Krishnan Chandrasekaran v. A1dt.15.2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.06.2007CORAMTHE HONOURABLE MR. JUSTICE S. RAJESWARAN W.P. No.4319 and 4872 of 1999Krishnan Chandrasekaran... Petitioner(W.P.No.4319/1999)1 T.chandrasekaran2 Geetha Navaneethakrishnan3 Sangeetha Gopikrishnan...Petitioners(W.P.No.4872/1999)Vs1 District Collector, Tiruvallur.2 Special Tahsildar (Land Acquisition), Adi Dravidar Welfare, Tiruvallur. ... Respondents (in both W.Ps.)Writ Petitions filed under Article 226 of theConstitution of India for issuance of a writ of Certioraricalling for the records relating to Na.Ka.J1/31403/98 dated4.12.98 published in Tiruvallur Government Gazette Special issueNo.17 dated 17.12.1998 on the file of the first respondent andnotice issued by second respondent in Na.Ka.No.734/98A1dt.15.2.1999 and in Rc.No.734/98 A1 dated 12.3.99 respectivelyand quash the same.For Petitioners (in both W.Ps.) : Mr.B.S.JothiramanFor Respondents : Mr.C.Ramesh, A.G.P. for R-1 & R-2. https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERAs the issue involved is one and the same in both thewrit petitions, common order is being passed.2 For the sake of convenience, I am referring thefacts pertaining to W.P. No.4319 of 1999.3 W.P. No.4319/99 was filed by one KrishnanChandrasekaran stating that his father purchased the lands soughtto be acquired by the respondents in the year 1977 by two saledeeds dated 24.5.1977 and 21.07.1977. It is his case that theproperty was purchased out of funds raised by disposal of theirancestral properties. After purchase of the lands, it wasdivided amongst his father, his mother, his two sisters and histwo brothers along with the petitioners. According to thepetitioner, his father met with an accident on 19.06.1997 and thelands could not be cultivated for one year because of theaccident. Now the same is being cultivated and for the purposeof cultivation they spent a sum of Rs.30,000/-. 4 When the petitioner returned from Tuticorin afterseeing his wife who was in the advanced stage of pregnancy, hewas informed by his father that he received a notice from thesecond respondent informing that the above said lands areproposed to be acquired and he sent a reply informing therespondents that the lands belonged to all the members of thefamily. On verification, it came to light that a notificationwas issued for acquiring the lands under the Tamil Nadu Act 31 of1978. Hence, the above petition has been filed by the petitionerchallenging the order passed by the first respondent dated4.12.98 published in Government Gazette dt.17.12.98 along withthe notice dated 15.02.99 issued by the second respondent.5 A Counter affidavit has been filed by the secondrespondent on behalf of the respondents which was sworn by theSpecial Tahsildar (ADW), Tiruvallur. It was stated in thecounter that to provide house-sites to 140 families of Adi-Dravidars and Arunthathiyars, lands were sought to be acquiredand accordingly necessary Land acquisition proposals wereinitiated to acquire the lands in Ramanjeri Village. The Form Inotice under Rule 3(1) and sub Section 2 of Sec. 4 of the Landacquisition Act 1978 were sent to the land owners by Regd. PostAcknowledgment Due, to appear for an enquiry. A copy of theForm I notice was also published in the public place by a beat ofTom-Tom and also by display in the concerned land. Theobjections raised by the land owners were examined and https://hcservices.ecourts.gov.in/hcservices/ recommended for overruling. The 4(1) proposals were sent to theCollector, Tiruvallur District for approval. The Collector,first respondent herein, approved the proposal in his proceedingsdated 4.12.1998 and the same was published in the DistrictGazette dated 17.12.98. Thereafter Form III Notice under Rule 5(1) of the Land acquisition Act were sent to land owners byR.P.A.D. to appear for an enquiry on 9.3.1999. An award has beenpassed on 11.3.1999 and the entire compensation has beendeposited and possession were also taken.6 Heard the learned counsel appearing for the writpetitioners and the learned Additional Government Pleader for therespondents. I have also gone through the documents and thejudgments referred to by them in support of their submissions.7 The learned counsel appearing for the petitionerssubmits that when the lands are jointly owned by the entirefamily and this fact was informed to the respondents, it istheir duty to issue independent notices to all persons who areinterested in the lands. But no notice was sent to all thepersons interested and therefore the entire proceedings arevitiated. The learned counsel for the petitioners furthersubmits that the proposal sent by the second respondent wasapproved by the first respondent without application of mind andon that ground also the proceedings ought to be set aside. Thelearned counsel for the petitioners relied on the decisions ofthis Court reported in AIR 1989 MADRAS 222 (P.C.Thanikavelu Vsthe Special Deputy Collector for Land Acquisition, Madras andanother)(FB), 2001(3) M.L.J., 576 (S.R.Krishnamoorthi and othersVs The State of Tamil Nadu and another) and 2002 W.L.R. 304(S.Guruswamy Vs The Government of Tamil Nadu rep. by Secretary toGovernment, Adi Dravida Tribal Welfare Department) to submit thatwhen the enquiry officer was informed that the ownership of theland vest with persons not shown in revenue records, the enquiryofficer