Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07.10.2021 CORAM THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN Review Application (Writ) No.9 of 2001 and W.P.Nos.4972 to 4978 & 8971 of 2016 W.M.P.No.4339 of 2016 Rev.Appl(Writ) No.9 of 2001:- 1. Muniappa (Deceased) 2. K.Rajanna 3. Parvathamma 4. Rathnamma 5. Chandiramma 6. Lalithamma 7. Geetha P-3 to P-7 are brought on record as legal heirs of the deceased first petitioner viz., Muniappa as per order dated 27.11.2015 in W.P.M.P.No.239 of 2015 in Rev.Appl. No.9 of 2001 in W.P.No.6779 of 1998 ... Petitioners Vs. 1. The Special Tahsildar, Adi Dravidar Welfare, Krishnagiri. 2. The Collector of Dharmapuri District, Dharmapuri. ... Respondents Page 1 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 Prayer Rev.Appl(Writ)No.9 of 2001 :- Review application filed under Article 226 of the Constitution of India, to review the order dated 11.10.2000 made in W.P.No.6779 of 1998 and allow the said Writ Petition. For Petitioners in Rev.Appl.(W) : Mr.T.M.Hariharan For Mr.N.Sankara Subramaniam in all W.Ps. : Mr.K.Govi Ganesan For Respondents in Rev.Appl.(W) & all W.Ps.: Mr.Richardson Wilson Government Advocate COMMON ORDER The Review Application in Rev.Appl(Writ)No.9 of 2001 has been filed to review the order dated 11.10.2000 passed by this Court in W.P.No.6779 of 1998. 2. The petitioners filed the above Writ Petition in W.P.No.6779 of 1998, challenging the acquisition proceedings initiated under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Act 31 of 1978) (herein after called as “the Act”) on various grounds. However, the said Writ Petition was dismissed by this Court, by an order Page 2 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 dated 11.10.2000. Aggrieved by the same, the petitioner filed an appeal in W.A.No.2020 of 2000 and the Hon'ble Division Bench of this Court by an order dated 12.12.2000, passed the following orders :- 3. We have heard the learned counsel for the appellants and perused the materials on record. On consideration, we find that the point raised now by the learned counsel is not found in the order of the learned Single Judge, nor any affidavit has been filed to the effect that the learned counsel has specifically raised this point, but it was not considered. So, the learned counsel cannot be permitted to agitate this point at this stage. Under the circumstances, we think that it will be appropriate for the appellants to agitate the issue before the learned Single Judge, if they so desire, by way of review. Accordingly, the appellants are permitted to make a review before the learned Single Judge within two weeks from today....... ” Hence, the petitioners filed this present Review Application. Page 3 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 3. The learned counsel appearing for the petitioners would submit that four items of the properties which were acquired under the Act, are as follows :- Sl. No. Survey No. Extent (in hectare) Owner's name 1. 77/1 0.17.0 Munusami Goudu (died on 02.07.1996) S/o. Nanjappa 2. 78/1B 0.24.0 Munusami Goudu (died on 02.07.1996) S/o. Nanjappa 3. 77/2 0.19.5 1. Chinnappa S/o.Pappaiah 2. Antonisami S/o.Susainathan 3. Marasusai S/oSusainathan 4. Muniappa S/o. Marappa Goudu 5. Anthony Amma W/o.Pappanna 4. 78/2 0.44.5 1.Muniappa S/o.Marappa Goudu 2. Narayanappa S/o.Krishnappa 3. Rajanna S/o.Krishnappa The first respondent had issued Form-I notice dated 15.09.1997, calling upon the deceased petitioner to show cause as to why the land ad measuring Page 4 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 0.28.5 hectare in survey No.77/2A of Chennathur Village, Hosur Taluk should not be acquired for public purpose of providing house sites to Adi Dravidars of Chennathur Village. It was addressed to Munusamy Goudu, S/o. Nanjappa. In respect of the land ad measuring 0.34.0 hectare in survey No.77/1 and 0.49.5 hectare in survey No.78/1, Form I notice was issued on the same person, on 15.09.1997. But on the said date, the said Munusamy Goudu was no more and thus the said notices were issued in the name of the dead person. 