division
Bench, after observing that the appellant was not given an opportunity before
passing order by the Collector, set aside the order, dated 17.2.1997, of the
District Collector and directed him to pass fresh orders after giving
opportunity of being heard to the appellant/writ petitioner. Except the above
referred factual details, the Division Bench neither adverted to the relevant
provisions of Act 31 of 1 978 nor adduced sufficient reasons for arriving at
such conclusion based on the provisions therein.
10. Before the learned single Judge, same contention was raised by
placing reliance on the above referred Division Bench Judgment. The decision
rendered by one of us (P. Sathasivam, J.) in Sannasi vs. The District
Collector, Pudukottai (1999 (2) MLJ 506) was also pressed into service before
the learned Judge. The said decision also arose under Act XXXI of 1978. The
learned Judge, after narrating the provisions of the Land Acquisition Act,
1894 (Central Act 1 of 1894) and the Special Act, viz., Tamil Nadu Acquisition
of Land for Harijan Welfare Schemes Act (XXXI of 1978) as well as the order of
the Supreme Court in State of Tamil Nadu v. Ananthi Ammal (AIR 1995 SC 2114),
wherein, the State Act (Act 31 of 1978) was upheld except sub-section(1) of
Section-11 by the Supreme Court; after observing that the object of passing
Special enactment is for speedy action to construct houses for the benefit of
Adi Dravidas; after taking note of the specific departure by the Legislature
from the Central Act and of the fact that the Division Bench has not adverted
to any of the provisions of Act XXXXI of 1978; distinguished the Division
Bench Judgment and rejected a similar contention as raised by the learned
Senior Counsel for the petitioners.
In the order impugned, the learned single Judge (K.G.J.), after
accepting the appreciation and analysis of the Central Act and the State Act
by the learned Judge (P.S.J.), ultimately, dismissed the Writ Petition.
11. Mr.G.Rajagopalan, learned Senior Counsel, contended that since
the decision reported in 1997 TNLJ 311 has been rendered by a Division Bench,
the learned single Judge ought to have followed the same and it is not open
for the present Bench, being a co-ordinate Bench, to differ from the Division
Bench decision, but the proper course would be to refer the issue to a larger
Bench.
12. Though there is no dispute regarding propriety, judicial
discipline as well as decorum, let us consider as to whether the decision of
the Division Bench reported in 1997 TNLJ 311 is a binding decision or per
incuriam.
In the earlier part of our Judgement, we have referred to almost the
entire order of the Division Bench. Though we find that there is a direction
to the District Collector to give an opportunity to the petitioner before
passing orders, as rightly pointed out in the decision reported in 1999 (2)
MLJ 506, the Division Bench has not referred to any of the provisions of Act
31 of 1978.
13. In order to appreciate the above contention, it is useful to
refer to the salient features and relevant provisions of the State Act as well
as the Central Act. The Tamil Nadu Acquisition of Land for Harijan Welfare
Schemes Act (XXXI of 1978) was enacted by the Legislature of the State of
Tamil Nadu in the year 1978 and it came into force from 24th September, 1979.
Even though the said Act was struck down as ultra vires the Constitution of
India and offending Article 14 by a Division Bench decision of this Cou rt
reported in 96 L.W. 48, subsequently, the Supreme Court reversed the order of
this Court, holding that Tamil Nadu Act XXI of 1978 is not ultra vires Article
14 except Sub-section (1) of Section-11, which is valid only to the extent it
provides for payment of compensation in lump sum. The rest of the provision
of Sub-Section(1) of Section-11 regarding instalments, which is severable, is
violative of Article 15 vide: State of Tamil Nadu Vs. Ananthi Ammal, A.I.R.
1995 S.C. 2114 : (1995) 1 S.C.C. 519. The declaration made under Section-2
of the Act makes it clear that the Act is enacted for giving effect to the
policy of the State towards securing the principles laid down in Part IV and
in particular Article 46 of the Constitution. Among other provisions, we are
concerned with Section-4 which speaks about power of the District Collector to
acquire land for the purpose of Harijan welfare scheme. The word Harijans
is defined in Section-3 (f) of the Act is as follows:
3 (f): Harijans means members of the Scheduled Castes and include
scheduled Tribes.
Clause (g) defines Harijan Welfare scheme as follows:
Sec. 3 (g): Harijan Welfare Scheme means any scheme for provision
of house-sites for Harijans for constructing, extending or improving any
dwelling-house for Harijans or for providing any burial or burning grounds for
Harijans or for providing any pathway leading to such dwelling-house, burial
or burning grounds, or for providing any other amenity for the benefit of
Harijans.
