THE HONOURABLE MR v. The Collector of Thanjavur District at Thanjavur.2. The Special Tahsildar, (Adi Dravidar

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2006CORAM:THE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.4700 Of 1996& W.M.P.No.7542 of 19961. V.Sarangapani (deceased)2. S.Illanjiyam3. S.Kesavan4. S.Venugopal (deceased)5. Kanagavalli6. S.Varadarajan7. S.Selvarasan8. Thilakavathi9. Jayalakshmi10. S.Jayaraman11. Vijayalakshmi12. V.Manimegalai13. V.Prabhu Narayanan14. Janaki Priya(Petitioners 2 to 11 are substituted in the placeof the deceased first petitioner as per the order dated 6.9.1999 in W.M.P.No.19808 of 1999)(Petitioners 12 to 14 are substituted in the placeof the deceased fourth petitioner as per theorder dated 18.12.2003 in W.P.M.P.No.40907 of 2003) .. PetitionersVs.1. The Collector of Thanjavur District at Thanjavur.2. The Special Tahsildar, (Adi Dravidar Welfare),Thiruvaiyaru Taluk,Thanjavur District. .. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certioraified Mandamuscalling for the records relating to the Notification of theCollector of Thanjavur District, the first respondent hereinpublished at Page 2 of the District Gazette Extra-ordinary dated22.12.95 issued under Section 4(1) of the Tamil Nadu Acquisition ofLand for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of https://hcservices.ecourts.gov.in/hcservices/ 1978) for the acquisition of lands for the provision of house-sitesfor Adi-Dravidars of Kalyanapuram village mentioned in the scheduleto the notice of the 2nd respondent in Rca.No.Na.Ka.551/95-A dated27.09.95 issued in Form II, Rule 5(1) of the Rules under the saidAct in so far as the lands of the petitioners comprised inS.No.201/1.A, 201/2.A-1, 201/5.A.2, totally measuring 0.47.5hectares, situate at Kalyanapuram village, Thiruvaiyaru Taluk,Thanjavur District and quash the same and forbear the respondentsfrom acquiring the said lands of extent Hectares 0.47.5 belonging tothe petitioner as set forth above.For Petitioners : Mr. R.Subramanian for M/s.G.SaravananFor Respondents : Mrs.D.Malarvizhi, Government AdvocateO R D E RThis petition has been filed challenging the Gazettenotification dated 22.11.1995 issued under Section 4(1) of the TamilNadu Acquisition of Land for Harijan Welfare Schemes Act, 1978(hereinafter called 'Act 31 of 1978') for providing house-sites toAdi-Dravidars of Kalyanapuram Village, Thiruvaiyaru Taluk, ThanjavurDistrict.2. Brief facts of the case are as under:The land of the first petitioner (since deceased, representedby legal representatives, namely petitioners 2 to 11 and the fourthpetitioner, since deceased, represented by legal representatives,namely petitioners 12 to 14) was sought to be acquired by the firstrespondent. Therefore, the notice under Section 4(2) in Form-I underRule 3(i) of the Rules, 1999, framed under the Act 31 of 1978, wasissued on 27.09.1995 by the Special Tahsildar calling upon the firstpetitioner to show cause as to why the property in question shouldnot be acquired and to give their objections, if any, for theproposed acquisition. The objections were filed by the firstpetitioner on 17.10.1995 and an enquiry was conducted by the SpecialTahsildar and the report was submitted to the District Collector on16.11.1995. The District Collector rejected the objections byproceedings No.Na.Ka.41033/95 on 28.12.1995 and the same was servedon the first petitioner on 09.01.1996. The notification underSection 4(1) was however issued on 22.12.1995.3. Learned counsel for the petitioners has raised two issues inhis challenge to the notification. The first contention is that theDistrict Collector has not followed the procedures prescribed underthe Act while passing the impugned notification under Section 4(1)and the second contention is that the Collector has passed theimpugned notification under Section 4(1) of the Act withoutrecording his satisfaction as contemplated and has proceeded toacquire the land based on the recommendation or compulsion of theGovernment. The contentions are inter-connected with each other andthey are considered together. https://hcservices.ecourts.gov.in/hcservices/

