IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 14.6.2011 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition No.20441 of 2002 1.V.Arunachalam, 2.V.Ayyadurai, 3.K.Ramachandran. ... Petitioners vs. 1.The District Collector, Thanjavur District, Thanjavur. 2.The Special Tahsildar, Adi-dravidar Welfare, Pattukkottai, Thanjavur District. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the respondents comprised in the impugned Notification issued by the first respondent under Section 4(1) of the Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act, 1978 (Act 31 of 1978) in Na.Ka.No.10530/2002/M1, dated 18.2.2002 and published in the Thanjavur District Gazette dated 19.2.2002 and quash the same in so far as it relates to the petitioners' lands in S.F.No.128/3A2, (0.02.0 Hec.), 128/3B2 (0.02.0 Hec.) and 129/8B (0.02.5 Hec.) of Mannangadu Village, Pattukkottai Taluk, Thanjavur District. For Petitioners : Mr.V.Bharathidasan For Respondents : Mrs.V.M.Velumani, Special Government Pleader. ----- O R D E R Writ Petition is filed praying to issue a Writ of Certiorari, calling for the records of the respondents comprised in the impugned Notification issued by the first respondent under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Act 31 of 1978) in Na.Ka.No.10530/2002/M1, dated 18.2.2002 and published in the Thanjavur District Gazette dated 19.2.2002 and quash https://hcservices.ecourts.gov.in/hcservices/ the same insofar as it relates to the petitioners' lands in S.F.No.128/3A2, (0.02.0 Hec.), 128/3B2 (0.02.0 Hec.) and 129/8B (0.02.5 Hec.) of Mannangadu Village, Pattukkottai Taluk, Thanjavur District. 2. At the time of admission, interim stay was granted on 13.6.2002. The interim stay was made absolute by order dated 5.9.2003. 3. The writ petition challenges the Section 4(1) Notification dated 18.2.2002. The important points raised by the learned counsel for the petitioners are:- (i) A show-cause notice in Form-I in terms of Rule 3 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 was issued on the owners of the land, namely, the petitioners and they had given objections to the Tahsildar, who conducted the enquiry and after recording the objections the report of the Tahsildar was forwarded to the District Collector, the competent authority. The report forwarded by the Tahsildar has not been furnished to the petitioners. (ii) The District Collector who is competent authority to pass orders in terms of Section 4(3)(b) of the Tamil Nadu Acquisition of Land For Harijan Welfare Schemes Act, 1978 has failed to consider the objection of the land owners/petitioners and in any event after passing the order, the said proceedings of the Collector rejecting the petitioners' objection has not been communicated to the petitioners. 4. On these two grounds, the impugned acquisition proceedings is challenged and reliance is placed on paragraphs 37, 41 and 43 of the Full Bench decision in R.Pari – vs. - The Special Tahsildar, Adi- Dravidar Welfare, Devakottai reported in 2006(4) CTC 609. Paragraphs 37, 41 and 43 of the above Full Bench decision reads as follows:- "37. The desirability of furnishing a copy of the report to enable the land owner to make a further representation to the District Collector does not mean that in every case, where such report has not been furnished, the ultimate order passed by the District Collector deciding to acquire the land is automatically vitiated. The scope for judicial interference in the matter relating to acquisition of land obviously being very limited, the Court in each case is required to find out whether non-furnishing of the report in any way has prejudiced the person concerned. The object of furnishing the report and affording further opportunity to the land owner to make a further representation is obviously to pinpoint https://hcservices.ecourts.gov.in/hcservices/ any deficiency in the report of the authorised officer. If any particular aspect has been highlighted by the land owner and has not been considered by the authorised officer, the land owner would get a further opportunity to highlight such aspect before the District Collector. In other words, if the authorised officer has considered the relevant aspects indicated by the objector and made his recommendation, merely because a copy of such report is not furnished and no further opportunity is given to the land owner, may not be a ground to quash the land acquisition proceedings. On the other hand, if important aspects, which have been highlighted by the land owner, have been ignored by the authorised officer, it may be reasonable to infer non- furnishing of such report and non-offering of opportunity to make further representation might have vitiated the ultimate decision of the District Collector. These are matters to be considered on the basis of the facts and circumstances in each acquisition and it should not be construed that as a matter of law in every case where copy of the report has not been