High Court · 2007

IN THE HIGH COURT OF JUDICTURE AT MADRASDated: 17.4.2007CoramThe Hon'ble Mr.JUSTICE S.RAJESWARANW.P.No.5793 of 1999 1.Kuppusamy2.Chakravarthy3.Natarajan4.Velmurugan.. Petitionersvs.1.The Addl.District Collector South Arcot District, Cuddalore.2.The Special Tahsildar Adi Dravidar & Tribal Welfare Virudachalam-Cuddalore.. RespondentsWrit petition filed under Article 226 of the Constitution ofIndia seeking to issue a writ of Certiorarified Mandamus as statedtherein.For Petitioner: M/s.R.SrinivasFor Respondents: Mr.C.Ramesh, Addl.Govt.Pleader.ORDERThis writ petition has been filed under Article 226 of theConstitution of India seeking to issue a writ of CertiorarifiedMandamus, calling for the records of the 1st respondent concerningthe Sec.4(1) Notification issued on 5.1.1997 published in theSouth Arcot Vallalar District Official Gazette on 10.1.97 inW1/3983/96 under the Tamil Nadu Acquisition of Lands for HarijanWelfare Schemes Act (31/78) and quash the same and direct therespondents to forbear from acquiring the lands in R.S.No.8/7 and8/9D measuring 0.28.5 and 0.88.0 hectares respectively belongingto the petitioners. https://hcservices.ecourts.gov.in/hcservices/

2.The 1st petitioner is the father of petitioners 2 to 4. Theagricultural lands in R.S.No.8/7 and 8/9D at Kolapakkam village,Cuddalore District belong to them. The lands even though werepurchased in the name of the 1st petitioner it was a joint familyproperty which was partitioned and divided by way of oral familyarrangement and the different portions of the land are under theenjoyment of the writ petitioners separately. While so, theSpecial Tahsildar issued a notice dated 17.9.1995 in Form I andthe same was served on the 1st petitioner. It was stated in thenotice that the above said lands were sought to be acquired underthe Tamil Nadu Acquisition of Land for Harijan Welfare SchemesAct, 1978, hereinafter called 'the Act 31/1978' and the objectionsof the persons interested in the lands were called for. Thenotice dated 17.9.95 also informed that an enquiry would be heldby the Special Tahsildar, the 2nd respondent on 5.10.95. It is thecase of the writ petitioners that even though notice was notserved on petitioners 2 to 4, all the writ petitioners made arepresentation to the 2nd respondent informing their objections.They also appeared before second respondent on 5.10.95 and madetheir objections. Thereafter nothing happened and only in March1999, they came across the issue of notification under Sec.4(1) ofthe Act, 1978 in the District Gazette dated 10.1.97. Immediatelythey filed the above writ petition for the aforesaid relief. 3.Only the 2nd respondent has filed a counter affidavitwherein it was stated that the acquisition proceedings wereinitiated to accommodate about 140 families of house-less, poorAdi Dravidars. As the lands were purchased in the 1st petitioner'sname alone, the other petitioners could not challenge theacquisition proceedings on the basis of the oral partition.4.Heard the learned counsel for the petitioners and thelearned Addl. Government Pleader for respondents. I have alsoperused the documents filed and the judgments referred to insupport of their submissions.5.The learned counsel for the petitioners vehementlycontended that no notice under Sec.4(2) of the Act, 1978 was sentto petitioners 2 to 4 and therefore the respondents failed tofollow the mandatory provisions in the Act. The learned counselsubmitted that the writ petitioners appeared before 2nd respondentand reiterated their objections and only on the basis of thereport submitted by 2nd respondent, 1st respondent issued theimpugned notification under Sec.4(1), but the report of 2ndrespondent was not at all furnished to the writ petitioners. Thelearned counsel further contended that the 1st respondent who isexpected to reflect the reasons for accepting the report of 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent and rejecting the objections of the writ petitioners,did not given reasons for acquiring the lands of the writpetitioners despite their objections. The learned counsel placedstrong reliance on the decisions of the Full Bench of this courtreported in 2006(4)CTC 609 (Pari,R. v. The Special Tahsildar, Adi-Dravidar Welfare, Devakkottai).6.Per contra, the learned Addl. Government Pleader submittedthat the provisions of the Act were fully complied with beforeissuing the 4(1) notification.7.I have considered the rival submissions carefully withregard to facts and citations.8.Insofar as the first objection namely, non-service ofnotice under Sec.4(2) on the petitioners 2 to 4 are concerned, Ido not find any merits in the submissions made by the learnedcounsel for the writ petitioners. Admittedly, the lands werepurchased in the name of 1st respondent and the same was later onpartitioned among themselves by way of oral partition only. Insuch circumstances, the notice issued to the father, i.e., the 1stpetitioner herein is not at all vitiated. Further, in theirobjections dated 5.10.95 sent in response to the notice dated17.9.95 it was admitted that the 4(1) notice contained the namesof writ petitioners 2 to 4 also. A perusal of the notice wouldalso show that their names found place in the notice. Further,all the petitioners filed their objections and participated in theenquiry. Therefore, the first objection made by the learnedcounsel for the writ petitioners assailing the 4(1) notice fails.9.It is the case of the writ petitioners that the report of2nd respondent was not furnished to them to enable them to make afurther representation to 1st respondent. The counter filed by 2ndrespondent is conspicuously silent in this regard. Therefore, itis to