Victor Devasahayam v. The Collector Thiruvallur District & Ors.

19/1A in Ariyalur Village, Ambattur Taluk, Thiruvallur District. Thepetitioner had purchased the above said lands from several vendors byvarious sale deeds dated 17.11.1984, 31.10.1985, 09.01.1986 and09.05.1986 and right from the date of purchase, the petitioner hasbeen in continuous enjoyment and uninterrupted possession of thelands and he has also paid necessary kist and other taxes. Thepetitioner is also possessing necessary pattas for the above saidlands.2.2. The further case of the petitioner is that on 18.9.2000,the second respondent herein, namely, Special Tahsildar (ADW),Ponneri, issued a Notice under Section 4(2) of the Tamil NaduAcquisition of Land for Adi-dravidar Welfare Schemes Act, 1978(hereinafter referred to as "the Act") r/w Rule 3 (1) of the TamilNadu Acquisition of Lands for Harijan Welfare Scheme Rules(hereinafter referred to as "the rules") proposing to acquire thelands of the petitioner under the Act.2.3. The petitioner submitted his objection dated 29.09.2000pointing out that the lands proposed to be acquired are agriculturallands and such lands are the only source of income and if the sameis acquired, he would be put into great hardship and irreparableloss. The petitioner understands that the some other adjoining landswere also sought to be acquired and similar objections were raised bythe the other land owners. Thereafter, by order dated 30.03.2001passed under Section 4(3) of the Act, the second respondent informedthe petitioner that the acquisition proceedings were dropped afterinspection of the lands taking into account of the fact that it wouldnot be possible to make pucca constructions on the said lands. 2.4. The further case of the petitioner is that petitioner alongwith his wife had gone abroad for a long time from 26th April 2002 to31st October 2002 and after their return to India in November 2002,the petitioner came to know that a notification under Section 4(2) ofthe Act in proceedings Lr.No.Rc.J1/20030/2002 dated 24.7.2002published in the Official Gazette by the Collector, ThiruvallurDistrict, the first respondent herein to the effect that petitioner'slands and other lands in Ariyalur Village were acquired forprovisions of house sites to Adi Dravidas. The petitioner came to beinformed of such development only in the end of December 2002 andthereafter, the petitioner was able to get a copy of the notificationunder Section 4(1) of the Act published in the Official Gazette. Thesaid notification under Section 4(1) of the Act was passed withoutfollowing the mandatory requirements of serving show cause noticeunder Section 4(2) of the Act so as to give an opportunity to thepetitioner to raise his objections and only thereafter, the necessaryorders to be passed under Section 4(3) of the Act by the Collector orauthorities or Authorized Officer either accepting the objections bydropping the proceedings or otherwise. After following the above https://hcservices.ecourts.gov.in/hcservices/ said procedure only, the notification under Section 4(1) of the Actcan be issued. 2.5. As far as the case of the petitioner is concerned, theabove said mandatory requirements were not followed. The disputedlands were already released from acquisition in March 2001,considering the objections raised by the petitioner and decided todrop the proceedings. Therefore the petitioner has been constrainedto approach this Court with this petition. 3.1. The respondents by filing a counter denied the allegationscontained in the affidavit filed by the petitioner herein. It isadmitted by the respondents in the counter that the proposal toacquire the lands of the petitioner for Adi Dravida housing wasdropped on the objections raised by the petitioner after inspectionof the disputed lands of the petitioner considering that the saidlands were found not suitable for pucca construction. It is furtherstated that thereafter on a representation of Dr.Ambedkar NadaipathaiVasihal Nalavazvu Sangam, the respondents initiated a freshproceedings by issuing notice to the petitioner as contemplated underSection 4(2) of the Act 31 of 1978. The petitioner did not appearfor the enquiry or filed any objections in writing and the contentionthat the petitioner was away from India is flimsy and not acceptable.The land acquisition process was completed as per rules, the reportwas submitted to the Collector in R.C.61/2002 dated 29.04.2002 forpublication of notice under Section 4(1) of the Act 31/78. TheCollector, in turn, approved the report by order dated 24.7.2002 andissued notification under Section 4(1) of the Act and the same wasalso published in the District Gazette of Tiruvallur under IssueNo.17.3.2. The respondents also filed additional counter affidavit inrespect of