Soundaravalli Ammal v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.03.2008CORAM:THE HONOURABLE MR.A.P. SHAH, CHIEF JUSTICE,THE HONOURABLE MR.JUSTICE F.M. IBRAHIM KALIFULLAANDTHE HONOURABLE MR.JUSTICE V. RAMASUBRAMANIANW.A.Nos.2050, 2051 of 2001 and 726 of 2005andW.P.M.P.No.1397 of 2007W.A.Nos.2050, 2051 of 2001Soundaravalli Ammal ... Appellant in WA 2050/07 Kanagavalli Ammal ... Appellant in WA 2051/07vs.1. The Government of Tamil Nadu, Rep. by its Commissioner and Secretary to Government, Adi Dravidar Tribal Welfare Department Fort, St. George, Chennai-9.2. The District Collector, North Arcot Ambedkar District at Vellore, North Arcot Ambedkar District.3. The Special Tahsildar, Land Acquisition (A.D.W.) Walajapet, North Arcot Ambedkar District. ... Respondents is both WAs W.A.No.726 of 2005Nataraja Mudaliar ... Appellant vs.1)The District Collector Villupuram District ... Respondent 2)The Special Tasildhar (ADW) Villupuram. Writ Appeal Nos.2050 and 2051 of 2001 are filed under clause 15of the letters patent as against Order of the learned Single Judge ofthis Court in W.P.Nos.3356 and 3766 of 1996 dated 10.11.2000 and Writ https://hcservices.ecourts.gov.in/hcservices/ Appeal No.726 of 2005 is filed under clause 15 of the letters patentas against the Order of the Single Judge of this Court in W.P.No.4045of 1997 dated 29.1.2003 The writ petitions presented under Article226 of the constitution of India for the issuance of writ ofcertiorari (A)call up for the records relating to the Notification inNo RC.K.11/3238/95 dated 08.12.95 on the file of the 2nd respondent.District collector North Arcot-Ambedkar District at Vellore; NorthArcot Ambedkar District; issued under secion 4(1) of the Tamil NaduAcquisition of Land for Harijan welfare scheme Act 1978 respectively.(1) and quash the same in so far as the Land's in S.No.5/6A3, 16/1and 16/2 of Uppupatti Hamlet of Koorambadi village. Walaja TalukNorth Arcot - Ambedkar District of an extent of 1.10 cents (in WP No.3356 of 1996)(2)Published in North Arcot Ambedkar District Gazette, dated 26.02.95and quash the same in so far as the petitioner's Land in S.No.5/6A 3of uppupatti; Hamlet of Koorambadi village, walaja taluk North ArcotAmbedkar District of an extent of 20 cents (in WP No 3766 of 1996)(B) to call for the records on the file of the 2nd respondent inP.R.O.C. No.1834/95 dated 27.08.96 and that of the 1st respondents indistrict gazette No57 dated 12.12.96 and quash the same (WP No 726 of2005)For Appellants : Mr. R. Subramanian, [in W.A.Nos.2050 and Senior Counsel for 2051 of 2001] Mrs. Hemalatha For Appellant : Mr.V. Lakshminarayanan [in W.A.No.726 of 2005] For Respondent(s) : Mr. Raja Kalifulla GP [in all appeals]Assisted by Mr. V.R. Thangavelu GAJ U D G M E N TThe Division Bench in its Order of Reference dated 19.09.2007 haspassed the following Order:"Therefore we consider it a fit case to bereferred to the Larger Bench. Hence, the registryis directed to place the papers before TheHonourable Chief Justice to refer the matter to aLarger Bench to consider the above issue."2. The issue relates to the question whether the decision of theFull Bench reported in 2007 (2) MLJ 706 [R. PARI vs. SPECIALTAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR https://hcservices.ecourts.gov.in/hcservices/ DISTRICT AND ANOTHER] conflicts with the decision of the HonourableSupreme Court reported in AIR 1995 SC 2114 [STATE OF TAMILNADU ANDOTHERS vs. ANANTHI AMMAL AND OTHERS] and AIR 1968 SC 432 [ABDULHUSSAIN vs. STATE OF GUJARAJ] as well as the decision reported in AIR1977 SC 497 [KALUMIYAKARIMMIYA vs. THE STATE OF GUJARAT AND OTHERS].In the opinion of the Division Bench, neither Sec.5(A) nor any otherprovisions of the Tamil Nadu Acquisition of Land for Harijan WelfareSchemes Act, 1978 contemplates, second opportunity to be given to theland owners. The Division Bench also held that in the light of thedecision of the Honourable Supreme Court reported in AIR 1995 SC 2114upholding the validity of the said Act except for Section 11(1) ofthat Act, insofar as it provided for payment of compensation ininstalments, the full bench decision runs counter to the decision ofthe Honourable Supreme Court and therefore, the constitution of alarger bench is necessitated to decide the issue. Though, nospecific question was referred for the consideration of a LargerBench from the order of reference of the Division Bench dated19.9.2007, we discern that the ratio laid down by the full benchdecision reported in 2007 (2) M.L.J. 706 requires reconsideration.3. The questions that were posed for consideration before theearlier full bench were as under: (i) Is it necessary for the Collector to givea personal hearing to the owner in the context ofhis objections and the remarks of the Tahsildar?