THE HONOURABLE MR v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 1.2.2006CORAM:THE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.17517 of 1996M.Vasanthi .. Petitionervs.1. The District Collector, Dindigul Mannar Thirumalai District.2. The Special Tahsildar, Adi Dravidar Welfare Scheme-I, Dindigul... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a writ of certiorari, as statedtherein.For petitioner : Mr.N.DamodaranFor respondents : Mrs.D.Malarvizhi, Govt. AdvocateORDERThe prayer in the writ petition is for issuance of a writ ofcertiorari, calling for the records relating to the notificationissued by first respondent herein, the Collector, Dindigul AnnaDistrict (Dindigul Mannar Thirumalai District)-Extraordinary, dated31.1.1996 in Na.Ka.No.H.2/105497/95, dated 9.1.1996, with respect tothe petitioner's land comprised in S.F.No.572/3 (0.81.0 Hectare),Kodalvavi Village, Dindigul Taluk, Dindigul Anna District and theconsequential notice dated 9.8.1996 issued in Na.Ka.No.2132/95/A inForm-III under Rule 5(i) of the Tamil Nadu Acquisition of Land forHarijan Welfare Scheme Rules, 1979 and quash the same.2. Brief facts of the case are as follows:(a) The land, which is the subject matter of the acquisitionproceedings under the Tamil Nadu Acquisition of Land for HarijanWelfare Schemes Act, 1978 (Act No.XXXI of 1978) (hereinafterreferred to as 'the Act'), originally belonged to the petitioner'sfather Shri.P.Madana Gurusamy, which was purchased by him in theyear 1989. It is stated that the petitioner's father was inpossession and enjoyment of the land by cultivating paddy, cottonand other plantation crops. The petitioner's father spentconsiderable amount in putting up bore-well in the land forcultivation. https://hcservices.ecourts.gov.in/hcservices/ (b) According to the petitioner, the second respondent-Special Tahsildar, Adi Dravidar Welfare Scheme-I, Dindigul, tooksteps to acquire the land in S.No.572/3 in an extent of 0.81.0hectares in Kodalvavi Village for providing house-sites to AdiDravidars of Arasamarathupatti Village and G.O.Ms.(3.D).1079, AdiDravidar and Tribal Welfare Department, dated 22.12.1994 was issuedunder the Land Acquisition Act (Central Act). A notice underSection 5-A of the Land Acquisition Act was issued to thepetitioner's father and the same was dropped.(c) The petitioner submits that after the acquisition underthe Central Act was dropped, her father executed a registeredsettlement deed dated 15.9.1995, registered as Document No.844 of1995 at the Office of the Sub-Registrar, Kannivadi favouring thepetitioner in respect of S.F.No.572/3, Kodalvavi Village, in anextent of 2.50 acres out of the total extent of 4.92 acres.(d) It is stated in the affidavit filed in support of thewrit petition that the petitioner's father also executed a saleagreement with one Thirumalsami on 16.9.1995 in respect of theremaining extent of the land in the said Survey Number for valuableconsideration. Pursuant to the said settlement deed dated 15.9.1995executed in favour of the petitioner, it is stated that thepetitioner was put in possession of the property and she became theabsolute owner from 15.9.1995 and she is looking after the land withthe help of her father.(e) The petitioner further states that she got marriedduring the year 1989 and is living with her husband at KomangalamVillage of the Coimbatore District eversince. She received a noticedated 9.8.1996 from the second respondent in Form-III issued underRule 5(i) of the Rules, 1979 and was asked to attend the awardenquiry on 2.9.1996. Thereafter, she verified and came to know thather land was sought to be acquired and notification under Section 4(1) of the Act 31 of 1978 was published in the Gazette on 31.1.1996by the first respondent. (f) It is stated that the petitioner was kept in dark aboutthe acquisition proceedings and that she enquired with her fatherand came to know that no notice was served upon him regarding theland acquisition proceedings.(g) It is also stated in petitioner's affidavit that onlyduring the period 1.11.1995 to 30.12.1995, the petitioner's fatherand mother were away from the Village and the petitioner thereforecontends that the notice in Form-I under Rule 3(i) of the Rules interms of sub-section (2) of Section 4 of the Act was not sent to thelast known address of the owner or any other person interested andthat the mandatory procedure prescribed under the Act was notcomplied with and no proper opportunity was given to her. Thepetitioner therefore contends that the acquisition proceedingsshould be quashed as prayed for.3. A counter affidavit has been filed by the firstrespondent and a detailed counter affidavit has been filed by thesecond respondent, disputing all the facts alleged by thepetitioner, as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) It is stated that the acquisition proceedings wereinitiated under the Land Acquisition Act (Central Act) 1 of 1894.The land of Shri.Madana Gurusamy, the pattadar, was sought to beacquired under the aforesaid Central Act for the purpose ofproviding house-sites to Adi Dravidar people and the notificationunder Section 4(1) of the Act was issued and G.O.