IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:26-02-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.20343 of 1998 ..... 1.M.Nagu 2.K.Malairaj 3.D.Velu 4.C.Muthammal 5.M.Sundaram 6.V.Govindammal .. Petitioners vs. 1.The District Collector Sivagangai District, 2.The Special Tahsildar (ADW) Sivagangai. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, as stated therein. For petitioners : Mr.V.Ayyadurai For respondents : Mr.L.S.M.Hasan Fizal Government Advocate .. ORDER This writ petition is filed by the petitioners challenging the order issued by the first respondent under section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Act 31/78) (in short, "the Act") in respect of the following properties said to have belonged to various petitioners, situate at Naanamadai village, Aakavayal, Elayangudi Taluk, Sivagangai District, as published in the District Gazette dated 29.6.1998: Sl.No. Survey No. Extent Owner's Name 1. 25/11A 0.09.5 Hectares 25/14D 0.11.5 " M.Nagu 25/11B 0.09.0 " https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Survey No. Extent Owner's Name 2. 25/14A 0.02.0 " 25/14C 0.11.5 " K.Malairaj 3. 25/12B 0.11.0 " D.Velu 4. 25/12A 0.11.5 " C.Muthammal 5. 25/13 0.04.0 " M.Sundaram 6. 25/14B 0.11.5 " V.Govindammal 2. The petitioners are said to be the owners of various extent of properties in survey numbers stated above and are all small farmers. According to the petitioners, the Government has already acquired lands for providing house sites to Adi Dravidars of Naanamadai village and already 40 houses have been constructed and even in respect of those lands acquired, there are excess vacant lands available. According to the petitioners, some of the beneficiaries have sold away the lands allotted to them and therefore, the present acquisition is not actually for the need of Harijans. The first respondent, District Collector has issued notification under section 4(1) of the Act 31/78 without notice issued under section 4(2) of the said Act. The petitioners came to know about the acquisition proceedings only in November, 1998 as Form No.III was issued on 16.11.1998 and served on them. According to the petitioners, since no notice under section 4(2) was issued to the owners excepting the second petitioner K.Malairaj, whose signature was said to have been obtained by the second respondent recently while he had gone to enquire about the acquisition proceedings after receiving notice in Form No.III. According to the petitioners, no enquiry was conducted as required under law. The petitioners were called upon for enquiry for determination of compensation which was proposed to be held on 3.12.1998, but there was no enquiry on that date and therefore, the petitioners have challenged the acquisition proceedings on various grounds including that as per section 4(1) of the Act 31/78, the District Collector must be satisfied about the requirements, whereas in the said order, it is stated that the Government was satisfied, no notice was issued under section 4(2) of the Act to any of the petitioners, who are the owners excepting the second petitioner Malairaj. According to the petitioners, the notification itself contains the name of a dead person in respect of Survey No.25/12A, viz., Muthiah who died two years ago and no enquiry has been conducted before issuing notification under section 4(1) of the Act and the petitioners are small farmers and the lands are the only source of their livelihood. 3. The respondents have filed a counter affidavit. According to the respondents, lands in Ilayankudi viz., Survey No. Extent Owner's Name 25/11A 0.09.5 Hectares https://hcservices.ecourts.gov.in/hcservices/ Survey No. Extent Owner's Name 25/14D 0.11.5 " -------- 0.21.0 -------- Nagu S/o.Maruthamuthu Udayar 25/11B 0.09.0 " 25/14A 0.02.0 " 25/14C 0.11.5 " -------- 0.22.5 -------- Malairaj S/o.Karuppiah Udayar 25/12B 0.11.0 " D.Velu S/o.Duraikannu 25/12A 0.11.5 " Muthammal W/o.Chidambaram 25/13 0.04.0 " A.Muthiah S/o.Chidambaram Udayar B.Sundaram S/o.Muthiah 25/14B 0.11.5 " Govindammal W/o.Velu. were sought to be acquired for giving house sites to Harijans and all the owners appeared for enquiry and orders were passed on 4.1.1999. According to the respondents, since the land owners refused to receive the compensation of Rs.33,331/-, the same has been deposited in the Sub Treasury, Sivagangai on 28.1.1999. While it is true that in 1991-92 an extent of 0.35.0 hectares of dry land was acquired for 12 families, there are more number of families of Harijans without house sites. So, it was necessary to acquire the lands in question for their benefit. 