Edward Kennedy v. The Special Tahsildar (ADW),Adi Dravidar Welfare,Sivanganga

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.01.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.4001 to 4004 of 1996andW.P.M.P.Nos.6423, 6425, 6426 and6428 of 1996Edward Kennedy.. Petitioner in W.P.4001 of 1996Carolene.. Petitioner in W.P.4002 of 1996Rieta Josephine Shanthi .. Petitioner in W.P.4003 of 1996Hemalatha John Paul Alankaram(Minor) rep.by her guardian MotherAngel Mary... Petitioner in W.P.4004 of 1996-vs-1.The Special Tahsildar (ADW),Adi Dravidar Welfare,Sivanganga.2.The District Collector,Sivaganga, Pasumpon Muthuramalinga Thevar District.3.The Government of Tamil Nadu, rep.by its Secretary,Department of Adidravidar & Tribal Welfare, Fort St.George,Madras-9. .. Respondents in all the writ petitions.PRAYER : Petitions filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari calling forthe records of the respondent with respect to notice issued to thepetitioner by the first respondent on 26.12.1995 inNa.Ka.No.119/94 and the consequential notification dated 21.2.1996 https://hcservices.ecourts.gov.in/hcservices/ published in the District Gazette of Pasumpon MuthuramalingaThevar District, dated 24.2.1996 issued by the second respondentunder section 4(1) of the Tamil Nadu Acquisition of Land forHarijan Welfare Scheme Act 31 of 1978 in so far as it relates tothe petitioner's land comprised in S.No.253/10, 253/13, 253/11 and253/12 and to quash the same.For petitioners :: M/s.Anand Das Gupta and Sagar AssociatesFor respondents :: Ms.Sneha, GA *****O R D E R Heard both sides and perused the records filed in thesecases as well as the original records circulated by the learnedGovernment Advocate.2. The petitioners, aggrieved by the acquisition of theirlands in Survey Nos.253/10, 253/13, 253/11 and 253/12 respectivelysituated at Karunchuthi Group Ariyalpuram Village, IlayankudiTaluk, Sivagangai District under the provisions of the Tamil NaduAcquisition of Land for Harijan Welfare Schemes Act, 1978 (forshort 'T.N.Act 31 of 1978'), have filed the four writ petitions.When land acquisition was resorted to earlier under the CentralAct 1 of 1894 for the very same purpose, the petitioners filedwrit petition being W.P.Nos.14227 to 14230 of 1995 before thisCourt. This Court allowed the writ petitions by an order dated31.10.1995. But liberty was granted to proceed under the T.N.Act31 of 1978.3. The writ petitions were admitted by this Court on09.4.1996. An interim order against dispossession of the landsfrom the petitioners was also granted on 09.4.1996. The interimorder came to be continued till date. A counter affidavit of thesecond respondent justifying the acquisition of the lands for thepurpose of providing house sites to the beneficiaries, whoadmittedly belong to the Adidravidar Community of that village,is found in the original file.4. The second respondent being the prescribed authorityinitiated proposals for the acquisition of lands for the HarijanWelfare Scheme and the notice under Section 4(2) was sent to theowner of the lands by RPAD. The petitioners have received thenotices. An enquiry was conducted on 19.1.1996. The land owner,who is the petitioner in W.P.No.4001 of 1996 alone did notparticipate in the enquiry. The other land owners gave theirobjections on 19.1.1996 to the officer concerned. https://hcservices.ecourts.gov.in/hcservices/

5. The objection given by the owner was considered by theauthority concerned. He sent his proposal to the DistrictCollector. The District Collector rejected the objections given bythe land owner by his order dated 21.2.1996. Thereafter, anotification under Section 4(1) was published in the DistrictGovernment Gazette on 24.2.1996. An Award has been passed on25.3.1996 and the compensation amount has been deposited into theSub-Court, Sivagangai. 6. The following contentions were raised by the petitioners:-(a)The District Collector did not apply his mind to theobjections and he had not personally satisfied himselfwith the proposal;(b)The notification published under Section 4(1) of theT.N.Act 31 of 1978 itself speaks only about the StateGovernment being satisfied;(c)No personal enquiry was conducted;(d)In the land in S.No.220, there is a pond ; and(e)The land that is sought to be acquired is the only landby which the petitioners are eking out their livelihood.7. Before the issues can be decided, it must be stated thatthis matter was filed at the time when a Full Bench of this Courtwas called upon to decide conflicting judgments of this Court onthe procedure involved under T.N. Act 31 of 1978. P.K.Misra, J.,speaking for the Full Bench rendered its opinion on 25.8.2006. Ithas been since reported in 2006 (4) CTC 609 (R.Pari -vs- TheSpecial Tahsildar (ADW), Devakottai and another). The