Y.Saraswathy... v. The Collector, Vellore District at Vellore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.04.2008CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.10529 of 1998Y.Saraswathy... Petitionervs.1.The Collector,Vellore District atVellore.2.The Special Tahsildar ADW,Gudiyatham,Vellore District.... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamusto call for the records on the file of the first respondent in Awardenquiry No. 1 of 1997-98 dated 19.12.1997 and quash the proceedingstherein as illegal, incompetent, unconstitutional and withoutjurisdiction and further direct the respondents not to acquire thelands of the petitioner except otherwise in accordance with law.For Petitioner:Mr.V.RaghavachariFor Respondents:Mrs.D.Geeta, Addl. Government PleaderO R D E RThe land situated in S.No.57/1A2 at Bathalppalli Village ofGudiyattam Taluk in Vellore District belong to the petitioner havingpurchased the same on 26.12.1990. In this writ petition, thepetitioner challenges the award enquiry and the ultimate award passedin Award No.1 of 1997-1998 dated 19.12.1997 conducted under theHarijan Welfare Scheme Act, 1978 (Tamil Nadu Act 31 of 1978) (inshort 'Act'). 2.The admitted case of the petitioner is that the notice inForm-I as prescribed under Rule 3(1) of the Rules framed under theAct read with Section 4(2) of the said Act was served on thepetitioner and the petitioner has also submitted her objections tothe second respondent on 21.12.1995. One of the objections raised bythe petitioner before the second respondent was that the petitioner https://hcservices.ecourts.gov.in/hcservices/ herself belong to Harijan community and she is a small farmer and thesaid property is the only source of livelihood for her and being anagricultural land acquiring such property for the purpose of HarijanWelfare Scheme is not proper. She has also raised another point thatshe desires to start an Orphanage in the land sought to be acquired.She has also submitted objections to the acquisition officer, thesecond respondent herein on 21.12.1995. As per Form-I notice issuedby the second respondent, the date of enquiry was fixed to 21.12.1995and it was on the said date, the petitioner has filed her objections.3.The second respondent by his proceedings dated 31.12.1995has conducted enquiry and has considered the objections raised by thepetitioner including the objection that the petitioner desires tostart an Orphanage and gave his opinion that the Village is not fitfor starting an Orphanage at all and in that view of the matterrecommended to the Collector for completing the acquisitionprocedures. On receipt of such report from the second respondent,the first respondent by proceedings dated 14.10.1997 directed 4(1)notification to be issued, ultimately 4(1) notification came to beissued on 14.10.1997 and published in the Vellore District Gazette on05.11.1997. Even though in the writ petition, the petitioner hadchosen to challenge the proceedings in respect of the award, it isthe contention of the learned counsel for the petitioner that whenthe proceedings of the acquisition are vitiated, this Court is havingjurisdiction to set aside the award proceedings and acquisitionproceedings also.4.The submissions of the learned counsel for the petitionerare:(i)that as per the requirement of Section 4(1) of theAct, it is only the District Collector who has to satisfyhimself that the lands are required for Harijan WelfareScheme and as per Section 4(2), while conducting enquiryeither the District Collector himself can conduct enquiryor he can authorise any officer to call upon the owner orany person who in the opinion of the District Collector orany authorised person is interested in such land, to showcause as to why the property should not be acquired.According to the learned counsel, when the DistrictCollector authorizes any other officer for conductingenquiry under Section 4(2) of the Act, such officer must beduly authorised by the District Collector. According tothe learned counsel in the present case, the secondrespondent has never been authorised by the DistrictCollector to perform the functions of an Officer to conductenquiry as per Section 4(3)(b) of the Act. (ii)merely because Form-I which is issued as per Rule3(i) of the Rules framed under the Act used the words that'the Special Tahsildar is authorised by the District https://hcservices.ecourts.gov.in/hcservices/ Collector', it does not create a presumption that theSpecial Tahsildar has in fact been authorised unless anduntil the same is proved by a specific order of theDistrict Collector.