4. The contention of the learned counsel for the petitioners isthat even before consideration and disposal of the objection on28.12.1995, the notification under Section 4(1) was issued on22.12.1995. Therefore, the Collector, at the time of issuing thenotification under Section 4(1), did not consider the objectionsfiled by the first petitioner. Thus, there was total non-application of the mind on the part of the Collector while passingthe notification under Section 4(1) to the various grounds raised bythe first petitioner in the objections submitted pursuant to thenotice issued under Section 4(2), namely the enquiry as contemplatedunder Section 4(3)(a)(b). In view of the above, there is clearviolation of the mandatory provision and the notification has beenissued in a cursory manner without taking into consideration theobjections of the first petitioner. Therefore, the satisfaction ofthe Collector as contemplated under Section 4 of the Act could nothave been recorded as required. Hence, the notification issuedunder Section 4(1) is liable to be set aside. A counter affidavithas been filed by the second respondent-Special Tahsildar, admittingthe fact that pursuant to the notice issued, as contemplated underSection 4(2), the objections were filed by the first petitioner andby proceedings in Rc.No.41033/95.II.A, dated 28.12.1995, theobjections were rejected. Though the writ petition was filedpursuant to the notice issued under Section 4(2), notice for awardenquiry was also issued and the first petitioner participated in theaward enquiry proceedings and therefore, the writ petition has to bedismissed. As far as the order dated 28.12.1995 rejecting theobjections is concerned, learned Government Advocate reiterated thatthe notice under Section 4(1) was issued on 22.12.1995 and theobjections were dismissed by the proceedings of the Collector inRc.No.41033/95.II.A, dated 28.12.1995, as borne out by the counteraffidavit. The learned counsel for the petitioners draws theattention of the Court to the objections filed in the award enquiryproceedings, in particular, to the portion of the objections, inwhich, it is clearly stated that the land in question was sought tobe acquired in spite of the objections filed by the first petitionerand the contentions made in the award enquiry are without prejudiceto the abovesaid claim that the proceedings for acquiring theproperty in question are bad. It was therefore contended that at theearliest point of time, there was objection to the acquisitionproceedings and the participation in the award enquiry was madewithout prejudice to the first petitioner's claim for dropping theacquisition proceedings. The petitioners' counsel also submittedthat the first petitioner has approached the Court at the earliestpoint of time after verifying all the records and therefore, thecontention of the respondents that the award enquiry had beeninitiated, or an award being passed, will not stand in the way ofthe challenge to the notification issued under Section 4(1). It isalso submitted that though the award has been passed in February1996, it has not been served on the first petitioner.5. The relevant provisions under the Act 31 of 1978, namelySection 4, reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section 4: Power to acquire land--(1)Where the District Collector is satisfied thatfor the purpose of any Harijan Welfare Scheme,it is necessary to acquire any land, he mayacquire the land by publishing in the DistrictGazette a notice to the effect that he hasdecided to acquire the land in pursuance of thissection.(2) Before publishing a notice under sub-section(1), the District Collector or anyofficer authorised by the District Collector inthis behalf, shall call upon the owner or anyother person, who, in the opinion of theDistrict Collector or the officer so authorisedmay be interested in such land, to show causewhy it should not be acquired.(3) (a) The District Collector may, wherehe has himself called upon the owner or otherperson to show cause under sub-section (2), passsuch orders as he may deem fit on the cause soshown;(b) Where any officer authorised by theDistrict Collector has called upon the owner orother person to show cause under sub-section(2), the officer so authorised shall make areport to the District Collector containing hisrecommendations on the cause so shown for thedecision of the District Collector. Afterconsidering such report the District Collectormay pass such orders as he may deem fit." 6. In the case reported in 2002 (2) C.T.C. 1 (The LandAcquisition Officer and Special Tahsildar (LA) vs. R.Manickammal, aDivision Bench of this Court, in paragraph 4, it is held as follows:"State Act is completely different as theGovernment intervention is not at allcontemplated — Collector is appropriateauthority to decide acquisition of land —Provisions of State Act is absolute — Decisionto acquire land was to be exercised only byCollector by application of mind independently —Legislature did not reserve any power to StateGovernment to have supervisory role as itprovided under Central Act — When legislaturenames particular authority to exercise power,only