Full Benchthereafter directed the individual Writ Petitions to be decided ontheir merits and in accordance with the direction of the FullBench. Thus, this matter and the connected matters came to begrouped together and were posted before this Court on beingspecially ordered by the Honourable Chief Justice.8. In the counter affidavit dated 05.9.1996 filed by thesecond respondent, it was stated that the petitioners' objectionshave been taken into account. The pond referred to by thepetitioners can be used by the settlers in future. The contentionthat they have no means is false and all of them have beenemployed outside and it is only a dry land. The District Collectorapplied his mind. Hence, the contentions raised by the petitionershave no substance.9. Since the ruling of the Full Bench in R.Pari's case (citedsupra) is the guiding factor, it is necessary to refer to thefollowing passages found in paragraphs 37, 42 and 43:-''37. The desirability of furnishing a copy of thereport to enable the land owner to make a further https://hcservices.ecourts.gov.in/hcservices/ representation to the District Collector does not meanthat in every case, where such report has not beenfurnished, the ultimate order passed by the DistrictCollector deciding to acquire the land is automaticallyvitiated. The scope for judicial interference in thematter relating to acquisition of land obviously beingvery limited, the Court in each case is required to findout whether non-furnishing of the report in any way hasprejudiced the person concerned. The object offurnishing the report and affording further opportunityto the land owner to make a further representation isobviously to pinpoint any deficiency in the report ofthe authorised officer. If any particular aspect hasbeen highlighted by the land owner and has not beenconsidered by the authorised officer, the land ownerwould get a further opportunity to highlight such aspectbefore the District Collector. In other words, if theauthorised officer has considered the relevant aspectsindicated by the objector and made his recommendation,merely because a copy of such report is not furnishedand no further opportunity is given to the land owner,may not be a ground to quash the land acquisitionproceedings. On the other hand, if important aspects,which have been highlighted by the land owner, have beenignored by the authorised officer, it may be reasonableto infer non-furnishing of such report and non-offeringof opportunity to make further representation might havevitiated the ultimate decision of the DistrictCollector. These are matters to be considered on thebasis of the facts and circumstances in each acquisitionand it should not be construed that as a matter of lawin every case where copy of the report has not beenfurnished and opportunity of making furtherrepresentation had been denied, it is sufficient toquash such acquisition. Ultimately the Court has tojudge the prejudice caused to such person by keeping inview the facts and circumstances in particular case.....42. However, it is necessary to enter a small caveat.The observation made by the Division Bench or the SingleJudge regarding requirement to indicate reason whilepassing the order has to be understood in the context ofnon-application of mind. Even though in a given case,the order which is communicated to the land owner doesnot indicate any reason why the objection has beenrejected, if the application of mind is reflected in thefile even by way of notings and endorsements, theultimate decision to acquire the land cannot be said tobe vitiated merely because the order which is https://hcservices.ecourts.gov.in/hcservices/ communicated to the land owner/objector does not containany detailed reasons. The requirement is that thematerials on record, that is to say the relevant file,should indicate application of mind to the relevantfacts and circumstances and not passing of a formalreasoned order as is required in judicial or quasi-judicial proceedings. The function obviously beingadministrative in nature, it is futile to expectfurnishing of detailed reasons in the order which iscommunicated to the person. It is necessary to entersuch caveat lest it may be construed that in every case,where the order of rejection communicated to the landowner does not contain the reasons, the rejectioncommunicated to the land owner does not contain thereasons, the proceeding stands vitiated. Ultimately theCourt is required to find out in each case whether therehas been application of mind. Therefore, the briefreasons, which are contemplated, can be given either inthe file in the shape of notings, endorsements, etc. oreven can be reflected in the order. But mere non-reflection of reasons in the order communicated or inthe notice published in the Gazette, would