E.Antonyrep., by its Power of AttorneyChandrapappa v. Special Tahsildar (Adi Dravidar Welfare) Nanguneri

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 10.4.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARAN W.P.No.5929 of 1999E.Antonyrep., by its Power of AttorneyChandrapappa.. Petitionervs.1.Special Tahsildar (Adi Dravidar Welfare) Nanguneri, Tirunelveli.2.The Collector of Tirunelveli District, Tirunelveli... RespondentsWrit Petition filed under Article 226 of the Constitution of Indiaseeking to issue a writ of certiorari, as stated therein.For Petitioner : M/s.Chitra SampathFor Respondents : Mrs.Bhavani Subbaroyan, Govt. Advocate. ORDERThis writ Petition has been filed under Article 226 of theConstitution of India seeking to issue a writ of certiorari, calling forthe records of the respondents in connection with 4(1) notification inNa.Ka.Pa.1/82282/98 dated 18.11.1998 as published in the TirunelveliDistrict Gazette dated 25.11.1998 and the consequent award in AwardNo.5/98-99 (A/874/98) dated 3.3.1999 passed by the 1st respondent and quashthe same. 2.The petitioner purchased an extent of 10.13 acres under aregistered sale deed dated 2.3.1979 in the village of Seevalaperi,Kalakad, Nanguneri Taluk in S.No.50/1A and 50/1B along with a well, 3 H.P.motor pumpset and service connection. On 13.2.99, the wife of thepetitioner received a notice from the 1st respondent under Sec.5(1) of theTamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, (Act31/1978), hereinafter called 'the Act' in Form III dated 28.1.99. In thatnotice, a hearing was fixed by the 1st respondent on 15.2.99 and on that https://hcservices.ecourts.gov.in/hcservices/ day the wife of the petitioner appeared for the petitioner and submittedher objections and sought for time for getting necessary instructions fromher husband who was away in Dhubai. But the 1st respondent proceeded topass an order rejecting her request and fixed the value of the propertyacquired at Rs.85,100/-. Hence the petitioner filed the writ petitionthrough his power of attorney who is his wife, to quash the Sec.4(1)notification.3.The respondents filed a counter affidavit stating that theprocedures contemplated under the Act were properly followed and thereforethere is no merit in the writ petition.4.Heard the learned counsel for the petitioner and the learnedGovernment Advocate for the respondents. I have also perused thedocuments and the judgments referred to by them in support of theirsubmissions.5.The learned counsel for the petitioner submitted that beforepublishing a notice under sub-sec.(1) of Sec.4 of the Act 31/1978, theDistrict Collector or any officer authorised by him shall call upon theowner to show cause why the lands should not be acquired. After issuingsuch a notice under Sec.4(2), the objections and representation of theland owner should be heard and only thereafter notice under Sec.4(1) couldbe published to the effect that it was decided to acquire the lands.According to the learned counsel, this notice under Sec.4(2) is mandatoryand the same was not issued to the petitioner, the entire proceedings arevitiated. She relies on the decision of this court reported in 1996(1)CTC379(S.P.Vedanayagam v. Govt. Of Tamil Nadu) for the proposition that showcause notice under Sec.4(2)of the Act 31/1978 is a mandatory statutoryrequirement and it should be complied with strictly. The learned counselfurther submitted that the District Collector before accepting therecommendation of the Tahsildar, should apply his mind independently andpass a detailed order dealing with the objections. She relies on thedecision of this court reported in 2001(3)CTC 649(Ramakrishna Naidu, G. v.District Collector) in this regard.6.I have considered the rival submissions carefully with regard tofacts and citations.7.The provisions of the Act 31/1978 is summary in nature compared tothe provisions of the Land Acquisition Act, 1894 and therefore theauthorities under the State Act should strictly comply with the terms ofthe Act. The one and the only opportunity given to the land owner is theissue of show cause notice under Sec.4(2) of the Act. Having regard tothe vigour of the State Acts, provisions, the opportunity to show causewhy the lands should not be acquired must be given as it is a statutoryrequirement and the compliance thereof has to be strictly adhered to. https://hcservices.ecourts.gov.in/hcservices/