3(a). According to the respondents, Form-I under Rule 3(1) of the Rules framed under the Act 31/78 was served on the petitioners before publishing notification under section 4(1) of the Act. One Malairaj, the second petitioner has received notice Form No.I on 27.12.1997 and other petitioners have refused to receive notice in Form No.I and enquiry was conducted on 20.1.1998 before publishing notification under section 4(1) of the Act. https://hcservices.ecourts.gov.in/hcservices/ According to the respondents, no procedural violation is made in acquisition. It is the case of the respondents that the District Collector being the representative of the Tamil Nadu Government is empowered to publish notification under section 4(1) of the Act. It is the further case of the respondents that the said Malairaj who had received the notice and others who had refused to receive notice, had not participated in the enquiry. According to the respondents, survey No.25/13 stands in the name of Muthiah and his legal heirs have not taken steps to change the name after his death in patta and revenue records in respect of survey No.25/13 and land tax has been paid in the name of Muthiah and on the death of Muthiah, unless the details of the legal heirs are informed there is no possibility for the authorities to change the name in the revenue records. Therefore, according to the respondents, the procedure contemplated under the Act have been duly followed and there is no illegality. 4. Mr.V.Ayyadurai, learned counsel for the petitioners would attack the acquisition proceedings on three grounds; (i) no notice was served on the owners as required under section 4 (2) of the Act 31/78; (ii) under the notification issued under section 4(1) of the Act, the Collector should be the authority to pass orders as per the decision arrived at by him, whereas the impugned 4(1) notification shows that as per the decision of the Government, the acquisition has been made which is not permissible under section 4(1) of the Act 31/78; and (iii) the District Collector has not applied his mind before ordering notification under section 4(1) of the Act. He would also rely upon various judgements including, (i) Alagu and others vs. District Collector, Madurai and another [2007(2) MLJ 1168]; (ii)M.Duraisamy vs. State of Tamil Nadu rep. By its Secretary to Government, Housing and Urban Development Department, Chennai and another [2007 (3) MLJ 288]; (iii)R.Ramakrishnan vs. State of Tamil Nadu, rep. By its Secretary to Government, Adi Dravidar Welfare Department, Chennai 9 and others [2007 WLR 645]; and (iv) The Land Acquisition Officer and Special Tahsildar (LA) Adi Dravidar Welfare, Coimbatore and another vs. R.Manickammal and others [2002(2) CTC 1] to substantiate his contention in this regard. 5. On the other hand, the learned Government Advocate Mr.L.S.M.Hasan Fizal, appearing for the respondents would submit that in respect of Section 4(2) notice, the same has been received by the second petitioner, Malairaj and other petitioners have https://hcservices.ecourts.gov.in/hcservices/ refused to receive the same and therefore, affixture has been made in respect of other petitioners. As far as the owner of survey No.25/13 is concerned, as per the records, it stands in the name of Muthiah and there is no change of name effected in the records after his death including the legal heirs. The said Malairaj having received the notice has not appeared for the enquiry and ultimately, after enquiry award was passed in December, 1998, viz., 3.12.1998 while the present writ petition came to be filed on 9.12.1998. He has also produced the entire file regarding the acquisition. 6. I have heard the learned counsel for the petitioners and the learned Government Advocate for the respondents and perused the entire records. 7. On the factual matrix, it is clear that the petitioners are all different persons owning various extent of lands and they do not belong to the same family. 8. In respect of the first contention of the learned counsel for the petitioner that no notice has been served on the owners under section4 (2) of the Act, it is relevant to note that under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act31/78), the first step to be taken by the District Collector or any officer authorised by the District Collector on his behalf under section 4(2) of the Act is to call upon the owner or any other person who in the opinion of the District Collector or the officer authorised may be interested in such land to show cause as to why it should not be acquired. 