(iii)even though the Report is submitted by theSpecial Tahsildar as authorised by the Collector, it is theduty of the Collector to apply his mind and give reason forrejecting the objections of the owner. He would alsosubmit that any order passed by the District Collector in acyclostyle form would not amount to proper application ofmind by the District Collector.5.Learned counsel for the petitioner would also rely uponvarious judgements of this Court reported in (i) 2001 (1) MLJ 328 (S.K.Thirugnanasambandam and others vs. The Government of Tamil Nadu and others)(ii)2004 (3) CTC 261(K.V.Purushothma Naidu vs. The District Collector, N.A.District,Vellore and another)(iii)2006 (3) LW 1000 =2007 (2) MLJ 706 (Full Bench decision)(R.Pari vs. The Special Tahsildar, Adi Dravidar Welfare, Devakottai and another) to substantiate his contentions that the District Collector has theduty to apply his mind and pass a reasoned order. It is also hissubmission that as per the judgment of the Full Bench of this Courtreported in 2006 (3) L.W. 1000, even though it may not be necessaryfor the District Collector to communicate the reasons for hissatisfaction, a perusal of the file at least should show theapplication of mind by the District Collector. It is his furthersubmission that the term "prescribed authority" under Section 3(j) ofthe Act means, any authority or officer authorised by the Governmentby notification and who is entitled to conduct award enquiry as perSection 14 of the Act and that can never be applicable to Section (4)which is a self contained provision. 6.Admittedly in this case, the petitioner has participated inthe enquiry conducted under Section 4(2) of the Act and ultimatelythe award came to be passed on 19.12.1997 and the present writpetition was filed on 23.07.1998. Learned counsel for the petitionerwould contend that under the provisions of the said Act, inasmuch asthe property absolutely vest with the Government when once thenotification issued under Section 4(1) by the District Collector, therulings relied on by the respondents in respect of the laches may not https://hcservices.ecourts.gov.in/hcservices/ be applicable.7.On the other hand, learned Addl. Government Pleaderappearing for the respondents, who has produced the files relating tothe land acquisition proceedings has submitted as follows:(i)the Form-I notice as prescribed by rules andissued by the Special Tahsildar, in categoric terms statesthat the Special Tahsildar is authorised and that itself issufficient authorisation and it is not open to the court toprobe into the fact as to whether the District Collectorhas in fact given such authorisation.(ii)under Section 3(j) of the Act, the prescribedauthority can be any authority authorised by theGovernment under notification and the Special Tahsildar,Harijan Welfare has been authorised to be the prescribedauthority under the Tamil Nadu Acquisition of Land forHarijan Welfare Schemes Act, 1978 by G.O.Ms.No.1628,Social Welfare, dated 21.09.1979, which has been amendedby G.O.Ms.No.97, Social Welfare, dated 08.02.1970 andtherefore, the authorisation by the Government to theSpecial Tahsildar as prescribed authority will besufficient to enable the Special Tahsildar to act as anauthorised officer for the purpose of conducting enquiryunder Section 4(3)(b) of the Act.(iii)According to her, as per the recordsproduced by the Collector, there is no specificauthorisation given by the Collector, but in any event,the term 'prescribed authority' having been explainedunder Section 3(j) of the Act and the Government havingauthorised the Special Tahsildar, Harijan Welfare Scheme,there is no necessity for any separate order to be passedby the District Collector authorising the SpecialTahsildar. 8.Learned Additional Government Pleader further submitted thatthe proceedings of the second respondent have been in fact consideredby the Collector and even though in the cyclostyled forms, gaps havebeen filled up, there is no reason to disbelieve that the Collectorhas not applied his mind. Therefore according to her, the order ofthe District Collector rejecting the objections of the petitioner issufficient compliance of the judgment of the Full Bench of this Courtreported in 2007 (2) MLJ 706. She would also vehemently contend thatlaw is well settled as it is laid down by the Supreme Court in 2003(4) SCC 485 (Tej Kaur and others vs. State of Punjab and others) thatafter the award is passed in the land acquisition proceedings, nowrit petition can be entertained and the same has been confirmed inno uncertain terms by the judgments of the First Bench of this Court https://hcservices.ecourts.gov.in/hcservices/ in 2005 (3) CTC 1 and 2005 (3) CTC 691. 