(ii) Is the owner entitled to a copy of thereport of the Special Tahsildar or not?(iii) Should the Collector record his reasonsin his order while dealing with the objections ofthe owner? 4. From what has been answered by the full Bench, it is clearthat after the initial enquiry held by the authorised officer and hisreport, no further personal hearing or enquiry need be made by theDistrict Collector. Though the full bench made it clear that theland owner should be furnished with a copy of thereport/recommendation of the authorised officer, mere non-furnishingof such report would not ipso facto vitiate the proceedings and thequestion of prejudice to the land owner has to be considered in eachcase depending upon the facts and circumstances relating to thatcase. Further it was held that the non-communication of the reasonsof the District Collector while considering the objections of theland owner in the order communicated to him by itself would notvitiate the proceedings, so long as the records reveal that there wasapplication of mind by the District Collector to the objections ofthe land owner and such objections were rejected for reasons whichweighed with the District Collector. https://hcservices.ecourts.gov.in/hcservices/

5. When we peruse the decision of the full bench we find that thefull bench made a careful analysis of the decision of the HonourableSupreme Court reported in AIR 1995 SC 2114 (Ananthi Ammal Case) andwas also fully conscious of the ratio desidendi of the said decisionwhile answering the reference made before it. The full bench did notagree with the conclusion of the Division Bench of this Courtreported in 1998(1) CTC 281 [THIRUMATHI PUSHPA BAI BAINSINGH vs.DISTRICT COLLECTOR, TIRUNELVELI], in having held that a furtherpersonal enquiry/hearing before the collector was contemplated andthat such a conclusion would result in duplication of enquiry i.e.,one by the authorised officer and another by the District Collectorwhich was not envisaged under the Act. 6. The full bench however, held that where the enquiry is held bythe authorised officer, the report of such officer should be madeavailable to the land owner to make a further representation to theDistrict Collector, instead of insisting upon a second enquiry. Thefull bench also made it clear that while furnishing a copy of thereport to enable the land owner to make a representation no delaymuch less undue delay would be caused in as much as even whilesending a copy of the report, a time limit of two weeks can be fixedin order to arrest any attempt to drag on the proceedings. Whilestating so, the full bench highlighted that in view of theextending horizons of the principles of natural justice, extendedapplication of such principles can be equally made applicable to theacquisition proceedings. When it was contended on behalf of the landowner that if the initial enquiry was held by the authorised officerand the District Collector is to take a decision, a furtheropportunity of personal hearing would be really needed, the fullbench after making a detailed reference to the decisions of theHonourable Supreme Court reported in AIR 1964 SCC 648 [JAYANTILALAMRATLAL SHODHAN vs. F.N. RANA AND OTHERS] and AIR 1971 SC 1188[PARSHOTTAM JADAVJI JANI vs. THE STATE OF GUJARAT AND OHTERS] whichwere rendered in the context of the enquiry under Section 5(A) of theLand Acquisition Act concluded that the extent to which theprinciples of natural justice can be applied would be by holding thatfurnishing of a copy of the report of the authorised officer and anopportunity to make a representation in connection with the saidreport would meet the ends of justice. While holding that thesecond opportunity by the District Collector is not warranted, thefull bench also noted that in any event the land owner can as amatter of right seek for a copy of the report of the authorisedofficer in the light of the provisions contained in the Right toInformation Act 2005. 