not besufficient to hold that there has been non-applicationof mind and the question as to whether there has beenapplication of mind or non-application is required to beconsidered on the basis of the return filed and therelevant file to be produced before the Court.43. In view of the aforesaid discussion, our conclusionsare 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 the factsand circumstances. The District Collector isexpected to reflect the reasons, but merelybecause the communication to the land owner doesnot contain the reasons, the decision of theCollector is not ipso facto vitiated and it wouldalways open to the concerned authority to provebefore the Court, if such action of the Collectoris challenged, that there has been application of https://hcservices.ecourts.gov.in/hcservices/ mind and the reasons are available in therelevant records relating to such acquisition.The necessity to record the reasons is applicablewhere the Collector himself makes the enquiry andalso where the Collector takes an appropriatedecision on the basis of thereport/recommendation made by the authorisedofficer." (Emphasis Added)10. The other contention that the District Collector was notsatisfied and it was the Government's satisfaction, it must bestated that the original file produced shows that there is noreference to any Government's intervention in this case. On theother hand, the District Collector's personal satisfaction isclearly reflected in the file. The Gazette Notification producedby the petitioners cannot be the basis for determination of theissue. As directed by the Full Bench in R.Pari's case, (citedsupra), it is ultimately that the file must reflect thesatisfaction of the Collector and the Court must be satisfied withthe procedure adopted by the respondents (see the extractsreproduced in para 9).11. The Supreme Court vide its decision in DelhiAdministration -vs- Gurdip Singh Uban reported in (2000) 7 SCC296, dealt with the question of recording reasons in case ofdeclaration issued under Section 6 of the Land Acquisition Act,1894. The Supreme Court in that decision in para 49, had observedas follows:-''No reasons or other facts need be mentioned in theSection 6 declaration on its face. If the satisfactionis challenged in the Court, the Government can show therecord upon which the Government acted and justify thesatisfaction expressed in Section 6 declaration".These observations will apply in its entirety to the case on hand.12. Notwithstanding the binding precedents referred to above,the following decisions were cited at the bar in support of theirsubmissions regarding the lack of satisfaction by the DistrictCollector before issuing the notification under section 4(1) ofthe T.N.Act 31 of 1978:i.2002 (2) CTC 1 (DB) (The Land Acquisition Officerand Special Tahsildar (LA) and another -vs-R.Manickammal and others);ii.2004 (3) CTC 261 (K.V.Purushothma Naidu -vs- TheDistrict Collector, North Arcot Ambedkar District,Vellore and another); https://hcservices.ecourts.gov.in/hcservices/ iii.2008 (2) CTC 468 (M.Nagu and others -vs- TheDistrict Collector, Sivagangai District andanother);iv.2008 (5) CTC 154 (Rajammal and others -vs- DistrictCollector, Dharmapuri and another);v.Unreported judgment of the Division Bench inW.A.No.2050 of 2001 and other cases, dated 16.4.2008(Mrs.Soundaravalli -vs- Government of Tamil Nadu andothers).13. In the above five cases, the first and second cases weredelivered before the decision of the Full Bench. In the last twodecisions, there is a reference to the Full Bench but thosedecisions were confined to the facts of that case. In the thirddecision cited above, there is no reference to Full Bench.14. In order to appreciate the decisions cited at the Bar, itis necessary to refer to the relevant passages from thesedecisions:-14.1.In the decision reported in 2002 (2) CTC 1 (citedsupra), the passage found in para 3 (extracted below) will showthat in that case there was a governmental intervention contraryto the opinion of the District Collector:''3. ... the Collector has initiated proceedings andissued draft notification under Section 4(1), which hasbeen gazetted on 17.7.1997. Objections were raisedagainst the acquisition and the Collector has made anenquiry into the same. The Collector has opined that thevalue of the land was high and prohibitive and it was notdesirable to acquire the lands for the public purposesnotified. But the Secretary to Government has intervenedin the matter and issued a mandate to the Collector to goahead with the acquisition, in spite of the report of theCollector to the contra. A question was raised before thelearned Single Judge challenging the jurisdiction of theGovernment to intervene on the ground that it was for theCollector to exercise the said power and the Collectorhaving been satisfied that the lands should not beacquired, the Government ought not to have interfered inthe matter." 