9.I have heard the learned counsel for the petitioner and thelearned Addl. Government Pleader for the respondents and perused therecords relating to the land acquisition proceedings.10.The facts which have been enumerated above are not much indispute. A reference to Form-I issued as per Rule 3(i) of the Rulesframed under the Act no doubt contains the words, as follows:"All persons interested in the land/lands you areaccordingly directed to lodge before the SpecialTahsildar (ADW), Gudiyattam, N.A.A. District (Officerauthorised by the Collector of North Arcot AmbedkarDistrict) under Sub-Section (2) of Section 4 of theTamil Nadu Acquisition of Land for Harijan WelfareScheme Act, 1978 (Tamil Nadu Act 31 of 1978). " But the question to be decided in this case is whether suchcyclostyled form which has been prescribed as per the Rules underthe Act is sufficient for the Collector to make such authorisation orin addition to that the Collector should specifically authorise theSpecial Tahsildar for the purpose of conducting enquiry under Section4(3) (b) of the Act. 11.The said legal position came to be decided by this Court inP.S.Subramaniam Mudaliar (deceased) and Manimekalai vs. The Collectorand the Special Tahsildar, Land Acquisition (ADW) inMANU/TN/1597/2003 (W.P.No.16210 of 1995) by order dated 21.10.2003.While dealing with Sections 4(1) and 4(2) of the Act, that forissuance of notice in Form-I, the officer authorised must bespecifically authorised by the District Collector and suchauthorisation is a pre-condition to confer the right on such officerto initiate acquisition proceedings under Section 4(2) of the Act.The learned Judge after extracting Section 4 of the Act has made thefollowing observations:"Sub-section (1) of Section 4 empowers the DistrictCollector to acquire any land by publishing in theDistrict Gazette that he has decided to acquire the land.Before publication of notice in the District Gazette, anotice in Form-I under Rule 3(i) of the Rules should beserved on the person interested. For issuance of noticeand calling for objections, the power is vested with theDistrict Collector of course, with an exception enablingthe District Collector to authorise any officer in hisbehalf. Such authorisation is a pre-condition to confera right on the officer to initiate the acquisitionproceedings under sub-section (2) of Section 4 of theAct. The said officer so authorised, after consideringthe objections filed by the person interested, if any, https://hcservices.ecourts.gov.in/hcservices/ shall again submit his report with recommendations onlyto the District Collector to enable him to take actionunder sub-section (1) of Section 4 for publication in theofficial gazette. This provision is presumably to enableonly the District Collector to either initiate the landacquisition proceedings or to pursue further."12.On the factual matrix in this case, a reference to the filemaintained by the Collector shows that there is no independent ordermade by the Collector authorising the Special Tahsildar. In view ofthe same as decided by this Court and as mandated in the provisionsof Section 4(2) of the Act, the second respondent has not been dulyauthorised and therefore, the proceedings of land acquisition suffersfrom initial illegality. When such is the legal position, thecontentions raised by the learned Addl. Government Pleader for therespondents about the laches in filing the writ petition has nomeaning. Further, merely because the petitioner has participated inthe enquiry conducted by the second respondent under Section 4(2) ofthe Act, that will not validate or in any way give authorisation tothe second respondent to conduct such enquiry in the absence ofspecific authorisation as required and held to be a pre-condition forthe purpose of enabling the Special Tahsildar to conduct the enquiry.Admittedly, in this case there is no authorisation by the DistrictCollector to the second respondent.13.The contention of the learned counsel for the petitionerthat the judgment rendered by the Supreme Court in Tej Kaur andothers vs. State of Punjab and others reported in 2003 (4) SCC 485relates to the Central Land Acquisition Act, wherein as per theprovisions, the lands vest with the Government only after awardenquiry is completed and award passed under Section 16 of the Act.It was in that context, the Supreme Court has held in the above saidcase that the owner having participated in the 5(A) enquiry haswaited till 6 declaration being issued and one month thereafter fileda writ petition and therefore the petitioner/owner was not havinggenuine grievance and accordingly refused to interfere with theacquisition proceedings. Even the subsequent judgments of theHonourable First Bench of this Court reported in 2004 (3) CTC 1 and2005 (3) CTC 691 relate to the acquisition proceedings under theCentral Act. 14.On the other hand, a reference to the Act 31/78 shows thaton passing of the notification by the District Collector underSection 4(1) of the