The power of the District Collector in regard to acquisition of land has been
described in Section-4 as follows:
4. Power to acquire land:- (1) Where the District Collector is
satisfied that for the purpose of any Harijan Welfare Scheme, it is necessary
to acquire any land, he may acquire the land by publishing in the District
Gazette a notice to the effect that he has decided to acquire the land in
pursuance of this section.
(2) Before publishing a notice under Sub-sec.(1), the District
Collector or any officer authorised by the District Collector 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.
(3) (a) The District collector may, where he has himself called upon
the owner or other person to show cause under Sub-Sec.(2), pass such orders as
he may deem fit on the cause so shown;
(b) Where any officer authorised by the District Collector has called
upon the owner or other person to show cause under Sub-sec.(2), the officer so
authorised shall make a report to the District Collector containing his
recommendations on the cause so shown for the decision of the District
collector. After considering such report the District Collector may pass such
orders as he may deem fit.
14. Other provisions are not relevant for the purpose of deciding the
question raised, hence, we are not referring to the same. By virtue of
Section-23 of the Act, the Government of Tamil Nadu framed Rules called Tamil
Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 and the same
was published in the Tamil Nadu Government Gazette dated 24th September, 1979.
Rule 3 speaks about the procedure, which runs as follows:
” 3. Procedure for acquiring land: (i) The District Collector or
the officer authorised by him in this behalf shall serve a show cause notice
in Form I under Sub-sec.(2) of Sec.4, individually on the owner or on all
persons interested in the land to be acquired. If the owner or any other
person interested in the land resides elsewhere than where the land is
situated, the show cause notice shall be sent by registered Post
(Acknowledgement Due) to the last known address of the owner or any other
person interested.
(ii) The District Collector, if, after passing such orders as required
by Sub-secs.(2) and (3) of Sec.4 is satisfied that it is necessary to acquire
the land, notice in Form II to that effect shall be published in the District
Gazette.
Here again, except Rule 3, we are not concerned with other Rules. If the
District collector is satisfied for the purpose of implementing any Harijan
Welfare Scheme and land is required for the same, it is open for him to
acquire the said land by publishing in the Government Gazette a notice to the
effect that he has decided to acquire the land. As per Sub-sec.(2) of
Section-4, before publication of the notice under Sub-section(1), either the
District Collector or any officer authorised by him, call upon the owner or
any other interested person to show-cause why it should not be acquired.
Sub-section 3(a) gives power to the District Collector to pass such orders as
he may deem fit on the cause so shown and according to clause (b) of
Sub-section(3) of Section-4, the officer, after calling upon the owner or
other persons to show cause under Sub-sec.(2), shall make a report to the
District Collector containing his recommendations on the cause so shown for
the decision of the District Collector. Thereafter, the Collector, after
considering the report of the officer so authorised, is to pass orders as he
deems fit.
15. There is no dispute that the petitioners were given show cause
notice by the Special Tahsildar (Officer authorised by the District Collector)
inviting their remarks or objections with regard to the proposed acquisition
for the purpose of Harijan Welfare Scheme. It is also the case of the
petitioners that they submitted their objections to the proposed acquisition.
Their grievance is that on receipt of the report from the Special Tahsildar as
enunciated in Sub-sec.(3) (b) of Section-4, the District Collector ought to
have sent a copy of the said report to the landowners as well as the persons
interested. It is also their contention that on receipt of the report from
the Special Tahsildar, the District Collector ought to have provided one more
opportunity to the landowners by forwarding a copy of the said report to them
to put forth their contentions.
16. We have already extracted Section 4 of the Act, particularly
clause (b) to Sub-sec.(3) of Section-4. As stated earlier, there is no
dispute that the petitioners were given show cause notices by the Special
Tahsildar (Officer authorised by the District Collector) and that they
submitted their objections before the said officer. As per clause (b) to
Sub-section (3) of Section-4, a duty is cast on the District Collector to pass
appropriate orders after considering the report of the Special Tahsildar. In
other words, there is no specific provision for furnishing copy of the report
of the Special Tahsildar or making any further enquiry as claimed by the
petitioners. Though the learned Judges, in the said decision viz., Thirumathi
Pushpa Bai Bainsingh vs. District Collector, Tirunelveli (1998) 1 CTC 281,
set aside the order of the Collector and directed him to give an opportunity
to the petitioner therein, in the light of any such provision in Section-4 (3)
(b) and in the absence of any discussion by the learned Judges with reference
to the above mentioned provision, with respect, we are of the view that the
said decision has to be confined only to the facts in that case. In this
regard, it is to be noted that in order to ameliorate the grievances of
thousands of Harijans in this State, the Government of Tamil Nadu enacted
Tamil Nadu Act XXXI of 1978. As we have already adverted to, the object of
the Act is for giving effect to the policy of the State towards securing the
principles laid down in Part IV, and in particular Article 46 of the
Constitution of India. Since the State Legislature thought that recourse to
the Central Act, viz., Land Acquisition Act, 1894, would be a time consuming
process and it is very difficult to implement the Harijan Welfare Schemes for
the members of the Scheduled Castes and Scheduled Tribes, they enacted the
present Act, namely, Act XXXI of 1978. Further, all the provisions of the
Tamil Nadu Act 31 of 1978 were considered by their Lordships of the Supreme
Court in State of Tamil Nadu V. Ananthi Ammal A.I.R. 1995 S.C. 2114:
(1995) 1 S.C.C. 519, their Lordships have considered Section-4 as well as
Sub-sections.(1), (2), (3) (a) and (b) to Section-4 and ultimately upheld
those provisions of the Act except Sub-Section(1) of Section-11. It is also
clear that the provisions of Section-4 substantially encapsulate the
provisions of Sections-4 to 6 of the Land Acquisition Act (Central Act). As
observed by their Lordships in Ananthi Ammals case, A.I.R. 1995 S.C. 2114,
the only major difference being that, under the Tamil Nadu Act, it is the
District Collector and not the State Government (as under Land Acquisition
Act) who must be satisfied that the land is required to be acquired. After
holding so, their Lordships concluded that it does not appear to us that this
is a provision (Sec.4 of Tamil Nadu Act) which is unreasonable or arbitrary”.