7. As far as the necessity of furnishing reasons by the DistrictCollector to the objections of the land owner is concerned, the fullbench relied upon the Division Bench decision of this Court reportedin 2005(2) L.W.199 in the case of THE DISTRICT COLLECTOR, NORTH https://hcservices.ecourts.gov.in/hcservices/ ARCOT AMBEDKAR DISTRICT, VELLORE AND ANOTHER vs. MANIKCKEM, whereinthe Honourable Chief Justice M. Katju as he then was, whiledelivering the judgment stated in no uncertain terms that though thecollector need not write an elaborate order like a Judgment of aCourt of law, while rejecting the objections of the land owner, hemust atleast mention the brief reasons as to why he rejected therepresentation so that the land owner would be satisfied that hisobjections were considered and that the court will also besatisfied that the District Collector applied his mind to suchobjection. While referring to the above Division Bench decision, thefull bench went on to add as under in paragraph 41."41. So far as the first part of theobservation regarding the necessity for theDistrict Collector to give second opportunity ofhearing is concerned, such aspect has been dealtwith while considering question Nos.1 and 2.However, so far as the latter part of theobservation laying down the necessity of theDistrict Collector to apply mind to the objectionmade by the land owners and to indicate thereasons, however brief the reasons may be, mustreceive our approval without much demur. In viewof the power of eminent domain the Stateobviously cannot be denied such right. However,right to land being a constitutional rightrecognised under Article 300-A of theConstitution, such right can be denied only inaccordance with law. Law which provides for suchacquisition of land obviously should stand thetest of lack of arbitrariness as otherwise suchlaw may fly in the face of Article 14 and may beArticle 21. Even though the substantive right ofthe State to acquire land cannot be denied, suchlaw providing for acquisition of land shouldsatisfy the test of procedural reasonableness andit is therefore apparent that the authorityacquiring such land (in the present case theDistrict Collector) must be satisfied about thenecessity to acquire such land and while arrivingat such satisfaction, the authority is alsorequired to consider the objections raised by theland owner. The authority must be alive to therequirement of balancing the need of the State aswell as peculiar disadvantages to be suffered bythe land owner. As observed by the DivisionBench even though the authority is not expectedto write "reasoned judgment", the materials onrecord must indicate that the authority hasapplied its mind. Obviously the magic https://hcservices.ecourts.gov.in/hcservices/ incantations of the words used in the Act or theRules would not indicate that mind has beenapplied and therefore, it is always desirable forthe authority to indicate the reasons why suchauthority is taking a decision to acquire theland and rejecting the objection of the landowner. As a matter of fact, to be fair to thelearned Additional Advocate General, he hasstated in no uncertain term that the need to givereasons for the decision has to be read into theenactment. In the aforesaid context, the learnedAdditional Advocate General has also referred tothe decision of a learned Single Judge of thisCourt in V. Kannian v. The Collector, SalemDistrict, Salem and others, 2004 (3) MLJ 129.Therefore, in our opinion, the requirement togive reasons however brief the reasons may be,must be read into the provisions and thisrequirement is not merely confined to the caseswhere the Collector is considering the reportssubmitted by the authorised officer, but suchrequirement is also necessary while the Collectorhimself is dealing with the matter by holding anenquiry."8. We also find that the various decisions referred to in thepresent order of reference including the decisions reported in AIR1968 SC 432 [ABDUL HUSAIN TAYABALI, ETC., vs. STATE OF GUJARAT] aswell as AIR 1977 SC 497 [KALUMIYA KARIMMIYA vs. THE STATE OF GUJARAT]were duly considered by the full bench which took the view that theratio of the said decisions of the Supreme Court may not beapplicable and the persons likely to be affected should be given afurther limited opportunity of making a further representation to theDistrict Collector on the report/recommendation of the authorisedofficer. In other words we find that the above referred to decisionsof the Honourable Supreme Court referred to in the order of referenceby the Division Bench while expressing its desire for considerationby a larger bench were duly considered by the full bench elaboratelywhile answering the questions referred to it. Having regard