IN THE HIGH COURTR OF JUDICATURE AT MADRAS DATED: 29.09.2010 CORAM: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN W.P.Nos.4483 and 6247 of 2006 and W.P.M.P.No.4819 of 2006 W.P.No.4483 of 2006: T.Krishnan .. Petitioner versus 1. State of Tamilnadu rep. by its Secretary to Government Revenue Department Fort St. George Chennai-600 009. 2. District Collector Perambalur District Perambalur. 3. Special Tahsildar-Adi Dravidar Welfare (Land Acquisition Officer) Perambalur. .. Respondents W.P.No.6247 of 2006: R.Nattan .. Petitioner versus 1. The Collector Perambalur District. 2. The Special Tahsildar (ADW) Perambalur District. .. Respondents W.P.No.4483 of 2006 is filed under Article 226 of the Constitution of India for the issue of a writ of Certiorari calling for the records of the second respondent herein relating to the Notification under Section 4(1) of the Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978) published in the Perambalur District Gazette (Extraordinary) dated 23.11.2005 in so far as it is concerned about the lands of the https://hcservices.ecourts.gov.in/hcservices/ petitioner in S.Nos. 26/7 measuring 0.48.05 hectares, 27/8 measuring 0.41.0 hectares, 27/9 measuring 0.38.0 hectares, 27/10 measuring 0.38.0 bectares and 32/1 measuring 0.75.5 hectares, in all measuring a total extent of 2.41.0 hectares equivalent to 5.98 acres in Keezhaperambalur Village, Kunnam Taluk, Perambalur District and to quash the same. W.P.No.6247 of 2006 is filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus to call for the records in the impugned notification in Na.Ka.I/30616/2004 dated 17.11.2005, to quash the same and to forbear the respondent from dispossessing the petitioner from the land comprised in S.No.26/4A measuring an extent of 0.20.5 hectares and S.No.26/6, measuring an extent of 0.07.0 hectares and S.No.27/3, measuring an extent of 0.47.0 hectares in total an extent of 0.74.5 hectares in Keela Perambalur Village, Kunnam Taluk, Perambalur District. ----- For petitioner in both W.Ps. : Mr.A.S.Vijayaraghavan For respondents in both W.Ps. : Mrs.R.Anitha Additional Government Pleader ----- ORDER The petitioner in W.P.No.6247 of 2006 seeks the issue of a writ of Certiorarified Mandamus to quash the proceedings dated 17.11.2005 and to forbear the respondent from dispossessing the petitioner from the land comprised in S.No.26/4A measuring an extent of 0.20.5 hectares and S.No.26/6, measuring an extent of 0.07.0 hectares and S.No.27/3, measuring an extent of 0.47.0 hectares in total an extent of 0.74.5 hectares in Keela Perambalur Village, Kunnam Taluk, Perambalur District. 2. It is stated that the lands are cultivable lands raising 3 bogums every year. The second respondent issued a notice dated 30.12.2004 indicating that the petitioner's land is required for grant of free house sites to Adi Dravidars and hence, called for objections. Immediately thereupon, the petitioner filed his objections that the lands are cultivable lands and considering the fact that the family consists of seven members; that the property has to be divided among them, the action on the proposed acquisition be dropped. A representation was also sent to the Minister, Adi Dravida Welfare, pointing out that there is already a Harijan Colony on the southern side properties as well as on the eastern side; hence, there was no necessity to create one on the northern side of the village. https://hcservices.ecourts.gov.in/hcservices/ They made their suggestion to the Minister that the lands on the southern and eastern side could be acquired for development purposes. The petitioner pointed out that near the lands proposed for acquisition, there is a tank and they are drawing water therefrom to irrigate the lands. The petitioner pointed out that one Krishnan Pillai offered 7½ acres of land in Survey Nos.78/1 to 7 and Survey No.79 as one entity which would be suitable for grant of patta to the landless Harijans. 3. It is stated that on 13.09.2005, the first respondent herein made an inspection of the entire lands measuring an extent of 14 acres and directed the second respondent to search for alternative sites and drop the proposed action. The said direction was also published in the newspapers that the land acquisition was dropped. The petitioner entertained a bona fide impression that as far as his lands are concerned, there was no acquisition proceedings. However on 26.12.2005, the petitioner received the impugned order passed by the first respondent vide Proceedings in Na.Ka.I 1/30616/2004 dated 17.11.2005, whereby the first respondent had rejected the objections of the petitioner and directed the second respondent to proceed with the land acquisition proceedings and the respondents tried to disturb the petitioner's possession on 10.1.2006. The petitioner has come before this Court challenging the said proceedings, apart from contending that the lands are cultivable lands and there is alternate site available of an extent of 7½ acres of land as already offered by Krishnan Pillai. The petitioner submits that the authority concerned failed to consider the suitability of the land for using the land as house sites and that conversion of the agricultural lands as house sites would not be helpful to anybody. Hence, the impugned order is liable to be quashed. 