IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.08.2011 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.Nos.23636 and 27726 of 2003 C.Munusamy ... Petitioner in both W.Ps. Vs. 1.The District Collector Dharmapuri Dharmapuri District 2.The Special Tahsildar (ADW)/ Land Acquisition Officer Collectorate, Dharmapuri ... Respondents in both W.Ps. Prayer in W.P.No.23636 of 2003:- Petition filed under Article 226 of the Constitution of India praying for issue a Writ of Certiorari, to call for the entire records of Dharmapuri District Gazette No.41, dated 15.06.1998 insofar it relates to petitioner's land in S.Nos.10- 1A, 10-2A and 11/1 situated in Papinaickenhalli Village, Dharmapuri Taluk & District described in Na.Ka.No.102994/97 Ko.1 on the file of first respondent and to quash the same. Prayer in W.P.No.27726 of 2003:- Petition filed under Article 226 of the Constitution of India praying for issue a Writ of Certiorari, to call for the entire records insofar as it relates to the impugned order passed by second respondent in his proceedings No.Na.Ka.2413/97 A and award No.6/ADW/98-99, dated 09.07.1998 and to quash the same. For petitioner : Mr.C.Prakasam (in both W.Ps.) For Respondents : Mr.S.V.Durai Solaimalai (in both W.Ps.) Additional Government Pleader COMMON ORDER The petitioner has filed two Writ Petitions, one challenging the notification under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (hereinafter referred to as "the Act") dated 01.10.1997, issued by the Special Tahsildar (ADW), Land Acquisition Officer, Dharmapuri, on the ground that the https://hcservices.ecourts.gov.in/hcservices/ respondents failed to consider the procedures contemplated under Section 4(2) of the Act, for the reason that even before issuing Section 4(1) notification, they should comply with the procedures contemplated under Section 4(2) of the Act, since the procedures contemplated under Section 4(2) of the Act, are mandatory in nature, and the mandatory notice should have been issued either to the land owner or to the interested persons. But, in the present case, they have not complied with the procedures contemplated under Section 4(2) of the Act by issuing notice to the land owner under Section 4(2) of the Act. The second ground upon which the present Writ Petition came to be filed is also complaining the violation of Section 3(b) of the Act. The other Writ Petition is filed challenging the Award dated 9.7.1998 under the Act. 2. According to the learned counsel appearing for the petitioner, even if the actions of the respondents are seen, more remarks and objections were received as prescribed under Rule 3(b) of the Rules framed under the Act. Therefore, the petitioner has challenged the Section 4(1) notification, on the ground that the entire proceedings shall be declared as null and void. 3. In respect of the second Writ Petition in W.P.No.27726 of 2003, challenging the award, the petitioner has complained the failure to consider the yet another mandatory provisions for issuance of notice before passing the award by the respondents. In fact, the grievance of the petitioner in the second Writ Petition is that the respondents have not issued any notice for award enquiry. He has further submitted that even in the award itself, the respondents have admitted that no notice was served on the petitioner. Since the petitioner was residing at Bangalore, that itself goes to show that the respondents have not taken any steps to issue any notice before passing the award. In support of his submissions, learned counsel for the petitioner has also drawn the attention of this Court to Rule 3, which contemplates the procedures for acquiring the land. As per Rule 3, the District Collector or the Officer authorised by him in this behalf shall serve a show cause notice under 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 resides elsewhere than where the land is situated, the show cause notice shall be sent by Registered Post (Acknowledgment Due) to the last known address of the owner or any other person interested. But, in the present case, he argued that the respondents have not followed any of the conditions mentioned under Rule 3. He further contended that the award passed by the respondents had been admittedly passed even without complying with the mandatory provisions contemplated under Rules 3 and 5. Hence the entire award proceedings are liable to be quashed. 4. In reply, Mr.S.V.Durai Solaimalai, learned Additional Government Pleader appearing for the respondents, by relying on his https://hcservices.ecourts.gov.in/hcservices/ counter affidavit filed in both Writ Petitions, submits that insofar as challenging the award is concerned, the same is not maintainable for the reason that the petitioner wrongly and prematurely rushed to this Court by challenging the draft award dated 09.09.1998. The draft award was subsequently approved on 14.09.1998, which was again finally issued on 17.09.1998. Therefore, the petitioner has not chosen to challenge the final award dated 17.09.1998. Therefore, he contended that the grievance of the petitioner that he was aggrieved by the draft award, cannot be taken into account, as he failed to challenge the final award dated 17.09.1998. 