IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06..08..2009 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice C.T. Selvam Writ Appeal Nos.161, 162 and 369 of 2006 1. The District Collector, Tuticorin. 2. The Special Tahsildar (LA), .. Appellants in W.A. Adi Dravidar Welfare, Kovilpatti. Nos.161 and 162 of 2006 V. Amsam .. Appellant in W.A. No.369 of 2006 versus V. Amsam .. Respondent in W.A. No.161 of 2006 V. Parthiban .. Respondent in W.A. No.162 of 2006 1. The District Collector of Tuticorin District, Tuticorin. 2. The Special Tahsildar (LA), Adi Dravidar Welfare Schemes, .. Respondents in Kovilpatti. W.A. No.369 of 2006 - - - - - Prayer : Writ Appeal Nos. 161 and 162 of 2006 filed under Clause 15 of the Letters Patent against the order passed by a learned single Judge of this Court dated 29.7.2005 in W.P. Nos.5470 and 5471 of 1998. Writ Appeal No.369 of 2006 filed against the order dated 29.7.2005 passed in W.P. No.5470 of 1998. Writ Petitions filed under Article 226 of the constitution of India to issue a writ of Cetiorari calling for the records under Reference No.Na.Ka.AN6/15470/97 dated 28.4.1997 as referred in 5(2) Notice on the file of the first respondent and published in District Gazette of https://hcservices.ecourts.gov.in/hcservices/ Chidambaranar District dated 31.3.1997 and to quash the same. - - - - - Mr. M. Dhandapani, Spl. Government Pleader and Mr. P. Gurunathan, Government Advocate (for Appellants in W.A. Nos.161 and 162 of 2006) Mr. R. Krishnamoorthy, Senior Counsel for Mr. K. Srinivasan (for Appellant in W.A. No.369 of 2006) Mr. J. Antony Jesus (for Respondents in W.A. Nos.161 and 162 of 2006) Mr. M. Dhandapani, Spl. Government Pleader and Mr. P. Gurunathan, Government Advocate (for Respondents in W.A. No.369 of 2006) - - - - - J U D G M E N T Prabha Sridevan, J. All these three writ appeals have been preferred against the order dated 29.7.2005 passed by a learned single Judge of this Court in Writ Petition Nos.5470 and 5471 of 1998, which had come to be filed challenging the initiation of the land acquisition proceedings and the notification issued therefor under Section 4(1) of the Tamil Nadu Land Acquisition for Harijan Welfare Schemes Act, 1978 ('Act' in short). The State has filed Writ Appeal Nos.161 and 162 of 2006 insofar as that order was in favour of the writ petitioners and Writ Petition No.369 of 2006 has been filed by the land owner against that portion of the order whereby the learned single Judge did not extend the benefit of his order to the land standing in the name of Sellathaiammal. 2. In Writ Petition No.5470 of 1998, the petitioner was V. Amsam, who claimed to be the owner of the land in Survey No.479/1; to an extent of 5.30.0 hectares; Survey No.80/1, to an extent of 0.87.5 hectares and Survey No.480/2, to an extent of 0.35.0 hectares in Pandavarmangalam Village. She is the owner of the land in Survey No.478 in the very same village and the adjoining land belongs to her husband, in which an industry called Bharath Chemical Industries has been set up. A residential quarters for the employees of this industry has been constructed in Survey No.479/1. There is a tamarind thope in the land and the other lands have been used for agricultural, horticultural and dairy purposes. A notice under Section 4(2) of the Act read with Rule 3(i) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 ('Rules' in short) dated 15.12.1996 was served on the petitioner on 1.1.1997 in respect of the lands under Survey Nos.479/1, 479/2, 481, 482/1 https://hcservices.ecourts.gov.in/hcservices/ and 482/2. It indicated that the enquiry would be held on 10.1.1997. The petitioner filed an application dated 4.1.1997 requesting sufficient time to file her objections and prayed for time till 1.2.1997. A detailed objection dated 18.1.1997 was sent by the petitioner, which was received by the respondents on 20.1.1997. Since no enquiry was conducted on 10.1.1997, the petitioner was awaiting further communication. An additional objection was filed indicating that the Panchayat Union had granted approval for the purpose of putting up construction and the factory had been registered as a small scale industry. It was further indicated that the land in Survey No.479/2 did not belong to her and that Survey No.481 belonged to her son. On 22.7.1997, she received a communication that the notification under Section 4(1) had been published on 31.3.1997 and the petitioner was asked to appear for an enquiry on 