Vasanthi v. The District Collector, Dindigul Mannar Thirumalai District & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 08.02.2008Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.778 of 2006VasanthiAppellant/Petitionerv.1. The District Collector, Dindigul Mannar Thirumalai District.2. Special Tahsildar, Adhi Dravidar Welfare Scheme-I, Dindigul. Respondents/RespondentsWrit Appeal filed under clause 15 of the Letters Patentagainst the order of the learned single Judge dated 01.02.2006 madein writ petition No.17517 of 1996.For appellant:Mr.N.DamodaranFor Respondents:Mr.Edwin Prabhakar,Government AdvocateJUDGMENT(Judgment of the Court was delivered byK.RAVIRAJA PANDIAN, J.)The appeal is filed against the order of the learned singleJudge dated 01.02.2006 made in writ petition No.17517 of 1996. Inthe writ petition, the appellant herein sought for issuance of writof certiorari to call for the records of the first respondent, theDistrict Collector, Dindigul relating to the notification made inthe Government Gazette Extraordinary dated 31.01.1996 inN.Ka.No.H2/105497/95 dated 09.01.1996, with respect to theappellant's land comprised in S.F.No.572/3 (0.81.0 Hectare),Kodalvavi Village, Dindigul Taluk, Dindigul Anna District and theconsequential notice dated 09.08.1996 issued in Na.Ka.No.2132/95/Ain Form-III under Rule 5(i) of the Tamil Nadu Acquisition of Land https://hcservices.ecourts.gov.in/hcservices/ for Harijan Welfare Scheme Rules, 1979 and quash the same.2. The facts are :An extent of 0.81 hectares of dry land in survey No.572/3of Kodalvavi village was sought to be acquired for the publicpurpose of making provision of house sites to Adi dravidars ofKullampatti and Gurunappanaickenpudu, the hamlet villages ofKodalvavi village. The acquisition proceedings were initiated inG.O. Ms. (3D) 1079 Adi Dravidar and Tribal Welfare dated 22.12.1994under the Central Act (1 of 1984) by issuance of 4(1) notice to theland owner, the father of the appellant in whose name the land wasregistered in the revenue records. Section 5A enquiry notice wasalso issued to the land owner Madhana Gurusamy posting the enquiryon 23.02.1995. Subsequent proceedings were initiated under theTamilnadu Acquisition of Land for Harijan Welfare Scheme Act, 1978.In the meantime, the subject land was settled in favour of theappellant. No notice which is mandatory in nature as contemplatedunder the Act were given by the appellant. On that basis theappellant filed the writ petition. The learned single Judgedismissed the writ petition having found that there was no merit inthe contentions of the appellant. In this appeal the correctnessof the said judgment is put in issue.3. Before us, the following contentions were raised :(1) The appellant being the owner of the property, byvirtue of a settlement deed, should have been served with thenotice under section 4(2) of the Act, but no notice has beenserved.(2) The learned Judge is not correct by placing reliance onthe judgment of the Supreme Court in the case of Municipal Council,Ahmedhagar v. Shah Hyder Baig, 2000 AIR SCW 197 and on theunreported judgment of this Court in writ petition No.19887 of 1998dated 12.10.2000 to come to the conclusion that the writ petitioncannot be maintained after the award has been passed to non suitthe appellant as those judgments were rendered under the CentralAct. Except these two contentions no other contentions have been raised.4. We are not able to approve any one of the arguments ofthe learned counsel for the appellant. It is an undisputed factthat the subject land was registered in the name of the appellant'sfather Madhana Gurusamy for all material time. Originally theproceedings for acquisition of land for the public purpose ofproviding house sites to Adi dravidars were initiated under theCentral Act, 1 of 1894. Section 4(1) notification was publishedin the gazette and section 5A enquiry was conducted after issuingnotice. 5. Though section 5A notice under the Central Act has beenduly served on the land owner, he, by a telegram requested time for30 days. The hearing dates were fixed on 17.05.1995 and 06.06.1995and 20.06.1995. For all these hearings, notices were sent to the https://hcservices.ecourts.gov.in/hcservices/ land owner, the father of the appellant through the VillageAdministrative Officer as well as by RPAD. Notices sought to beserved through the Village Administrative Officer have been refusedto be received by the land owner, the father of the appellant, andthe Village Administrative Officer served notices by affixture andresubmitted the copies of the same by stating that the notices havebeen served by affixture. Notices sent for the 5A enquiry throughRPAD were returned by the postal authorities with endorsements thatthe addressee has gone to outstation and in spite of repeatedvisits, the notice under RPAD could not be served as the addresseewas not available respectively. The land owner Madhana Gurusamywho sought for 30 days' time for submitting his objections, neithersubmitted his objections nor attended the enquiry on the adjourneddates. 