High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21 ..02..2005CORAMTHE HON’BLE MR.MARKANDEY KATJU, CHIEF JUSTICEandTHE HON’BLE MR.JUSTICE D.MURUGESANW.A.No.28 of 2000andC.M.P.No.292 of 2000---------Raju Chettiar..AppellantVs. 1.The District Collector, Dindigul-Anna District, Dindigul.2. The Special Tahsildar (ADW), Nilakkottai, Dindigul-Anna District...Respondents. PRAYER: Appeal filed against the order of thelearned single Judge dated 17.12.1999 passed in W.P.No.4420of 1996, as stated therein. ---------- For Appellant:: Mr.S.Balasubramanian For Respondents:: Mr.S.Kandaswamy, Spl. Govt. Pleader---------- J U D G M E N T THE HON’BLE THE CHIEF JUSTICE This writ appeal has been filed against the impugnedorder of the learned single Judge dated 17.12.1999 passedin W.P.No.4420 of 1996. 2. Heard learned counsel for the parties and perusedthe records. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner/appellant has challenged thenotification dated 09.01.1996 issued under Section 4(1) ofthe Tamil Nadu Acquisition of Land for Harijan WelfareSchemes Act, 1978 (hereinafter referred to as the T.N. Act31 of 1978) published in the District Gazette on31.01.1996 pertaining to the land in Survey Nos.280/3,280/6 and 282/1 to an extent of 0.92.5 Hectares inSilukkuvarpatti Village, Nilakkottai Taluk, Dindigul AnnaDistrict for providing house sites to the Adi-Dravidars ofold Silukkuvarpatti Village. 4. It appears that initially the land was sought to beacquired by invoking the provisions of the Land AcquisitionAct, 1894, which is a Central Act. After completing theenquiry under Section 5A of the Central Act, but beforepassing an award under Section 11 of the Central Act, therespondents switched over to the provisions of T.N. Act 31of 1978. It appears that the District Collector authorisedthe Special Tahsildar, the 2nd respondent herein, underSection 4(2) of the T.N. Act 31 of 1978 to conduct anenquiry, and the Special Tahsildar had also conducted theenquiry in which he afforded an opportunity of hearing tothe appellant, who submitted his objections to theacquisition of land on 03.11.1995. It is alleged thatthereafter the declaration under Section 4(1) of the T.N.Act for acquisition of the said land was issued on09.01.1996 and published in the District GazetteExtraordinary Issue of No.1 of the Dindigul Anna Districton 31.1.1996. 5. It is alleged by the appellant that before issuingthe declaration under Section 4(1) of the T.N. Act theDistrict Collector should have given an opportunity ofhearing to the appellant and should have supplied a copy ofthe Special Tahsildar’s Report on the basis of which heissued the declaration under Section 4(1) of the T.N. Act. 6. However, the learned single Judge has in ouropinion rightly held that in view of Section 22 of the T.N.Act there is no need to conduct a further enquiry underSection 4(2) of the T.N. Act. 7. The learned counsel for the appellant relied onthe decision of a Division Bench of this Court inTmt.Pushpa Bai Bainsingh Vs. District Collector TirunelveliKattabomman District & Others, 1998 (1) CTC 281, whereinthe acquisition was set aside on the ground that theDistrict Collector did not give an opportunity of hearingto the petitioner therein after receiving the report of theTahsildar. In our opinion, the said decision isdistinguishable because in that case no proceedings underthe Land Acquisition Act, 1894 (Central Act) had beentaken, but in the present case it is not disputed that https://hcservices.ecourts.gov.in/hcservices/ initially the proceedings were commenced under the LandAcquisition Act, 1894 (Central Act). Hence, in view ofSection 22 of the T.N. Act 31 of 1978 no furtheropportunity of hearing by the District Collector isrequired. Section 22 of the T.N. Act 31 of 1978 states “Sec-22(1) The provisions of this Act shallapply also to any case or cases in whichproceedings have been started before thecommencement of this Act for the acquisition of anyland for the Harijan Welfare Scheme under the LandAcquisition Act, 1894 (Central Act I of 1894)(hereinafter in this section referred to as thesaid Act) but no award has been made by theCollector under Section 11 of the said Act beforesuch commencement, as if –(i)The notification published undersub-Section (1) of Section 4 of thesaid Act, or(ii)The declaration made under Section 6of the said Act, or (iii)The notice given under sub-Section(1) of Section 9 of the said Act, were a notice to show-cause against the acquisitionof the land served under sub-Section (2) of Section4 of this Act.(2) Nothing contained in sub-Section (1) shallapply in relation to any land unless and untilafter the District Collector has published a noticein the District Gazette to the effect that the saidland is required for the purpose specified in sub-Section (1) of Section 4 of this Act.” 8. A perusal of Section 22 of the T.N. Act makes itclear that where the proceedings for land acquisitionhave been started under the Land Acquisition Act, 1894(Central Act) before the commencement of the T.N. Act,but no award has been passed under Section 11 of theCentral Act, if notification under Section 4(1) ordeclaration under Section 6 of the Central Act have beenpublished then it will be deemed that this will amountto a show cause notice under Section 4(2) of the TamilNadu Act. Thus, Section 22(1) incorporates a deemingprovision, or a legal fiction which cannot be ignored bythe Court. Legal