9. It is, thereafter, when the District Collector has himself called upon the owner by way of show-cause notice under section 4(2) of the Act, he shall pass orders as he deems it fit, or in cases where the officer authorised by the District Collector has called upon the owner by show-cause notice under section 4(2), such officer shall send a report with his recommendations to the District Collector and then, the District Collector, considering the report, shall pass orders. 10. After such order is passed by the District Collector, if the District Collector is satisfied that for the purpose of Harijan Welfare Scheme, it is necessary to acquire the land, the acquisition can be done by issuing notification under section 4(1) of the Act by the District Collector directing the same to be published in the District Gazette to the effect that he has decided to acquire the land. In this regard, it is relevant to extract section 4 of the Act as under: " 4.Power to acquire land.-(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. https://hcservices.ecourts.gov.in/hcservices/ (2) Before publishing a notice under sub-section (1), the District Collector or any officer authorised by the District Collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the officer so authorised may be interested in such land, to show cause why it should not be acquired. (3)(a) The District Collector may, where he has himself called upon the owner or other person to show cause under sub-section (2), pass such orders as he may deem fit on the cause to shown; (b) Where any officer authorised by the District Collector has called upon the owner or other person to show cause under sub-section (2), the officers so authorised shall make a report to the District Collector containing his recommendations on the cause so shown for the decision of the District Collector. After considering such report, the District Collector may pass such orders as he may deem fit." 11. Therefore, while the notice under section 4(2) of the Act, which is the first step, is given either by the District Collector or any other officer authorised by him, it is clear that it is the District Collector who has to satisfy himself that it is necessary to acquire the land for a Harijan Welfare and then, the District Collector shall issue notification under section 4(1) of the Act. Under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979, the first notice under section 4(2) of the Act is issued in Form No.I individually to the owners or all persons interested in the land to be acquired. After the District Collector is satisfied about the requirement, notification as required under section 4(1) is published in the District Gazette in Form No.II. The said procedure is contained in Rule 3 which is as follows: " 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 resides elsewhere than where the land is situated, the show cause notice shall be sent by a 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 order 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." https://hcservices.ecourts.gov.in/hcservices/ 12. A perusal of the records shows that Form No.I under section 4(2) of the Act read with Rule 3(1) has been received by Malairaj on 27.12.1997 who is the 2nd petitioner, whose name is found in the revenue records as owner of the land in survey No.25/14A to an extent of 0.02.0 hectares. It is also stated in the file that survey No.25/14 is relating to an extent of 0.11.5 hectares and Form No.I in respect of of the said 0.11.5 hectares in survey No.25/14 was issued to one Govindammal who is stated to be the owner. It is seen that in respect of survey No.25/13 to an extent of 0.04.0 hectares, one Muthiah son of Chidambaram Udayar is shown to be the owner of the said land and notice was sent to his son, by name, Sundaram who is the 5th petitioner herein and the said notice including the notice sent to the abovesaid Govindammal are stated to be affixed on door. It is also stated that notices under Form No.I in respect of Nagu son of Maruthamuthu, the first petitioner herein regarding survey No.25/11A to an extent of 0.09.5 hectares and survey No.25/14D to an extent of 0.11.5 hectares and survey No.25/11B to an extent of 0.09.0 hectares were served by affixture on door. Similarly, in respect of D.Velu the third petitioner herein, who is said to be the owner of survey No.25/12B to an extent of 0.11.0 hectares, the notice was affixed on door. It is seen that the said affixture of notices has been done on the notice board in the Collector's Office. Even though it is stated in the counter affidavit that notice under section 4(2) sent in Form No.I dated 27.12.1997 has been received by the second petitioner Malairaj and other petitioners have refused to receive the said notice, there is nothing on the file to show about the refusal