6. In the meanwhile, the State Act 31 of 1978, i.e., theTamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978had been upheld by the Supreme Court in the case of State of TamilNadu v. Ananthi Ammal AIR 1995 SC 2114. As per section 22 of theAct 31 of 1978 the cases in which proceedings have been startedbefore commencement of the State Act for the acquisition of landfor the Harijan Welfare Scheme under the Land Acquisition Act, 1894(Central Act 1 of 1894) but no award has been made by the Collectorunder section 11 of the Central Act, the State Act would apply asif the notification published under sub section (1) of section 4 ofthe Central Act or the declaration made under section 6 or thenotice given under sub section (1) of section 9 of the Central Actwere a notice to show cause against the acquisition of the landserved under sub section (2) of section 4 of the State Act. 7. Despite such statutory provision, notice under section 4(2) of the Act 31 of 1978 has been issued on 09.11.1995 callingupon the land owner to file his objections by fixing the date ofenquiry on 28.11.1995. Notice was sent through the AdministrativeOfficer of the village who resubmitted the notice by making anendorsement that the notice has been served by affixture as theland owner Madhana Gurusamy refused to receive the notice. Thenotice dated 28.11.1995 under section 4(2) of the Act was also sentto the land owner by RPAD by fixing the date of enquiry on11.12.1995. This notice was returned by the postal authoritieswith an endorsement that the addressee refused to receive thenotice. Hence, the proposal for approval was sent to the DistrictCollector and the same was approved by the District Collector on09.01.1996 and published in the district gazette on 31.01.1996.Notice for award enquiry under Rule 5(1) was issued on 14.03.1996by fixing the date of enquiry on 21.03.1996 through the VillageAdministrative Officer. Even here, the Village AdministrativeOfficer resubmitted the copy of the notice with an endorsement thatthe notice has been served by affixture as the land owner refusedto receive the same. The said notice sent through RPAD was returnedby the postal authorities with an endorsement that in spite of theinformation given by the postal authorities from 16.03.1996 to26.03.1996 the addressee was not available in the house and hencethe notice could not be served. At that stage, the land owner https://hcservices.ecourts.gov.in/hcservices/ Madana Gurusamy informed that an extent of 2.50 acres of land insurvey No.572/3 has been settled by him in favour of his daughterVasanthi, the appellant herein, by means of settlement deed dated15.09.1995. Hence, the notice under Rule 5(1) of the Rules wasagain sent to the appellant on 09.08.1996 by RPAD by fixing theenquiry to 02.09.1996. The appellant received the notice on23.08.1996 and submitted an objection through her lawyer on02.09.1996 raising objections to the effect that Thoppu landshould not be acquired; the land obtained through the settlementand the land of small farmers should not be acquired; and there isa temple belonging to the chettiar community in the subject landand the same should not be acquired. The appellant's father alsoappeared before the Land Acquisition Officer and gave a statement.The objections of the appellant were over ruled on the ground thatthere were no trees, such as coconut trees in the land at theinception of the land acquisition proceedings, i.e., at the time offield inspection conducted on 21.09.1994. The land owner MadhanaGurusamy was a big pattadar owning an extent of 14.27 acres andthat there was no structure of any kind, i.e., temple, well ortrees in his land. 8. Section 5A notice for enquiry was issued under theCentral Act with which there is no doubt. Section 45 of theCentral Act provides for service of notice. As per the saidprovision, service of any notice under the Central Act shall bemade by delivering or tendering a copy thereof signed in the caseof a notice under section 4 of the Act by the officer thereinmentioned, and in the case of any other notice, by or by order ofthe Collector or Judge. Whenever it may be practicable, theservice of notice shall be made on the person therein named. Whensuch person cannot be found, service may be made of any adult malemember of the family residing with him and if no such male membercan be found, the notice may be served by fixing a copy on theouter door of the house in which the person therein namedordinarily dwells or carries on business, or by fixing a copythereof in some conspicuous place in the office of the officeraforesaid or of the Collector or in the Court-house and also insome conspicuous part of the land to be acquired. If the Collectoror Judge so directs a notice may be sent by post, in a letteraddressed to the person named therein at his last known residence,address or place of business, registered under sections 28 and 29of the Indian Post Office Act, 1898 and service of it may be provedby the production of addressee's receipt. 