5. In reply, the learned counsel appearing for the petitioner submits that even in the draft award dated 09.09.1998, there is no specific word mentioning that this is a draft award or final award. Therefore, the petitioner has challenged the draft award. 6. The contentions made by the learned counsel appearing for the petitioner may not hold good for two reasons. Since this Court before passing its order, issued a direction calling upon the Officers to produce the entire records, on receipt of the official file, this Court had seen that the petitioner has challenged only the draft award in the present Writ Petition. Several proceedings subsequently, taken on 14.09.1998, shows that the respondents have sat over the matter even after preferring a draft award on 09.09.1998 and after finalising the draft award dated 09.09.1998, the draft award was finally approved on 14.09.1998, thereupon, the final award was passed on 17.09.1998. Therefore, the Writ Petition challenging the draft award has to fail. 7. It was also argued by the learned counsel appearing for the petitioner that even the final award was not sent to him, does not appear to be correct. The award copy was sent by Registered Post with Acknowledgment Due to the petitioner's last known address on 15.10.1999, which returned to the sender's address viz., Special Tahsildar (ADW), Land Acquisition Officer, Dharmapuri, dated 26.10.1999 with postal remark that on enquiry, the Addressee has gone to Bangalore. Therefore, when the petitioner was not living in his own place and when he has admitted even in the affidavit filed in support of the Writ Petitions that he has left for Bangalore, he cannot complain that the respondents have not complied with the mandatory provisions by sending Registered Post to serve the copy of the final award, as the Registered Post containing the copy of final award was returned to the second respondent with postal remark that he Addressee had left for Bangalore, therefore, the respondents cannot be found fault with for not complying with the procedures contemplated under Rules 3 and 5. In that view of the matter, the Writ Petition challenging the draft award is liable to be dismissed, and accordingly, the Writ Petition in W.P.No.27726 of 2003 stands dismissed. https://hcservices.ecourts.gov.in/hcservices/ 8. In respect of the second Writ Petition challenging Section 4 (1) notification, when the respondents came to acquire the suitable land with the proposal of the District Adi Dravidar Welfare, the Land Acquisition Officer and the Special Tahsildar (ADW), Dharmapuri, inspected the land in question belonging to the petitioner on 13.10.1997. After inspection, he has submitted a report which clearly indicated that there were no trees, Wells, buildings or other structures in the proposed lands. 9. In view of the fact that the lands were lying waste, it was proposed for acquisition in order to provide free house-sites to the poor Arunthathiar people, who are residing in that Village, since the Arunthathiar community people had represented to the Special Tahsildar (ADW), Dharmapuri, that nearly 90 families of Arunthathiars have no dwelling houses of their own and requested to make arrangement to provide free house-sites to them. Therefore, the Collector made a proposal and subsequently, the Government on proper approval, decided to acquire the lands in question. The Special Tahsildar (ADW), Land Acquisition Officer, Dharmapuri, on making personal inspection in the area, has finally found out that the lands belonging to the petitioner are most suitable for acquisition for the purpose of providing free house-sites for poor Arunthathiar people. In the report submitted by the Special Tahsildar (ADW), Land Acquisition Officer, Dhramapuri, it is stated that there is no poramboke land available in the Village. Therefore, he visited to acquire the suitable patta lands in S.Nos.10/1A, 10/2A and 11/1A, which are totally measuring 1.26.0 hectares of lands for the construction of free house-sites to the poor Arunthathiar families. Therefore, the question of making an untenable argument by the learned counsel appearing for the petitioner that the petitioner was cultivating the land by growing coconut trees and guava trees, cannot be reasonably accepted, inasmuch as when he himself has built up a case that he was away from Tamil Nadu, and has left for Bangalore, to show that he was not aware of the issuance of Section 4(1) notification and the respondents have failed to comply with the mandatory provisions under Section 4(2) of the Act and Rule 3(b) framed under the Act. Secondly, with regard to the question of compliance of the Rules for service of notice under Section 4(2) of the Act, it is useful to recollect the ratio laid down by a Full Bench of this Court in the case of P.C.Thanikavelu vs. The Special Deputy Collector for Land Acquisition, Madras, 1989 W.L.R. 89(F.B.), wherein it