fictions are well known in law.9. In Commissioner of Commercial Taxes, Ranchi andAnother Vs. Swaran Rekha Cokes and Coals (P) Ltd., andOthers, (2004) 6 SCC 689 (vide para-29) the SupremeCourt has followed the oft-quoted passage of LordAsquith in East Dwellings Co. Ltd., Vs. Finsbury BoroughCouncil, (1951) 2 All ER 587 at page-589 https://hcservices.ecourts.gov.in/hcservices/ “If you are bidden to treat an imaginarystate of affairs as real, you must surely, unlessprohibited from doing so, also imagine as realthe consequence and incidents which, if theputative state of affairs had in fact existed,must inevitably have flowed from or accompaniedit. The statute says that you must imagine acertain state of affairs; it does not say thathaving done so, you must cause or permit yourimagination to boggle when it comes to theinevitable corollaries of that state of affairs”. 10. Thus, a notification under Section 4(1) of theLand Acquisition Act, 1894 must be treated as a show causenotice under Section 4(2) of the Tamil Nadu Act. Hence, itcannot be said that no notice was given by the DistrictCollector under Section 4(2) of the Tamil Nadu Act. 11. Since, we hold that there is no requirement on theDistrict Collector to give a fresh show cause notice inview of the Section 22 of the T.N. Act, consequently,there is also no requirement for him to furnish a copy ofthe report of the Special Tahsildar to thepetitioner/appellant before issuing the declaration underSection 4(1) of the T.N. Act.12. Apart from the above, we may further mention thatthe decision of the Division Bench of this Court inTmt.Pushpa Bai Bainsingh Vs. District Collector TirunelveliKattabomman District & Others, 1998 (1) CTC 281 has beenconsidered by a learned single Judge of this Court inS.Sannasi and 2 Others Vs. Abdul Waheed and 6 Others, 2000Writ LR 559 and it has been held therein that the decisionin Tmt.Pushpa Bai Bainsingh’s Case (Supra) is confined tothe facts of that case. We agree with the said view of thelearned single Judge. 13. In our opinion, if the District Collector hasauthorised some other officer under Section 4(2) of theTamil Nadu Act and that officer has given an opportunity ofhearing to the land holder, then it is not necessary thatthe District Collector must again given an opportunity ofhearing to the said land holder. In our opinion, it is notthe requirement of law that two opportunities of hearingshould be given before the land can be acquired underSection 4(1) of the T.N.Act. In our opinion, if theDistrict Collector has authorised some other officer toissue a show cause notice to the owner or to any otherperson under Section 4(2) of the T.N. Act and that officerauthorised by the District Collector has held the enquiryand submitted a report to the District Collector, then itis not necessary for the District Collector to issue asecond show cause notice or to furnish a copy of the report https://hcservices.ecourts.gov.in/hcservices/ of that officer to the owner or other person concerned. Allthat is required is the District Collector should besatisfied under Section 4(1) of the T.N. Act that it isnecessary to acquire the land for the purpose of HarijanWelfare Scheme. Thus, all that is required is that theDistrict Collector’s satisfaction should be based onperusal of the report of such other officer who wasauthorised by him under Section 4(2) of the T.N. Act, andit is not the requirement of law that the DistrictCollector should issue a second show cause notice to theland owner and to furnish a copy of the report of theofficer authorised by him to hold the enquiry under Section4(2) of the T.N. Act. There is no allegation in thepetitioner’s affidavit filed in support of the writpetition that the District Collector’s satisfaction was notbased on the report of the Special Tahsildar. 14. It may be mentioned that the judgment of theDivision bench in Tmt.Pushpa Bai Bainsingh Vs. DistrictCollector Tirunelveli Kattabomman District & Others, 1998(1) CTC 281(supra) is a very cryptic judgment of only oneparagraph and the only reasoning given therein is asfollows:-“Considering the fact that the appellantherein was not given an opportunity beforepassing the order by the Collector we set asidethe order dated 17.2.1997 passed by the firstrespondent and direct the District Collector,first respondent herein, to pass an order in theabove matter, after giving an opportunity ofbeing heard to the appellant herein/petitioner inthe writ petition. 15. Thus, there is no discussion at all in theaforesaid Division Bench judgment whether opportunity ofhearing was again required to be given by the DistrictCollector if it had already been given by the Tahsildar orother officer nominated by the District Collector underSection 4(2) of the T. N. Act. Hence, the aforesaiddecision of the Division Bench in Tmt.Pushpa BaiBainsingh’s Case (supra) cannot operate as a precedent, andwe agree with the learned single Judge that it was confinedto the facts of that case. https://hcservices.ecourts.gov.in/hcservices/

16. In result, the writ appeal is dismissed. No costs.Consequently, connected miscellaneous petition is alsodismissed.smSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The District CollectorDindigul – Anna District Dindigul.2. The Spl. Tahsildar (ADW)Nilakottai.Dindigul-Anna District.+ 1 CC to Mr.S. Balasubramanian, Advocate CC SR 7851 Pre-Delivery Judgment in W.A.No.28 of 2000 21..02..2005.tek (co)bp