3.1. He further submitted that, without issuing notice to the land owners in survey No.78/2, the second respondent besides the above three survey numbers included another survey No.78/2 to an extent of 0.44.5 hectare without calling for any objections. Therefore, without causing service of notice in Form-I, the respondents had chosen to serve Form III notice alone and fixed that the award enquiry to be held on 24.03.1998. Section 7 of the Act contemplates that holding of an enquiry after notice to the persons interested in the land and consideration of their claims and the basis thereon. The first respondent did not held any enquiry as stated in Page 5 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 Form III notice. The petitioners submitted their objections on 24.03.1998 to the first respondent pointing out that they are all small farmers, without sufficient income and they have already donated land ad measuring two acres for public purpose of K.P.R.B. Dam channel and construction of a well for drinking water. 3.2. He also submitted that the first respondent is not prescribed authority under the provisions of the Act and he is not competent to initiate any acquisition proceedings. It is only the Collector, who could exercise his power as a quasi judicial authority. However these grounds were not considered by this Court and dismissed the Writ Petition. Therefore, the Hon'ble Division Bench of this Court gave liberty to the petitioners to file review for considering all the points raised by the petitioners, which are not found in the order passed by the Single Judge of this Court. Therefore the petitioners were permitted to adjudicate the issue before this Court, if they so desire, by way of review. In support of his contention, he relied upon the following reported judgments :- Page 6 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 (i) 2005 (2) LW 559 - Gunasekaran & ors Vs. The State of Tamil Nadu & ors. (ii) 2006 (1) CTC 738 - A.Doulath Nisha Vs. The District Collector & anr, (iii) 2008 (3) MLJ 850 - P.R.Venkat Raju Vs. State of Tamil Nadu & ors. 4. Per contra, the learned Government Advocate appearing for the respondents submitted that the Review itself is not maintainable, since the learned Single Judge of this Court already dealt with all the points raised by the petitioners. According to him the grounds, which were not raised in the Writ Petition, cannot be adjudicate now. In the review petition, the grounds cannot be re-appreciated and only the error apparent on the face of record can be considered under the Review. 4.1. He further submitted that insofar as the issuance of notice on the dead person is concerned, the revenue records revealed that the lands stood registered in the name of the said person, and therefore notice under Form-II was issued on 13.11.1997. That apart, insofar as the land comprised Page 7 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 in S.No.77/2, the pattadars had refused to receive the notice and the same was brought to the knowledge of this Court in the counter filed by the respondents in W.P.No.6779 of 1998 and therefore, this Court rightly dismissed the Writ Petition. After death of the pattadars, their legal heirs failed to mutate the revenue records in their names. Therefore, all the grounds raised by the petitioners were already considered by this Court and dismissed the petition. 4.2. In this regard the learned Government Advocate relied upon the judgment reported in 1997 (8) SCC 715 in the case of Parsion Devi and Ors. v. Sumitri Devi and Ors., in which the Hon'ble Supreme Court of India held that under Order 47 Rule 1 CPC a judgment may be opened to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A Page 8 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 review petition, it must be remembered, has limited purpose and cannot be allowed to be "an appeal in disguise." 4.3. Insofar as the service of notice on the deceased person, the learned Government Advocate relied upon the judgment reported in 2006 (4) CTC 757 in the case of G.S.Gopalakrishnan, vs Government Of Tamil Nadu, in which the Hon'ble Division Bench of this Court held as follows :- “15. Thus, it could be seen from the law laid down by the Apex Court that a distinction was always maintained between judicial/quasi-judicial proceedings and other proceedings. In so far as the scheme of the Land Acquisition Act, 1894 is concerned, it envisages various types of notices at various stages. Section 4(1) notification is required to be gazetted followed by publication in two dailies having circulation in the locality and a local publication. The opportunity provided under Section 5-A is actually for 'persons interested' and not necessarily the land owners. This enquiry is followed by a Section 6 declaration and the Act thus provides