A.Kaliyappan v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:07-3-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.15335 of 1998A.Kaliyappan... Petitionervs.1.The District Collector Salem District, Salem.2.The Special Tahsildar (Adi Dravidar Welfare) Salem.... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorari calling for therecords pertaining to the order passed by the Ist respondent in hisproceedings Ref.No.23612/96 (D-8) dated 7.3.1996 published in SalemDistrict Gazette dated 11.3.96 and quash the same as statedtherein.For petitioner: Mr. C.Selvaraju,Sr.Counsel for Mr.S.ManiFor respondents: Ms. D.Geetha Addl.Govt. PleaderORDERThis writ petition is filed challenging the notificationissued by the first respondent, District Collector, Salem undersection 4(1) of the Tamil Nadu Acquisition of Land for HarijanWelfare Schemes Act, 1978 (in short, "Act 31/78") in respect of theland to an extent of 1.19.0 hectares comprised in SurveyNos.64/2B2, 67/1B and 67/2 in Athanoorpatty Village, VazhapadiTaluk, Salem District.2. According to the petitioner, the property was sold to oneRaja Chettiar in the year 1980, from whom he borrowed money and thesale was effected as indemnity for the loan and after the amountwas repaid, it was by a registered document, resale was effected on https://hcservices.ecourts.gov.in/hcservices/

8.6.1995. The patta was transferred by the Revenue Department on12.4.1996. Adangal and chitta also disclose that the petitioner isin possession of the above said property. It is, by communicationdated 20.8.1998, the petitioner was directed to hand overpossession before 7.9.1998 and thereafter, he came to know thatland acquisition proceedings were initiated against his propertyunder the Act 31/78. According to the petitioner, no notice wasgiven to him under section 4(2) of the said Act. There are otherporamboke lands available which can be utilised and converted ashouse sites for the people of Adi Dravida community. Thepetitioner has grown more than 300 mango trees which are standingon the land and as owner of the land, the petitioner should havebeen served with a notice.3. The second respondent has filed a counter affidavit. Itis the case of the second respondent that the Revenue records inrespect of the property show that the property was registered inthe name of one Raja Chettiar son of Kumaralinga Chettiar as perpatta No.281. Form No.I as per Act 31/78 was sent by the secondrespondent on 18.10.1995 and the same was served by affixture andtom-tom was also made in the village and notice was affixed atvarious places including the Office of the Estate Manager, Salem,Commissioner Office, Panchayat Union, Vazhapady, Police Station,Vazhapady, Sub Registrar Office, Vazhapady. The notice was alsoaffixed in conspicuous places in the village by the VillageAdministrative Officer. The land owner Raja Chettiar or his heirsdid not appear and raise any objection, however, the writpetitioner has sent an objection on 4.12.1995, but failed toproduce his legal entity or title or ownership over the property.Along with recommendations, the objection raised by the writpetitioner was sent by the second respondent to the DistrictCollector on 20.2.1996. The District Collector has overruled theobjection and issued section 4(1) notification on 7.3.1996, whichwas published in the Government Gazette on 11.3.1996 in Form No.IIIand notice was also issued on 25.9.1997, which was received by thepetitioner as interested person. The award enquiry was conductedand award was also passed on 29.10.1997 and after the passing ofaward, the writ petition was filed in the year 1998. It is reportedthat the land stands in the name of Raja Chettiar as per patta towhom notice was served. Therefore, according to the secondrespondent, the procedure contemplated under the Act 31/78 has beenfully followed.4. Mr.C.Selvaraju, learned senior counsel for the petitionersubmits that inasmuch as in the year 1995 itself reconveyance deedwas executed by Raja Chettiar in favour of the petitioner under aregistered sale deed and the patta also stands in the name of thepetitioner, it was the duty of the second respondent to give noticeto the petitioner who is the owner of the property as per section 3 https://hcservices.ecourts.gov.in/hcservices/ (h) of the Act 31/78. Therefore, according to him, the entireland acquisition proceedings are vitiated. 