was held that individual notice is mandatory only to those persons whose names are found in the records or who are found by the Collector as persons interested on information received through reliable source. That was a matter that arose out of the Central Act, but however, the principle is the same. The Full Bench observed that, "It cannot be gainsaid that when the lands of an individual are acquired, albeit he may be paid https://hcservices.ecourts.gov.in/hcservices/ compensation, his civil rights may be affected. It is thereof elementary that, to be consistent with the principles of natural justice, such a person should be put on notice before his lands are acquired and his objection heard and considered. .... But, at the same time, it is made clear that individual notice is mandatory only to those persons whose names are found in the revenue records or who are found by the Collector as persons interested on information received through reliable source." 10. From the above situation, if I look at the petitioner's case on hand, the Village Administrative Officer of the Village had personally gone to the said Village to serve a notice under Section 4 (2) of Act on 01.10.1997. Since the petitioner refused to receive the notice, the Village Administrative Officer has obtained endorsement from two witnesses, indicating the fact that the petitioner refused to receive the notice sought to be served, which shows that the respondents have properly adhered to the procedure contemplated under Rule 3 framed under the Act, which provides that the District Collector or the Officer authorized 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 resides elsewhere than where the land is situated, the show cause notice shall be sent by Registered Post (Acknowledgment Due) to the last known address of the owner or any other person interested. 11. From the above, it is clear that as per Rule 3 framed under the Act, the District Collector or the Officer authorized 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. Further, it also contemplates that a show cause notice should be served individually on the owner. Therefore, when the Village Administrative Officer of the Village approached the petitioner to serve a show cause notice under sub-section (2) of Section 4 individually on the owner on 01.10.1997, the petitioner refused to receive the same, therefore, the Village Administrative Officer has obtained endorsement from two witnesses in the same Village to prove that the petitioner had refused to receive the notice sought to be served under sub-section (2) of Section 4. 12. Secondly, at the stage of passing the final award, a copy of the final award was also sent by Registered Post, but the same was returned with postal remark showing that "the petitioner left for Bangalore". Therefore, the question of not complying with the second condition by not sending the Registered Post does not arise in this case. https://hcservices.ecourts.gov.in/hcservices/ 13. Lastly, the present Writ Petition is also liable to be dismissed on the point of delay in challenging the 4(1) notification, which was issued on 01.10.1997, whereas the petitioner filed a Writ Petition only in the year 2003 with an inordinate delay of five years, for which, there was no sufficient cause shown for a delay of five years in challenging the 4(1) notification. 14. Further, a Judgment of the learned Single Judge in the case of V.Kannian and Another Vs. The Collector, Salem District, Salem and Others ((2004) 3 M.L.J. 129) relied on by the learned counsel appearing for the petitioner for a point that the procedure to serve a notice under Section 4(2) of the Act was not properly followed, does not support his case. Paragraph 15 of the Judgment shows that the Rule requires the notice to be served on the land owner, if he resides in the lands in question. Therefore, when this Court gone through the files produced before this Court, it shows that the Village Administrative Officer of the Village had individually visited the said Village to serve a notice on the land owner on 01.10.1997, but, on his refusal, the Village Administrative Officer had obtained endorsement from two witnesses living in the same Village to prove that the land owner refused to receive the notice under Section 4(2) of the Act. Therefore, the notice under Section 4 (2) of the Act, which is required to be served individually, can be treated as a service according to the law. 15. In the result, for the foregoing reasons, the W.P.No.23636 of 2003 is liable to be dismissed and accordingly, the same is dismissed. 16. In view of the above, both Writ Petitions are dismissed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar smn To 1.The District Collector Dharmapuri Dharmapuri District https://hcservices.ecourts.gov.in/hcservices/ 2.The Special Tahsildar (ADW)/ Land Acquisition Officer Collectorate, Dharmapuri. 2 cc to Mr. C.Prakasam, Advocate, Sr.No.47930 1 cc To Government Pleader, SR.No.48019 W.P.Nos.23636 and 27726 of 2003 vsv(co) pmk.9.8.2011 https://hcservices.ecourts.gov.in/hcservices/