IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.12.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.4139, 5343, 6041, 6042 and 6203 of 2001 1.Rangasamy ... Petitioner in W.P.No.4139 of 2001 2.T.Natarajan ... Petitioner in W.P.No.5343 of 2001 3.S.Chinnadurai ... Petitioner in W.P.No.6041 of 2001 4.Perumal ... Petitioner in W.P.No.6042 of 2001 5.K.Radhakrishnan 6.K.Nagarathnam ... Petitioners in W.P.No.6203 of 2001 vs. 1. The District Collector, Perambalur District. 2. The Special Tahsildar (ADW), Perambalur, Perambalur District. 3.Tmt.Selvi 4.Tmt.Neelavathi 5.Tmt.Chinnaponnu 6.Tmt.Priya 7.Tmt.Mangayarkarasi 8.Tmt.Selvi 9.Tmt.Selvi ... Respondents in all W.Ps. Prayer in W.P.No.4139 of 2001: Writ petitions are filed under Article 226 of the Constitution of India for issuance of Writs of Certiorari, to call for the records pertaining to Section 4(1) notification issued by the first respondent in Perambalur District Gazette No.23, dated 06.11.2000 insofar as it relates to the acquisition of lands comprised in Survey No.387/4B & 4C measuring an extent of 0.36.0 and 0.33.0 hectares respectively in Velvimangalam Village and quash the same. Prayers in W.P.Nos.5343, 6041, 6042 and 6203 of 2001: Writ petitions are filed under Article 226 of the Constitution of India for issuance of Writs of Certiorari, to call for the records pertaining to Section 4(1) notification issued by the first respondent in Perambalur District Gazette No.23, dated 06.11.2000 insofar as it relates to the acquisition of lands comprised in Survey No.387/5A measuring an extent of 0.81.0 hectares (in respect of W.P.No.5343 of 2001), Survey No.387/4B & 4C measuring an extent of 0.36.0 and 0.33.0 hectares respectively (in respect of W.P.No.6041 of 2001), Survey No.387/4A & 4D measuring an extent of 0.36.0 and 0.33.0 hectares respectively (in respect of W.P.No.6042 of 2001) and Survey No.387/5-B measuring an extent of 0.87.0 hectares (in respect of W.P.No.6203 of 2001), in Velvimangalam Village and the consequential award made by the second respondent in Award No.7/2000-2001, dated 05.02.2001 and quash the same. For Petitioners : Mr.Alagirisamy, SC for Mr.M.Mohan For Respondents 1 & 2 : Mr.P.Subramanian, Additional Government Pleader For Respondents 3 to 9 : Mr.M.Vijayanarayanan, SC for Mr.M.V.Muralidaran O R D E R The petitioners have challenged the notification under Section 4(1) of the Land Acquisition Act issued by the District Collector, Perambalur District, first respondent, in Perambalur District Gazettee No.23, dated 06.11.2000, insofar as it relates to the Acquisition of land comprised in Survey No.387/5A, measuring an extent of 0.81.0 Hectares in Velvimangalam Village and the consequential award made by the Special Tahsildar, Perambalur District, second respondent, in Award No.7/2000-01, dated 05.02.2001. 2. In all these cases, the petitioners have contended that they are the owners of the lands. They have raised Manila, Kambu, Paddy, etc., crops. The 2nd respondent has issued notices, under Section 4(2) of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, (hereinafter referred to as "the State Act"), calling for objections, if any, to the acquisition of lands and stated that an enquiry under Section 4(2) of the Act would be conducted on 29.8.2000 at Keezha Perambalur Village Administrative Office. But no such enquiry was conducted on that day in the Village. Therefore, the petitioners went in person to the Office of the second respondent and gave their written objections, stating that as no Harijans in the Village are without house or house site of their own. They also submitted that alternative lands are available in the Village. It is the further case of the petitioners that there was only a formal questioning in the Office of the second respondent and the same would not amount to an enquiry, as contemplated under sub-Sections (2) and (3) of Section 4 of the State Act. According to the petitioners, the so-called enquiry conducted by the second respondent, is farce and it was only an empty formality. Even though, no enquiry under Section 4(2) was conducted, as contemplated under the Act, the 2nd respondent orally informed the Petitioners that their objections would be considered and that the acquisition proceedings would be dropped. But to their shock and surprise, they received notices, under Form III, issued under Rule 5(i), dated 5.1.2000, calling upon them to appear for an award enquiry on 24.1.2001 at the office of Keezha Perambalur Village Administrative Office. From the above notices, they came to know that a notification under Section 4(1) of the Act has been passed on 6.11.2000 by the first respondent. Immediately thereafter, the Petitioners approached the official respondents and requested for copies of Gazette and the enquiry report of the second Respondent. But, the respondents have neither furnished the copy of the enquiry report nor the Gazette Publication. However, the Petitioners attended the enquiry on 24.1.2001, putting forth their grievances made earlier before the 2nd respondent. Subsequently, they came to know that an award in Award No.7/2000-2001, dated 5.2.2001 has been passed. The copy of the award has not been furnished to the Petitioners. In these circumstances, they have challenged the 4(1) notification. 