to thedetailed consideration made by the Full Bench in its decisionreported in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADIDRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT ANDANOTHER] while answering the questions referred to it, we do not findany need or necessity for reference to a larger Bench. The decisionof the Full Bench in having made a detailed reference to ECIL case ofthe Supreme Court for extending the application of the principles setout therein for the limited purpose of application of principles ofnatural justice in a land acquisition proceedings, by itself cannotbe held to have caused any conflict in order to re-reconsider theultimate answers to the questions referred to it. https://hcservices.ecourts.gov.in/hcservices/

9. In fact in the present order of reference, the Division Benchhas directed the registry to get orders from the Honourable ChiefJustice to straightaway make a reference to a Larger Bench. In thiscontext, we wish to be guided by the decisions of the HonourableSupreme Court reported in 2002 (1)SCC 1 [PRADIP CHANDRA PARIJA v.PRAMOD CHANDRA PATNAIK] and 2005(2) SCC 673 [CENTRAL BOARD OF DAWOODIBOHRA COMMUNITY v. STATE OF MAHARASHTRA]. In the first case, i.e.,in Pradip Chandra Parija v. Pramod Chandra Patnaik, 2002 (1) SCC 1,the question that was considered by the Hon'ble Supreme Court is:"Whether two learned Judges of thisCourt can disagree with a judgment ofthree learned Judges of this Court andwhether for that reasons they can referthe matter before them directly to aBench of Five Judges?"After hearing the learned counsel on either side,including the learned Attorney General, the Supreme Courthas concluded:"(6) In the present case the Bench of twolearned Judges has, in terms, doubted thecorrectness of a decision of a Bench of threelearned Judges. They have, therefore, referredthe matter directly to a Bench of five-Judges.In our view, judicial discipline and proprietydemands that a Bench of two learned Judges shouldfollow a decision of a Bench of three learnedJudges. But if a Bench of two learned Judgesconcludes that an earlier Judgement of threelearned Judges is so very incorrect that in nocircumstances can it be followed, the propercourse for it to adopt is to refer the matterbefore it to a Bench of three learned Judgessetting out as has been done here, the reasonswhy it could not agree with the earlier Judgment.If, then, the Bench of three learned Judges alsocomes to the conclusion that the earlier Judgmentof a Bench of three learned Judges is incorrect,reference to a Bench of five learned Judges isjustified." In the second case viz., Central Board of Dawoodi Bohra Community v.State of Maharashtra, 2005 (2) SCC 673 (supra), which is also aConstitution Bench, after considering all the earlier decisions,including Pradip Chandra Parija v. Pramod Chandra Patnaik, 2002 (1)SCC 1, summarised the legal position: https://hcservices.ecourts.gov.in/hcservices/ "12. Having carefully considered thesubmissions made by the learned Senior Counselfor the parties and having examined the law laiddown by the Constitution Benches in the abovesaid decisions, we would like to sum up the legalposition in the following terms:(1) The law laid down by this Court in adecision delivered by a Bench of larger strengthis binding on any subsequent Bench of lesser orcoequal strength.(2) A Bench of lesser quorum cannot disagreeor dissent from the view of the law taken by aBench of larger quorum. In case of doubt allthat the Bench of lesser quorum can do is toinvite the attention of the Chief Justice andrequest for the matter being placed for hearingbefore a Bench of larger quorum than the Benchwhose decision has come up for consideration. Itwill be open only for a Bench of coequal strengthto express an opinion doubting the correctness ofthe view taken by the earlier Bench of coequalstrength, whereupon the matter may be placed forhearing before a Bench consisting of a quorumlarger than the one which pronounced the decisionlaying down the law the correctness of which isdoubted.