5. On the other hand, it is the contention of the learnedAdditional Government Advocate that as per the Revenue Records, theproperty stands in the name of Raja Chettiar to whom notice undersection 4(2) of the Act was sent by the second respondent andopportunity has been given to the owner but he has failed to appearand therefore, the entire proceedings are valid. She has alsoproduced the files relating to the land acquisition proceedings.6. It is seen that the second respondent has issued noticedated 18.10.1995, in Form No.I as required under section 4(2) ofthe Act 31/78. It is further seen that the said notice wasaddressed to Raja Chettiar son of Kumaralinga Chettiar. The abovesaid Form No.I fixing the enquiry on 1.12.1995 was affixed in thevillage with the certificate issued by the Village AdministrativeOfficer and signed by various residents. It is also seen that inNovember, 1995 the said notice under section 4(2) was affixed inEstate Manager's Office, Commissioner Office, Panchayat Union,Vazhapady, Police Station, Vazhapady, Sub Registrar Office,Vazhapady.7. A reference to the file shows that the writ petitionerA.Kaliappan son of Annamalai Gounder has sent his objection dated2.12.1995, one day after the date of enquiry stated by the secondrespondent in his notice under section 4(2) of the Act. The saidobjection of the petitioner is available at page No.95 of the file.The second respondent, following the procedure under section 4(3)(b) of the Act 31/78, has submitted his report in Roc.No.2570/95/A,dated 20.2.1996 to the first respondent, District Collector, Salemwherein he has also enclosed the objections raised by thepetitioner dated 2.12.1995. It is further seen that the petitionerhas raised another detailed objection on 4.12.1995 and the same hasalso been considered by the second respondent in his report dated20.2.1996 and after considering the report, the first respondenthas issued the impugned notification. It is also seen that anaward notice has been issued and the petitioner as interestedperson has received the same and ultimately, an award came to bepassed on 29.10.1997 in Award No.4/97-98 and the present writpetition was filed by the petitioner on 21.9.1998, nearly one yearafter the date of passing of the award.8. A perusal of the records shows that it is not as if thepetitioner was not aware of the acquisition proceedings. It isseen that he has sent objection on 2.12.1995 and the enquiry wasfixed by the second respondent on 1.12.1995. The fact that in hisreport dated 20.2.1996 addressed to the first respondent, DistrictCollector, the second respondent considered the objection raised by https://hcservices.ecourts.gov.in/hcservices/ the petitioner shows that the petitioner has been given sufficientopportunity in this case. As I have elicited above, the secondrespondent, along with his report, also enclosed two objectionsraised by the petitioner, one on 2.12.1995 and the other on4.12.1995 and the first respondent, having considered theobjections, issued the impugned notification and the same wasserved on the petitioner in Form No.3, dated 25.9.1997. However,the petitioner has filed the writ petition only in September, 1998.Hence, on the ground of laches, the writ petition is liable to bedismissed, applying the ratio laid down by the Supreme Court in TejKaur vs. State of Punjab (2003 (4) SCC 485), as followed by theHon'ble First Bench of this Court in Ramalingam and others vs.State of Tamil Nadu (2005 (3) CTC 1) and S.Harshvardhan vs. Stateof Tamil Nadu (2005 (3) CTC 691). 9. Further, the contention of the learned senior counsel forthe petitioner that where the petitioner raised his objection onthe next day of the enquiry viz., 2.12.1995, when the secondrespondent, Special Tahsildar submitted his report to the firstrespondent, it is obligatory on the part of the second respondentto give fresh notice to the petitioner being the owner and personinterested and the second respondent should have conducted a freshenquiry, is totally misconceived and untenable. The purpose ofgiving notice under section 4(2) of the Act 31/78 read with Rule 3(1) is to give opportunity to the owner or person interested toraise objection about the proposal for acquisition. 