3. Tmt.Selvi and others, respondents 3 to 9, impleaded as party respondents have filed counter affidavits. Pleadings and submissions are common in all the Writ Petitions and therefore, they are disposed of by a common order. 4. Mr.K.Alagirisamy, Learned enior counsel for the petitioners that the respondents have grossly erred in issuing the impugned Gazette Notification, without adverting to the scope and ambit of Section 4 of the State Act. He further submitted that when Section 4(2) of the Act r/w. rule 3(1) contemplates show cause notice to the land owners and all the interested persons, notices have not been served to interested persons and hence, the impugned notification and the consequential proceedings are liable to be set aside. 5. Learned Senior Counsel further submitted that the Special Tahsildar (ADW), Perambalur District, second respondent herein, has failed to conduct an enquiry, as contemplated under Section 4(2) of the Act. According to him, no enquiry was held in the Village, but out of their personal interest, they rushed to the office of the second respondent and submitted their objections. Only in his office, the second respondent informed the petitioners and other objectors, that their objections would be considered and that the acquisition proceedings would be dropped. He therefore, submitted that the only opportunity available to the land owners to participate in the enquiry under Section 4(2) has been denied. According to him, when such an enquiry has not been conducted in the manner provided therefor, the entire acquisition proceedings are vitiated. 6. Learned Senior Counsel further submitted that when the enquiry is conducted by the second respondent and his report/recommendation is forwarded to the District Collector, Perambalur, to pass an order under Sub-Section (3) of Section 4, a copy of the enquiry report ought to have been furnished, so as to enable the land owners or interested persons to know as to whether their genuine objections were properly considered by the second respondent. Placing reliance on a Full Bench decision of this Court in Pari, R. v. The Special Tahsildar, (ADW), Devakottai, reported in 2006 (4) CTC 609, he submitted that the copy of the enquiry report/recommendations of the authorised officer, viz., Special Tahsildar (ADW), Perambalur, ought to have been furnished to the petitioners, and failure to do so, amounts to violation of the principles of natural justice. 7. Learned Senior Counsel further submitted that when the enquiry is conducted by a person other than the deciding authority, furnishing of a report is an important facet of the principle of natural justice, because at that stage, it is not known as to what extent the deciding authority would be influenced or guided by the observations made in the report of the enquiry authority, viz., the second respondent. In this context, he relied on a Division Bench judgment of this Court in Loganathan v. State of Tamil Nadu, rep. By its Secretary to Government, Adi-Dravidar Tribal Welfare, reported in 2007 (1) MLJ 157, and submitted that there is a violation of principles of natural justice and the first respondent has grossly erred in issuing the impugned Gazette Notification under Section 4(1) of the Act, without considering the objections of the Petitioner and furnishing a copy of enquiry report of the second respondent. 8. Learned Senior Counsel further submitted that after receipt of a report, the District Collector, ought to have conducted an independent enquiry on the objections of the land owner with reference to the recommendation of the authorised officer, in that, the Collector ought to have given an opportunity of being heard to the land owners and passed orders under Sub-Section 3(b) of Section 4 of the Act. But in the present case, the District Collector, has given a go by to the aforesaid statutory provision and has proceeded to pass the impugned notification, which is arbitrary, illegal and contrary to the statutory provisions. 