innumerable opportunities to "persons interested" in Page 9 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 objecting to the acquisition. The Land Acquisition Act does not limit its reach to "owners of land", but enables any person interested in the land to have a say. Moreover, the liability of the acquiring authorities to serve a notice of enquiry is also restricted only to persons whose names find a place in the revenue records. When the Act does not even make it obligatory for the acquiring authorities to conduct a roving enquiry to find out the actual owners, beyond the names reflected in the revenue records, it cannot be expected of the acquiring authorities to find out if the patta holder is alive or dead. 16. .................... 17. Therefore in our considered opinion, the normal principle that proceedings against a dead person are a nullity, cannot be imported to proceedings under the Land Acquisition Act, 1894, unless it is established that the factum of death was brought to the notice of the acquiring authorities at the appropriate stage. Hence, the order of the learned Judge does not call for any interference and the writ appeal is dismissed without any order as to costs......” Page 10 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 5. Heard Mr.T.M.Hariharan, learned counsel appearing for the petitioners in Rev.Appl, Mr.K.Govi Ganesan, learned counsel appearing for the petitioners in all W.Ps and Mr.Richardson Wilson, learned Government Advocate appearing for the respondents in Rev.Appl and all W.Ps. 6. While granting permission to file Review Application, the Hon'ble Division Bench of this Court recorded that “the point raised now by the learned counsel is not found in the order of the learned Single Judge, nor any affidavit has been filed to the effect that the learned counsel has specifically raised this point, but it was not considered. So, the learned counsel cannot be permitted to agitate this point at this stage.” 7. On perusal of the counter revealed that the land in S.Nos.77/1 & 78/1B to an extent of 0.17.0 & 0.24.0 hectare were stood in the name of Munusami Goudu S/o. Nanjappa under Patta No.414. Accordingly, the notice as contemplated under Section 4(2) Rules 3(i) of the Act in Form I was issued on 15.09.1997. Admittedly, the said person died on 02.07.1996. Insofar as the land comprised in S.No.77/2 to an extent of 0.19.5 hectare Page 11 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 stood in the name of five persons viz., Chinnappa, Anthony Samy, Mariasusai, Muniappa & Anthony amma under Patta No.908. The notice under Section 4(2) Rule 3(i) of the Act in Form I was issued on 15.09.1997 only to Muniappa and not to other land owners. Likewise, the land comprised in S.No.78/2 to an extent of .044.5 hectare stood in the name of three persons viz., Muniappa, Narayanappa and Rajanna in Patta No.792. The notice under Section 4(2) Rule 3(i) of the Act was not issued to any of the land holders. 8. In fact, the counter affidavit reveals that there is no proof for having served the notice in Form I dated 15.09.1997, either in person or otherwise. It was also stated that they refused to receive the Form I notice, in which enquiry schedule was mentioned as 03.10.1997 and none has appeared for the enquiry. Admittedly, the said notice was issued on the dead person insofar as the two items of the properties are concerned. Accordingly, the death of the said Munusamy Goudu on 02.07.1996 was not properly noticed by the acquiring authority. After the death of the said pattadar, the legal heirs did not take any steps to mutate the revenue records Page 12 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 of the said property on the basis of the Will executed by the said Munusamy Goudu, on 30.08.1972. In fact, it was intimated during the award enquiry in response to Form III notice dated 03.03.1998. Even then, the notice came to be issued in the name of the dead person. 9. Further, the petitioners were not served with notice under Section 4(2) of the Act. In this regard, the learned counsel appearing for the petitioners relied upon the judgment reported in 2005 (2) LW 559 in the case of Gunasekaran & ors Vs. The State of Tamil Nadu & ors., in which, the Hon'ble Division Bench of this Court held as follows :- “6. Rule 3 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 states:- "3. Procedure for acquiring land.