Act, the lands absolutely vest with theGovernment. Section 5 of the Act makes it clear that in respect ofnotification under Section 4(1) of the Act published in the DistrictGazette, the land to which the said notice relates shall, on and fromthe date on which the notice is so published vest absolutely in theGovernment free from all encumbrances. While so, under the CentralLand Acquisition Act 1894, it is seen that only after the award is https://hcservices.ecourts.gov.in/hcservices/ passed by the District Collector under Section 11 of the Act, theCollector shall take possession of the lands and thereafter the landsvest with the Government absolutely and free from all encumbrances.Section 16 of the Land Acquisition Act, 1894 reads as under:"Power to take possession:- When the Collector has madean award under Section 11, he may take possession ofthe land, which shall thereupon vest absolutely in theGovernment free from all encumbrances."15.In fact, the distinction between the Central Act and theState Act came to be considered by this Court in the case ofS.P.Vedanayagam vs. Secretary, Government of Tamil Nadu, Madras & twoothers reported in 1996 (I) CTC 379, that under the State Act afterpublication of notification under Section 4(1) of the Act, there isabsolutely no opportunity to the land owner to question theacquisition and there is only one opportunity given to the personinterested under Section 4(2) of the Act and it is in thosecircumstances, it was held that the State Act being more stringent,the statutory requirement and compliance therefor should bescrupulously followed. The relevant paragraphs of the judgment ofthis Court is, as under:"5.The learned Government Pleader also produced therecords before this Court. The records do not show thatnotice under Section 4(2) has been issued to thepetitioner. At the time of hearing, the GovernmentPleader brought to my notice that pursuant to the awarddated 16.10.1995, possession was taken and the lands wereallotted and patta were issued to many persons on30.12.1995 and that the writ petition has been filed onlyon 22.01.1996 and the interim order was granted on thenext day. The said argument cannot be countenanced at all.As already stated the respondents have violated themandatory provisions of the Act in acquiring the landbelonging to the petitioner. It is already held that theentire proceedings initiated by the respondents in respectof the petitioner are illegal and void and therefore it isnull and void. In view of the fact that pattas wereissued and the pattadors had taken possession pursuant tothe illegal award, it will not have any benefit on them.Therefore, respondents have to hand over back possessionof the property to the petitioner.6.Under the provisions of the Tamil Nadu Act 31 of1978, immediately on the publication of the Gazette theland vests absolutely with the Government free from allencumbrances under Section 5. As rightly pointed out bythe learned counsel for the petitioner, the vesting takesplace immediately on the publication of the Gazette andnot on taking possession of the land and the title to theproperty itself will be lost immediately on the https://hcservices.ecourts.gov.in/hcservices/ publication of the Gazette and before the vesting of theproperty. Therefore, there is absolutely no opportunityfor the land owner to question the acquisition after theissue of the notice under Section 4(1) of the Act.7.Under the Act 31 of 1978, the one and the onlyopportunity given to the land owner or a person interestedis on the issue of the show cause notice under Section 4(2) of the Act. The Act being expropriatory in nature andhaving regard to the vigour of its provisions, theopportunity to show cause why the land should not beacquired should be given, as it is a statutory requirementand the compliance thereof has therefore to be strictlyadhered to."16.Considering the said distinction between the Central Act andthe State Act in respect of vesting of the ownership of the land onthe government, there is no difficulty to come to the conclusion asheld by this Court stated supra, that the procedures under the StateAct has to be adhered to strictly. As it is ascertained from thefile that even the authorisation of the Special Tahsildar by theDistrict Collector has not been made as per Section 4(2) of the Act.17.I am of the considered view that the delay in filing thewrit petition by the petitioner, which is to the extent of 7 monthscannot stand in the way of the petitioner in challenging the verybasis of the legality of the acquisition proceedings, for it isultimately the concept of justice and mere technicality shall not beallowed to supersede the concept of justice based on law.18.The next contention raised by the learned AdditionalGovernment