14.2. In the decision reported in 2004 (3) CTC 261 (citedsupra), the learned Judge did not have the benefit of the FullBench decision in R.Pari's case, (cited supra). Yet the passagesfound in paragraphs 9 and 10 (extracted below) will show that thedecision had turned out on its own facts:- https://hcservices.ecourts.gov.in/hcservices/ ''In the present case, it is obvious that the notice doesnot say that the Collector is satisfied. From the merefact that the words refer to the notice being one underSection 4(1), the Court cannot presume that the Collectorwas satisfied. When the Section mandates that theCollector should be satisfied, then there should be arecord of the satisfaction of the Collector. If thenotice does not indicate such satisfaction, then at leastthe records should show that the Collector is indeedsatisfied with the recommendations of the SpecialTahsildar that the acquisition was necessary.10. In view of the decisions referred to above, itwill not be possible to hold the notice itself as invalidif the records indicate satisfaction. But, in the absenceof materials to show satisfaction, Section 4(1) cannot besaid to have been complied with. As observed by theSupreme Court in the decisions cited supra, if the noticeitself expresses the satisfaction, then it is for theland owner to prove that there was no real satisfaction.If the notice does not indicate satisfaction, then it isfor the Government to prove that there was satisfaction.In this case, there is no evidence to show that theCollector was satisfied since as we have seen from therecords, cyclostyled forms have been filled up."14.3. In the decision reported in 2008 (2) CTC 468 (citedsupra), though was rendered subsequent to the Full Bench inR.Pari's case, there is no reference to it. Hence, thenotification issued under Form II (Rule 3(ii)) of the Tamil NaduAcquisition of Land for Harijan Welfare Schemes Rules, 1979 (forshort 'the Rules') came to be quashed on the face of thenotification as can be seen from the passages found in para 19,which is as follows:-''19. In view of the categoric pronouncement of the legalposition by the Division Bench that the Government isdifferent from the Collector in the matter of arriving atthe satisfaction for acquiring land for Harijan WelfareSchemes under the Act 31/78, the contention of thelearned Government Advocate that the District Collectoralso forms part of the Government and there is nodistinction is only a fallacy. Therefore, looking into atany angle, I have no hesitation to conclude in this casethat apart from non-service of notice under section 4(2)read with Rule 3(1), the notification under Section 4(1)is bad in law, since it is clear from the records that itis only the Government which has satisfied itself as tothe requirement of the Harijan Welfare Schemes and notthe District Collector as required under the law" https://hcservices.ecourts.gov.in/hcservices/ Hence, the said decision cannot be said to be laying down thecorrect proposition of law.14.4. In the decision reported in 2008 (5) CTC 154 (citedsupra), the learned Judge has correctly applied the ruling of theFull Bench in R.Pari's case, (cited supra) and as found in para 27(extracted below), the file produced did not indicate thesatisfaction of the District Collector and hence the notificationwas quashed:''27. There is no indication in the counter affidavitfiled by the second respondent that the matter wasexamined by the Collector independently and arrived at asubjective satisfaction for the purpose of acquiring theproperty of the petitioners. Even though due opportunitywas given to the learned Government Advocate to verifythe land acquisition file and to submit as to whetherthere were materials available in the file to indicatethe subjective satisfaction arrived at by the Collectorto acquire the property, the learned Government Advocatewas not able to produce any material to show suchsatisfaction by the Collector. Hence, it is evident thatthe Collector was merely implementing the decision takenby the Government".14.5. The unreported decision of the Division Bench(W.A.No.2050 of 2001 dated 16.4.2008) followed the Full Benchopinion. After perusing the original file, found that it did notreflect the satisfaction of the District Collector. A referenceto para 7 of the order is extracted below to show that the casewent by its own facts:-''7. We have perused the reports of the SpecialTahsildars and there are absolutely no consideration andfinding on the above objections with supportingmaterials. In fact the Special Tahsildar has made areference to the statement of one Gopal Reddyrepresenting the appellants in W.A.Nos.2050 and 2051 of2001 to the effect that there are other lands availableand the business is also run by the family members.However, we do not find any materials to support the saidstatement and the Special Tahsildar in a mechanical wayhad rejected the objections made by the appellants. Inthese circumstances, unless the copies of the report arefurnished, the appellants will not be in a position toknow whether their objections are considered or not so asto make their further objection to the District Collectorfor his consideration. Hence, on the facts of this case,we find that the landowners are certainly prejudiced bythe non-furnishing of the reports". https://hcservices.ecourts.gov.in/hcservices/