-- (i) The District Collector or the Officer authorised by him in this behalf shall serve a show cause notice in Form I under sub-section (2) of Section 4 individually on the owner or on all persons interested in the land to be acquired. If the owner or any other person interested in the land Page 13 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 resides elsewhere than where the land is situated, the show cause notice shall be sent by registered post (Acknowledgement Due) to the last known address of the owner or any other person interested. (ii) The District Collector, if, after passing such orders as required by sub-sections (2) and (3) of Section 4 is satisfied that it is necessary to acquire the land, notice in Form II to that effect shall be published in the District Gazette." 7. Section 4(2) read with Rule 3 thus clearly indicates that it is mandatory on the District Collector to serve notice on the land owner or person interested otherwise the entire proceedings get vitiated. 8. It may be mentioned that after the proceedings under section 4(2) are over, the land can be straight away acquired under section 4(1) of the Act. This makes it all the more necessary to hold that it is mandatory on the District Collector to serve a show cause notice on the land owner or person interested, otherwise Article 300A of the Constitution will be violated. Page 14 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 9. Since in this case it is evident from the records that a show cause notice under section 4(2) was not served on the land owner or person interested, we are of the opinion that the entire acquisition proceedings under the Act are vitiated and they are hereby set aside. The writ appeal as well as the writ petition are allowed. No costs.” 10. Following the above Division Bench order, the Hon'ble Single Judge of this Court passed the judgment reported in 2006 (1) CTC 738 in the case of A.Doulath Nisha Vs. The District Collector & anr, which reads as follows :- “7. In view of the above, since no notice has been issued to the petitioner as contemplated under Section 4(2) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Act No.XXXI of 1978), the land acquisition proceedings for acquiring the land become invalid. In this regard, following judgments of this Court affirm the view that notice to the owner is mandatory. Page 15 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 (i) S.P. Vedanayagam v. Secretary, Government of Tamil Nadu, Chennai ; (ii) Smt. Pushpa Bai Baisingh v. District Collector Tirunelveli Kattabomman District ; (iii) Thangamuthu Gounder v. Secretary, Government of Tamil Nadu ; and (iv) T. Lakshman v. The Collector of Dharmapuri 2000 (2) All India Land Acquisition Cases 510.” The Hon'ble Division Bench of this Court also held that it is mandatory on the District Collector or any authorised officer to serve show cause notice on the land owners or any other person who is interested in the said land. 11. In the case on hand, even the counter revealed that no notice was served by the second respondent under Section 4(2) of the Act. As per the Rule 3 (i) of the Act, the District Collector or the officer authorised in this regard shall serve a show cause notice in Form I under Sub Section (2) of Section 4 of the Act, individually on the land owner or the person interested in the land to be acquired. The sub Clause (ii) of the Rule 3 says that the District Collector, if, after passing such orders as required by Sub- Section (2) and (3) of Section 4, is satisfied that it is necessary to acquire Page 16 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 the land, notice in Form II to that effect shall be published in the District Gazette. Admittedly, no notice was served to the land owners of the subject land and it violates Article 300A of the Indian Constitution. 12. That apart, on perusal of the Gazette notification issued under Section 4(1) of the Act revealed that, on the satisfaction of the Tamil Nadu Government, the second respondent issued District Gazette notification on 24.11.1997. It is relevant to extract the provisions under Section 4(1) of the Act, as follows :- “Power to acquire land 4. (1) Where the District Collector is satisfied that for the purpose of any Harijan Welfare Scheme, it is necessary to acquire any land, he may acquire the land by publishing in the District Gazette a notice to the effect that he has decided to acquire the land in pursuance of this section.” Accordingly, the satisfaction of the