Pleader relating to Section 3(j) of the Act is attractivebut has no legal basis. Section 3(j) of the Act describes"prescribed authority" as under:"Prescribed authority" means any authority orofficer authorised by the Government in this regard, bynotification."It is no doubt true that the Government had issued an orderspecifying the Special Tahsildar, Harijan Welfare Scheme as"prescribed authority". It is relevant to point out that Section 4of the Act nowhere used the term "prescribed authority". That itselfis sufficient to hold that the only authority who is contemplated forauthorizing any other officer to conduct enquiry under Section 4(2)of the Act is the District Collector.19.The power of the District Collector to authorise asubordinate including the Special Tahsildar, Harijan Welfare cannotbe usurped by the State Government by using the term 'prescribedauthority' under Section 3(j) of the Act. It is well established https://hcservices.ecourts.gov.in/hcservices/ that under Section 4 of the Act, except the District Collector no onehas got the authority to satisfy that the land is required forHarijan Welfare Scheme. That is also the view taken by the FirstBench of this Court in K.V.Purushothama Naidu vs. The DistrictCollector, North Arcot Ambedkar District, Vellore and anotherreported in 2002 (2) CTC (1). This Court has analysed the Central Actas well as the State Act in respect of the power of the DistrictCollector under Section 4(1) of the Act and held that while, underthe Central Act it is for the Government to satisfy the requirements,under the State Act, it is only the Collector and no one else has anypower to satisfy himself that the lands are required for HarijanWelfare Scheme. In fact that was the case wherein, the DistrictCollector has recommended that the property was not required, but theSecretary to Government has given a mandate to the District Collectorto take over the property and it was in those circumstances, theDivision Bench has heavily come down against such attitude of theState Government holding that except the Collector nobody has anyauthority.20.The term "prescribed authority" is used only in Section 14of the Act that relates to the power of the prescribed authority inrelation to the determination of the amount of compensation. Section14 of the Act states as follows:"Power of prescribed authority in relation todetermination of amount: (1)The prescribed authority may, for thepurpose of carrying out the provisions of this Act,by order, require any person to furnish suchinformation in his possession relating to any landwhich is acquired under this Act.(2)The prescribed authority shall, whileholding an inquiry under this Act, have all the powersof a Civil Court while trying a suit under the Code ofCivil Procedure, 1908 (Central Act V of 1908) ..."In the absence of use of the word "prescribed authority" underSection 4 of the Act and the specific use of the word under Section14 relating to determination of compensation, it cannot be said thatthe prescribed authority under Section 14 should also be deemed to bethe officer authorised by the District Collector under Section 4(3)(b) of the Act. Therefore, the contention of the learned AdditionalGovernment Pleader on the basis of the terms "prescribed authority"under Section 3(j) of the Act 31/78 is not sustainable.21.The next point relates to the application of mind by theDistrict Collector. In this case, as it is seen that during the 4(2)enquiry, the petitioner has in fact given her objections on21.12.1995 and thereafter, the second respondent in his proceedings https://hcservices.ecourts.gov.in/hcservices/ dated 31.12.1995 addressed to the District Collector has no doubtconsidered the objections of the petitioner that she desires to startan Orphanage, but gave opinion that the said Village is not fit forstarting such Orphanage. When the said proceedings dated 31.12.1995,which came to be considered by the District Collector as it is seenin the Collector's Proceedings Rc.K.10/5192/96 dated 14.10.1997 inpage 219 of the file, the District Collector considered the report ofthe Special Tahsildar and filled up in the stereotyped form, theSurvey Number and the name of the Village. The District Collectorhas stated that "the recommendations of the Special Tahsildar (LA)(ADW), Gudiyattam has been examined. As the lands are essentiallyrequired for the above said purpose, the objections raised for theproposed acquisition by the land owners and the interested personsare hereby over ruled and the orders are hereby issued under Section4(3)(b) of the said Act." 22.On the face of the cyclostyled form which has been filled upby the Collector, I do not think there is any possible inference thatthe Collector has in fact applied his