their claim of serving notice to the petitioner ascontemplated under Rule 3(1) of the Rules. In the said additionalcounter affidavit while narrating the sequence of events, it isstated that a notice as per provisions under Rule 3(1) was despatchedto the land owners through the registered post with acknowledgementdue calling them to file their objections if any at the time ofenquiry on 25.05.2002 and 01.04.2002 and the postal receipts werepasted in the despatch register of the respondents' Office. Thepetitioner did not appear at the time of enqiury. Thereafter, thefurther process of acquisition was taken and the District Collector,Thiruvallur, issued notification under Section 4(1) of the Tamil NaduAct 31 of 1978 and the notification was published in the extra-ordinary District Gazettee No.17 dated 03.08.2002. It is furtherstated in the additional counter affidavit that awards in respect ofthe owners of other lands were passed on 24.03.2004 after fillingthis writ petition by the petitioner and no award was passed inrespect of the petitioner as this Court granted status quo by order https://hcservices.ecourts.gov.in/hcservices/ dated 29.01.2003 and such interim order was made absolute on17.10.2008.4. Mr.R.Thiyagarajan, learned Senior Counsel for the petitionermainly contended that the respondents have not served the notice ascontemplated under Section 4(2) of the Act and they have not followedthe procedures contemplated as per Rule 3(1) of the rules and as suchthe entire proceeding is liable to be quashed. It is contended bythe learned Senior Counsel that though the respondents have now comeforward with the version that the respondents sent a notice as perSection 4(2) of the Act through registered post with acknowledgementdue, they have not stated so in the first counter and only for thefirst time it is stated in the additional counter affidavit. Thelearned counsel would further contend that the respondents have notproduced any acknowledgement to substantiate their contention thatthey have served notice to the petitioner. It is further contendedby the learned senior counsel that yet another contention of thelearned Government Advocate to the effect that they affixed thenotice on a placard is also made for the first time during thecourse of arguments of the learned Government Advocate and the sameis neither stated in the first counter nor in the additional counteraffidavit. The learned senior counsel for the petitioner wouldcontend that there is absolutely no material available on record toestablish that the respondents have taken all efforts to serve noticeon the petitioner as contemplated under Rule 3(1) of the Rules. Thelearned Senior Counsel, in support of his contentions, would placereliance on the following decisions of this Court :(i) Nagu, M. V. The District Collector, Sivagangai Districtreported in 2008 (2) CTC 468 ; and(ii) Kannian V. The Collector, Salem District, Salemreported in 2004 (3) MLJ 129.5. Per contra, Mr.P.Muthukumar, learned Government Advocatecontended that the respondents had taken all necessary steps to servethe notice as contemplated under 4(2) of the Act. It is contendedthat the notice was sent through registered post with acknowledgementdue and the same is evident from the despatch register maintained bythe respondent office affixing the postal receipt in respect ofsending the notice to the petitioner herein and as per such register,the said notice was despatched to the petitioner on 12.02.2008.Therefore it is contended that there is no contravention of theprovision under Section 4(2) of the Act. The learned GovernmentAdvocate would further submit that by way of precaution, therespondents also affixed a notice on a placard in the lands of thepetitioner. The learned Government Advocate produced a documentprepared by the Tahsildar in order to substantiate the abovecontention. The learned Government Advocate contended that there is https://hcservices.ecourts.gov.in/hcservices/ no infirmity or illegality in initiating the acquisition proceedingsin respect of the lands of the petitioner herein and the respondentsstrictly followed the procedure contemplated under the Rules and Actand they have not contravened any of the provisions of the Rules andthe Act.6. I have carefully considered the rival contentions put forwardby either side and thoroughly perused the entire materials availableon record and also perused the counter affidavit as well as theadditional counter affidavit apart from the affidavit filed by thepetitioner herein. 