9. Taking this Court through the objections raised in the Writ Petitions that all the Harijan families in Velvimangalam Village were already provided with house sites, for which, the Government have acquired large extent of lands, for providing house sites to Harijans, in or about 1986 and inviting the attention of this Court to the residential addresses mentioned in the impleading applications of the private respondents that the private respondents are not the residents of Velvimangalam Village and referring to the notification under Section 4(1) of the Act, wherein, the purpose of acquisition was to provide house sites only to the residents of landless harijans in Velvimangalam Village, L Senior Counsel submitted that the lands in Velvimangmalam Village cannot be acquired for providing house sites to non-residents of the said village. He also submitted that when there are promboke lands available in the village in Survey Nos.370 (12 acres), 393 (96 acres) and 411/2 (74 acres), to which there is the road access and suitable for housing purposes, the acquisition proceedings ought not to have been initiated by the respondents to acquire agricultural lands, which would deprive them of their livelihood. 10. Referring to the absence in the averments made in the counter affidavit, as to when the order under Sub-Section (3)(b) of Section 4, was passed by the Collector and taking this Court through the contents of the letter, dated nil, signed by the District Collector, Perambular, on 01.11.2000, addressed to the Branch Manager, Government Press, Thuvakadi, Tiruchirapalli, Learned Senior Counsel for the petitioners submitted that there is absolutely no material either in the files or in the notification under Section 4(1) of the Act or in the counter affidavit, as to whether the District Collector has applied his mind to the objections/representations of the land owners made against the acquisition proceedings and that no reasons have been recorded in writing by the District Collector. He submitted that the the action of the respondents is contrary to the scope and ambit of Section 4(3)(b) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act. 11. Learned Senior Counsel further submitted that the officer authorised by the District Collector, viz., the Special Tahsildar is said to have submitted his report, as contemplated under Section 4(3)(b) of the Act, the District Collector should consider such report independently and pass order, as he may deem fit and only thereafter, he can notify his decision to acquire the lands under Section 4(1) of the Act. In the instant case, the first respondent has neither considered the report of the authorised Officer nor applied his mind with reference to the objections raised by the land owners and hence, the impugned notification and the consequential award passed by the District Collector are unsustainable in law. 12. Learned Senior Counsel also submitted that when the statute contemplates the authority to furnish reasons, while passing the order, however brief it may be, the same should reflect in the order and that he cannot simply overrule the objections by affixing his signature mechanically. He therefore submitted that there is a total lack of application of mind by the District Collector. He submitted that the District Collector has not at all considered the objections. In support of his contentions, Learned Senior Counsel relied on the decisions of this Court in Pari, R. v. The Special Tahsildar, (ADW), Devakottai, reported in 2006 (4) CTC 609, Loganathan v. State of Tamil Nadu, rep. By its Secretary to Government, Adi-Dravidar Tribal Welfare, reported in 2007 (1) MLJ 157, The District Collector, North Arcot and another v. Manickam reported in 2005 (2) LW 199, G.Ramakrishna Naidu, G. v. District Collector reported in 2001 (3) CTC 649, S.K. Thirugnanasambanadam and others v. The Government of Tamil Nadu and others reported in 2001 (1) MLJ 328, V. Kannian v. The Collector, Salem District, Salem and others reported in 2004 (3) MLJ 129, The Land Acquisition Officer and Special Officer (LA) v. R.Manickammal reported in 2002 (2) CTC 1, O.M.Sindha Madhar v. The Special Tahsildar, Adhi Dravida Welfare Land Acquisition, Tenkasi, Nellai Kattabomman District and others reported in 2004 (3) MLJ 262 and Sri Pillappa v. State of Tamil Nadu reported in 2004 (4) MLJ 247. 13. Inviting the attention of this Court to the difference between the Central Act and the State Act, the stage as to when, the vesting of possession of lands in the Government comes into effect, Learned Senior Counsel submitted that under the Central Act, as per Section 16, possession of the land is taken after an award is passed under Section 11 and only thereupon, the lands vests absolutely in the Government free from all encumbrances. Whereas, under the State Act, as per Section 5, when a notice under sub-Section (1) of Section 4 is published in the District Gazette, the land to which, the said notice relates shall, on and from the date on which the notice is so published, vest absolutely with the Government free from all encumbrances. He therefore submitted that the opportunity to challenge the acquisition proceedings starts only after issuance of 4(1) notification and the time available to challenge is too short. 