9. Rule 3 of the Tamil Nadu Acquisition of Land for HarijanWelfare Schemes Rules, 1979 provides that the District Collector orthe officer authorised by him in this behalf shall serve a showcause notice in Form I under sub-section (2) of Section 4individually on the owner or on all persons interested in the landto be acquired. If the owner or any other person interested in theland resides elsewhere than where the land is situated, the showcause notice shall be sent by registered post (acknowledgment due)to the last known address of the owner or any other personinterested. https://hcservices.ecourts.gov.in/hcservices/

10. In this case, notices have been sent for the purpose ofservice on the land owner through the Village AdministrativeOfficer, and on the land owner refusing to receive the same, theVillage Administrative Officer served the same by affixture in hisresidence and returned the copies of the notice by stating the modeof service. The notice sent through RPAD has also been returnedunserved with an endorsement 'refused'. 11. Thus it is amply clear that the notice issued underSection 5A for enquiry under the Central Act and subsequent noticesissued under section 4(2) of the State Act have been successfullyevaded by the land owner Madhana Gurusamy and all the notices wereserved by affixture which factum was not disputed before thisCourt. 12. When a registered envelope is tendered by postman tothe addressee but he refused to accept it, there is due serviceeffected upon the addressee by the refusal, the addressee must,therefore, be imputed with the knowledge of the contents thereofand this follows upon the presumption that are raised under section114 of the Evidence Act. It is well settled that if notice isrefused to be accepted by the addressee, it can be presumed to beserved on him. (Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604and Harcharan Singh v. Shiv Ram, AIR 1981 SC 1284)13. Though the settlement stated to have been made infavour of his daughter, the appellant herein, the revenue recordshave not been mutated by entering the appellant's name. Inspite ofthat, when Rule 5(1) notice was served on the appellant, which hasalso been successfully evaded by the land owner Madhana Gurusamy heand his daughter appeared for the enquiry and submitted theirobjections, though the purpose of enquiry was for determination ofamount of compensation. Even those objections have been consideredand over-ruled by giving reasons. The award proceedings werefinalised on 28.10.1996 rejecting the objections. The value of theland was arrived at Rs.69,024/- and was deposited in the subtreasury office, Dindigul on 11.11.1996. The area acquired was subdivided as survey No.572/3B and classified as 'Adi Dravidar Natham'on 13.11.1996 and possession was taken by the Special RevenueInspector on 20.11.1996. Hence, the first contention of non serviceof notice deserves no merit consideration and the same is liable tobe rejected.14. The second contention cannot also be accepted as legalone as the contention of the present nature has been raised beforeus in Writ Appeal No.77 of 2006 and we have rejected the same byour order dated 07.02.2008 after referring to the division Benchjudgment of this Court in Ramalingam v State of Tamilnadu, 2005 (3)CTC 1, S.Harshavardhan v. State of Tamilnadu, 2005 (3) CTC 691 andthe judgments of the Supreme Court in the cases of MunicipalCouncil, Ahmed Nagar v. Shah Hyder Beig, AIR 2000 SC 671, State ofTamilnadu v. L.Krishnan, (1996) 1 SCC 250, Executive Engineer, JalNigam Central Stores Division v. Suresha Nand Juyal, (1997) 9 SCC https://hcservices.ecourts.gov.in/hcservices/ 224, and Tej Kaur v. State of Punjab (2003) 4 SCC 485 by holdingthat the exposition of law made by the apex Court on the point oflatches was not made with particular reference to the Central Act,though such enunciation was made while deciding the case arisingout of Central Act, that the exposition of law is general in natureand when the object of the public purpose has been accomplished,the writ petition challenging the initiation and subsequentproceedings cannot be legally maintained. The said reasoningsquarely covers the second point raised by the learned counsel forthe appellant against her.15. For the reasons stated in the aforesaid paragraphs, theappeal is dismissed. No costs. The connected miscellaneouspetition is consequently dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mfTo1. The District Collector, Dindigul Mannar Thirumalai District.2. Special Tahsildar, Adhi Dravidar Welfare Scheme-I, Dindigul.+ one cc to N. Damodaran, Advocate, SR.6373+ one cc to The Government Pleader, SR.6390BV(CO)RP 28.02.08 W.A. No.778 of 2006