7. The crux of the question involved in this matter is whetherthe respondents herein have served the notice to the petitioner ascontemplated under Section 4(2) of the Act by following the procedurecontemplated as per Rule 3(1) of the rules during the course ofacquisition proceedings in respect of the lands of the petitioner.8. At the outset, this Court is constrained to state that in thecounter affidavit only a bald and vague statement has been made tothe effect that notices under Rule 3(1) of the Rules were issued tothe land owners on 09.02.2002 and 21.03.2002 mentioning eight namesincluding the petitioner herein informing the proposed acquisition oflands and calling for their objections if any at the time of enquiryon 25.02.2002 and 11.04.2002 and there is absolutely no whisper tothe effect that the notice was served on the petitioner. Thereafter,the respondents made an attempt to substantiate their version thatthe petitioner was served with the notice by filing an additionalcounter affidavit. In the additional counter affidavit in respect ofsending notices to the land owners under Rule 3(1) of the rules, itis stated as hereunder :"Notices under Section 3(1) were issued to the landowners/interested person on 09.02.2002, 12.02.2002 and21.03.2002 we sent through by register post along withacknowledgement card and the same day the above mentionedpostal receipt pasted in the despatch register of thisrespondent office. The same is also very much availablein records informing the proposed acquisition of lands andto file their objections if any at the time of enquiry on25.02.2002 and 01.04.2002, Thiru Victor Devasagayam landowner was not appearing at the time of enquiry."It is pertinent to note that the above said statement in theadditional counter affidavit makes it crystal clear that it is notthe version of the respondents that they have served the notice onthe petitioner and only a general statement is made to the effectthat notices were sent to the land owners/interested person byregistered post with acknowledgement due. The fact remains that the https://hcservices.ecourts.gov.in/hcservices/ respondents have not produced any acknowledgement to substantiatetheir version that they have served the notice on the petitioner. Thelearned Government Advocate at the time of his arguments produced aregister in which the postal receipts were pasted in respect ofdespatching the registered post to the land owners. A perusal of thesaid register discloses that number of postal receipts were pastedand in other receipts, the to (receiver's) addresses were clearlymentioned with door number, etc. But as far as the petitioner isconcerned, the postal receipt does not disclose the door number ofthe house of the petitioner. Therefore, it cannot be stated that thesaid notice was sent to the correct address of the petitioner.Assuming that the respondents herein despatched notices through theregistered post with acknowledgement due, still, it cannot beconsidered to have been despatched to the correct address of thepetitioner herein and as such even as per the provision under Section27 of the General Clauses Act, the notice could not deemed to havebeen served on the petitioner as the said notice was not despatchedto the correct address.9. The respondents have also made yet another vain attempt tosubstantiate their claim that they have also affixed the notice on aplacard at the land of the petitioner by producing a document. Aperusal of the said document reveals that the Tahsildar said to haverecorded the affixing of the notice on a placard at the lands of thepetitioner by mentioning the respective survey numbers. The factremains that the contents of the recording is in one ink and thesignature of the Tahsildar is in another ink. The said document doesnot contain the seal of the Tahsildar or the date on which it wasrecorded. The other documents contains the seal of the respectiveofficers. Therefore, this Court is of the considered view that nosanctity could be attached to such document and the same cannot berelied.10.1. At this juncture, it is relevant to refer to theprovisions under Section 4(1) and (2) of the Act and Rule 3(1) of theRules regarding the issue of show-cause notice before initiating theacquisition proceedings.10.2. Section 4(1) and (2) of the Act reads hereunder :"4. Power to acquire land – (1) Where the DistrictCollector is satisfied that, for the purpose of any HarijanWelfare Scheme, it is necessary to acquire any land, he mayacquire the land by publishing in the District Gazette anotice to the effect that he has decided to acquire the landin pursuance of this Section.