be considered that the report of 2nd respondent was not atall furnished to the writ petitioners. But that itself will notvitiate the entire acquisition proceedings. The court has to findout whether by not furnishing the report any prejudice is causedto the writ petitioners.10.In their objections dated 5.10.95, the writ petitionershave specifically stated that they have been cultivating paddy,Manila, Sesame and also sugar-cane. Reference was made to 93 palmtrees standing on the land which are 25 years old, apart fromother big trees. They have also pointed out the alternativeuncultivable lands available near their lands. In the light ofthe above objections, I am of the considered view that the writpetitioners have a right to know how their objections wereoverruled by 2nd respondent in his report submitted to 1st https://hcservices.ecourts.gov.in/hcservices/ respondent. Therefore, the non-furnishing of the report of 2ndrespondent to the writ petitioners, in this case has definitelyprejudiced the interest of the writ petitioners and therefore theacquisition proceedings are vitiated.11.The 1st respondent is also expected to apply his mindindependently to the report and give reasons for accepting thereport and rejecting the objections. In the present case, neitherthe 4(1) notification reflected the reasons of 1st respondent forrejecting the objections nor any communication was sent to themcontaining their reasons for rejecting their objections. But bymerely omitted to send or show the reasons for rejecting theirobjections, would not mean that the acquisition proceedings arevitiated. It is always open to the authorities concerned to provebefore this court that there has been application of mind and thereasons are available in the relevant records relating to theacquisition. In the case on hand, no counter affidavit has beenfiled by 1st respondent. While the counter affidavit of 2ndrespondent contains irrelevant information couched in anundecipherable language, there is not even a passing referenceabout the application of mind by the authorities for rejecting theobjections of the writ petitioners. The records were also notproduced before the court to prove and satisfy the court thatthere has been an application of mind and there are reasonsavailable relating to acquisition proceedings. Therefore, it hasto be inferred that the 4(1) notification has been issued by 1strespondent mechanically without application of mind.12.In the Full Bench judgment cited supra, three questionswere referred to the Bench for determination which are as follows:"(i)Is it necessary for the collector to givea personal hearing to the owner in the contextof his objections and the remarks of theTahsildar?(ii)Is the owner entitled to a copy of thereport of the Special Tahsildar or not?(iii)Should the Collector record his reasonsin his order while dealing with the objectionsof the owner?" 13.For the first question, the Full Bench answers as below:"8.From a combined reading of the provisionscontained in Section 4, Rule 3 and the Form-I, itis thus apparent that the notice to show cause canbe issued either by the District Collector or bythe authorised officer. Where such notice is https://hcservices.ecourts.gov.in/hcservices/ issued by the District Collector, all subsequentproceedings are continued before him and ultimatelythe Collector takes a decision on the basis ofenquiry held by him. However, where such notice isissued by the authorised officer, the enquiry isconducted by such officer, who is thereafterrequired to make a report containing hisrecommendations on the cause shown by the owner andthe decision is required to be taken by theDistrict Collector."14.Insofar as the second question is concerned, the FullBench decided as under:"37.The desirability of furnishing a copy ofthe report to enable the land owner to make afurther representation to the DistrictCollector does not mean that in every case,where such report has not been furnished, theultimate order passed by the DistrictCollector deciding to acquire the land isautomatically vitiated. The scope forjudicial interference in the matter relatingto acquisition of land obviously being verylimited, the Court in each case is required tofind out whether non-furnishing of the reportin any way has prejudiced the personconcerned. The object of furnishing thereport and affording further opportunity tothe land owner to make a furtherrepresentation is obviously to pinpoint anydeficiency in the report of the authorisedofficer. If any particular aspect has beenhighlighted by the land owner and has not beenconsidered by the authorised officer, the landowner would get a further opportunity tohighlight such aspect before the DistrictCollector. In other words, if the authorisedofficer has considered the relevant aspectsindicated by the objector and made hisrecommendation, merely because a copy of suchreport is not furnished and no furtheropportunity is given to the land owner, maynot be a ground to quash the land acquisitionproceedings. On the other hand, if importantaspects, which have been highlighted by theland owner, have been ignored by theauthorised officer, it may be reasonable to https://hcservices.ecourts.gov.in/hcservices/ infer non-furnishing of such report and non-offering of opportunity to make furtherrepresentation might have vitiated theultimate decision of the District Collector.These are matters to be considered on thebasis of the facts and circumstances in eachacquisition and it should not be construedthat as a matter of law in every case wherecopy of the report has not been furnished andopportunity of making further representationhad been denied, it is sufficient to quashsuch