is bound to issue notice to them and hear them too. Healso relied on the decision of this Court reported in 2001 (1)M.L.J. 328 (S.K.Thirugnanasambandam and others Vs The Governmentof Tamil Nadu and others) to urge that the Collector has toconsider the report of the Officer concerned and if there is noconsideration by the Collector with reference to the report thenthe order is said to be bad for non application of mind.8 Per contra, the learned Additional GovernmentPleader submitted that the revenue records showed the name of thepetitioner alone as the land owner and a proper notice was servedon him and the procedures have been strictly complied with asprescribed by the Land Acquisition Act 1978. https://hcservices.ecourts.gov.in/hcservices/ 9 I have considered the rival submission with regardto facts and citations.10 From the records available, I find that the fatherof the writ petitioner sent a representation on 18.9.98submitting his objections. In that representation, it wasclearly stated that he has two daughters by name GeethaNavaneethakrishnan and Sangeetha Gopikrishnan and three sons byname Kumaran Chandrasekaran and Krishnan Chandrasekaran (writpetitioner) and Vikram Kiran Thangavel. He further stated thatthe lands measuring about 3.67 acres which were sought to beacquired have been divided among the sons, daughters, wife andhimself and each of them have roughly half acre of land in equalshare. He further stated that the property in survey No.705/1and 707 is not his own and it also belongs to other familymembers in equal shares. The petitioner's father sent anotherletter to the first respondent dated 24.9.98 pursuant to thenotice issued by the second respondent asking him to appear on21.01.98 wherein he reiterated the joint ownership of the landsof the entire family members.11 It is not in dispute that the notice was sent onlyto the petitioner's father and not to others even though thefather of the petitioner informed the authorities about theownership of others also.12 In AIR 1989 MADRAS 222 (cited supra), a Full Benchof this Court held that in an enquiry under 5(A) of Landacquisition Act 1894, it is brought to the notice of theCollector that persons not named in the revenue records are alsointerested in the lands, then principles of natural justiceenjoined upon him an obligation to issue notice to the person whois interested in the lands even though his name is not found inthe revenue records. The relevant portion of the judgment readsas under:"6.It is not in dispute that in all caseswhere emergency provisions are not invokedand an enquiry under Section 5-A of the Actis contemplated, the Collector causesindividual notices to be served on everyperson known or believed to be interested inthe land to be acquired. Normally, suchnotices are sent to persons whose names arefound recorded in the revenue records aspersons interested. But in several cases itmay transpire that persons whose names arefound recorded in the revenue records asinterested persons may cease to have such https://hcservices.ecourts.gov.in/hcservices/ interest by reason of transfers of theholding or otherwise. Nevertheless, nomutation of names in the revenue records infavour of persons who have become interestedin the land might have been effected. Theresult is that the Collector may causeindividual notices to be served only on thosepersons whose names are found in the revenuerecords, but who have ceased to be interestedin the land. The result is not far difficultto see. Such persons who have ceased to beinterested in the land may not respond to thenotice nor would they care to participate inthe enquiry to be held under Section 5-A ofthe Act. In such cases, the statutoryenquiry under Section 5-A of the Act whichhas not been dispensed with, would becompleted without affording a reasonableopportunity to the persons who have anexisting right in the land under acquisition.Though it is incumbent upon the Revenue tokeep their records up to date by effectingmutation of names reflecting the actual stateof affairs by showing the persons reallyinterested in the land in their records, yetin a few cases it may so happen that therevenue records are not made up to date andthe persons who is really interested in theland may not receive any notice from theCollector for the enquiry under Section 5(a)of the Act. In such cases, if it is broughtto the notice of the Collector by theerstwhile land owner or by any other personincluding the present owner thereof, of thenames of interested persons, the Collector asa statutory functionary cannot decline toafford an opportunity to the person who isreally interested in the land and close theenquiry. When such information is brought tothe notice of the collector, it is needlessto say that the principles of natural justiceenjoin upon him an obligation to issue noticeto the person who is found to be reallyinterested in the land even though his namemay not be found entered in the revenuerecords. It is true that the Government hasthe prerogative to acquire lands belonging toindividuals for a public purpose sanctionedunder the theory of 'eminent domain'. But https://hcservices.ecourts.gov.in/hcservices/ the rule of law which governs and controlsthe executive functions in the thread thatruns through the fabric of constitutionaldemocracy, the rule of law behoves theGovernment to act fairly and reasonably