4. W.P.No.4483 of 2006 is filed by T.Krishnan of the same village for a writ of Certiorari to quash the order of the second respondent relating to the Notification under Section 4(1) of the Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978) published in the Perambalur District Gazette (Extraordinary) dated 23.11.2005 in so far as it is concerned about the lands of the petitioner in S.Nos. 26/7 measuring 0.48.05 hectares, 27/8 measuring 0.41.0 hectares, 27/9 measuring 0.38.0 hectares, 27/10 measuring 0.38.0 bectares and 32/1 measuring 0.75.5 hectares, in all measuring a total extent of 2.41.0 hectares equivalent to 5.98 acres in Keezhaperambalur Village, Kunnam Taluk, Perambalur District. 5. The petitioner was visited with a notice dated 30.12.2004 calling for objections. It is stated that an extent of 5.81.0 hectares was proposed to be acquired for granting free house sites to Adi dravidars. The petitioner therein filed his objections before the Special Tahsildar (Adi Dravidar Welfare), Perambalur on 27.01.2005. Taking similar objections as had been done in W.P.No.6247 of 2006, https://hcservices.ecourts.gov.in/hcservices/ the petitioner pointed out that the enquiry was not done in a manner known to law. The petitioner contends that the alternative lands in Survey Nos.78 and 79 could be acquired for housing purpose as it was not far away from village settlement. However, the second respondent - District Collector, by his proceedings dated 17.11.2005, rejected the objections. Based on the said order, the second respondent caused publication of notification in the Perambalur District Gazette under Section 4(1) of Tamil Nadu Act 31 of 1978 dated 23.11.2005, declaring that the lands covered the Notification are acquired under the said Act. 6. Aggrieved by the same, the petitioner has come before this Court. Apart from the grounds taken in W.P.No.6247 of 2006, the present writ petitioner pointed out that the second respondent Collector made physical verification of the site on 11th or 12th September 2005. However, the order dated 17.11.2005 was said to have been prepared as early as 08.09.2005, without even verifying the feasibility of the lands sought to be acquired. Hence, there is non- application of mind in so far as the second respondent acted on the report of the third respondent. 7. The petitioner contends that the date of the order already prepared on 08.09.2005 was altered on 17.11.2005. In the above circumstances, the petitioner contends that the said exercise is a mala fide one and that the satisfaction of the second respondent in passing the order thus being absent, the order has to be set aside. 8. On notice, the respondents have filed a counter affidavit, defending the action taken by the Collector. It is stated therein that the petitioners are wealthy pattadars. The lands taken on acquisition for the purpose of granting free lands to Adi Dravidars are dry lands and not wet lands. The joint owners appeared for the enquiry and notice was issued under Section 4(2) of Tamil Nadu Act 31 of 1978. 9. To the specific issue raised in W.P.No.4483 of 2006 as to the plea for an alternative site, it was pointed out that the said lands lie by the side of an odai and the soil is found to be unfit for the construction of dwelling houses. The proposal was thus confirmed to result in a notification to be issued. 10. As to the specific allegation that the order dated 17.11.2005 was not made in fact on 17.11.2005, all that the counter states is, proper opportunity was given to the land owners and hence, the order dated 17.11.2005 was served on the petitioner promptly. As to the location of the odai on the eastern and western side of the lands sought to be acquired, it is stated that the mere location of this odai, per se, is not the criteria for rejection of acquisition of these lands. https://hcservices.ecourts.gov.in/hcservices/ 11. It is further stated in the counter affidavit that the Collector himself inspected the property on 10.09.2005 and denied the allegation that the Collector instructed his subordinates to select alternate sites, as not true. Considering the consistent stand taken by the petitioner that there had been alteration as to the date of the order said to have been passed on 17.11.2005, this Court called for the records from the Collector. 