14. Citing a plethora of decisions, on the maintainability of a Writ Petitions filed after passing of an award and the time provided under the Central Act, for finalisation of the land acquisition proceedings from the stage of 4(1) notification, till the passing of the award, i.e., three years and the limited time between Sections 4(1), 5 and 7 of the State Act, Learned Senior Counsel submitted that the decisions rendered by the Supreme Court as well as this Court, non-suiting the land owners from challenging the notifications, issued under Section 4(1) and Section 6 of the Central Act should not be applied to thwart or curtail the rights of the land owners to challenge the acquisition proceedings. According to him, under the State Act, the cause of action to challenge the acquisition proceedings arises only when they are served with 4(1) notification or they became aware of the same. He submitted that in all these Writ Petitions, the petitioners were neither served with the copy of the enquiry report/recommendations of the second respondent nor the copy of the award to the land owner or the person interested, as mandated in sub-Section (3) of Section 7 of the State Act and therefore, it is not open the respondents to seek for an order, to scuttle their rights guaranteed under Article 300-A of the Constitution of India. 15. Inviting the attention of this Court to the absence of the averments in the counter affidavit, as to when the copy of the award was communicated to the land owners and the callous attitude in replying to this Court, that the copy of the award would be furnished to the land owners, if they tender their offer, Learned Senior Counsel submitted that there is a failure on the part of the respondents to follow sub-Section (3) of Section 7 of the Act. Pointing out the difference between the Central Act, wherein, under Section 12(2) of the Act, it is suffice that the Collector gives notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made in contra distinction to statutory obligation on the part of the prescribed authority to furnish the copy of the award under sub-Section (3) of Section 7, of the State Act, Learned Senior Counsel submitted that there is a total non-application of mind on the part of the respondents to make the land owners even aware of the issuance of 4(1) notification or the passing of the award, so as to enable them to challenge the acquisition proceedings within a reasonable time. 16. Taking this Court through the various decisions rendered under the Central Act, which this Court would deal with, at the appropriate place, Learned Senior Counsel submitted that the approach of the Supreme Court as well as this Court in rejecting the Writ Petitions filed after passing of the award, at the threshold, was purely on the grounds of latches and inordinate delay in filing the writ petitions and in none of the decisions, the Courts have adjudicated the rights of the parties and held that the rights of the land owners are extinguished, the moment the award is passed. 17. Inviting the attention of this Court to the dates and events, commencing from the date of enquiry under sub-Section (3) of Section 4 of the Act, till the date of filing of the Writ Petitions, Learned Senior Counsel further submitted that the whole process was completed within a very short time, without due notice and opportunity, giving no room to the land owners or the aggrieved persons to approach this Court to vindicate their grievances. He further submitted that though the report of the second respondent, dated 12.10.2000, was forwarded to the District Collector, the impugned notification was issued on 06.11.2000, copy of which was not furnished to the writ petitioners. They came to know of the same only when they were called upon to appear for the award enquiry under Section 7 of the Act. The award enquiry was fixed on 24.01.2001 and that an award was passed on 05.02.2001. Copy of an award was also not furnished. All the Writ Petitions were filed between 01.03.2001 and 23.03.2001, hardly within 1= months from the date when they came to know of the publication under Section 4(1) of the Act. He therefore, submitted that all the writ petitions have been filed within a reasonable time and that there is no inordinate delay or latches on the part of the writ petitioners and therefore, the decisions rendered under the Central Act, where, a long period is prescribed between Section 4(1) and Section 11, cannot ipso facto be made applicable to the State Act. He submitted that the Writ Petitions are maintainable as they filed within a reasonable time. 18. Learned Senior Counsel further submitted if the enquiry report had been furnished to the land owners or the persons interested they would have had an opportunity to verify as to whether, their objections were duly considered or not and if it is not so, they would have submitted a further representation to the District Collector before passing of the order, which is contemplated under Sub-Section (3) of Section 4 of the Act. He therefore submitted that furnishing of the copy of the enquiry assumes significance and that alone would satisfy the test of reasonableness and principles of natural justice. 