10. On the factual matrix of this case, it is seen that theRevenue records stand in the name of one Raja Chettiar to whomnotice has been served and in fact, it is the case of thepetitioner as it is seen from his representation that the said RajaChettiar died long back and he got the property reconveyed in hisname in the year 1995 itself. Further, it is seen that there is nomutation of records in favour of the petitioner. In suchcircumstances, there was no necessity on the part of the secondrespondent to give notice to the petitioner since the petitioner'sname was not found in the records when 4(2) notification was issuedand ownership stood in the name of one Raja Chettiar, in respect ofwhom steps have been taken to serve notice. In the factual contextas I have stated above, when the petitioner has raised objection on2.12.1995 even one day after the date of enquiry, the secondrespondent has taken note of the objection, which only shows thefairness of the second respondent in proceeding with theacquisition proceedings and it cannot be stated that theacquisition was done without notice to the petitioner. 11. It is true that the term 'owner' is defined in section 3(h) of the Act as under: https://hcservices.ecourts.gov.in/hcservices/ "3(h) "owner" includes any person, who isreceiving or is entitled to receive the rent ofany land or building, whether on his ownaccount or on behalf of himself and others oras an agent, trustee, executor, administrator,receiver or guardian or who would so receivethe rent or be entitled to receive the rent, ifthe land or building were let to a tenant."However, unless and until in the Revenue records, the names arechanged by mutation, the respondents cannot be expected to presumethat some other person will be the owner of the property as theoriginal owner died. In this regard it is relevant to extractSection 4(2) of the Act, which reads thus:" Section 4. Power to acquire land.- (1) xxxx(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.Therefore, what is required under section 4(2) of the Act 31/78 isthat prima facie the authority must be satisfied in calling uponthe owner or any person interested under Rule 3(i) of the TamilNadu Acquisition of Land for Harijan Welfare Schemes Rules,1979 (inshort,"the Rules"), to enable the service by registered post andonly in cases where the owner or person interested resideselsewhere, the show-cause notice by registered post is to begiven. But in the present case, when the records stood in thename of Raja Chettiar, there was no necessity for invoking Rule 3(i) of the Rules by the Land Acquisition authority. In this regardit is relevant to extract Rule 3(i) of the Rules, which reads asunder."3. Procedure for Acquiring Land.-(i) TheDistrict Collector of Officer authorised by himin this behalf shall serve a show cause noticein Form I under sub-section (2) of section 4individually on the owner or on all personsinterested in the land to be acquired. If theowner or any other person interested in the landresides elsewhere than where the land issituated, the show cause notice shall be sent byregistered post (Acknowledgement Due) to thelast known address of the owner or any otherperson interested." https://hcservices.ecourts.gov.in/hcservices/ However, in this case, the second respondent has conducted enquiryby giving notice and therefore, the second respondent has followedthe procedure under Rule 3(b) of the Land Acquisition (Tamil Nadu)Rules, which is as follows: " Rule 3. Hearing of objections.- (a) ......(b) If any objections are received from aperson interested in the land and within thetime prescribed in sub-section (1) of Section 5-A, the Collector shall fix a date of hearing theobjections and give notice thereof to theobjector as well as to the department or Companyrequiring the land where such department is notthe Revenue Department. Copies of theobjections shall also be forwarded to suchdepartment or company. The department orcompany may file on or before the date fixed bythe Collector a statement by way of answer tothe objections and may also depute arepresentative to attend the enquiry."12. In view of the fact that the objections raised by thepetitioner dated 2.12.1995 and 4.12.1995 were considered by thesecond respondent when he submitted his report to the DistrictCollector, I do not see any illegality in the procedure followed bythe respondents in completing the acquisition proceedings in thepresent case. In view of the same, the writ petition fails and thesame is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.khTo1.The District Collector Salem District, Salem. https://hcservices.ecourts.gov.in/hcservices/

2.The Special Tahsildar (Adi Dravidar Welfare) Salem.1 cc to Mr.S. Mani, Advocate, SR. 131381 cc to the Government Pleader, Sr. 13029W.P.No.15335 of 1998SGL (CO)kk 18/3