(3) The above rules are subject to twoexceptions:(i) the above said rules do not bind thediscretion of the Chief Justice in whom vests thepower of framing the roster and who can directany particular matter to be placed for hearingbefore any particular Bench of any strength; and(ii) in spite of the rules laid down hereinabove, if the matter has already come up forhearing before a Bench of larger quorum andthat Bench itself feels that the view of the lawtaken by a Bench of lesser quorum, which view isin doubt, needs correction or reconsiderationthen by way of exception (and not as a rule) andfor reasons given by it, it may proceed to hearthe case and examine the correctness of theprevious decision in question dispensing with theneed of a specific reference or the order of theChief Justice constituting the Bench and such https://hcservices.ecourts.gov.in/hcservices/ listing. Such was the situation in Raghubir singhand Hansoli Devi.13) So far as the present case is concerned,there is no reference made by any Bench of anystrength at any time for hearing by a largerBench and doubting the correctness of theConstitution Bench decision in the case of SardarSyedna Taher Saifuddin Saheb v. State of Bombay,1962 Supp. (2) SCR 496. The order dated18.3.1994 by the two-Judge Bench cannot beconstrued as an order of reference. At no pointof time has the Chief Justice of India directedthe matter to be placed for hearing before aConstitution Bench or a Bench of seven-Judges.14) In the facts and circumstances of thiscase, we are satisfied that the matter should beplaced for hearing before a Constitution Bench( of five-Judges) and not before a larger Benchof seven Judges. It is only if the ConstitutionBench doubts the correctness of the law laid downin Sardar Syedna Taher Sifuddin Saheb case thatit may opine in favour of hearing by a largerBench consisting of seven-Judges or such otherstrength as the Chief Justice of India may inexercise of his power to frame a roster may deemfit to constitute." (Emphasis added)The above two decisions of the Honourable Supreme court makes itclear that the Full Bench decision is binding on the Division Bench.If at all this Full Bench comes to a conclusion that the earlier FullBench decision is incorrect, then a reference can be considered forbeing made to a Larger Bench. In other words, only if this Benchdoubts the correctness of the law laid down in 2007 (2) MLJ 706 [R.PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE, PASUMPONMUTHURAMALINGA THEVAR DISTRICT AND ANOTHER] there is no scope formaking a reference to a Larger Bench. 10. Keeping the above said legal position in mind when we referto the order of reference made by the Division Bench dated 19.9.2007,we are of the view that it was not appropriate for the Division Benchto direct the registry for placing the papers before the learnedChief Justice straightaway to make a reference to a larger bench toconsider the issue raised before it.11. We hold that having regard to the dictum of the full benchdecision reported in 2007 (2) MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR,ADI DRAVIDAR WALFARE, PASUMPON MUTHURAMALINGA THEVAR DISTRICT ANDANOTHER], the Division Bench ought to have applied the ratio laid https://hcservices.ecourts.gov.in/hcservices/ down in the said decision and disposed of the matter. If at all theDivision Bench felt any doubt as to the correctness of the said fullbench decision, in all fairness the Division Bench could havedirected the registry to place the matter before the learned ChiefJustice for his consideration as to whether a further reference iscalled for for referring the issue to a Larger Bench.12. Since we have found as stated in paragraph-8 of this Orderthat the conclusion of the Full Bench decision reported in 2007 (2)MLJ 706 [R. PARI vs. SPECIAL TAHSILDAR, ADI DRAVIDAR WALFARE,PASUMPON MUTHURAMALINGA THEVAR DISTRICT AND ANOTHER] has laid downthe law appropriately and that there is no flaw in the said decision,we hold that the order of reference to a Larger Bench is uncalledfor. The said Full Bench decision is therefore binding on theDivision Bench. We accordingly, direct the registry to place thematter before the Division Bench to decide the appeals on merits.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ggsTo1. The Commissioner and Secretary to Government, Adi Dravidar Tribal Welfare Department Fort, St. George, Chennai-9.2. The District Collector, North Arcot Ambedkar District at Vellore, North Arcot Ambedkar District.3. The Special Tahsildar, Land Acquisition (A.D.W.) Walajapet, North Arcot Ambedkar District.4. The District Collector, Villupuram District Villupuram.5. The Special Tahsildar, https://hcservices.ecourts.gov.in/hcservices/ Adi Dravidar welfare, Villupuram.6. The Sub Assistant Registrar Judicial Highcourt Chennai.+ 1 CC to Mr.V.Raghavachari Advocate SR NO.15453 W.A.Nos.2050, 2051 of 2001 and 726 of 2005RS(CO)JJM(26/03/08)