22.8.1997. She once again submitted her objections on 16.8.1997 stating that about 100 acres of poromboke lands were available very near to the existing place where the Adi Dravidars were residing, but no further communication was served. According to her, the notice in Form-I under Rule 3(i) of the Rules requires 15 days' time for filing of objections after service of notice and oral enquiry is required to be conducted only after an opportunity of filing of objections is given. But since the notice was served on the petitioner on 1.1.1997 indicating that 10.1.1997 was the date of enquiry, the condition relating to 15 days' time was not complied with. Therefore, according to the petitioner, the notice was not in accordance with the rules. It is also her grievance that though she had filed by her objections on 18.1.1997, which was received by the authorities on 20.1.1997, there was no communication thereafter. According to her, the Special Tahsildar is supposed to hold the enquiry and submit the report to the District Collector. However, copy of such report was never served on the petitioner. It is also her case that though notice in respect of Survey Nos.479/1 and 479/2 refers to the petitioner, she is not the owner of the land in Survey No.479/1 and that land belonged to her mother-in-law, Sellathaiammal, who died in 1984. 3. In Writ Petition No.5471 of 1998, the contention of the petitioner is that no notice was ever served on the petitioner and therefore, the entire land acquisition proceedings must be quashed. He had also produced the certificate issued by the Post Master that Thiru. V. Parthiban, S/o. Vidyasekara Pandian, had not refused to receive any letter addressed to him from 1.12.1996 to 12.9.1998. In this writ petition, a counter affidavit was filed stating that as per the revenue records, V. Amsam (petitioner in W.P. No.5470 of 1998) was the owner of the lands in Survey Nos.479/1 and 2 and the V. Parthiban (petitioner in W.P. No.5471 of 1998) was the owner in respect of the land in S.No.481 and that Sellathaiammal was the owner of the land in respect of S. Nos.481/1 and 482/2. https://hcservices.ecourts.gov.in/hcservices/ 4. According to the State, the notice in Form-I under Section 4 (2) of the Act was issued to the above persons and they were informed to appear for an enquiry on 10.1.1997. The notice was sent by registered post. While Parthiban refused to receive the notice, Amsam was served with the notice and Sellathaiammal was reported to have died. Amsam had sent an objection petition, which was received by the office on 8.1.1997. Neither the objectors nor any interested person appeared for the eqnuiry on 10.1.1997. The objections filed by the petitioners were received on 20.1.1997 and the objections were rejected. It was indicated that Survey No.479/2 was sold to one Kasinathan on 3.1.1997, but the notice had been served on 1.1.1997. The notice in Form-I was sent to him on 13.1.1997. It was returned without being served and no objection was filed by Kasinathan. One Ganesan had stated that the land in Survey Nos.481/1 and 482/2 belonged to a charity to be maintained by Sellathaiammal, but no documentary evidence was produced at the time of the enquiry. The enquiry showed that the lands were under the enjoyment of Vidyasekara Pandian, the husband of Amsam. His name was also included in the notification issued under Section 4(1) of the Act. Subsequently, the report was submitted by the Special Tahsildar and the District Collector approved of the proposal for acquisition of the lands on 18.3.1997. The gazette publication under Section 4(1) of the Act was effected on 31.3.1997. The award was passed on 10.3.1998. Possession of the lands was taken on 26.3.1998 and pattas had also been distributed. It was on the basis of this that the learned single Judge passed the order which is challenged herein. 5. As far as W.P. No.5470 of 1998 is concerned, it was found by the learned single Judge that the counter affidavit indicated that the objections were overruled because the objections were routine in nature. It was found that under the notice, the 15 days' time for filing the objections was not given and therefore, the notice was defective in nature and though the objections were filed within 15 days from the date of receipt of the notice and the notice itself was defective and inconsistent, the petitioner cannot be found fault with merely because she had not followed the time stipulated under the Act. As far as the land standing in the name of the dead person was concerned, the learned single Judge rejected the challenge on the ground that the petitioner had not indicated how she had inherited the property and therefore, the notification was quashed insofar as the land that was admittedly standing in the name of Amsam. 