(3-D).1079, AdiDravidar and Tribal Welfare Department, dated 22.12.1994 waspublished in the Gazette No.736 dated 30.12.1994. (ii) Notice was issued under Section 5-A to the land ownerShri.Madana Gurusamy, the father of the petitioner, posting theenquiry on 23.2.1995, which notice was received by him on 7.2.1995,and Shri.Madana Gurusamy pleaded for time due to illness. Thesubsequent hearings were posted on 17.5.1995, 6.6.1995 and 20.6.1995and for all these hearings, notice was sent to the petitioner'sfather through Registered Post as well as through the VillageAdministrative Officer (V.A.O), which was refused by the saidShri.Madana Gurusamy. Hence, notice was served by affixture. TheRegistered Post was returned with detailed endorsement to the effectthat notice could not be served. However, after having requestedfor 30 days' time through his telegram dated 22.2.1995, Shri.MadanaGurusamy did not file the objection or appear for the enquiry. (iii) The further submission in the counter affidavit isthat pursuant to the Supreme Court's decision reported in AIR 1995SC 2114 (State of Tamil Nadu vs. Ananthi Ammal), upholding the Act31 of 1978, by virtue of Section 22 of Act 31 of 1978, theproceedings initiated under the Central Act shall continue. Section22 of the Act 31 of 1978 provides as follows: "Section 22: Application of the Act tocertain pending cases of acquisition:(1) The provisions of this Act shallapply also to any case or cases in whichproceedings have been started before thecommencement of this Act for the acquisition ofany land for the Harijan Welfare Scheme underthe Land Acquisition Act, 1894 (Central Act 1 of1894) (hereinafter in this section referred toas the said Act) but no award has been made bythe Collector under Section 11 of the said Actbefore such commencement, as if--(i) the notification published undersub-section (1) of Section 4 of the said Act; or(ii) the declaration made under Section6 of the said Act; or(iii) the notice given under sub-section(1) of Section 9 of the said Act,were a notice to show cause against theacquisition of the land served under sub-section(2) of Section 4 of this Act.(2) Nothing contained in sub-section (1)shall apply in relation to any land unless anduntil after the District Collector has published https://hcservices.ecourts.gov.in/hcservices/ a notice in the District Gazette to the effectthat the said land is required for the purposespecified in sub-section (1) of Section 4 ofthis Act."Therefore, the respondents proceeded with the acquisition under theNew Act 13 of 1978.(iv) A show cause notice dated 9.11.1995 in Form-I underRule 3(i) of the Rules in terms of Section 4(2) of the Act 31 of1978, was issued to the owner, namely Shri.Madana Gurusamy, postingthe enquiry on 28.11.1995. This notice was sent through VillageAdministrative Officer for service. The Village AdministrativeOfficer re-submitted the notice, stating that since Madana Gurusamyrefused to receive the notice, it was served by way of affixture. Afurther notice, dated 28.11.1995, as above, was sent to the owner ofthe land by Registered Post Acknowledgement Due, posting the date ofenquiry on 11.12.1995. This notice was also returned by the postalauthorities, stating that "inspite of several reminders to theresidents of the house and the residents not accepting, the postreturned".(v) It is further stated in the counter affidavit that theSpecial Tahsildar visited the land in S.No.572/3 on 28.12.1995 andfound 132 coconut saplings about seven months old. The notificationunder Section 4(1) of the Act 31 of 1978 was approved by theCollector in his proceedings in No.105497/95/H.2, dated 9.1.1996,which was published in the District Gazette dated 31.1.1996.Thereafter, notice in the Award enquiry in Form-III under Rule 5(i)of the Rules, was issued on 14.3.1996, posting the enquiry on21.3.1996, which was also sent through the Village AdministrativeOfficer to the land owner Shri.Madana Gurusamy and since he refusedto accept the same, it was served by affixture. The award enquirynotice was also sent by Registered Post, which was returned bypostal authorities, recording as "between 16.3.1996 and 26.3.1996,inspite of several intimation to the residents, the person concernedhas not made an endeavour to receive the letter, and the same isreturned to the sender". (vi) That on 24.3.1996, objections were filed by the saidShri.Madana Gurusamy, for the first time, stating that he had given2.5 acres of land in S.No.572/3 to his only daughter Smt.Vasanthi,the writ petitioner herein, residing at Komangalam, CoimbatoreDistrict and that the acquisition proceedings have been initiatedwithout notice to him.