District Collector viz., the second respondent herein, is necessary to acquire the land for the purpose of any harijan welfare scheme. Whereas, on the satisfaction of the Tamil Nadu Page 17 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 Government the notification came to be issued under Section 4(1) of the Act by the second respondent. It is contrary to the provisions of law. Rule 3(ii) of the Act requires the satisfaction of the District Collector and not to the satisfaction of the government. As stated supra, the government gazette notice issued under Section 4(1) of the Act dated 24.11.1997 reveals that, it was issued on the satisfaction of the Tamil Nadu Government and not to the satisfaction of the District Collector. Therefore, the entire land acquisition proceedings is vitiated and cannot be sustained. 13. In this regard, the learned counsel appearing for the petitioner relied upon the judgment reported in 2008 (3) MLJ 850 in the case of P.R.Venkat Raju Vs. State of Tamil Nadu & ors., in which this Court held as follows :- “7. The question as to whether the satisfaction of the Government for acquisition under Section 4(1) of the Act 31 of 1978 is valid came up before the Division Bench of this Court in the case of Land Acquisition Officer and Sepcial Tahsildar (LA) V. R.Manickammal (2002) 2 CTC 1, wherein, the Page 18 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 Honourable First Bench has distinguished the Central Act to that of the State Act 31 of 1978 in t he sense that in the Central Act the land acquisition is to the satisfaction of the Government while under the State Act viz., Act 31 of 1978, it is the District Collector who alone is expected to be satisfied for the purpose for which the lands are sought to be acquired. It is held in para 4 as follows:- 4........... A decision to acquire a land by the Collector has to be exercised only by the Collector by application of mind independently and the Legislature did not provide any power of delegation. This Legislature did not even reserve any power in the State to have a supervisory role as is provided in the Central Act.....” The above judgment is squarely applicable to the case on hand and the notification under Section 4(1) of the Act was issued to the satisfaction of the Tamil Nadu Government and not to the satisfaction of the second respondent. Further no notice was issued in Form I under Sub Section (2) of Section 4 of the Act, individually on the land owner or the person interested in the land to be acquired. Page 19 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 14. In view of the above discussion, this Court has no hesitation to conclude that the entire land acquisition proceedings are vitiated and the notification dated 24.11.1997 issued under Section 4(1) of the Act, insofar as the petitioners' land ad measuring 0.17.0 hectare in S.No.77/1B, 0.19.5 hectare in S.No.77/2A1, 0.24.0 hectare in S.No.78/1B and 0.44.5 hectare in S.No.78/2 of Chennathur Village, Hosur Taluk, Dharmapuri District, is hereby quashed. The respondents are directed to restore the subject land in favour of the petitioners and also mutate all the revenue records in their favour. 15. Insofar as the Writ Petitions in W.P.Nos. 4972 to 4978 & 8971 of 2016 are concerned, as against the rejection order passed by the Sepcial Tahsildar, Krishnagiri, viz., the second respondent herein, for free house site patta, the beneficiaries have filed these Writ Petitions. On perusal of the impugned order, the second respondent rejected the claim of the petitioners' for issance free house site patta, for the reason that the Review Application in Rev.Appl(W).No.9 of 2001 is pending before this Court. In view of the above order passed in the Review Application, the prayer sought for in these Page 20 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 Writ Petitions in W.P.Nos. 4972 to 4978 & 8971 of 2016 are devoid of merits and liable to be dismissed. 16. In the result, the Review Application in Rev.Appl(W).No.9 of 2001 is allowed and the Writ Petition in W.P.No.6779 of 1998 also stands allowed. Accordingly, the Writ Petitions in W.P.Nos. 4972 to 4978 & 8971 of 2016 are dismissed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. 07.10.2021 Index : Yes / No Internet : Yes / No Speaking order /Non-speaking order rts Page 21 of 22 https://www.mhc.tn.gov.in/judis Rev.Appl(W)No.9 of 2001 & W.P.Nos.4972 to 4978 & 8971 of 2016 G.K.ILANTHIRAIYAN, J. rts To 1.