6. Insofar as W.P. No.5471 of 1998 is concerned, the learned single Judge did not accept the case of the Government that the notice was refused to be received by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr. M. Dhandapani, learned Special Government Pleader appearing on behalf of the State submitted that the first objection to the challenge ought to be rejected at the threshold on the ground that the Supreme Court has repeatedly held that no writ petition should be entertained after the award has been passed and therefore, the writ petitions were not maintainable. Even on merits, he submitted that this was a case where the rules were complied with fully and there was no violation of the rules. It would be apparent from the records that Parthiban had deliberately refused to receive the notice and in the case of Amsam, her objections were considered, though the objections were received beyond the 15 days' time and that would be borne our by records. 8. Mr. R. Krishnamoorthy, learned senior counsel appearing for the land owners submitted that as far as Parthiban was concerned, it was proved that he had not refused to receive any letter and therefore, no notice was served on him. As far as Amsam was concerned, she had sent a letter on 4.1.1997 seeking time, because her husband was away and she needed him for preparing the objections and when she sent the objections later on, they were considered, though it was beyond the time given in the notice under Section 4(2) of the Act. There was no request in her letter for personal hearing and the law also does not require that there should be a personal hearing and it is only after considering her objections that the notification under Section 4(1) of the Act was issued. As regards Sellathaiammal also, it is well settled that there can be no acquisition proceedings against a dead person. Therefore, it was submitted by the learned senior counsel that the State's appeal should be dismissed and the appeals preferred by the land owners should be allowed. 9. The following decisions were relied on. In A.I.R. 1989 Madras 222 (FB) [P.C. Thanikavelu vs. Spl. Dy. Collector, L.A., Madras], where this Court held that though the Revenue has a duty to keep their records up-to-date, there can be cases where the revenue records were not up-to-date and the person who is really interested in the land may not receive the notice of enquiry and in those cases, if it is brought to the notice of the District Collector that the interested person wants to object, the District Collector, as a statutory functionary, cannot decline to afford an opportunity to the person. Though the lands are acquired under the theory of eminent domain, the rule of law must govern and control the executive functions. In 2001 (3) C.T.C. 649 [G. Ramakrishna Naidu vs. District Collector], a learned single Judge of this Court deprecated the practice of casually and informally overruling objections. In 2006 (4) C.T.C. 609 [R. Pari vs. The Special Tahsildar, Adi-Dravidar Welfare, Devakkottai], a Full Bench of this Court answered the reference as to whether it was necessary for the https://hcservices.ecourts.gov.in/hcservices/ District Collector to give a personal hearing to the owner in the context of his objections and the remarks of the Tahsildar; was the owner entitled to a copy of the Special Tahsildar's report ; and should the Collector record his reasons in his order while dealing with the objections of the land owner as follows :- "The owner should be furnished with a copy of the 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." 