Sheik Mohammed v. The District Collector, Pudukkottai District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No. 1843 of 2000A.Sheik Mohammed.. Petitioner-vs-1. The District Collector, Pudukkottai District.2. The Special Tahsildar (ADW), Aranthangi, Pudukkottai District. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorarified mandamus callingfor the records of the first respondent comprised in 4(1) notificationissued under Act 31 of 1978 in Na.Ka.No.Q.3/17015/96 published inPudukkottai District Gazette dated 07.3.1997 and consequential awardpassed by the second respondent in Na.Ka.No.A1/1239/95 dated 27.3.1997and to quash the same and directing the respondents not to acquire thepetitioner land in S.F.No.261/4 in Kodikulam Village, AvudayarkoilTaluk, Pudukkottai District an extent of 0.66 1/2.For petitioner :: Mr.V.Bharathidasan For respondents :: Mr.R.Neelakandan, GAO R D E R Heard both sides and perused the records filed in this case as wellas the original records circulated by the learned Government Advocate.2. The petitioner, aggrieved by the acquisition of his land inSurvey No.261/4 to an extent of 0.66 1/2 cents situated at KodikulamVillage, Avudaiyar Kovil Taluk, Pudukkotai District under the provisionsof the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act,1978 (for short 'T.N.Act 31 of 1978'), has filed the present writpetition.3. The writ petition was admitted by this Court on 03.2.2000. Aninterim order against dispossession of the lands from the petitioner wasalso granted. The interim order came to be made absolute on 30.12.2002.A counter affidavit has also been filed by the second respondentjustifying the acquisition of the lands for the purpose of providing https://hcservices.ecourts.gov.in/hcservices/ house sites to the beneficiaries, who admittedly belong to theArundhadiyar Community of that village.4. The second respondent being the prescribed authority initiatedproposals for the acquisition of lands for the Harijan Welfare Schemeand the notice under Section 4(2) was issued and served on the originalowner of the lands, who was the vendor and who sold the land to thepetitioner. The petitioner/original owner received the notice on10.1.1996. An enquiry was conducted on 31.1.1996. The vendor of the landparticipated in the enquiry. He gave his objection on 31.1.1996 to theofficer concerned. He stated that he has sold a portion of the land inSurvey No.261/4 to the writ petitioner to the extent of 67 cents evenbefore 2 years and he is in possession of the land only to the extent of29 cents.. 5. The objection given by the said owner was considered by theauthority concerned. He sent his proposal dated 29.2.1996 to theDistrict Collector. The District Collector rejected the objections givenby the land owners by his order dated 07.3.1997. Thereafter, anotification under Section 4(1) was published in the District GovernmentGazette on 07.3.1997. An Award in No.6/96-97 has been passed on27.3.1997 and the compensation amount has been deposited into the Court. 6. The only contention raised by the petitioner was that he did notget any notice in spite of the fact that his ownership of the land inquestion was brought to the notice of the respondents. His advocate gavewritten objection which was noted by the second respondent in his draftproposals sent to the District Collector. The District Collector hadoverruled the objection without giving any findings. The fact of hisownership is also found reflected in the Award made by the respondents. 7. Before the issues can be decided, it must be stated that thismatter was filed at the time when a Full Bench of this Court was calledupon to decide conflicting judgments of this Court on the procedureinvolved under T.N. Act 31 of 1978. P.K.Misra, J., speaking for the FullBench rendered its opinion on 25.8.2006. It has been since reported in2006 (4) CTC 609 (R.Pari -vs- The Special Tahsildar (ADW), Devakottaiand another). The Full Bench thereafter directed the individual WritPetitions to be decided on their merits and in accordance with thedirection of the Full Bench. Thus, the connected matters came to begrouped together and were posted before this Court on being speciallyordered by the Honourable Chief Justice.8. In the counter affidavit dated 'nil' (2000) filed by the secondrespondent, it was stated that the other land owners' objection madebefore this Court was rejected by this Court in W.P.No.8360 of 1997 and10383 of 1997 by judgment dated 05.3.1999. With reference to purchase ofthe land by the petitioner it was stated that since the revenue recordswere not altered, notices were given to the original owner. But there isno reference to the objection given by Mr.Paulraj in the section 4(2) https://hcservices.ecourts.gov.in/hcservices/ enquiry. 