that authority has to exercise authorityand nobody else."7. In AIR 1995 Supreme Court 2114 (State of Tamil Nadu vs.Ananthi Ammal), the Supreme Court had the occasion to deal with theprovisions of the Tamil Nadu Acquisition of Land for Harijan WelfareSchemes Act and in paragraph 8 it was observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "8. Sub-section (1) of S.4 empowers theDistrict Collector, if he is satisfied that itis necessary to acquire some land for thepurpose of an Harijan Welfare Scheme, to acquirethat land by publishing in the District Gazettea notice to the effect that he has decided toacquire in pursuance of S.4. Sub-section (2)of S.4 obliges the District Collector or anyOfficer authorised by him in this behalf to callupon the owner or any other person who, in theopinion of the District Collector or the Officerso authorised, is interested in such land toshow cause why it should not be acquired. Wherethe District Collector has called upon the owneror other person to show cause under sub-section(2), Cl.(a) of sub-section (3) requires him topass orders on the cause so shown. Where anOfficer is authorised by the District Collectorhas called upon the owner or other person toshow cause under sub-section (2), Cl.(b) of S.3requires that Officer to report to the DistrictCollector his recommendations on the cause soshown and the District Collector is required topass such orders as he may deem fit afterconsidering the report. Sub-section (2) of S.4,therefore, obliges the acquiring authority toserve notice upon the land owner and otherpersons interested in the land to show cause whyit should not be acquired. By reason of sub-section (3) of S.4, such cause has to be takeninto account and orders passed in respectthereof. It is only thereafter that theacquiring authority can arrive at thesatisfaction that it is necessary to acquire theland. The provisions of S.4, therefore,substantially encapsulate the provisions of Ss.4to 6 of the Land Acquisition Act, the only majordifference being that, under the said Act, it isthe District Collector and not the StateGovernment who must be satisfied that the landis required to be acquired. It does not appearto us that this is a provision which isunreasonable or arbitrary." (emphasis supplied).8. On a reading of the above decision of the Division Bench ofthis Court and the Apex Court, it is clear that the responsibilityis cast on the District Collector in exercise of his power toacquire the land under the provisions of Act 31 of 1978, diligentlyand consciously. The recording of satisfaction under Section 4(1)to acquire the land, comes into play only after considering anddisposing of the objections. Therefore, when the statute prescribescertain procedures to be followed while acquiring the property of anindividual, it is incumbent on the authority prescribed under thestatute to strictly adhere to the procedures prescribed. The non- https://hcservices.ecourts.gov.in/hcservices/ observance of the procedures prescribed under the Act and the Ruleswill clearly vitiate the whole proceedings. The authority invokingthe power under a statute to acquire the property of the individualin exercise of the State's power of "eminent domain", is equallybound to follow the Rules and procedures prescribed under thestatute before depriving the owner of his property. If theprocedures as prescribed under the Act have not been followed by theauthority concerned, the Court can take notice of such illegality orimpropriety in the procedure and interfere by way of judicialreview.9. On the facts of the present case, it is clear that theCollector has proceeded to issue notice under Section 4(1) on22.12.1995 even before he could consider the objections of the landowner. Admittedly, the order under Section 4(3)(b) of the Act hasbeen passed on 28.12.1995, which clearly establishes the fact thatthe Collector has not considered the objections and the order passedpursuant to the notice issued in Form-I under Rule 3(i) in terms ofSection 4(2), is nothing but an empty formality. Therefore, theCollector has not taken the objections into consideration and hence,the question of recording his satisfaction to acquire the land inquestion, does not arise. 10. A number of decisions of the Apex Court support theproposition that if the statute requires something to be done in acertain manner, then it has to be done in that manner or not at all.