10. In (2005 ) 7 S.C.C. 627 [Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai], the Supreme Court held that the enquiry under Section 5-A of the Land Acquisition Act, 1894 and hearing of objections must be an effective one and not mere formality, and there must be proper application of mind regarding the relevant factors in rejecting the irrelevant factors and also that the Act is an expropriatory piece of legislation and therefore, the provisions of the statute should be strictly construed as it deprives a person of his land without consent. In (2005) 13 S.C.C. 477 [Competent Authority vs. Barangore Jute Factory], the Supreme Court held that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone and quashed the notification impugned therein on the ground that it was vague and not in accordance with law. In (2006) 3 M.L.J. 389 [Savithiriammal vs. State of Tamil Nadu], a Division Bench of this Court held that when a notification is issued in the name of a dead person, the proceedings cannot be sustained. In 2006 (4) C.T.C. 785 https://hcservices.ecourts.gov.in/hcservices/ [Sharp Tools vs. The State of Tamil Nadu], a Full Bench of our Court held as follows :- "(I) Objections to the acquisition are to be submitted by the persons interested in the lands within 30 days from the date of publication of the Notification as provided by Sub-section (1) of Section 5A of the Act. (II) The 30 days' period is to be reckoned from the last mode of publication as contemplated under Section 4 (1) of the Act. (III) In all cases where objections are filed within 30 days as provided under Section 5A(1); hearing the objectors and Department/Company and further enquiry are mandatory. (IV) The Collector shall have to fix, the date of hearing the objections. He has to give notice in Form-B to the Objector as well as to the Department. The 'Department or Company may file a statement by way of answer to the objections before the date fixed by the Collector. The Department may also depute their Representative to attend the enquiry. (V) If objections are not filed within the time, but the person interested/land owner appears before the Collector pursuant to the Notice in Form-B and makes any objections orally, it is incumbent on the part of the Collector to hear the objector, however, conducting further enquiry is not obligatory but it is only a discretion of the Collector. To put it clear, 'personal hearing' is mandatory and "further enquiry' is discretionary depending upon the submission of objections within 30 days of the last mode of the publication. (VI) Rule 4(b) is mandatory and to be followed essentially. In terms of Rule 4{b), Form-B is only a Notice to the objectors and the Department to appear for the hearing and it is not a notice for filing the objections." 11. In (2005) 3 C.T.C. 691 [S. Harshavardhan vs. State of Tamil Nadu], a Division Bench of this Court, following (2003) 4 S.C.C. 485 [Tej Kaur vs. State of Punjab] and A.I.R. 2000 S.C. 671 [Municipal Council, Ahmednagar vs. Shah Hyder Beig], held that after the award is passed, no writ petition can be filed challenging the acquisition https://hcservices.ecourts.gov.in/hcservices/ notice or against any proceedings initiated thereunder. In 2000 Writ L.R. 477 [Executive Engineer and Administrative officer, Coimbatore Housing Unit vs. Girija Janarthan & Others], a writ petition was filed questioning the acquisition proceedings after the award was passed. It was argued that since the notification under Section 4(1) of the Act did not contain the name of the original owners, the very initiation of acquisition proceedings is vitiated and merely because the award was passed, the right to challenge the proceedings cannot be taken away. The Division Bench referred to (2008) 4 S.C.C. 695 [Swaika Properties (P) Ltd. vs. State of Rajasthan], where again the Supreme Court had held that a writ petition challenging the notification for acquisition of land, if filed after possession is taken, is not maintainable. In that case, the notification under Section 4(1) of the Act was dated 5.3.1991, the award was passed on 23.4.1994 and the writ petition was filed on 30.11.1994. The Division Bench allowed the appeals filed by the State. In Tej Kaur's case (supra), the acquisition was under the Central Act. The grounds raised therein were almost similar to the ones raised here, viz. that there was no enquiry under Section 5-A of the Act and that the appellants were not given personal hearing. In that case, the notification under Section 4(1) of the Act was issued on 7.5.1991. The objections were filed by the land owners on 13.6.1991. The declaration under Section 6 of the Act was made on 18.3.1992. The award was passed on 15.3.1994 and the writ petition was filed on 12.4.1994. The Supreme Court held as follows:- "6. It is true that Section 5-A inquiry is an important stage in the acquisition proceedings and a person who is aware of Section 4(1) notification can raise objection to the effect that his property is not required for acquisition and he is also at liberty to raise the