Ponnusamy Chettiar v. The Special TahsildarAdi Dravidar Welfare and Land AcquisitionTirupathur2

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:12.12.2007Coram:The Honourable Mr. Justice V. DHANAPALANW.P. No.4960 of 1998 & W.PM.P. No.7684 of 1998Ponnusamy ChettiarPetitionervs.1The Special TahsildarAdi Dravidar Welfare and Land AcquisitionTirupathur2The CollectorVellore DistrictRespondentsWrit Petition filed under Article 226 of the Constitution ofIndia seeking a writ of certiorarified mandamus as stated therein.For petitionerMr. M.S. SubramanianFor respondentsMr. B.K. Girish NeelakantanGovernment AdvocateORDERThis writ petition has been filed seeking to call for therecords from the office of the first respondent pertaining to theacquisition of the petitioner's lands in S.No.110/2 measuring 1.50acres in Valayampattu Village, Vaniyambadi Taluk, Vellore Districtwhich is sought to be acquired under a notification under Section 4(1) of Act 31 of 1978 published in the North Arcot Ambedkar DistrictGazette dated 03.01.1997 and quash the same.2.The land in new Survey No.110/2 in No.92, ValayampattuVillage, Vaniyambadi Taluk, now Vellore District, which presentlybelongs to the petitioner, his two brothers and five sisters,originally belonged to his mother in whose name the patta stood tillabout 1986. After his mother's demise intestate, the petitioner, hisbrothers and sisters inherited the property and are entitled to 1/8thshare each and patta stood transferred to the petitioner's individualname in Patta No.315. There are about 100 coconut trees in the landin question each yielding about 100 coconuts in a year. 3.On 23.03.1998, upon enquiry, the petitioner came to knowfrom the Village Administrative Officer that a part of his lands was https://hcservices.ecourts.gov.in/hcservices/ sought to be acquired for providing house sites to Arunthathiyarsunder the Harijan Welfare Scheme by invoking the provisions of theTamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978("the Act" for short). He further came to know that a Notificationwas issued in the North Arcot-Ambedkar District Gazette dated03.01.1997 under Section 4(1) of the Act, proposing to acquire hisland to the extent of 1.50 acres out of 3.73 acres and this GazetteNotification is impugned in this writ petition.4.According to the petitioner, as per Section 4(2) of theAct, before publishing a notice under sub-section (1), the DistrictCollector or any officer authorised by the District Collector in thisbehalf, shall call upon the owner or any other person, who, in theopinion of the District Collector or the officer so authorised, maybe interested in such land, to show cause as to why it should not beacquired and in the instant case, no such notice show cause noticewas issued to him.5.It is also the petitioner's case that according to Rule 3of the Tamil Nadu Acquisition of Land for Harijan Welfare SchemeRules, 1979 ("the Rules" for short), the District Collector shallserve a show cause notice in Form I under sub-section (2) of Section4 individually on the owner or all persons interested in the land tobe acquired and if the owner or the other person interested in theland resides elsewhere than where the land is situated, the showcause notice shall be sent by Registered Post (Acknowledgment Due) tothe last known address of the owner or any other person interestedand this procedure has not been adhered to in his case though he andhis brothers have been residing in the same address for the lastseveral years and as such, the acquisition proceedings are vitiatedby procedural irregularity.6.In short, the petitioner's case is that issuance ofNotificiation in the District Gazette which is impugned in this writpetition, without issuance of a show cause notice, is in violation ofthe statutory requirement and as such, it is invalid, inoperative andineffective.7.The first respondent has filed counter contending that:a.a notice dated 28.08.1996 in Form I was issued to thepetitioner asking him to appear for an enquiry on 16.09.1996 toshow cause as to why his land should not be acquired forproviding house sites to the poor Arunthathiyars of ValayampattuVillage under the Harijan Welfare Scheme and since he refused toaccept the same, it was served by way of affixture and heneither appeared in person nor sent his objection in writing tothe proposed acquisition and hence, he concluded that the https://hcservices.ecourts.gov.in/hcservices/ petitioner did not have any objection to the proposedacquisition and proceeded with the land acquisition proceedings;b.the District Collector, after perusal of the 4(1)proposal submitted by the first respondent, approved the same,thereby ordering for publication of Notification in the NorthArcot District Gazette