andthe principles of natural justice are thequintessence of such fair play andreasonableness. The decision reported inPadmavathi Vs state of Tamil Nadu (1978)91Mad LW 80 does not reflect the true statementof law. The Supreme Court has held inSwadeshi Cotton Mills Vs Union of India, AIR1981 SC 818 that even in the absence ofexpress reference to observance of principlesof natural justice, such principles should befollowed whenever it affects the rights ofparties. It cannot be gainsaid that when thelands of an individual are acquired, albeithe may be paid compensation, his civil rightsmay be affected. It is therefore elementarythat, to be consistent with the principles ofnatural justice, such a person should be puton notice before his lands are acquired andhis objection heard and considered. Theenquiry contemplated under Section 5(a) ofthe Act would be full and complete only whenthe person who is really interested in theland is put on notice. But, at the sametime, it is made clear that individual noticeis mandatory only to those persons whosenames are found in the revenue records or whoare found by the Collector as personsinterested on information received throughreliable source."13 In 2001(3) M.L.J. 576 (cited supra), the learnedJudge of this Court after following the Full Bench Judgment inA.I.R. 1989 Madras 222 (cited supra), held as follows:"7.In view of certain admitted facts, thereis no need to elaborate the facts.Admittedly, the petitioners' sister and onebrother appeared during the enquiry underSec.5-A of the said Act and gave the names ofthe persons who are interested in the landsought to be acquired. When that be the case,as held by the Full Bench of this Court inP.C.Thanikavelu Vs Special Deputy Collector,L.A. Madras, (1989)1 M.L.J. 222 A.I.R. 1989 https://hcservices.ecourts.gov.in/hcservices/ Madras 222, the Land Acquisition Officer isbound to serve the notice on the interestedpersons. To extract the principles laid downby the Full Bench is as follows:"it is therefore elementary that, to beconsistent with the principles ofnatural justice, such a person should beput on notice before his lands areacquired and his objection heard andconsidered. The enquiry contemplatedunder Sec.5-A of the Act would be fulland complete only when the person who isreally interested in the land is put onnotice. But, at the same time, it ismade clear that the individual notice ismandatory only to those persons whosenames are found in the revenue recordsor who are found, by the Collector aspersons interested on informationreceived through reliable source."8.On the above principles, there cannot beany second opinion that the Land AcquisitionOfficer is obliged to serve the notices onthe persons interested in the land, eventhough such particulars are brought to hisnotice during the enquiry under Sec.5-A ofthe said Act."14 In 2002 W.L.R. 304 (cited supra) the learned Judgeof this Court came to a similar conclusion after following theabove said Full Bench decision of this Court in A.I.R. 1989Madras 222 (cited supra), i.e., persons whose names are notentered in the revenue records but about whom the officersconducting enquiry were informed of the interest they possessed,in that case, individual notices ought to be sent to each memberof the family by the officers.15 From the above decision, it is very clear that eventhough a person who is interested in the land and whose name isnot entered in the revenue records, still a notice must be sentto him if it is brought to the knowledge of the enquiry officerabout his interest in the land.16 Admittedly, the father of the petitioner informedthe first respondent about the interest of the other persons inthe lands and it is also not in dispute that no notice was sentto other persons. Therefore, the entire proceedings are vitiatedfor want of proper notice to the persons interested in the lands,having regard to the fact that Tamil Nadu Act 31 of 1978 is ex https://hcservices.ecourts.gov.in/hcservices/ propriety in nature and having regard to the vigour of itsprovisions, an opportunity to show cause why the lands should notbe acquired should be given to all persons interested in thelands.17 In 2001(1) M.L.J. 328 (cited supra), the learnedJudge of this Court held that Collector should consider thereport of the authorised officer and only then pass orders byapplying his mind. The relevant portion reads as under:"16. So, from the above said decision if theauthorities concerned did not apply theirmind to the issue on which the order ispassed, such order cannot be sustained. Inthe present cases as contemplated under Sec.4(3) (b) of the Act, the Collector has toconsider the report of the officer authorisedand then he has to pass order as he may deemfit. But there is no such consideration bythe Collector with reference to the report inthe impugned order itself, and it cannot besaid that the same has been discussed by theclerk at the Collectorate office in the notefile and that is enough. The considerationmust be stated by the Collector himself inthe order.17. Further, only on the basis of the reasonsmentioned in the order, the conclusion can bejustified especially when such orders aresubject to judicial review. This view ofmine is supported by the recent decision ofthe Apex Court in The Consumer Action Groupand another Vs state of Tamil Nadu, J.T.