12. A perusal of the files, particularly the one carrying pages 1 to 400, show that on a notice given to the land owners, the petitioners herein appeared in the office of the Village Administrative Officer to participate in the enquiry and filed their objections. The objections were considered by the Tahsildar and his report dated 30.3.2005 records his recommendation thereon. Subsequent thereto, the third respondent also inspected the premises and filed his report. The records produced before this Court show that on 08.08.2005, the Special Tahsildar, Adidravidar Welfare, Perambalur, sent his report on inspection of the property and pointed out that patta has been granted to 84 beneficiaries in respect of the land already acquired to an extent of 3.41 cents of land. As regards the subject lands, there are no deep water in the lake nearby. Subsequently, on 06.09.2005, a circular was given on behalf of the Collector as to the inspection to be undertaken by the Collector; that the officials concerned were directed to participate in the inspection with necessary documents. On 10.9.2005, the Collector made his inspection, gave his report as to the advantages of the acquisition of the subject lands, rejected the objections by the land owners and decided to go ahead with the publication of the acquisition proceedings. The said recommendation was sent to the Government Press, Thuvakkudi, Tiruchirappalli, dated 08.11.2005. 13. It must be pointed out herein that the date originally given herein was 08.05.2005; later on the month was struck off to be re-written as 8.9.2005 and the same was once again struck off to be re-written as 8.11.2005. Yet another aspect which cannot be overlooked at this stage is that the pagination of the papers originally marked had undergone repagination. This happens only from the stage when an inspection was undertaken by the Tahsildar concerned with details containing the names of the beneficiaries under the proposed scheme. Whatever be the correctness of such course of action taken, the letter sent to the Branch Manager, Government Press, shows at the bottom that it carries the signature of the officials starting from the date 16.05.2005, 31.05.2005, 03.05.2005 and the last of which happened to be 14.09.2005. There is a handwritten copy of the order which was sought to be published in the Government Gazette. The original date is given as 08.05.2005; subsequently the 5th month becomes September and again to be struck off to make it as November. At the end of the manuscript of the orders, signature carrying out the date 31.05.2005, 03.05.2005 and then 14.09.2005 are found. On one of the pages which contains https://hcservices.ecourts.gov.in/hcservices/ further documents, particularly on the top of the order passed by the Collector ordering acquisition, shows a correction of the date therein as 08.11.2005 as against the original date given as "05.2005". I may also point out herein that in the other file, the letter originally given from the office of the District Adi Dravidar Welfare Board intimating about the Collector inspecting the subject lands on 10.09.2005 was signed on 06.09.2005; yet the round seal on the top of it gives the date as 8th March 2005. The Collector's report is in computer printout whereas, all other correspondence, instructions or representation are hand-written. Whatever be the merits of this report now found in the files, the Collector's report is the only report which does not carry any change in the pagination, whereas, the pagination in the subsequent papers and in the previous pages are originally paginated and struck off as found in 283 and 287. The Collector's report is at Page No.285. In the background of all these materials, I would not say that the contention of the petitioner as to the total absence of satisfaction as to the feasibility of the land in question or in considering the objection of the petitioner is without any material. 14. As rightly pointed out by the petitioner herein, the order passed by the Commissioner carrying out the correction in the document was originally dated 08.05.2005; later on struck off and written as 08.09.2005, which also was struck off and again re-written as 08.11.2005, has much to speak on the manner in which the entire exercise has been undertaken by the Collector, who happens to be the first respondent in W.P.No.6247 of 2005. Learned Additional Government Pleader pointed out that considering the fact that the Collector had his inspection in the month of September, 2005, the mistake which was there in the order was thus rectified to have the corrected date as 08.11.2005 and no exception could be taken to this. She further pointed out that the orders are all prepared by the Lower Division officials and not by the Collector himself personally. The Act does not enjoin the Collector to make a personal enquiry to satisfy himself as to the objections made by the petitioners or as to the feasibility of the land in question. I do not think that the line of reasoning adopted by the respondents could be accepted by this Court for the simple reason that confronted with the objection, when the Collector had thought it fit to do the site inspection and satisfy himself on the objections taken by the petitioner land owners, the proper course that the Collector has to follow in this case is to satisfy himself subjectively and thereupon pass an order. While it is not denied that the details contained in the order are all prepared by the Lower Division Officials, yet, when the Collector has to form an opinion on the merits of the proposed acquisition and an order has to be passed, in fitness of things, the order cannot precede the date of inspection. Admittedly, in this case, the inspection was done on 10.09.2005. That being the case, with no responsibility fixed on who could be held