furnished and opportunity of making further representation had been denied, it is sufficient to quash such acquisition. Ultimately the Court has to judge the prejudice caused to such person by keeping in view the facts and circumstances in particulars case." "41. So far as the first part of the observation regarding the necessity for the District Collector to give second opportunity of hearing is concerned, such aspect has been dealt with while considering question Nos.1 and 2. However, so far as the latter part of the observation laying down the necessity of the District Collector to apply mind to the objection made by the land owners and to indicate the reasons, however brief the reasons may be, must receive our approval without much demur. In view of the power of eminent domain the State obviously cannot be denied such right. However, right to land being a constitutional right recognised under Article 300-A of the Constitution, such right can be denied only in accordance with law. Law which provides for such acquisition of land obviously should stand the https://hcservices.ecourts.gov.in/hcservices/ test of lack of arbitrariness as otherwise such law may fly in the face of Article 14 and may be Article 21. Even though the substantive right of the State to acquire land cannot be denied, such law providing for acquisition of land should satisfy the test of procedural reasonableness and it is therefore, apparent that the authority acquiring such land (in the present case the District Collector) must be satisfied about the necessity to acquire such land and while arriving at such satisfaction, the authority is also required to consider the objections raised by the land owner. The authority must be alive to the requirement of balancing the need of the State as well as peculiar disadvantages to be suffered by the land owner. As observed by the Division Bench even though the authority is not expected to write "reasoned judgment", the materials on record must indicate that the authority has applied its mind. Obviously the magic incantations of the words used in the Act or the Rules would not indicate that mind has been applied and therefore, it is always desirable for the authority to indicate the reasons why such authority is taking a decision to acquire the land and rejecting the objection of the land owner. As a matter of fact, to be fair to the learned Additional Advocate General, he has stated in no uncertain term that the need to give reasons for the decision has to be read into the enactment. In the aforesaid context, the learned Additional Advocate General has also referred to the decision of a learned Single Judge of this Court in V.Kannian v. The Collector, Salem District, Salem and others, 2004(3) MLJ 129. Therefore, in our opinion, the requirement to give reasons, however, brief the reasons may be, must be read into the provisions and this requirement is not merely confined to the cases where the Collector is considering the reports submitted by the authorised officer, but such requirement is also necessary while the Collector himself is dealing with the matter by holding an enquiry." (emphasis supplied) "43. In view of the aforesaid discussion, our conclusions are as follows: The owner should be furnished with a copy of the https://hcservices.ecourts.gov.in/hcservices/ report/recommendation of the authorised officer. Thereafter, he should be given two weeks' time to make further representation, if any, before the District Collector. It is not necessary for the District Collector to give a further personal hearing or make any further enquiry. However, mere non-furnishing of the report would not have the ipso facto effect of vitiating the proceedings and the question of prejudice to the land owner is required to be considered in each case depending upon the facts and circumstances. The District Collector is expected to reflect the reasons, but merely because the communication to the land owner does not contain the reasons, the decision of the Collector is not ipso facto vitiated and it would always open to the concerned authority to prove before the Court, if such action of the Collector is challenged, that there has been application of mind and the reasons are available in the relevant records relating to such acquisition. The necessity to record the reasons is applicable where the Collector himself makes the enquiry and also where the Collector takes an appropriate decision on the basis of the report/recommendation made by the authorised officer." 