by other petitioners except the concerned forms wherein endorsement has been made by the officials that the same has been affixed as stated above. Even in the endorsement, there is nothing to show that other petitioners have refused to receive the notice issued in Form No.I. 13. As I have enumerated above, Rule 3(1) speaking about the mode of service on the owners under section 4(2) of the Act in Form No.I clearly states that it is the duty of the District Collector or any other officer authorised to serve a show-cause notice individually to all owners or persons interested in land to be acquired and in cases where such persons interested or owners are residing elsewhere than at the place where the land is situate, the notice must be served by registered post with acknowledgement due. Therefore, the procedure contemplated under Rule 3(1) make it clear that the authority shall serve notice on the owners individually. On a careful perusal of the entire records, there is absolutely nothing to show that the second respondent has taken steps to serve on each and everyone of the owners and on their refusal only they proceeded to the notice by affixture. The affixture endorsement does not show anything about the efforts taken by the second respondent in serving the notice on the owners and therefore, certainly it is a violation of the procedure contemplated in the Rules which is in turn a violation of the principles of natural justice. That was the view taken by this Court in R.Ramakrishnan v. State of Tamil Nadu and another (2007 WLR 645). The relevant portion of the judgement is as follows: https://hcservices.ecourts.gov.in/hcservices/ " 17. Hence I am satisfied that the impugned acquisition proceeding is vitiated on the ground that Section 4(2) notice was not served on the petitioner in the manner as contemplated under the Act, i.e., without resorting to personally serving the notice on the petitioner or on any adult male member of his family, straight away the Village Administrative Officer affixed the notice on the door of the petitioner's house and no date is also mentioned by the Village Administrative Officer to satisfy this Court, on which date the affixture was made. The objection raised by the petitioner on 1.12.1997 is available in the file and the third respondent, without conducting enquiry, recommended to reject the same in a cyclo-styled form and the second respondent also failed to record satisfaction to acquire the land by rejecting the objections made by the petitioner. The inconsistent stand with regard to the filing of the objection by the petitioner is made in counter affidavit in para 4, which is extracted above. The petitioner in his objection dated 1.12.1997 has not given consent to remove the palmairah trees, however, the third respondent states in his report that the petitioner agreed to remove the palmairah trees. Hence it is beyond doubt that in a casual and lethargic manner and in violation of the above referred judgements, the land acquisition proceeding is initiated against the petitioner and therefore the same is liable to be set aside and accordingly set aside." 14. In a similar situation, when no efforts were taken to serve on the owner or occupier, but affixture has been done on a placard without making an attempt to identify the owner, it was held to be against Rule 3(1). That was the view taken in Alagu and others vs. District Collector, Madurai and another [2007 (2) MLJ 1168] wherein it is held as under: " The provisions of the Act and Rules do not provide for service of notice in the manner aforesaid. The authorities should have made some attempt to find out the owners if they are not bale to identify the persons concerned. The affixture of a notice in the land in question on a placard cannot be termed as a proper service of notice on the owners of the land. Nothing is placed on record to show that any attempt was made to identify the owners of the land before proceeding to paste the notice in the manner stated above." 