(i) AIR 1976 SC 789 (Hukam Chand vs. Union of India): "18. It is well settled that where a poweris required to be exercised by a certainauthority in a certain way, it should beexercised in that manner or not at all, and allother modes of performance are necessarilyforbidden. It is all the more necessary toobserve this rule where power is of a drasticnature and its exercise in a mode other than theone provided, will be violative of thefundamental principles of natural justice." (emphasis supplied). (ii) AIR 1969 SC 634 (State of Gujarat vs. Shantilal) : "54. One more contention which wasapparently not raised on behalf of the firstrespondent before the High Court may be brieflyreferred to. Counsel contends that Ss.53 and 67in any event infringe Article 14 of theConstitution and were on that account void.Counsel relies principally upon that part of thejudgment in P.Vajravelu Mudaliar's case, (1965(1)SCR614=AIR 1965 SC 1017) which deals with theinfringement of the equality clause of theConstitution by the impugned Madras Act.Counsel submits that it is always open to theState Government to acquire lands for a public https://hcservices.ecourts.gov.in/hcservices/ purpose of a local authority and after acquiringthe lands to vest them in the local authority.If that be done, compensation will be payableunder the Land Acquisition Act, 1894, but sayscounsel, when land is acquired for a publicpurpose of a local authority under the provisionof the Bombay Town Planning Act the compensationwhich is payable is determined at a rateprevailing many years before the date on whichthe notification under Section 4 of the LandAcquisition Act is issued. The argument isbased on no solid foundation. The method ofdetermining compensation in respect of landswhich are subject to the town-planning scheme isprescribed in the Town Planning Act. There isno option under that Act to acquire the landeither under the Land Acquisition Act or underthe Town Planning Act. Once the draft town-planning scheme is sanctioned, the land becomessubject to the provisions of the Town PlanningAct, and on the final town-planning scheme beingsanctioned, by statutory operation the title ofthe various owners is readjusted and the landsneeded for a public purpose vest in the localauthority. Land required for any of thepurposes of a town planning scheme cannot beacquired otherwise than under the Act, for it isa settled rule of interpretation of statutesthat when power is given under a statute to do acertain thing in a certain way the thing mustbe done in that way or not at all:Taylor.v.Taylor,(1875(1)Ch.D.426).." (emphasis supplied)11. The fact that the award enquiry has been initiated or thatthe award has been passed will not cure the basic error in passingthe notification under Section 4(1) of the Act. The initiation ofthe notification itself is at fault for the aforesaid reason andtherefore, the respondents cannot shield themselves by stating thatthe award enquiry has been initiated and order has been passed. Theincurable defect in passing the notification under Section 4(1),cannot therefore be justified in the eye of law. In similarcircumstances, this Court in an unreported decision in W.P.No.23777of 2001, by order dated 14.12.2001, has set aside the notificationissued under Section 4(1) of the Act, even after the passing of theaward and paragraph 8 of the said order dated 14.12.2001 reads asfollows:"8. In the present case, as stated above,no such particulars have been given. Hence, theimpugned notice in Form No.I dated 29.6.2001cannot be sustained. Though the petitioner hasfiled this writ petition after passing of theaward, from the facts stated above, she couldnot file the said writ petition for want of https://hcservices.ecourts.gov.in/hcservices/ copies of the notification and notice as theyhave not been supplied in response to herrequest. Hence, the respondents cannot sustainthe notice in Form No.I. I am not dealing withthe other arguments of the learned Counsel forthe petitioner. Hence, this writ petition isallowed. If the respondents still want the landto be acquired, they can do so after followingprocedure contemplated under the Act.W.M.P..No.35117 of 2001 is closed. No costs."12. For the reasons stated above, the impugned notificationissued under Section 4(1) of the Tamil Nadu Act 31 of 1978,published in the District Gazette Extra-ordinary dated 22.12.1995,is set aside. It is open for the first respondent-DistrictCollector, Thanjavur, to proceed further with the acquisitionproceedings, if so required, as per law. The writ petition isallowed. No costs. W.M.P. is closed.svki/csSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Collector of Thanjavur District at Thanjavur.2. The Special Tahsildar,(Adi Dravidar Welfare), Thiruvaiyaru Taluk, Thanjavur District. 1 cc To Mr.G.Saravanan SR.1148.1 cc To The Government Pleader SR.1187.W.P.No.4700 of 1996 RL(CO)RVL 20.01.2006