19. Placing reliance on a decision in C.Augustine Jacob v. Union of India reported in 2007 (5) CTC 210, Learned Senior Counsel submitted that if there is a violation of mandatory provisions of law, acquisition proceedings can be challenged, even after the passing of an award and that there is no hard and fast rule to curtail the Constitutional right of the land owners, guaranteed under Article 300-A. 20. Placing reliance on a decision in Collector of Central Excise v. New Tobbaco Company reported in AIR 1998 SC 668, Learned Senior Counsel submitted that a notification would be a proper publication, only if it is published in such a manner, where the persons interested can acquaint themselves with its contents. He further submitted that if the Publication is through a Gazette, then mere printing of it in the Gazette would not be enough, unless the Gazette containing the Notification is made available to the Public, otherwise the Notification cannot be said to have been duly published. In the instant case, when the impugned notification published through the Gazette is not made available to the general public, it cannot be said to have been duly published in accordance with law. 21. Taking this Court through the contents of the impugned notification issued under Section 4(1) of the Act, Learned Senior Counsel submitted that the notification reflects only the subjective satisfaction of the government and not the Collector, as required under Section 4(1) of the State Act and therefore, the whole proceedings are vitiated. In support of his contention, he relied on a catena of decisions of this Court in The Land Acquisition Officer and Special Officer (LA) v. R.Manickammal reported in 2002 (2) CTC 1, Jainabi v. State of Tamil Nadu, Adi-Dravidar Welfare, Chennai and another reported in 2006 (4) MLJ 71, M.Nagu and others v. The District Collector, Sivagangai District and another reported in 2008 (2) CTC 428, R.Rasappa Goundar v. District Collector, Dindigul District and another reported in 2008 (7) MLJ 314, Rajammal and others v. District Collector, Dharmapuri and another reported in 2009 (1) MLJ 230, Secretary to Government, Adi- Dravidar and Tribal Welfare department, Chennai and others v. P.Dhanapakkiam reported in 2009 (1) MLJ 569. For the above said reasons, he prayed that the impugned orders in these Writ Petitions have to be set aside. 22. The Special Tahsildar (ADW), Perambular District, has filed a detailed counter affidavit. Reiterating the averments made in the counter affidavit, Mr.P.Subramanian, Learned Additional Government Pleader appearing for the official respondents made a preliminary objection to the maintainability of the Writ petitions on the ground that once an award is passed under the State Act, the lands shall vest in the Government and therefore, the land owners or persons interested have no right to challenge the acquisition proceedings. He therefore prayed for dismissal of the Writ Petitions in limini. In support of his contention, he relied on a decision of this Court in Harshavardhan, S. v. State of Tamil Nadu reported in 2005 (3) CTC 691. 23. Learned Additional Government Pleader further submitted that as per Section 5 of Act 31 of 1978, once a notification is issued under Sub Section (1) of Section 4 is published in the District Gazette, the land to which the said notice relates shall, on and from the date on which the notice is so published, vest absolutely with the Government free from all encumbrances. He further submitted that once the land vests in the Government, it is for the Government to utilise the land for the same purpose for which it was acquired and in case the land is not utilised for the said purpose, the Government may utilise the land for any other public purpose. According to him, when such power of the Government is recognised by the Supreme Court in a decision in Government of A.P. and another v. Syed Akbar reported in (2005) 1 SCC 558 and therefore, the Writ Petitions deserve to be dismissed. 24. Placing reliance on the Division Bench decision of this Court in R.Shanmugam and others Vs. State of Tamilnadu represented by its Secretary, Housing and Urban Development Department, Chennai and others, reported in 2006(4) CTC 290, wherein it has been held that the words "vesting in Government" must mean that it is not in regard to title only, but also the possession free from all encumbrances, Learned Additional Government Pleader further submitted that the petitioners are entitled to challenge only the quantum of compensation under the State Act and there is no other provision under the State Act empowering the Government to divest the title which was validly vested in the State. 25. On the facts