and accordingly, the Notification came tobe published in the Vellore District Gazette on 03.01.1997 andthe locality publication was made on 06.01.1997; andc.pursuant to the above proceedings, sub-divisionrecords were prepared and the land value of Rs.80,000/- per acrewas arrived at with reference to sales statistics gathered forone year from the Sub-Registrar's Office, Vaniyambadi i.e. from01.01.1996 to 31.12.1996 and then, the Form III notice underSection 12(1) of the Act was issued asking the petitioner toappear for enquiry on 10.04.1997 and since the petitionerrefused to receive the notice, it was served by way of affixtureas per rules and yet, he did not turn up for enquiry on10.04.1997 and an award was passed and a layout was prepared forissuing patta to 34 beneficiaries and it was submitted to thesecond respondent for his approval and at this stage, this writpetition has been filed by the petitioner.8.Heard Mr. M.S. Subramanian, learned counsel for thepetitioner and Mr. B.K. Girish Neelakantan, learned GovernmentAdvocate appearing for the respondents.9.The main contention put forth by the learned counsel forthe petitioner is that the action of the first respondent in issuingthe Notification in the North Arcot Ambedkar District Gazette dated03.01.1997 without issuance of show- cause notice as mandated under 4(2) of the Act makes the Notification itself invalid, inoperative andineffective inasmuch as it is in violation of the aforesaid statutoryrequirement.10.In support of his contentions, the learned counsel for thepetitioner has relied on:i.a judgment of this Court in the case of N. Loganathan vs.The Special Tahsildar, A.D.W., Tiruvellore reported in 1996 WLR 28(paras 4A and 5)"Under the Act 31 of 1978, the one and the onlyopportunity given to the land owner or a personinterested is on the issue of the show cause notice underS.4(2) of the Act. The Act being expropriatory in natureand having regard to the rigour of its provisions, theopportunity to show cause why the land should not be https://hcservices.ecourts.gov.in/hcservices/ acquired should be given as it is a statutory requirementand the compliance thereof has, therefore, to be strictlyadhered to.As rightly pointed out by the learned counsel forthe petitioner, the show cause notice required to beissued under S.4(2) read with R.3 is mandatory andtherefore should be strictly complied with. R.3 asstated already requires individual notice to be servedand every attempt has to be made to serve the show causenotice individually on the owner or the person interestedand if for any reason, individual notice could not beserved as the person cannot be found, the service may bemade on any adult male member of his family residing withhim and if no such adult male member is found, notice maybe served by fixing the copy on the outer door of thehouse in which the person therein named ordinarily dwellsor carries on business."iianother judgment of this Court reported in 2003-3-L.W.31S.N. in the matter of St. Paul's Seminary College Society representedby its President, Fr. Francis Nallappan, Karayanchavadi, Poonamallee,Chennai - 56 vs. The Collector, Tiruvallur District and another (para10)"In proceedings relating to Act 31 of 1978, thisCourt has been repeatedly pointing out that theprovisions of the Act have to be strictly complied with,considering the drastic and summary nature of theprovisions of the Act and if the Government wants to makeuse of such provisions. It is expected of the officialsto discharge their duties in a proper manner and not toreduce the requirements into empty formalities.The printed format which has been used by theCollector is very unfortunate and cannot be sustained.In spite of the High Court repeatedly pointing out thatsuch orders cannot be passed, the same mistake is beingrepeated again and again. In fact, in the earlier cases,this Court had set aside the orders on the ground thatthey were cyclostyled. In the impugned order, it hasbecome still worse viz., the very cyclostyled orders arenow being issued in printed formats."iiiyet another judgment of this Court reported in 2003 (1) CTC449 in the case of Immaculate Heart of Mary Society, Pudupalayam vs.The Special Tahsildar, Adi Dravidar Welfare, Sivaganga Pasumpon DevarDistrict (para 8) https://hcservices.ecourts.gov.in/hcservices/ "The next question is whether there is any flaw inthe acquisition proceedings initiated by the authorities.The acquired extent is 2.60 acres. While it is the caseof the petitioner that the same is comprised in twosurvey numbers viz., S.No.444/4 and 445/1, originallyowned by Arockiasamy and Fr. Sebastian, the case of therespondents as reflected from Section 4(1) notificationand counter affidavit is that the extent is sold