(vii) That on information from the said Shri.MadanaGurusamy, award notice dated 9.8.1996 in Form-III under Rule 5(i) ofthe Rules was sent to the petitioner by Registered Post, posting theenquiry on 2.9.1996. On 2.9.1996, the petitioner herein submittedher objections stating that the "thoppu" land should not beacquired; that lands got through "thana settlement" and lands ofsmall farmers, should not be acquired and since there is a templebelonging to the Chettiar community, the land should not beacquired. https://hcservices.ecourts.gov.in/hcservices/ (viii) The objections were considered and rejected by theauthority and Award No.1/96-97, dated 28.10.1996 was passed and theamount of Rs.69,024/- being the value of the land, was deposited inthe Sub-Treasury Office, Dindigul on 11.11.1996. As per the awardproceedings, 0.81.0 acres of land in S.No.572/3 has been re-numberedas S.No.572/3.B and classified as "Adi Dravidar Natham" on13.11.1996 and the land was taken possession by the Special RevenueInspector on 20.11.1996. (ix) The writ petition has been filed at the time ofissuance of award notice. By order dated 26.11.1996, whileadmitting the writ petition, this Court granted "interim stay ofdispossession, if the possession has not been taken by therespondents" and by order dated 8.9.2003, this Court passed an orderthat "interim stay granted on 26.11.1996 is made absolute only in sofar as the dispossession of petitioner's possession is concerned, ifpossession has already not been taken. Other proceedings may goon." (x) It is stated by the respondents that the presentacquisition under Act 31 of 1978 is only a continuation of theacquisition under Central Act 1 of 1894 and the owner Shri.MadanaGurusamy was fully aware of all the acquisition proceedings andtherefore, to avoid the land being acquired, he executed asettlement deed dated 15.9.1995 in the name of his daughter, thewrit petitioner herein and planted some coconut saplings in oraround May 1995, only for the purpose of avoiding the acquisitionproceedings, which is an after-thought and made deliberately fordefeating the purpose of the acquisition proceedings.(xi) Even at the time of issuance of G.O.(3.D).1079, AdiDravidar and Tribal Welfare Department, dated 22.12.1994, and in thesubsequent enquiry, the petitioner's father has sought for time, butfailed to appear before the authorities.(xii) It is submitted by the respondents that the landacquisition proceedings under the Central Act under Section 4(1),was published in District Gazette No.736 dated 30.12.1994 and as perthe provisions of Section 22 of the Act 31 of 1978, notice in Form-Iunder Rule 3(i) of the Rules as per Section 4(2) of the Act 31 of1978 was sent to the land owner Shri.Madana Gurusamy on severaloccasions and he refused to receive the notices and he did notparticipate in any of the proceedings in spite of knowledge of theacquisition proceedings at the earliest point of time.(xiii) It is also submitted by the respondents that evenbefore the grant of interim stay on 26.11.1996, necessary changeswere carried out in the Village Accounts on 13.11.1996 as "AdiDravidar Natham" and possession was taken on 20.11.1996 and in viewof the award having been passed, it was submitted that the writpetition is liable to be dismissed.4. Learned counsel for the petitioner submitted that nonotice to the owner of the land viz. the petitioner, which ismandatory, as per the provisions of the Act 31 of 1978 was issued;that for whom the acquisition of the lands in question was sought tobe made, has not been stated in Section 4(1) notification; that the https://hcservices.ecourts.gov.in/hcservices/ satisfaction of the District Collector is not found in Section 4(1)notification nor it is stated in the counter. Hence, the entireacquisition proceedings are vitiated.5. For the first proposition, the learned counsel for thepetitioner relied upon a judgment of this Court reported in 1998(II) C.T.C. 625 (Thangamuthu Gounder vs. Secretary, Government ofTamil Nadu) and submitted that the acquisition proceedings areliable to be quashed on the ground that the notice as per law hasnot been served on the owner. The facts of the case mentioned aboveare totally different from that of the petitioner's case. In theabove mentioned case, the name of the petitioner finds place inSection 4(1) notification as owner. There, the Court held thatnotice for enquiry under Section 5-A should have been sent to thepetitioner in that case. Further, the records were not produced toprove that notice was served by affixture. Hence, in view of thenon-production of the records, this Court held that the acquisitionproceedings were not proper. 