9. The learned counsel for the petitioner relied upon the Full Benchjudgment of this Court in P.C.Thanikavelu -vs- The Special DeputyCollector for Land Acquisition, Madras and another reported in 1989 WLR89, and reference was made to the following passage found in the FullBench judgment, which may be usefully extracted below:-''In such cases, if it is brought to the notice of theCollector by the erstwhile land owner or by any other personincluding the present owner thereof, of the name of interestedpersons, the Collector as a statutory functionary cannotdecline to afford an opportunity to the person who is reallyinterested in the land and close to the enquiry. When suchinformation is brought to the notice of the Collector, it isneedless to say that the principles of natural justice enjoinupon him an obligation to issue notice to the person who isfound to be really interested in the land even though his namemay not be found entered in the revenue records. It is truethat the government has the prerogative to acquire landsbelonging to individuals for a public purpose sanctioned underthe theory of 'eminent domain'. But the rule of law whichgoverns and controls the executive functions in the threadthat runs through the fabric of constitutional democracy. Therule of law behoves the Government to act fairly andreasonably and the principles of natural justice are thequintessence of such fair play and reasonableness. Thedecision reported in Padmavathi -vs- State of Tamil Nadu (91LW 80), does not reflect the true statemetn of law. TheSupreme Court has held in Swadeshi Cotton Mills -vs- Union ofIndia (AIR 1981 SC 818), that even in the absence of expressreference to observance of principles of natural justice, suchprinciples should be followed whenever it affects the rightsof parties. It cannot be gainsaid that when the lands of anindividual are acquired, albeit he may be paid compensation,his civil rights may be affected. It is therefore elementarythat, to be consistent with the principles of natural justice,such a person should be put on notice before his lands areacquired and his objection heard and considered. The enquirycontemplated under S.5A of the Act would be full and completeonly when the person who is really interested in the land isput on notice. But, at the same time, it is made clear thatindividual notice is mandatory only to those persons whosenames are found in the revenue records or who are found by theCollector as persons interested on information receivedthrough reliable source."10. A perusal of the original file does not show that any attemptwas made to serve the petitioner. However, in Survey No.261/4 out of0.66 1/2 cents sold to the petitioner, the balance 29 cents are kept https://hcservices.ecourts.gov.in/hcservices/ with the original owner Paulraj. The total extent acquired in SurveyNo.261/4 is only 0.38.5 cents. The original owner had also receivedcompensation. He has no objection to the acquisition. The lands wereacquired in the year 1997 and the petitioner had filed the writ petitiononly during 2000. It is stated in paragraph 4 of the counter affidavitthat the lands have been allotted to the beneficiaries as early as16.11.1999. Therefore, the lands cannot be reclaimed now. The petitionerby the acquisition may loose at the maximum only about 0.9 1/2 centsonly. For that the District Collector can fix a reasonablecompensation. 11. In this regard, reference may be made to the decision of theSupreme Court in Ramniklal N.Bhutta and another -vs- State ofMaharashtra and others reported in (1997) 1 SCC 134 and in para 10, itis observed as follows:-'' 10. Whatever may have been the practices in the past, atime has come where the courts should keep the larger publicinterest in mind while exercising their power of grantingstay/injunction. The power under Article 226 is discretionary.It will be exercised only in furtherance of interests ofjustice and not merely on the making out of a legal point. Andin the matter of land acquisition for public purposes, theinterests of justice and the public interest coalesce. Theyare very often one and the same. Even in a civil suit,granting of injunction or other similar orders, moreparticularly of an interlocutory nature, is equallydiscretionary. The courts have to weigh the public interestvis-à-vis the private interest while exercising the powerunder Article 226—indeed any of their discretionary powers. Itmay even be open to the High Court to direct, in case it findsfinally that the acquisition was vitiated on account of non-compliance with some legal requirement that the personinterested shall also be entitled to a particular amount ofdamages to be awarded as a lump sum or calculated at a certainpercentage of compensation payable. There are many ways ofaffording appropriate relief and redressing a wrong; quashingthe acquisition proceedings is not the only mode of redress.To wit, it is ultimately a matter of balancing the competinginterests. Beyond this, it is neither possible nor advisableto say. We hope and trust that these considerations will beduly borne in mind by the courts while dealing with challengesto acquisition proceedings.” (Emphasis Added)12. This reasoning came to be once again referred and followed by arecent decision of the Supreme Court in M/s.Girias Investment Pvt.Ltd.And another -vs- State of Karnataka and others reported in (2008) 7 SCC53. In paragraph 20, it was observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ ''We are also not unmindful of the fact that though the rightsof an individual whose property is sought to be acquired mustbe scrupulously respected, an acquisition for the benefit ofthe public at large is not to be lightly quashed andextraordinary reasons must exist for doing so''. 13. In the light of the above, the District Collector (firstrespondent) is hereby directed to negotiate with the first respondentand award appropriate compensation in respect of the land to be takenover for the petitioner. The writ petition is disposed of accordingly.No costs. Sd/-Deputy Registrar./true copy/Sub Asst. Registrar.jsTo1. The District Collector, Pudukkottai District.2. The Special Tahsildar (ADW), Aranthangi, Pudukkottai District. + 1 CC to Government Pleader, SR.NO.2779+ 1 CC to Mr.V.Bharathidasan, Advocate SR.NO.2600W.P.No.1843 of 2000 MDR(CO)EM/10.2.09