acquisition. Ultimately the Court has tojudge the prejudice caused to such person bykeeping in view the facts and circumstances inparticular case.""38.So far as Question No.2 is concerned,since it is construed by us that it isnecessary for the collector to giveopportunity to the owner to file furtherrepresentation on the report/recommendationmade by the authorised officer, such copy ofthe report/recommendation is required to befurnished. We also add that in view of theprovisions contained in the Right toInformation Act, 2005 the owner would beentitled to copy of the report of theauthorised officer."15.With regard to the necessity of giving reasons by theCollector is concerned, it is held as follows:"42.However, it is necessary to enter a smallcaveat. The observation made by the DivisionBench or the single Judge regardingrequirement to indicate reason while passingthe order has to be understood in the contextof non-application of mind. Even though in agiven case the order which is communicated tothe land owner does not indicate any reasonwhy the objection has been rejected, if theapplication of mind is reflected in the fileeven by way of notings and endorsements, theultimate decision to acquire the land cannotbe said to be vitiated merely because theorder which is communicated to the landowner/objector does not contain any detailedreasons. The requirement is that the https://hcservices.ecourts.gov.in/hcservices/ materials on record, that is to say therelevant file, should indicate application ofmind to the relevant facts and circumstancesand not passing of a formal reasoned orderedas is required in judicial or quasi-judicialproceedings. The function obviously beingadministrative in nature, it is futile toexpect furnishing of detailed reasons in theorder which is communicated to the person. Itis necessary to enter such caveat lest it maybe construed that in every case, where theorder of rejection communicated to the landowner does not contain the reasons, theproceeding stands vitiated. Ultimately theCourt is required to find out in each casewhether there has been application of mind.Therefore, the brief reasons, which arecontemplated, can be given either in the filein the shape of notings, endorsements, etc.,or even can be reflected in the order. But,mere non-reflection of reasons in the ordercommunicated or in the notice published in theGazette, would not be sufficient to hold thatthere has been non-application of mind and thequestion as to whether there has beenapplication of mind or non-application isrequired to be considered on the basis of thereturn filed and the relevant file to beproduced before the Court." 16.The Full Bench finally concluded as under:"43.In view of the aforesaid discussion, ourconclusions are as follows:The owner should be furnished with a copy ofthe report/recommendation of the authorisedofficer. Thereafter, he should be given twoweeks' time to make further representation, ifany, before the District Collector. It is notnecessary for the District Collector to give afurther personal hearing or make any furtherenquiry. However, mere non-furnishing of thereport would not have the ipso facto effect ofvitiating the proceedings and the question ofprejudice to the land owner is required to beconsidered in each case depending upon thefacts and circumstances. The DistrictCollector is expected to reflect the reasons,but merely because the communication to the https://hcservices.ecourts.gov.in/hcservices/ land owner does not contain the reasons, thedecision of the Collector is not ipso factovitiated and it would always open to theconcerned authority to prove before the Court,if such action of the collector is challenged,that there has been application of mind andthe reasons are available in the relevantrecords relating to such acquisition. Thenecessity to record the reasons is applicablewhere the Collector himself makes the enquiryand also where the Collector takes anappropriate decision on the basis of thereport/recommendation made by the authorisedofficer."17.If the principles laid down by the Full Bench in the abovedecision is applied to the facts of the present case, I have tonecessarily hold that by not furnishing a copy of thereport/recommendation of 2nd respondent to the writ petitioners andthe respondents by their failure to prove before this court therehas been application of mind and there are reasons available inthe relevant records, the acquisition proceedings are vitiated andthe notice issued by 1st respondent, which is impugned in the writpetition is liable to be quashed. Accordingly, Sec.4(1)notification issued on 5.1.97 in the District official Gazetteunder the Tamil Nadu Act 31 of 1978 is hereby quashed.18.The prayer in the writ petition is not only for quashingthe 4(1) notification but also for a direction directing therespondents, forbearing them from acquiring the lands belonging tothe writ petitioners. This, in my view, cannot be granted at all.Whenever lands are required by the Government for the welfare forHarijans, it is open to them to acquire the same after strictlyfollowing the provisions of the Act in the light of the above saiddecision of the Full Bench of this court and this court cannotdirect the authorities not to follow the provisions of any Act asprayed for by the writ petitioners.19.In the result, the writ petition is allowed in the abovesaid terms. No costs. W.M.P.No.8422/1999 is closed. sksSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Addl.District Collector South Arcot District, Cuddalore.2.The Special Tahsildar Adi Dravidar & Tribal Welfare Virudachalam-Cuddalore+ 1 cc to the Government Pleader, SR No.25620MS(CO)SR/3.5.2007 order,W.P.5793/99.