15. In the case on hand, in the original file produced bythe learned Special Government Pleader, there is neither anyreference to any Government's instruction nor the Collector beingdirected by the Government. On the contrary, it clearly shows theCollector's independent application of mind as required under theTamil Nadu Act 31 of 1978. 16. The statutory notification issued under section 4(1) andpublished in the District Gazette gave rise to this mischief andgave an handle to the petitioners to raise such an issue. Form IIprescribed under Rule 3(ii) of the Rules was clearly responsiblefor the same.17. Form II in which the notification is issued may bereproduced below:-FORM II(See rule 3(ii))NOTICE UNDER SECTION 4(1) OF THE TAMIL NADU ACQUISITIONOF LAND FOR HARIJAN WELFARE SCHEMES ACT, 1978.WHEREAS it appears to the Government of Tamil Naduthat the land/lands specified in the Schedule below andsituated in the ____________ village, __________ taluk,__________ district, is/are needed for the purpose ofHarijan Welfare Scheme to writ, ______________ notice tothe effect is hereby given to all to whom it may concernin accordance with the provisions of sub-section (1) ofsection 4 of the Tamil Nadu Acquisition of Land forHarijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of1978).AND WHEREAS, it has become necessary to acquireimmediate possession of the land/lands in the Schedulebelow;NOW, THEREFORE, in exercise of the powersconferred by sub-section (1) of section 4 of the saidAct, the Collector of _________ district hereby directsthat the land / lands be acquired under the provision ofthe said section." (Emphasis Added)18. The Form II prescribed is a mechanical reproduction ofthe Form used under the Central Act 1 of 1894. That is why theFull Bench cautioned the Courts to go by substance and not by Formwhile deciding the validity of the acquisition. It is high timethe State Government modifies the Form prescribed in tune with thespirit of the T.N. Act 31 of 1978. https://hcservices.ecourts.gov.in/hcservices/

19. In any event, the issue raised by the learned counsel forthe petitioners based on the printed Form cannot clinch the issuein favour of the petitioners for the reasons stated above.20. In the light of the above, all the four writ petitionsare misconceived, devoid of merits and accordingly will standdismissed. No costs. Consequently, the connected miscellaneouspetitions are also dismissed.21. Before it is concluded, it must be noted that theconstitutional validity of T.N.Act 31 of 1978 was upheld by theSupreme Court in the year 1995 and a Full Bench of this Court hassettled the controversy on the modalities of the procedureinvolved in the Land Acquisition for Harijan Welfare Schemes inthe year 2006. It is a pity that these cases which are filed onedecade before have virtually frustrated the welfare schemeconceived for the welfare of Dalits. Thirty years have gone by andthe law conceived for the Dalits remains a paper proposition.22. A number of anti-discrimination statutes and positive-benefit provisions exist in Indian law for the protection andbenefit of dalits, tribals, and other backward classes of society.But the implementation and enforcement of these laws is poor.Dalits face social, linguistic and systematic barriers that becomevirtually impossible to overcome in the face of an often hostilesystem and an insensitive civil administration. The entire systemis designed to exclude and ostracize Dalits.23. Hence, the respondent District Collector is directed toexpedite the implementation of the scheme in right earnest.jsSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Special Tahsildar (ADW),Adi Dravidar Welfare,Sivanganga. https://hcservices.ecourts.gov.in/hcservices/

2.The District Collector,Sivaganga, Pasumpon Muthuramalinga Thevar District.3.The Secretary to Government,Department of Adidravidar & Tribal Welfare, Fort St.George, Madras-9. + 1 cc to the Government Pleader, SR No.668+ 1 cc to Mr. Anand Das Gupta & Sagar Associates, SR No.476JP(CO)SR/19.1.2009 order inW.P.Nos.4001 to 4004 of 1996 and connected WPMPs.