IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.03.2008 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.5362 of 1996 1. Palaniammal 2. Rukmaniammal 3. Valliammal .. Petitioners -vs- 1. The District Collector, Coimbatore District. 2. The Special Tahsildar, (Land Acquisition) Adi Dravidar Welfare, Pollachi, Coimbatore District. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for the issue a writ of Certiorari to call for the records relating to the notification issued by the Collector, Coimbatore District, under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978 and published in Coimbatore District Gazette, Extra-ordinary dated 06.12.1995 with respect to the petitioners' land comprised in S.F.No.147/1 (0.83 Hectares), 74, Pallapalayam Village, Udumalpet Taluk, Coimbatore District in Roc.No.144167/95 (N-6) dated 25.11.1995 in so far as the petitioners lands are concerned and the consequential notice dated 21.03.1996 issued in Na.Ka.1566/94/A in Form III Rule (i) of the said Rules and quash the same. For petitioners : Mr.N.Damodaran For respondents : Mr.L.S.M.Hasan Fizal,GA O R D E R This case arises under the acquisition of land under the Harijan welfare Scheme Act, 1978 in respect of the lands of the petitioners comprised in S.F.No.147/1 (0.83.0 hectares), 74, Pallapalayam Village, Udumalpet Taluk, Coimbatore District. 2. A notice dated 01.09.1995 was issued under Section 4(2) of Act 31 of 78 by the Special Tahsildar, Pallipalayam Village, in Form No.I as per Rule 3(1) of the rules framed under the Act for acquisition, https://hcservices.ecourts.gov.in/hcservices/ for which the first petitioner on behalf of her family has submitted her objections on 27.09.1995. The notice was served on the first petitioner on 20.09.1995 calling upon the petitioner for an enquiry on 22.09.1995. Since as per the requirement under Rule 3(1), 15 days prior notice was not available, another notice was issued on 09.10.1995 fixing the date of hearing as 27.10.1995. According to the respondents, the petitioners refused to receive the said notice and hence notice was served by affixture on 10.10.1995. The land owners have sent their objections on 27.09.1995 and 28.10.1995 respectively. After considering the objections, 4(1) notification was issued in the Coimbatore District gazette on 06.12.1995. The award was passed on 29.03.1996. Even though the points relating to the furnishing of recommendation of authorised officer was raised as one of the legal grounds challenging the acquisition proceedings, Mr.N.Damodaran, learned counsel appearing for the petitioners would submit that he is not pressing the point and he restricts the point only as to the locality publication of 4(1) notification and also the procedure for affixture of notice under Section 4(2) of the Act. 3. In the counter affidavit filed by the second respondent dated 14.01.2008, the second respondent has stated that subsequently the Government has acquired the adjacent lands to an extent of 4.36 acres and from the said lands, 120 plots were laid. Out of 120 plots, 96 plots have been issued to the beneficiaries and out of the remaining 24, 13 eligible beneficiaries have been identified and still there were 11 plot vacant to be distributed to the beneficiaries. It was in those circumstances the second respondent has stated in the counter affidavit that the second respondent has already written to the District Adi Dravidar and Tribal Welfare Officer stating that the land acquisition proceedings in Survey No.147/1, which is the subject matter of the present writ petition, may be dropped in view of the subsequent land acquisition of larger extent of lands belonging to Chellandi Amman koil, under the control of the Hindu Religious and Charitable Endowments. It is also seen that challenging the said acquisition of the said temple lands, fit person of the temple has filed W.P.No.14180 of 2000 and that writ petition came to be dismissed as withdrawn, as it is seen in the affidavit of the second respondent, Special Tahsildar. It was in those circumstances, the learned Government Advocate was directed to find out as to whether the lands are still required for the benefit of Harijans. The District Collector by his affidavit filed in February 2008, while admitting the subsequent acquisition and allotment of 120 plots, however, has stated that the Harijans community people are approaching in large number, and therefore, the lands are required, by meaning that for future allotment to the beneficiaries. The portion of the affidavit filed by the Collector reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "The need for land for providing house sites to poor Adi Dravidars is with increasing population is increasing day by day and the needy persons are approaching the Government with a request for House site pattas mainly. So, the above land acquired in S.F.No.147/1 – 2.05 acres is still required by the Government for the purpose for which it is acquired and there is no question withdrawal of the same". 4. Be that it may, on a reference to the impugned 4(1) notification, it is clear that to the satisfaction of the Government, the acquisition has been effected. 5. "Section 4(1) of Act 31 of 1978 states as follows:- "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". Under Section 4(1) of the Act 31 of 1978, it is to the satisfaction of the Collector, the acquisitions are to be made. 6. The question as to whether the satisfaction of the Government for acquisition under Section 4(1) of Act 31 of 1978 is valid came up before the Division Bench of this Court in the case of The Land Acquisition Officer and Special Tahsildar (LA) vs. R.Manickammal reported in 2002 (2) CTC 1, wherein, the Honourable First Bench has held that what is required under Section 4(1) of the State Act is the satisfaction of the Collector and in that way, it differs from the Central Act, wherein it is the Government, which is the authority to decide about the requirement for public purposes. The Division Bench has categorically held that inasmuch as the Collector has not satisfied himself for the purpose of acquisition, for the benefit of the harijan welfare, the satisfaction of the Government is not legally maintainable and in view of the matter, the acquisition was held invalid. Applying the said dictum laid down by the Division Bench of this Court, on the facts and circumstances of the case, the 4(1) Notification as it is elicited above clearly shows that the same is not in accordance with 4(1) of Act 31 of 1978. 7. As far as the contention of the respondent that the petitioners have refused to receive the notice under section 4(2), as it is stated in the counter affidavit, that the enquiry was fixed on https://hcservices.ecourts.gov.in/hcservices/ 27.10.1995 and notice issued on 09.10.1995 and it was affixed on 10.10.1995. Rule 3(1) which prescribes the procedure for the purpose of serving notice under Section 4(2) of the Act makes it clear that it is the duty of the District Collector to serve notice on the owner and in cases where the owner or any other person interested in the land resides elsewhere, it is the duty of the Collector to send the show cause notice by registered post with acknowledgment due to the last known address of the owner or any other person interested. The procedure is as follows: "Rule 3 Procedure for acquiring land – (i) The District Collector or the office 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 registered post (Acknowledgment Due) to the last known address of the owner or any other person interested". 8. In the present case, admittedly, the District Collector has not taken steps for service as required under Rule 3(1) of the rules framed under Act 31 of 1978. In view of the same, it could be said that the service of notice under Section 4(2) is not in accordance with the Act. In view of the above said reasons, the land acquisition proceedings in this case are liable to be quashed. Accordingly, the writ petition stands allowed and the 4(1) notification dated 25.11.1995 is set aside. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rg https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Collector, Coimbatore District. 2. The Special Tahsildar, (Land Acquisition) Adi Dravidar Welfare, Pollachi, Coimbatore District. + 1 CC To M/s.N.Damodaran, Advocate SR NO.12097 + 1 CC to the Government Pleader SR NO 12394 W.P.No.5362 of 1996 cmp[co] gp/11.3. https://hcservices.ecourts.gov.in/hcservices/