(2) Before publishing a notice under sub-section (1),the District Collector or any officer authorised by the https://hcservices.ecourts.gov.in/hcservices/ District Collector in this behalf, shall call upon the owneror any other person, who, in the opinion of the DistrictCollector or the officer so authorised may be interested insuch land, to show cause why it should not be acquired."The above said provision makes it crystal clear that beforepublication of the notice under sub-section (1) of Section 4, theDistrict Collector or any officer authorised by him shall issue ashow-cause notice calling upon the owners of the land or any otherinterested person as to why it should not be acquired.10.3. Rule 3(i) and (ii) of the Rules reads hereunder :"3. Procedure for acquiring land – (i) The DistrictCollector or the officer authorised by him in this behalfshall serve a show cause notice in Form I under sub-section (2) of Section 4 individually on the owner or onall persons interested in the land to be acquired. If theowner or any other person interested in the land resideselsewhere than where the land is situated, the show causenotice shall be sent by a registered post (acknowledgementdue) to the last known address of the owner or any otherperson interested.(ii) The District Collector, if, after passing suchorder as required by sub-sections (2) and (3) of Section4, is satisfied that it is necessary to acquire the land,notice in form II to that effect shall be published in theDistrict Gazette."A reading of the provision under Rule 3(i) of the Rules makes itabundantly clear that notice under Section 4(2) of the Act should beserved individually on the owner of the land or on the personsinterested in the land to be acquired. It is pertinent to note thatonly after complying with the provisions under Sub-section (2) ofSection 4, the District Collector, in the event of his satisfactionto acquire the land, notice shall be published in the DistrictGazette. 11. At the risk of repetition, it is to be re-iterated that Rule3(i) speaks about the mode of service of the notice on the owners oron the interested persons of the land. The procedure, as per thatprovision, is to serve the notice individually to all the owners orto the interested persons and if they are residing elsewhere than atthe place where the land is situated, the notice must be served byregistered post with acknowledgement due. There is no contemplationof any provision of affixing the notice. https://hcservices.ecourts.gov.in/hcservices/

12. It is pertinent to note that in the instant case, there isabsolutely no explanation as to what prompted the respondents toresort to affix the notice on a placard at the lands of thepetitioner. A perusal of the records does not disclose that therespondents have taken all efforts and steps to serve the notice toany person and thereafter, resorted to affix the notice on a placard.13. At this juncture, it is relevant to refer the decision ofthis Court in Nagu, M. V. The District Collector, Sivagangai Districtreported in 2008 (2) CTC 468, wherein it has been held as follows :"Procedure contemplated Rule 3(1) makes it clearthat authority shall serve notice on owners individually.On a careful perusal of entire records, there isabsolutely nothing to show that second respondent hastaken steps to serve on each and every one of owners andon their refusal only they proceeded to notice byaffixture. Nothing was stated in affixture endorsementabout efforts taken by second respondent in servingnotice on owners. Therefore, it is a violation ofprocedure contemplated in Rules which in turn a violationof Principles of Natural Justice." 14. In yet another decision in R.Ramakrishnan V. State of TamilNadu and another reported in 2007 W.L.R. 645, this Court held ashereunder :"17. Hence I am satisfied that the impugnedacquisition proceeding is vitiated on the ground thatSection 4(2) notice was not served on the petitioner inthe manner as contemplated under the Act, i.e., withoutresorting to personally serving the notice on thepetitioner or on any adult male member of his family,straight away the Village Administrative Officer affixedthe notice on the door of the petitioner's house and nodate is also mentioned by the Village AdministrativeOfficer to satisfy this Court, on which date the affixturewas made. The objection raised by the petitioner on1.12.1997 is available in the file and the thirdrespondent, without conducting enquiry, recommended toreject the same in a cyclo-styled form and the secondrespondent also failed to record satisfaction to acquirethe land by rejecting the objections made by thepetitioner. The inconsistent stand with regard to thefiling of objection by the petitioner is made in counteraffidavit in para 4, which is extracted above. Thepetitioner in his objection dated 1.12.1997 has not givenconsent to remove the palmairah trees, however, the third https://hcservices.ecourts.gov.in/hcservices/ respondent states in his report that the petitioner agreedto remove the palmairah trees. Hence it is beyond doubtthat in a casual and lethargic manner and in violation ofthe above referred judgments, the land acquisitionproceeding is initiated against the