17. In the Central Act, after enquiry under Section.5-A of that Act,
the Land Acquisition Officer has to simply forward the entire proceedings
including the objection of the landowners and also the views of the
requisitioning body to the Government for taking appropriate decision and
making declaration under Section-6. After completion of enquiry under
Section.5-A of the Central Act, no further enquiry is contemplated in the Act
at the hands of the State Government before making declaration under
Section-6. Herein, in the Tamil Nadu Act 31 of 1978, the Special Tahsildar
sends show cause notice to the land owners and the persons interested,
receives their objections and makes a report to the District collector for
passing appropriate orders under clause (b) to Sub-section(3) of Section-4.
As per the above provisions in Tamil Nadu Act 31 of 1978, it is not mandatory
on the part of the Collector to send a copy of the report of the Special
Tahsildar and conduct further enquiry as contended by the learned Senior
Counsel for the petitioners. When there is a specific omission by the
Legislature, taking note of the object in enacting the legislation (Act 3 1 of
1978), it is not open to the Court to give a different meaning what is not
actually intended or included in the statute. In this regard, we are in
entire agreement with the view expressed in 1999 (2) MLJ 506 and unable to
accept the argument of the learned Senior Counsel for the petitioners. For
the same reasons, we are also satisfied that there is no need to refer the
issue to a larger Bench as claimed by Mr.G.Rajagopalan.
18. Learned Senior Counsel has relied on the following
decisions of the Supreme Court reported in,
(a) AIR 1972 SC 136 (State Bank of India v. R.K.Jain);
(b) AIR 1991 SC 471 (Union of India v. Mohd. Ramzan Khan); and
(c)AIR 1994 SC 1074 (Managing Director, ECIL v. B.Karunakar),
and contended that even if there is no provision in the Act, in view of the
compulsory nature of acquisition, adequate opportunity must be given to the
land owners.
19. In the light of the said contention, we verified the factual
details in the above three cases. First of all, those cases relate to service
matters. Secondly, Court cannot infer something when there is no such
provision in the Act and issue direction to the authority to do something,
which is not authorised or permitted under the Statute. In the light of the
same, we are of the view that there is no need to refer to the above cited
decisions.
20. Coming to the next argument that alternate land of the
petitioners is available and a suggestion/representation was forwarded to the
opinion of the Government, first of all, as per the Tamil Nadu Act, all
decisions have to be taken only by the District Collector. Secondly, the
Report shows that the alternate land suggested by the petitioners is adjacent
to the graveyard. Though it is pointed out that even the beneficiaries/Adi
Dravidas have no objection in constructing houses in the suggested land, which
is nearer to the graveyard, it is not for this Court to issue direction to the
authorities to accept the same. It is not known as to what made the
beneficiaries to accept the alternate site, particularly when the land is
nearer to the graveyard. Further, graveyard in villages is not like the one
in a City, wherein, sufficient safeguards are there. In such circumstances,
we are of the view that acceptance of alternate land is left to the discretion
of the District Collector, who is the competent authority. We refrain from
making any direction or comment on the suggestion of the petitioners.
21. In the light of what is stated above, we are in entire agreement
with the conclusion arrived at by the learned single Judge and we do not find
any error or infirmity or valid ground for interference. Writ Appeal is
devoid of merits and the same is dismissed.
JI.
To
1. The District Collector, Thanjavur.
2. The Special Tahsildar for Land Acquisition (Adi-Dravidar
Welfare) Department, Kumbakonam, Thanjavur District.