15. While dealing with the notice to be served under section 5A of the Land Acquisition Act (Central Act), a Division Bench consisting of P.Sathasivam,J. (as He then was) and N.Paul Vasanthakumar,J., in M.Duraisamy vs. State of Tamil Nadu rep. By its Secretary to Government, Housing and Urban Development https://hcservices.ecourts.gov.in/hcservices/ Department, Chennai and another [2007 (3) MLJ 288] held that when notice was not served on the erstwhile owner whose name is found in the records, the acquisition proceedings cannot be sustained. The relevant portion of the judgement of the Division Bench is as follows: "5. .... In view of the factual position that no notice was issued to the erstwhile owner, whose name finds a place in the Revenue Records, we are of the view that in so far as petitioner is concerned, the acquisition proceedings cannot be sustained. Even though the petitioner did not take effective steps for the change of patta, in view of the fact that the erstwhile owner was not issued notice or intimated about the acquisition proceeding, neither the petitioner, nor his vendor had an occasion to contest the acquisition proceedings. ...... " 16. Therefore, on the point of service of notice in Form No.I as per Rule 3(1),except the second petitioner Malairaj, there is nothing in evidence to show that the second respondent has taken efforts to serve on the individual petitioners who are admitted to be the owners before making affixture as it is stated in the endorsement and therefore, it cannot be stated that in respect of other petitioners, notice has been served under section 4(2) of the Act. 17. In respect of the next submission of the learned counsel for the petitioners about the notification issued under section 4(1) of the Act, as I have enumerated above, section 4(1) of Act 31/78 makes it clear that before notification is issued to acquire the lands, the District Collector must be satisfied that the lands are required for the purpose of Harijan Welfare Scheme. In the present case, the notification issued under section 4(1) of the Act shows that the conclusion to acquire the lands was arrived at by the State Government after satisfying with the requirements, in the following words: " rptf';if khtl;lk;. ,isah';Fo tl;lk;. Mf;ftay; tUtha; fpuhk cl;fil. ehdhkil fpuhkj;jpy; mike;Js;sJk; fPH;f;fhQqk; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;sJkhd epy';fs; ehdhkil fpuhk Mjp jpuhtplh;fSf;F kidaplk; tH';Ftjw;fhf njitg;gLfpwbjd;W jkpH;ehL muRf;F njhd;Wtjhy; mjid tif bra;a[k; bghUl;L. Mjp jpuhtplh; eyj; jpl;l';fSf;fhf. jkpH;ehL epyk; ifafg;gLj;Jjy; rl;lk; 31/1978-d; 4 Mk; gphptpd; (1) Mk; cl;gphptpy; tif bra;ag;gl;ljw;fpz';f. bjhlh;g[ila midtUf;Fk; ,jd;K:yk; mwptpg;g [ mspf;fg;gLfpwJ/ " 18. Even though the said 4(1) notification was signed and issued by the District Collector on 18.6.1998, a reading of the same shows that it was not to the satisfaction of the District Collector as required under section 4(1) of the Act, but to the satisfaction of the Tamil Nadu Government. The reason in the form https://hcservices.ecourts.gov.in/hcservices/ of an excuse given by the respondents to the said statement is that the District Collector is working under the Government and therefore, the satisfaction of the Government should be treated as the satisfaction of the District Collector. According to the learned Government Advocate, it can be taken to be a technical error. In The Land Acquisition Officer and Special Tahsildar (LA), Adi Dravidar Welfare, Coimbatore and another vs. R.Manickammal and others [2002 (2) CTC 1], a similar issue arising under the same Act 31/78 was considered by a Division Bench of this Court consisting of B.Subhashan Reddy, Chief Justice (as he then was) and A.Subbulakshmy,J. That was a case wherein the District Collector, under section 4(1) of the Act, after enquiry, has opined that the value of the site to be acquired is high and prohibitive and therefore not desirable to acquire for the purpose, However, the Secretary to the Government has intervened and issued a mandate to the Collector to go ahead with the acquisition and ultimately, the notification was issued under section 4(1), and a question was raised about the jurisdiction of the Government to intervene on the ground that it was the District Collector to exercise his function and the Government has nothing to do with the same. The Division Bench while distinguishing the Central Act (Land Acquisition Act, 1894) from the State Act (Act 31/78) with reference to section 4(1), has clearly held that under the Central Act, the Government is the authority to issue notification which can delegate its function to any other person including the Collector, whereas in the State Act, the Government's intervention is not at all contemplated since the entire power has been vested with the Collector himself and not with anybody else. The Division Bench has categorically held that the decision to acquire land under the Act 31/78 should be exercised only by the District Collector by applying his mind independently and there is no delegation of the same to anybody else. The relevant portion of the judgement of the Division Bench is as follows: "The provision is absolute in so many words that if the Collector is satisfied that the lands should be acquired, he will acquire the land and