(2000)9 S.C. 272, in which the Apex Court hasheld as follows:"29.Whenever any statute confers anypower on any statutory authorityincluding a delegatee under a validstatute, howsoever wide the discretionmay be, the same has to be exercisedreasonably within the sphere thatstatute confers and such exercise ofpower must stand the test to judicialscrutiny. This judicial scrutiny is oneof the basic features of ourConstitution. The reason recorded trulydiscloses the justifiability of theexercise of such power. The questionwhether the power has been exercisedvalidly by the delegate, in the present https://hcservices.ecourts.gov.in/hcservices/ case, if yes, then it can only be forthe furtherance of that policy. What isthat policy ? The policy is thedevelopment and use of rural and urbanland including construction of colonies,buildings, etc., in accordance with thepolicy of the planning as laid downunder the Act and the Rules. When sucha wide power is given to any statutoryauthority including a delegatee then itis obligatory on the part of suchauthority to clearly record its reasonsin the order itself for exercising suchpower. Application of mind of suchauthority at that point of time couldonly be revealed when order records itsreason. Even if Section is silent aboutrecording of reason, it is obligatory onthe Government while passing ordersunder Sec.113 to record the reason. Thescheme of the Act reveals, theGovernment is conferred with wideranging power, including power toappoint all important statutoryauthorities; appoints Director and itsmembers of Town and Country Planningunder Sec.4; constitutes Tamil Nadu Townand Country Planning Board under Sec.5;Board to perform such functions asGovernment assigns under Section 6;appoints Madras Metropolitan DevelopmentAuthority under Sec.9-A; Governmententrusted for making master plan or anyother new plan; any plan of modificationis subject to the approval ofGovernment. In fact, every StatutoryCommittee is created by the Governmentand its planning is subject to theapproval by the Government. It isbecause of this that very wide power isgiven to it under Section 113. In agiven case, where a new development inrural or urban area may be requiredurgently and provisions under the Actand Rules would take long procedure, itmay in exercise of its exemption powerexempt some of the provisions of the Actand Rules to achieve the developmentactivity faster or in a given case if https://hcservices.ecourts.gov.in/hcservices/ any hardship arises by following orhaving not followed the procedures asprescribed, the power of exemption couldbe exercised, but each of these caseswould be for furtherance of thedevelopment of that area."18.From the abovesaid decision also, it isvery clear that the Collector has notconsidered the report of the authorisedofficer while passing the order in question.Had the Collector carefully considered thereport, he would have applied his mindregarding the valid objections raised by thepetitioners. The petitioners havespecifically stated that lands of theGovernment are available, and, in the landssought to be acquired, there are coconuttrees. Though the Collector has taken adecision to acquire the lands in question forthe purpose of implementing the scheme, theStatute cast upon the Collector the duty ofconsidering the report of the authorisedofficer, if he has authorised somebody to dohis duty, as contemplated under Sec.4(3)(b)of the Act. Such consideration should beeffective for the purpose for which it hasbeen provided for. Under the Act, it is theduty of the Collector to call upon the owneror other persons to show cause as to whytheir lands should not be acquired and passorders by himself on the cause so shown. Analternative also is provided to depute thatfunction to the authorised officer. When hedeputes his function, the Collector should bemore careful while taking decision, and, byapplying his mind, should pass orders withvalid reasons. He cannot simply approve thereport of the officer authorised by him."18 In the present case, even though the father of thepetitioner made number of contentions in his representation bystating that there is a Well in the land which is under activecultivation and there are non arable lands nearby which could beused for the purpose of acquisition, the same were not consideredby the second respondent nor it was clearly established beforethis Court that there was a proper consideration and applicationof mind by the Collector before approving the proposal of thesecond respondent. Therefore, impugned proceedings are liable tobe set aside on the ground of non application of mind also. https://hcservices.ecourts.gov.in/hcservices/ 19 W.P. No.4872/99 filed by the father of the writpetitioner in W.P. No.4319/99 along with his two daughters,challenging the very same land acquisition proceedings onidentical averments and grounds of challenge. 20 In view of the decision taken by me in W.P.No.4319/99, the land acquisition proceedings are vitiated, thisW.P. No.4872/99 also is to be allowed for the very same reasonsgiven by me for allowing the W.P. No.4319/99.21.In the result, both the writ petitions are allowed.No costs.vaan/sksSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1 The District Collector, Tiruvallur.2 The Special Tahsildar, Adi Dravidar Welfare, Tiruvallur.+ 1 cc to Mr. B. S. Jhothiraman, Advocate SR No. 36149 order,W.P. No.4319 and 4872 of 1999.NSM(CO)SR/6.7.2007