answerable on this and to the correction in the pages contained in the files as well as to the https://hcservices.ecourts.gov.in/hcservices/ dates given in the manuscript of the order passed by the Collector, I do not find there could be any defence from the side of the Government to contend that the order was passed long after the inspection was done by the Collector. As already pointed out, the order in the manuscript gives the date originally as 08.05.2005; subsequently, the month was struck off as 9th month and again struck off and entered as "11". The claim of the respondents appearing at the foot of the manuscript is the signature dated 16.05.2005, 31.05.2005, 03.05.2005, 24.07.2005, 22.8.2005, 14.09.2005 and 08.11.2005. Going by the signatures at the bottom of the order of the Collector, it is evident that the order now impugned is made merely as a ritual and made much much prior to the date of inspection. The corrections in the manuscript as to the date as well as in the pagination, casts doubt on the reliability of these orders. However high the object to grant the lands to Adi Dravidar Welfare may be, yet, I am pained to hold that the proceedings passed by the Collector has to fail on account of the fact that even before the inspection was done to satisfy himself as to the requirement under Section 4(1) of the Act, the order had been passed, thus in violation of the provisions of the Act. In the decision reported in CDJ 2007 MHC 1074 (Govinda Pillai Vs. The Special Tasildhar, Adhi Dravida Welfare), this Court, dealing with a case as regards land acquisition for providing house sites for Adi Dravidar welfare, held that the file did not disclose consideration of the objections of the petitioners by the District Collector. After merely extracting the Report of the Special Tahsildar, it was stated that the objections raised by the land owners had no substance and that there was no considered view by the District Collector with reference to the report or the objections raised by the petitioners. This Court further held that the consideration must be stated by the Collector himself in the order and only on the basis of reasonings, the conclusions could be justified, especially when such orders are subject to judicial review. Since there were hardly any reasons showing application of mind and discharging of functions by the District Collector as stipulated under Section 4(3)(b) of the Act, the writ petitions therein were allowed by this Court granting liberty to the respondents to proceed with the matter afresh. 15. It is no doubt true that in the decision reported in 2006 (4) CTC 609 (Pari, R. Vs. The Special Tahsildar, Adi-Dravidar Welfare, Devakottai), a Full Bench of this Court has held that the failure to give reasons by the Collector would not vitiate the proceedings; that the application of mind to consider all matters and reasons could be discerned from the relevant records relating to acquisition. As far as the present case is concerned, it is no doubt true that the Collector had his inspection to satisfy himself as to the objections taken by the land owners. But thereafter if the order had been passed, which would be in fulfilment of the provisions of the Act, then no exception could be taken by this Court to accept the conduct adopted. However, when the provisions clearly point out https://hcservices.ecourts.gov.in/hcservices/ that for passing of the order taking acquisition proceedings, an inspection is required so as per the provisions of the Act, as had been held in the Full Bench decision reported in 2006 (4) CTC 609 (Pari, R. Vs. The Special Tahsildar, Adi-Dravidar Welfare, Devakottai) and that the order had been made even without observing the provisions of the Act, I have no hesitation in allowing this writ petition, thereby setting aside the acquisition proceedings. Having regard to the observation thus made in the preceding paragraph, this Court quashes the notification for acquisition. But it does not mean that the notification issued under Section 4(1) of the Act proposing to acquire the land and the inspection done by the Collector would also stand quashed. In the circumstances, as there is full compliance of the provisions of the Act upto the stage of inspection by the Revenue Authorities, hearing objections and making recommendation and the Collector making an inspection in the month of September, 2005, it is open to the respondents herein to proceed from the stage from which they ought to have followed the provisions of the Act. 16. With liberty thus reserved, this writ petition stands allowed. No costs. Connected W.P.M.P.No.4819 of 2006 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ksv To 1. The Secretary to Government Revenue Department State of Tamilnadu Fort St. George, Chennai-600 009. 2. The District Collector Perambalur District, Perambalur. 3. The Special Tahsildar-Adi Dravidar Welfare (Land Acquisition Officer), Perambalur. 2 ccS To Mr.A.S.Vijayaraghavan, Advocate, SR.72350 1 cc To The Government Pleader, SR.72134 W.P.Nos.4483 and 6247 of 2006 and W.P.M.P.No.4819 of 2006 NSM(CO) sra 26/10/2010 https://hcservices.ecourts.gov.in/hcservices/