petitioner andtherefore the same is liable to be set aside andaccordingly set aside."15. This Court by placing reliance on Rule 3(1) of the Rules inAlagu and others V. District Collector, Madurai and another reportedin 2008 (2) MLJ 1168, held as follows :"The provisions of the Act and Rules do not providefor service of notice in the manner aforesaid. Theauthorities should have made some attempt to find out theowners if they are not bale to identify the personsconcerned. The affixture of a notice in the land inquestion on a placard cannot be termed as a proper serviceof notice on the owners of the land. Nothing is placed onrecord to show that any attempt was made to identify theowners of the land before proceeding to paste the noticein the manner stated above." 16. In Kannian V. The Collector, Salem District, Salem reportedin 2004 (3) MLJ 129, this Court held as follows :"15. The records indicate that the service of noticehaving been refused by Renulingam, it was effected byaffixture on the boundary stone. This is contrary to therules which require the notice to be served on the landowner, if he resides in the lands in question or if heresides elsewhere, by registered post in the last foundaddress. This alone would be service according to lawand not other mode of service.17. This Court in P.Rajendran v. The District Collector, Salemand another (2000) 2 M.L.J. 790, quashed the proceedings because thenotice was affixed on the survey stone and it was held to be not inaccordance with law. 18. It is also pertinent to refer to the Full Bench decision ofthis Court in R.Pari V. Special Tahsildar, Adi Dravidar Welfarereported in 2007 (2) MLJ 706 . The Full Bench of this Court in thatdecision held that where an enquiry held by the Special Tahsildar orany authorised officer, the report of such officer shall be madeavailable to the owner of the property or to the interested personenabling him to make a further representation to the DistrictCollector. It is better to incorporate the relevant portion of theFull Bench decision which reads hereunder : https://hcservices.ecourts.gov.in/hcservices/ "26. .... Therefore, it would be reasonable toconclude that where the enquiry is held by theAuthorised Officer, the report of such officer shall bemade available to enable the person interested to make afurther representation to the District Collector insteadof insisting upon a second formal enquiry.27. .... We do not think that by furnishing a copyof the report/recommendation of the Authorised Officerand giving opportunity of making a further representationwould unduly delay any such proceedings. In our opinion,if the copy of the report/recommendation of theAuthorised Officer is given to the owner at the time whensuch report/recommendation is sent to the DistrictCollector and the owner is called upon to make furtherrepresentation, if any, within a period of two weeks'from the date of receipt of such report, the proceedingswould not get unduly delayed.28. We feel emboldened to take the above view, inview of the expanding horizons of the principles ofnatural justice and extended application of suchprinciples to matters which are even considered to beadministrative in nature. "19. The Full Bench of this Court in that decision furtherheld as follows :"38. So far as Question No.2 is concerned, since itis construed by us that it is necessary for the Collectorto give opportunity to the owner to file furtherrepresentation on the report/recommendation made by theAuthorised Officer, such copy of thereport/recommendation is required to be furnished. Wealso add that in view of the provisions contained in theRight to Information Act, 2005 the owner would beentitled to copy of the report of the Authorised Officer.39. It was submitted on behalf of the StateGovernment that since specific provisions had been madein Section 4 and Rule 3 and particularly in Form I, itwould not be appropriate to incorporate any otherprinciple of natural justice. https://hcservices.ecourts.gov.in/hcservices/ A similar contention had been repelled by theSupreme Court in the decisions reported in Mohinder SinghGill V. Chief Election Commissioner, New Delhi, AIR 1978SC 851 : (1978) 1 SCC 40 and S.L.Kapoor V. Jagmohan andOthers AIR 1981 SC 136 : (1980) 4 SCC 379. In the laterdecision, relying upon the decision reported in MohinderSingh Gill V. Chief Election Commissioner, New Delhi(supra), it was observed :"10. ... We are unable to agree with thesubmission of the leraned Attorney-General. Itis not always a necessary inference that ifopportunity is expressly provided in oneprovision and note so provided in another,opportunity is to be considered as excluded formthat other provision. It may be a weightyconsideration to be taken into account but theweightier consideration is whether