8.Sec.4 of the Act 31/1978 is extracted below for betterappreciation: "4.Power to acquire land:- (1) Where the DistrictCollector is satisfied that for the purpose of anyHarijan Welfare Scheme, it is necessary to acquire anyland, he may acquire the land by publishing in theDistrict Gazette 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 any officer authorisedby the District Collector in this behalf, shall callupon the owner or any other person, who, in the opinionof the District Collector or the officer so authorisedmay be interested in such land, to show cause why itshould not be acquired.(3)(a)The district Collector may, where he hashimself called upon the owner or other person to showcause under sub-section(2), pass such orders as he maydeem fit on the cause so shown;(b)Where any officer authorised by the DistrictCollector has called upon the owner or other person toshow cause under sub-section(2), the officer soauthorised shall make a report to the DistrictCollector containing his recommendations on the causeso shown for the decision of the district Collector.After considering such report the District Collectormay pass such orders as he may deem fit."10.In exercise of the powers conferred by Sec.23 of the Act, theGovernment made rules and rule 3 of the Tamil Nadu Acquisition of Land forHarijan Welfare Schemes Rules 1979, which deals with the procedure foracquiring lands. According to Rule 3, in Form I under Sub-Sec.2 of Sec.4,a show cause notice should be served on the land owner individually and ifthe owner of the land resides elsewhere other than the place of the land,a show cause notice should be sent by Registered Post Acknowledgment Dueto the last known address of the owner. Rule 3 is extracted below:"3.Procedure for Acquiring Land:- (i)The DistrictCollector or the Officer authorised by him in thisbehalf shall serve a show cause notice in Form I undersub-section(2) of Section 4 individually on the owneror on all persons interested in the land to beacquired. If the owner or any other person interested https://hcservices.ecourts.gov.in/hcservices/ in the land resides elsewhere than where the land issituated, the show cause notice shall be sent byregistered post (Acknowledgment Due) to the last knownaddress of the owner or any other person interested.(ii)The District Collector, if, after passing suchorders as required by sub-sections(2) and (3) ofSection 4 is satisfied that it is necessary to acquirethe land, notice in Form II to that effect shall bepublished in the District Gazette."11.A conjoint reading of Sec.4 of the Act and Rule 3 of the Rules,would make it very clear that every effort should be taken by theauthorities under the Act to issue show cause notice under Sec.4(2) beforepublishing in the Gazette and a notice under Sec.4(1) to the effect thatthe Collector has decided to acquire the land. Once a notice is publishedin the Gazette, on and from the date on which the notice is published, theland shall vest absolutely with the Government free from all encumbrances.12.The case of the writ petitioner is that the mandatory notice inForm I under Sec.4(2) was not at all issued to the petitioner and the onlynotice the wife of the petitioner received was the notice under Rule 5(1)in Form III.13.To this contention, the respondents submitted that the petitionerdid not leave the residential address to the Village AdministrativeOfficer or to the neighbours of the village and therefore Form I noticewas affixed in the land itself by hanging it from a stick. Therefore,according to the respondents, Sec.4(2) and Rule 3 was duly complied with.14.I am unable to accept the submissions made by the GovernmentAdvocate, for the respondents in this regard. Under Rule 3, the show causenotice in Form I should be served on the land owner individually and ifindividual notice is not possible, the show cause notice shall be sent byRPAD to the last known address of the land owner. Admittedly, no suchnotice by RPAD was sent by the respondents to the petitioner to his lastknown address and straight away they have affixed the 4(1) notice in theland itself, which is not in consonance with Sec.4(2) of the Act and Rule3 of the Rules. Further, the respondents are not able to explain how theywere able to send the subsequent Rule 5(1) notice in Form III to the writpetitioner to his correct address. If Form III notice could be sent to thecorrect address of the petitioner, what prevented the respondents fromsending Form I notice under Sec.4(2) of the Act to the writ petitioner.Therefore, I am of the considered view that the mandatory provisions underSec.4(2) of the Act and Rule 3(i) of the Rules were given a go-byresulting in vitiating the entire land acquisition proceedings. https://hcservices.ecourts.gov.in/hcservices/

15.Therefore, I am inclined to allow this writ petition and thenotification issued under Sec.4(1) of the Act dated 18.11.98 published inTirunelveli District Gazette dated 25.11.98 and the subsequentacquisition proceedings are all quashed. The writ petition is allowedaccordingly. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsksTo1.Special Tahsildar (Adi Dravidar Welfare) Nanguneri, Tirunelveli.2.The Collector of Tirunelveli District, Tirunelveli.1 cc To M/s.Chitra Sampath, Advocate, SR.23002.1 cc To The Government Pleader, SR.23058.W.P.5929/99.MS(CO)RVL 20.04.2007