mind. In the Full Benchdecision of this Court in R.Pari vs. The Special Tahsildar andanother reported in 2006 (3) L.W. 1000, wherein a similar argumentwas advanced that the application of mind must be read into theenactment recording the fair submission made by the learned Addl.Advocate General that the reason need to be given and it has to beread into the enactment.23.The Full Bench has held that it is mandatory on the part ofthe District Collector to assign reasons for rejecting the objectionsraised by the land owners. Further, such reasons need not bedisclosed to the owners, but at least in the file the application ofmind by the District Collector by giving reasons must find place. TheFull Bench while considering the decision of the Honourable FirstBench of this Court rendered by the Hon'ble The Chief JusticeMarkandey Katju, (as His Lordship then was) in The DistrictCollector, North Arcot Ambedkar District and another vs. Manickamreported in 2005 (2) L.W. 199, wherein the First Bench has heavilycome down against the conduct of the officers who are dealing withthe valuable rights in a stereotyped manner which can never beconsidered as a proper application of mind. The relevant paragraphis extracted as under:"8. In the present case, it appears that the orderof the District Collector was passed in a mechanicalmanner without proper application of mind by merelyfilling up a cyclostyled form. We cannot approve ofsuch kind of orders. It may be that the SpecialTahsildar, who was authorised by the District Collector,considered the objections of the land owners, but in ouropinion the District Collector must also consider thoseobjections and apply his own mind to those objections,as has been held in the Wednesbury case (see quotation https://hcservices.ecourts.gov.in/hcservices/ above). Though we agree with the learned SpecialGovernment Pleader that if opportunity of hearing hasbeen given by the person authorised by the DistrictCollector under Section 4(2) of the Act (in this casethe Special Tahsildar) it is not necessary for theDistrict Collector to give a second opportunity ofhearing, yet in our opinion the District Collector mustcertainly apply his own mind to the objections made bythe land owner to the acquisition as they affect hisvery valuable rights. The Collector need not write anelaborate order like a judgment of a Court of Law whilerejecting the objections of the land owner, but he mustat least in brief mention the reasons why he isrejecting the objections so that the land owner may havethe satisfaction that his objections have beenconsidered, and this Court also may be satisfied thatthe District Collector had applied his mind to suchobjections."24.The Full Bench has however held that the function of theDistrict Collector being administrative in nature, it is futile toexpect furnishing of the details to the party concerned. But it isnecessary to enter such reasons in the file, otherwise theproceedings would stand vitiated. The relevant portion of theobservation of the Full Bench of this Court is as follows:"The function obviously being administrative innature, it is futile to expect furnishing of detailedreasons in the order which is communicated to the person.It is necessary to enter such caveat lest it may beconstrued that in every case, where the order of 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 in thefile in the shape of notings, endorsements, etc., or evencan be reflected in the order. But, mere non-reflection ofreasons in the order communicated or in the noticepublished in the Gazette, would not be sufficient to holdthat there has been non-application of mind and thequestion as to whether there has been application of mindor non-application is required to be considered on thebasis of the return filed and the relevant file to beproduced before the Court. " 25.Applying all the rulings laid down to the facts of thepresent case and after referring to the file relating to theproceedings of the District Collector in rejecting the objections ofthe petitioner, there is no difficulty to come to the conclusion that https://hcservices.ecourts.gov.in/hcservices/ there is no evidence to show that the Collector has independentlyapplied his mind except to fill up the cyclostyled forms. In view of the above, the writ petition stands allowed and theacquisition proceedings initiated in respect of the property inS.No.57/1A2 at Bathalppalli Village of Gudiyattam Taluk in VelloreDistrict is held invalid. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.abeTo: 1.The Collector,Vellore District atVellore.2.The Special Tahsildar ADW,Gudiyatham,Vellore District.+ 1 CC To Mr. V.Raghavachari, Advocate SR NO.19930+ 1 CC to the Government Pleader SR NO 20209W.P.No.10529 of 1998bk[co]gp/29.4.