theadministrative action entails civil consequences.This was also the view taken in Mohinder SinghGill V. The Chief Election Commissioner, NewDelhi, AIR 1978 SC 851, where it was observed :"We have been told that wherever theParliament has intended a hearing it has said soin the Act and rules and inferentially where ithas not specified it is otiose. There is no suchsequitur. The silence of a statute has noexclusionary effect except where it flows fromnecessary implication.""20. It is pertinent to note that even the principle laid down bythe Full Bench of this Court in R.Pari's case was not followed in theinstant case as the respondents neither served a notice under Section4(2) of the Act by following the procedure contemplated under Rule 3(1) of the Rules nor furnished the report submitted by the SpecialTahsildar, the second respondent herein, affording opportunity to thepetitioner to make further representation to the District Collector,the first respondent herein. The principle laid down in the decisioncited supra makes it crystal clear that serving of the notice underSection 4(2) of the Act as per the procedure contemplated under Rule3(1) of the Rules is not a mere empty formality and the object ofserving such notice is to give opportunity to the land owners or theinterested persons to make their objections. Therefore, theprocedure contemplated under Section 4(2) of the Act and rule 3(1) ofthe Rules should be followed scrupulously by serving notice to theowner of the property or to the interested person and further afterthe submission of the report of the Special Tahsildar or the https://hcservices.ecourts.gov.in/hcservices/ authorised officer, the report should be furnished to the owner ofthe land or the interested person affording opportunity to givefurther representation, otherwise it would result in grave prejudiceto the said person. As it is already pointed out, it cannot bestated that the petitioner may not have any valid objection as thepetitioner already raised his objections at the time of earlieroccasion and thereafter, the acquisition proceedings were dropped.It is needless to state that right to property is a human right andalso a constitutional right and such right cannot be infringed byadopting arbitrary and unreasonable procedure depriving the owner ofthe land to put forward his objections. 21. At this juncture, it is also relevant to refer theobservations of the Full Bench of this Court in R.Pari's case (citedsupra) which reads hereunder :"However, right to land being a Constitutional Rightrecognised under Article 300-A of the Constitution, suchright can be denied only in accordance with law. Lawwhich provides for such acquisition of land obviouslyshould stand the test of lack of arbitrariness asotherwise such law may fly in the face of Article 14 andmay be Article 21. Even though the substantive right ofthe State to acquire land cannot be denied, such lawproviding for acquisition of land should satisfy the testof procedural reasonableness and it is therefore apparentthat the authority acquiring such land (in the presentcase the District Collector) must be satisfied about thenecessity to acquire such land and while arriving at suchsatisfaction, the authority is also required to considerthe objections raised by the land owner. The authoritymust be alive to the requirement of balancing the need ofthe State as well as peculiar disadvantages to be sufferedby the land owner."22. In view of the aforesaid reasons, this Court is constrainedto come to the irresistible conclusion that the impugned proceedingsis liable to be quashed *in so far as the lands of the petitioner inconcerned* and accordingly, the proceedings initiated by the firstrespondent herein, viz., The District Collector, ThiruvallurDistrict, in Lr.No.Rc.J1/20030/2002 dated 24.07.2002 published in theTamilnadu Gazeete No.17 dated 03.08.2002 is hereby quashed * in sofar as the lands of the petitioner is concerned*. https://hcservices.ecourts.gov.in/hcservices/

23. However, it is open to the respondents to initiate freshproceedings, if they desire so, and in the event of satisfying andestablishing that the lands of the petitioner are still required forthe public purpose, for which, the said lands were sought to beacquired earlier.This petition is allowed. No costs.Sd/Asst.RegistrarDated : 19.08.2009* Amended as per order of this Court dated 25.08.2009 and made herein.Sd/-Asst. RegistrarDated : 27.08.2009/true copy/Sub Asst.Registrargg/vdTo1. The CollectorTo be substituted to the Thiruvallur District.order already despatched2. The Special Tahsildar (ADW)on 26.08.2009. Ponneri Division, Ambattur. 1 cc To Mr.V.Vijay Shankar, Advocate, SR.349731 cc To The Government Pleader, SR.32537W.P.No.2557 of 2003jrg(co)pmk.20.8.2009.RVL 28.08.2009