6. In the present case, it was argued by the learnedGovernment Advocate that the petitioner's father is the owner as perthe Revenue records and the petitioner's father continues to be theowner as per the Revenue records and that is why, notice was sent tohim repeatedly, at every stage of the acquisition proceedings andonly after affixture of the award enquiry notice in Form-III ofRule 5(i) of the Rules, he had informed the authorities that theland was settled in favour of his daughter and thereafter, noticewas issued to the writ petitioner. Writ petitioner has also filedher objections, which was duly considered by the authorities. Thesaid Shri.Madana Gurusamy, the father of the petitioner, has filedhis objections before the District Adi Dravidar Welfare Officer,dated 24.3.1996, to the notice issued for award enquiry and the sameis extracted below: "I am in possession of the land inS.Nos.572/2 and 572/3 for a total extent of 4.92acres and I am doing agricultural operation. Ihad sent my objections for acquiring my propertyfor providing house-sites to Adi Dravidars. Ihad given 2.5 acres of land by way of settlementdeed dated 15.9.1995 to my only daughter. I amsubmitting a copy of the settlement deed infavour of my daughter, dated 15.9.1995 and inrespect of the balance land, I have made anagreement with a third party on 15.9.1995 andhanded over possession to him and theacquisition proceedings under the Central Acthas been dropped. However, the SpecialTahsildar for Land Acquisition, under Act 31 of1978, while seeking to acquire my land, has nottaken into consideration the settlement and theagreement for sale. He has also not consideredthe fact that there are coconut trees and othertrees on the property. Before acquiring theland, the Officer has not verified theencumbrance and no notice has been served on me. https://hcservices.ecourts.gov.in/hcservices/ The Officer has proceeded to initiate theacquisition proceedings against my land withoutenquiry as provided under the New Act 31 of1978. Before proceeding to acquire the land, nonotice was issued to me. The Special Tahsildaris proceeding without realising the correctfactual position. If he still continues toproceed with the same, I will take actionagainst him individually before the Court of lawand he will be liable for all costs andconsequences thereof. " It therefore follows that the so-called settlement is not real,because in his objections, Shri.Madana Gurusamy claims that he isthe owner of the land. The fact that the land was settled in favourof his daughter, the writ petitioner, comes to light only on24.3.1996 long after issue of Section 4(1) notification, by theletter of Madana Gurusamy, the father of the writ petitioner.Further, the letter dated 24.3.1996 proceeds on the basis thatShri.Madana Gurusamy is the owner and not the petitioner.Initially, when the land in question was sought to be acquired underthe Central Act, notice was served on the owner Shri.Madana Gurusamyand he sought for time. Thereafter, the said Madana Gurusamy hasbeen avoiding all communications of the respondents. Hence, thesubmission of the counsel for the petitioner that no notice wasserved on the owner of the property as contemplated in the Act, doesnot hold good. 7. The definition of "owner" under Section 3(h) of the Act31 of 1978 reads as follows:"Section 3(h): "Owner" includes anyperson, who is receiving or is entitled toreceive the rent of any land or building,whether on his own account or on behalf ofhimself and others or as an agent, trustee,executor, administrator, receiver or guardian orwho would so receive the rent or be entitled toreceive the rent, if the land or building werelet to a tenant". It is clear that even at the earliest point of time, when the landwas sought to be acquired under the Central Act, the father of thepetitioner has received the notice as owner and prayed for time tosubmit his objections. In the writ petition also, it is clearlymentioned that the lands are being looked after by the petitioner'sfather and all the developments referred to in the writ petition,have been made by the petitioner's father only. In the objectionsfiled in response to the Form-III notice also, he claims to be theowner. The father of the petitioner Shri.Madana Gurusamy has to beconsidered as owner by virtue of the definition of "owner" underSection 3(h) of the Act 31 of 1978. The contention of therespondents that they have rightly sent all the notices to the ownerof the property in question, as per the Revenue records, and also onthe basis of the earlier acquisition proceedings in which thepetitioner's father had received the notice as owner, is acceptableas valid service. There is no reason for the respondents to presumethat the land belongs to the writ petitioner. A Full Bench of this https://hcservices.ecourts.gov.in/hcservices/ Court in the decision reported in 1989 Writ L.R. 89(Thanikavelu.P.C. vs. The Special Deputy Collector for LandAcquisition, Madras), clearly held that "a person whose name is notentered in the records as "person interested" but about