5. To cut short the issue it will be useful to refer to the counter-affidavit filed by the respondents. Paragraphs 13 and 14 of the counter-affidavit answer the point directly in favour of the petitioners, which reads as follows:- "13. It is submitted that after the publication of notification of Thanjavur District Gazette No.13, dt.19.2.2002 (Page.2) the issue of Form-III notice U/s 5(1) of Act 23(1) of the TN.L.A. Act 31/78 (which complies 4(3)(b) of the Act) read with 4(2) were issued to the land owners 1)V.Ayyathurai, 2)V.Arunachalam and 3) K.Ramachandran, respectively and acknowledged on 28.2.2002. They have also acknowledged the notice sent by R.P.A.D., on 2.3.2002, 5.3.2002 and 1.3.2002 respectively. It is not necessary that the Collector, himself should pass an independent order. The report of the 2nd respondent Special Tahsildar (ADW) Pattukkottai, (Form.I) dated 6.2.2002, fullfilling the conditions of 4(1) of T.N.L.A. Act 31/1978 was scrutinised and after satisfying himself and orders passed taking into account of Rule 3(ii) https://hcservices.ecourts.gov.in/hcservices/ and Sub Sec.(2) & (3) of Sec. 4 by the Collector for publication of 4(2) in the Thanjavur District Gazette (Form.II). There are coconut trees ranging from 1 to 6 in numbers in the proposed site of acquisition, cannot be considered as a Thoppu as stated by the petitioners. In para 8 (e) it is stated that the Adi Dravidars are living in a very limited numbers. It is not true, because there are nearly 50 Adi Dravidars family living together. 14. It is submitted that, it is not correct to say that there are serious omission in the report sent to the Ist respondent (Collector) by the 2nd respondent Special Tahsildar (ADW) Pattukkottai. The Submission of 4(1) report (Form.I) read with 4(3)(b) and Rule 3(1) Sub Sec.2 of Sec.4 to the District Collector, in Special Tahsildar (ADW) Pattukkottai, Rc.1196/1993/A/dT.6.2.2002 will amply prove that no serious omissions. The writ petitioners are not eligible to get a copy of the report. The order of the Collector, Thanjavur (Form.II) read with Rule 3(ii) of Sub Sec.2 & 3 of Sec.4 to publish in the District Gazette (Collector's Rc.10550/2002/W1/dt.18.2.2002) will prove that he himself satisfied with the report of the Special Tahsildar (ADW) Pattukkottai, and passed orders. As such there are no omissions which requires rectification." (emphasis supplied) 6. In para 13 of the counter-affidavit it has been stated that there is no need for District Collector to independently pass an order. Such a statement is contrary to the section 4(3) of the Act. In para 14 of the counter-affidavit it has been stated that the writ petitioners are not eligible to get a copy of the report. The Full Bench of this Court has clearly held in para 43 of the decision as above that the owner should be furnished a copy of the report/recommendation of the authorised officer and he should be given two weeks' time to make further representation. The need to furnish the report of the enquiry officer, viz., the Tahsildar in this case is to enable the land owner to make a further representation to the District Collector, has been emphasized in para 37 of the Full Bench decision. In that decision, it has been emphasized that the Court has to look into the issue whether the non- furnishing of the report has prejudiced the person concerned. https://hcservices.ecourts.gov.in/hcservices/ 7. In the present case, petitioners rely upon their objection stating that they had given an alternative suggestion that the land sought to be acquired for pathway need not be acquired and in the alternative, petitioners are willing to give another piece of land which will have better access to the burial ground and it can avoid cutting down several trees as the proposed acquisition is in the middle of the agricultural/horticulture land. The objection raised by the petitioners have been referred to, but has not been dealt with by the Collector. The Collector's order does not state as to whether the said objection is valid or invalid or whether the alternative suggested by the petitioners is acceptable or not. 8. On perusal of the file produced by the respondents all that is found is that the entire order proceeds by recording statement of Tahsildar along with the objection of the objectors. In the proceedings, the Collector merely states that the land required for acquisition. There is no iota of material to show the satisfaction of the Collector in coming to the conclusion for acquiring the property in question overlooking the objection raised. 9. Since the report of the Tahsildar has not been furnished as required under law and the order of the Collector has not been communicated to the owners/petitioners, the entire proceedings under challenge stand vitiated. Accordingly, the Notification under Section 4(1) of the Act is quashed insofar as it relates to the petitioners land. 10. In view of the above, the Writ Petition is allowed as prayed for. In the facts and circumstances of the case, there will be no order as to costs. ts Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The District Collector, Thanjavur District, Thanjavur. https://hcservices.ecourts.gov.in/hcservices/ 2.The Special Tahsildar, Adi-dravidar Welfare, Pattukkottai, Thanjavur District. + 1 cc to Mr. V. Bharathidasan, Advocate SR No.34207 NM(CO) SR/27.6.2011 Order in W.P.No.20441 of 2002 https://hcservices.ecourts.gov.in/hcservices/