contention that the property is not required for any public purpose. It is also true, that the objector must also be given a reasonable opportunity of being heard and any violation of the procedure prescribed under Section 5- A would seriously prejudice the rights of the owner of the property whose land is sought to be acquired. In the instant case, however, it is pertinent to note that the Collector had, in fact, conducted the Section 5-A inquiry, though there is no material on record to show that the appellants in Civil Appeal No. 66 of 1998 were heard in person. The facts and circumstances of Civil Appeal No. 66 of 1998 clearly show that the objection raised by the appellants was considered and partly allowed by the Collector. About eight acres of land was sought to be acquired from the appellants as per the notification, but out of that, an extent of six acres was excluded from acquisition and only one-and-a-half acres of land was https://hcservices.ecourts.gov.in/hcservices/ actually acquired by the authorities. This would clearly show that the objection filed by the appellants was considered by the Collector. Moreover, Section 6 declaration was made on 18-3-1992 and the award was passed on 15-3-1994. The appellants filed the writ petition only on 12-4-1994. In spite of the Section 6 declaration having been made on 18-3-1992, the appellants allowed the acquisition proceedings to go on until the award was passed. This fact clearly indicates that the appellants did not have a genuine grievance against Section 5-A inquiry held by the Collector. Therefore, we are not inclined to interfere with the judgment on the grounds now advanced by the appellants." Therefore, even on the preliminary ground that the award had come to be be passed before the filing of the writ petitions and since the consistent view of the Supreme Court appears to be that after the award is passed, there can be no challenge to the acquisition proceedings, we will have to allow the appeals filed by the State and dismiss the one filed by the land owner. But we will also examine the facts and go through the records. 12. The notice in Form-I issued under Rule 3(i) of the Rules to Amsam shows that the land owner has to file the objections within 15 days from the date of issuance of the notice. There is a slight variance in the meaning of the notice as found in the Tamil version and as found in the English version. In the Tamil version, the words used are "mwptpg;g[ bfhLf;fg;gl;l njjpapypUe;J ", "the date of issue of notice", whereas in the English version, the words are "after service of this notice". This notice calls upon the land owner to be present at 11 a.m. on 10.1.1997. This was signed on 11.12.1996 and sent by post on 31.12.1996. 13. In the report filed by the Special Tahsildar, it is stated that Form-III notice was sent on 11.12.1996 by registered post; Amsam had received it on 1.1.1997, but Parthiban had refused to receive it, "...th';f kWj;j fhuzj;jpdhy;"; and that Tmt. Sellathaiammal had died and so, the notice could not be served on her. It is stated that on 10.1.1997, the enquiry that was to have held did not take place, since no objections were received by then. On 8.1.1997, the letter was received from Amsam that since her husband had gone out of town, she wanted time till 1.2.1997 for giving her objections. On 20.1.1997, they received her objections, which stated that there are four residential buildings in Survey No.479/1 and that she is getting an annual income of Rs.5,000/- from the tamarind trees and the rest of the land is used as a grazing field for her dairy farm and that there are borewells in two places https://hcservices.ecourts.gov.in/hcservices/ and that she intends to plant herbal trees and that the properties in Survey Nos.477/1, 480/2 and 488, which belonged to her husband, are fruit orchards which need water and that if the lands in Survey No.479/1 are acquired, then her poultry will suffer and that she had acquired these lands, which were thorny bushes earlier, by spending Rs.40,000/- and that she had sold the property in Survey No.479/2 to Irulandi's son Kasinathan and that this land is five kilometers from Pandavarmanagalam Village and that there are many lands near the village and therefore, those lands should be acquired. 14. On the basis of these objections, the officer had again gone to the land in question. It is recorded that the buildings mentioned in Survey No.479/1 did not come within the extent which is sought