byArockiasamy. In fact, a specific stand is taken in thecounter affidavit that in the revenue records, nothing isshown as regards the title of Sebastian in respect of thelands to be acquired.. . .Village records cannot prove title to the property,but would only show, as per the revenue records who isthe owner. This Court does not know as to what preventedthe authorities from calling for the details from thepetitioner or further probing into the matter. At therisk of repetition, it has to be pointed out that (a) Fr.Sebastian also filed writ petition earlier, (b) the orderin writ petition does not mention as if Sebastian had nointerest in the property proposed to be acquired, and (c)at the enquiry, Arockiasamy informed the authorities thathe sold only his one acre to the petitioner. By somemore probing into the matter, the authorities could havecertainly found out the complete and correct facts. Asalready mentioned they have to remember that the propertyof a citizen is being compulsorily snatched and thecitizen is not before them with a begging bowl. TheOfficer, who conducted the enquiry has failed todischarge his duties in a diligent manner and in theinterest of the public at large."ivone another judgment of this Court reported in 2000-3-LW-517 in the matter of T.M. Lakshmiah v. The Collector of DharmapuriDistrict, Dharmapuri and another: (para 8)"Here, we find that 4(1) notice has not been servedupon the petitioner individually. It is simply statedthat notices were refused by the parties concerned andtherefore, they were affixed. There is no provision forservice by affixture. The Act is expropriatory. Theland of an individual is sought to be acquired by theGovernment. When it is so, all procedural precautionsmust be strictly adhered to. There is nothing on recordto show that any attempt was made to serve the notice,individually. There is neither any affidavit by the https://hcservices.ecourts.gov.in/hcservices/ person who was entrusted to serve the notice nor anystatement from the alleged witnesses to show that therewas an attempt to effect service personally and therewas a refusal on the part of the individuals concerned.There is no attempt to serve by Registered Post."11.The learned Government Advocate, per contra, rebutting thecontention of the learned counsel for the petitioner, contended thata notice dated 28.08.1996 in Form I was issued to the petitioner toshow cause as to why his land should not be acquired and the same wasrefused to be received by him and hence, it was served by way ofaffixture and the petitioner neither appeared in person nor sent hisobjection and subsequently, Form III notice under Section 12(1) wasalso issued on 27.03.1997 which was also refused to be received bythe petitioner and this being the case, the contention of the counselfor the petitioner that no show cause notice was issued to thepetitioner before publication of the impugned Notification in theDistrict Gazette does not have legs to stand. He has furthercontended that since the award had already been passed, possessiontaken and layout also prepared, the prayer sought in the writpetition is illegal.12.I have given heedful thought to the submissions made by thelearned counsel on either side and have also given due considerationto the judgments relied on by the learned counsel for the petitioner.13.From a perusal of the records, it is seen that therespondents initiated proceedings for acquisition of petitioner'sland after the verification of availability of poromboke land andsuitability of other patta lands in the vicinity under the Act andthereafter, proposed to acquire the land in S. No.110/2 classified asGovernment dry land to the total extent of 0.48.0 hect. out of thetotal extent of 1.35.0 hect. at Valayampattu village in VaniyambadiTaluk, Vellore District; the Land Acquisition Officer accordinglyissued Notice in Form I to the petitioner asking him to appear on28.08.1996 for enquiry on 16.09.1996 to show cause as to why his landshould not be acquired for providing housesites to the poorArunthathiyars of the Valayampattu village; the petitioner hasneither appeared for the enquiry nor sent his objections in writingto the proposed acquisition by the Land Acquisition Officer whichmade the Land Acquisition Officer come to the conclusion that thereare no objections to the proposed acquisition and proceed with theland acquisition work.14.It is also seen that after perusal of the 4(1) Notificationproposal submitted by the first respondent, the second respondentapproved the same thereby ordering publication of the Notification inthe District Gazette and accordingly, it was published in the VelloreDistrict Gazette on 03.01.1997 and locality publication was also made https://hcservices.ecourts.gov.in/hcservices/ on 06.01.1997; subsequent thereto, necessary sub-division recordswere prepared and got scrutinised and the land value was arrived atwith reference to the sales statistics and fixed at Rs.80,000/- peracre and Form III notice of enquiry was issued on 27.03.1997 andsince the same was refused to be received by the petitioner, it wasserved by way of affixture on 30.08.1996 as per rules; thereafter,the award was passed by the Land Acquisition Officer in AwardNo.22/96-97 dated 27.03.1997 and as per the procedure contemplated,12(1) notice was issued on the petitioner on 27.03.1997 asking him toappear before the first respondent on 10.04.1997 and even on thisoccasion, the petitioner did not turn up for making future payment asand when he required payment; hence, after making necessary changesin the village Taluk accounts, possession of the acquired land wastaken on 23.04.1997 and a layout was prepared for issuing patta to 34beneficiaries and the same were submitted to the Collector forapproval.15.From the series of events discussed above, it is apparentlyseen that the procedure contemplated under the Act and the Rules werescrupulously followed by the respondents and as such, there is noprocedural irregularity in the acquisition proceedings of therespondents and at the above stage, the petitioner filed this writpetition and this Court also granted an order of interim injunctionon 03.04.1998 which was subsequently modified as an order of statusquo on 28.08.2003.16.Yet another important aspect involved in this case is thatwhen the award came to be passed on 27.03.1997 and possession alsotaken, the petitioner has approached this Court only on 03.04.1998,i.e. after a lapse of over a year. In this regard, it would bequite relevant to observe that the proposition that those landacquisition matters which have obtained finality should not bereopened is settled in a Constitution Bench judgment of the SupremeCourt reported in (2002) 3 SCC 533 in the case of Padma Sundara Rao(dead) and others vs. State of Tamil Nadu and others and the same isthe stand taken by the Supreme Court in its judgment reported in(2003) 4 SCC 485 in the matter of Tej Kaur v. State of Punjab andthis has also been followed by a First Bench of this Court in thedecision reported in 2005 (3) CTC 691 in the case of S.Harshavardhanand another v. State of Tamil Nadu, represented by the Secretary toGovernment, Industry Department, Fort St. George, Chennai-600 009 andthe relevant paragraph runs thus:“3.It has been repeatedly held by the SupremeCourt in Tej Kaur v. State of Punjab, 2003 (4) SCC 485that writ petition challenging the land acquisitionproceedings should not be entertained after the award hasbeen passed. In that case, the award was passed on15.03.1994 whereas the writ petition was filed on https://hcservices.ecourts.gov.in/hcservices/

12.04.1994 i.e. After the award was given. Hence, thewrit petition was dismissed as belated. Similarly inMunicipal Council, Ahmednagar v. Shah Hyder Beig, AIR2000 SC 671, the Supreme Court observed vide paragraph17:“In any event, after the award is passed,no writ petition can be filed challenging theacquisition notice or against any proceedingsthereunder.”. . . Hence, without going into the merits of the case, weare of the opinion that the writ petition was rightlydismissed on the ground of laches. . . .”17.Last but not the least, it is to be borne in mind that theAct has been enacted for giving effect to the policy of the Statetowards securing the principles laid down in Part IV and inparticular, Article 46 of the Constitution of India aimed at bringingthe under-privileged to the main stream of life in order to achieveegalitarian order of the society and the main policy of acquiringlands is to assign such lands to them.18.Therefore, in view of the decision of the ConstitutionBench judgment of the Supreme Court and yet another judgment of theSupreme Court followed by a First Bench of this Court, all referredto above, holding that once finality is reached in the landacquisition proceedings, they should not be reopened inasmuch as theacquisition is meant for a public purpose, I am of the consideredview that there is no scope to interfere with the impugned GazetteNotification dated 03.01.1997 and it is accordingly upheld. Resultantly, the writ petition is dismissed without any order asto costs and consequently, the connected W.P.M.P. is closed.cadSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1The Special TahsildarAdi Dravidar Welfare and Land AcquisitionTirupathur https://hcservices.ecourts.gov.in/hcservices/ 2The CollectorVellore District•One cc to Mr. M.s. Subramanian, Advocte sR 73965•One cc to Govt Pleader SR 74353•KU (co)sg 08/1/08 order inW.P. No.4960 of 199812.12.2007