whom theofficer conducting enquiry is informed of the interest possessed bysuch person--notice on such person, held, necessary--individualnotice mandatory only to those persons whose names are found in therecords or who are found by the Collector as persons interested, oninformation received through reliable source." In this case, onlyon information by the father, pursuant to the award enquiry noticethat the name of the writ petitioner came to be disclosed andtherefore, notice was sent to the petitioner also. In any event, thepetitioner's father would fall within the scope of the definition of"owner" under Section 3(h) of the Act 31 of 1978. However,Shri.Madana Gurusamy has refused to receive the notice, as isevident from the records and the counter affidavit filed. The claimof the writ petitioner that no notice has been served on her by therespondents, cannot be sustained and that in the absence of anychange or mutation in the Revenue records, the first contention ofthe writ petitioner that no notice was served on her, has to fail.8. The next contention of the petitioner is that the purposefor which the acquisition was sought to be made, is not specified.Learned counsel for the petitioner relied upon an unreportedjudgment of this Court in W.P.No.23777 of 2001 dated 14.12.2001, inwhich the purpose is stated as "to give patta to Adi Dravidars". Inthe present case, the notification issued under Section 4(1)published in the Gazette clearly states that the acquisition of thelands in Kodalvavi Village of the Dindigul Taluk of the Dindigul-Anna District is meant for Harijan Welfare Scheme (for providinghouse-sites to Adi Dravidaras). Hence, the purpose is clearlyspelt. There is no merit in the contention that "the purpose forwhich the acquisition was sought to be made, is not specified".9. The third and last contention of the writ petitioner isthat the satisfaction of the District Collector is not found inSection 4(1) notification. In this regard, the petitioner relied onparagraph 10 of the judgment of this Court reported in 2004 (3)M.L.J. 262 (O.U.Sindha Madhar vs. The Special Tahsildar, AdhiDravida Welfare Land Acquisition, Tenkasi), which reads as follows:"10. In the present case, it is obviousthat the notice does not say that the Collectoris satisfied. From the mere fact that the wordsrefer to the notice being one under Sec.4(1),the Court cannot presume that the Collector wassatisfied. When the Section mandates that theCollector should be satisfied, then there shouldbe a record of the satisfaction of theCollector. If the notice does not indicate suchsatisfaction, then at least the records shouldshow that the Collector is indeed satisfied withthe recommendations of the Special Tahsildarthat the acquisition was necessary." https://hcservices.ecourts.gov.in/hcservices/ Learned Government Advocate produced the records and on a perusal ofthe same, it is found that the Collector was satisfied, with thepurpose for which the acquisition was sought to be made based on thereport of the second respondent. Even otherwise, the notificationunder Section 4(1) clearly states the purpose for which theacquisition is being made. 10. The Collector's satisfaction should be in relation tothe land which is sought to be acquired in implementing the policyof the Government for providing house-sites to Adi Dravidars and thenotification under Section 4(1) very clearly specifies the reasonfor acquisition with details of the land. Therefore, thecontention that the satisfaction of the Collector is not found inSection 4(1) notification, does not hold good. 11. It is submitted by learned Government Advocate that theaward enquiry was conducted on 2.9.1996 and objections were receivedand considered and an Award was passed on 28.10.1996 and revenuerecords mutated. The writ petition has been filed on 25.11.1996,after the passing of the award. The challenge to the notificationissued under Section 4(1) of the Act, after passing of the award,cannot be entertained in the facts and circumstances of the case. Insupport of the same, learned Government Advocate submitted thefollowing judgments:(a) 2000 AIR SCW 197 (Municipal Council, Ahmednagar vs. ShahHyder Being) and(b) Unreported order of this Court by P.Sathasivam,J, in W.P.No.19887 of 1998 dated 12.10.2000.Hence, there is no merit in any of the contentions raised by learnedcounsel for the petitioner.12. For the abovesaid reasons, the writ petition fails andthe same is liable to be dismissed. Accordingly, the writ petitionis dismissed. No costs. "Rule Nisi" is discharged.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.csTo1. The District Collector, Dindigul Mannar Thirumalai District. https://hcservices.ecourts.gov.in/hcservices/

2. The Special Tahsildar, Adi Dravidar Welfare Scheme-I, Dindigul.1 cc to Mr.N.Damodaran, Advocate, SR. 40081 cc to Govt. Pleader, Sr. 4111W.P.No.17517 of 1996MS (CO)kk 8/2