IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.03.2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P. No.4953 of 1998 1. V.Kanna 2. V.Krishnan .. Petitioners vs. 1. The District Collector, Tiruvannamalai Dist. 2. The Special Tahsildar, Adi Dravidar Welfare Dept., Polur Taluk, Tiruvannamalai Dist. .. Respondents Prayer : Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari praying for the relief stated therein. For petitioners : Mr.S.Navaneethakrishnan For respondents : Mrs.Geetha, AGP. O R D E R Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents. 2. The writ petition is filed challenging the notification issued by the District Collector under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978 (Tamil Nadu Act 31 of 1978) (hereinafter referred to as 'the Act') dated 15.12.1997 in respect of the lands comprised in S.Nos.102/2, 102/3, 102/5A and 102/6 situate in Kilvanniyanur village, Polur Taluk, Tiruvannamalai District. 3. Even though the petitioners have also raised the points relating to the non-following of the procedure under Section 4(2) of the Act, the learned counsel for the petitioners restrict his arguments relating to Section 4(1) notification. It is also relevant to point out that before the issuance of notice under Section 4(2) by the second respondent, there was a family arrangement between the brothers and that has culminated into a registered document only after the 4(2) enquiry was concluded. In such circumstances, notice to each of the parties as per the partition deed is not necessary. However, the point that has to be https://hcservices.ecourts.gov.in/hcservices/ considered in this case is as to whether the 4(1) notification issued by the first respondent District Collector is in accordance with the provisions of the Act 31/1978. 4. Section 4(1) of the Act specifically states that if the District Collector is satisfied that the lands are required for the Harijan Welfare Scheme, and if it is necessary to acquire such lands, he may publish notification under Section 4(1) of the Act. While deciding that, the District Collector himself can conduct enquiry, or his powers under Section 4(2) can be delegated to the Special Tahsildar, in which event, under Section 4(3), the Special Tahsildar, who conducts enquiry, has to submit his report to the District Collector and the District Collector by exercising his power under Section 4(1) has to apply his mind and satisfy himself that the lands sought to be acquired are required for the purpose of Harijan Welfare Scheme. 5. In the present case, the impugned 4(1) notification states in clear terms that the Government of Tamil Nadu is satisfied that the land in question is required for the purpose of Harijan Welfare Scheme, even though the notification has been signed by the District Collector. The relevant portion of the notification is extracted hereunder:- @fPH;f;fhQqk; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;sJk; jpUtz;zhkiy khtl;lk;. moapw;fz;l tl;l';fs;. moapw;fz;l fpuhk';fspy; mike;Js;sJkhd ep;;y';fs; Mjp jpuhtph;; eyj; jpl;l';fSf;fhf mjhtJ. moapw;fz;l bray; nehf;f';fSf;fhf njitg; gLfpwbjd;W jkpH;ehL muRf;Fj; njhd;Wtjhy; mJ Fwpj;J ,J rk;ge;jg;gl;l midtUf;Fk; jkpH;ehL 1978 Mk; Mz;L Mjp jpuhtplh;; ; eyj; jpl;l';fSf;fhf epy';fisf; ifafg;gLj;Jk; rl;lj;jpd; (jkpH;ehL rl;lk; 31?1978). 4 MtJ gphpitr; nrh;e;j (1) cl;gphptpd; tpjpj;JiwfSf;fpz';f ,jd; Kyk; mwptpg;g[ bfhLf;fg;gLfpwJ/@ The impugned notification is issued as per Form II stated to have been prescribed under Rule 3(ii) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979. Rule 3 states 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 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 https://hcservices.ecourts.gov.in/hcservices/ Gazette." The above Rule makes it clear in sub clause (ii) that after the District Collector passing the order required under Section 4(2) and 4(3) of the Act, he has to issue Form II when he is satisfied that the land is necessary for the purpose of Harijan Welfare Scheme. Therefore, even as per Rule 3 which is quoted in Form II prescribed under the Act, it is the satisfaction of the District Collector which is the required condition. However, Form II prescribed under the Act is extracted hereunder: FORM II NOTICE UNDER SECTION 4(1) OF THE TAMIL NADU ACQUISITION OF LAND FOR HARIJAN WELFARE SCHEMES ACT, 1978. WHEREAS it appears to the Government of Tamil Nadu that the land/lands specified in the schedule below and situated in the .......... village, ............. taluk, ......... district, is/are needed for the purpose of Harijan Welfare Scheme to writ, ................ notice t that effect is hereby given to all to whom it may concerned in accordance with the provisions of sub-section (1) of section 4 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978). ........ ........ It states that when 'it appears that the Government of Tamil Nadu', the 4(1) notification can be issued signed by the District Collector. The defence of the respondents is that the Act itself prescribes Form II and it is as per Form II, the 4(1) notification has been issued. 6. A similar issued was raised in respect of the Land Acquisition Act, 1894 (Central Act). Rule 4(b) of the Land Acquisition (Tamil Nadu) Rules framed under the said Act reads as under: Rule 4(b)-- if any objections are received from a person interested in the land and within the time prescribed in sub- section (1) of Section 5-A, the Collector shall fix a date for hearing the objections and give notice thereof in Form 'b' to the objector as well as to the department or company requiring the land. Copies of the objections shall also be forwarded to such department or company. The department or company may filed on or before the date fixed by the Collector, a statement by way of answer to the objections and may also depute a representative to attend the enquiry. It contemplates that pursuant to the notice issued under Section 4(1) of the Act, if any objection is received within thirty days, the Collector https://hcservices.ecourts.gov.in/hcservices/ shall fix the date for hearing the objections and give notice thereof in Form 'B' to the objector. Form 'B' of the Central Act stated to have been issued under Rule 4(b) incorporates a word 'giving 15 days time to the objector to give a statement in writing'. When the issue as to whether the Form prescribed under the Rules can override the contents of Rule 4(b), the Full Bench of this Court, in Sharp Tools v. The State of Tamil Nadu reported in 2006 (4) CTC 785 consisting P.Sathasivam, J. (as he then was), M.E.N.Patrudu, J. and S.Manikumar, J, have held that contemplation of 15 days time is not found in Rule 4(b) and therefore Form 'B' cannot be said to be in accordance with Rule 4(b) of the Land Acquisition (Tamil Nadu) Rules. The relevant portion of the order is extracted hereunder: "9. The statutory mandates in Sections 4(1) and 5-A (1) & (2) of the Act; Rule 4(b) and Forms-A & B as well as the various decisions referred above, would make clear the following: Forms and Notices devised to achieve the object contemplated in the provisions of the statute should not be in a way defeating or confusing the very object of the provisions. The procedure mandated in Section-4(1) of the Act is based on the principles of natural justice, the reason being that, in matters of land acquisition, the rights of the individuals over their land are permitted to be taken away by the mighty hands of the government, exercising the power of eminent domain, only because there involves interest and welfare of the public at large. The land owners/persons interested, who have lost the land, would be looking for every minute opportunity in their favour and their expectation cannot be faulted with. However, a welfare state, which acquires the lands of the individuals for the benefit of the public at large, should follow all the procedural and formal obligations and there should not be any report of non-compliance of or deviation from the procedure on its part. Since land acquisition matters involve taking away the properties/lands of the citizens, the Government obligated upon itself adherence to certain procedures so that its action is based on the principles of natural justice. On the one hand, the land owners are given opportunity to put forth their objections to the acquisition proceedings, for which, the time limit is well prescribed as 30 days. Collector receives the objection, whereupon, he is obligated to send Form- B notice to the parties. Insofar as it relates to the land owner/person interested, Form-B Notice is only an information relating to the date of enquiry and, insofar it relates to the Department/Company, it is an information relating to date of enquiry plus a call to answer the objections made by the land owners. Though Form-B refers to a further period of 15 days for filing objection, in view of the specific provision in sub- https://hcservices.ecourts.gov.in/hcservices/ section(1) of Section 5-A of the Act read with Rule-4(b), the time-limit prescribed cannot be enlarged merely because some reference in Form-B notice. This is clear from the judgment of the Supreme Court reported in AIR 1960 SC 12 (Central Bank of India vs. Their Workmen). In that decision, Their Lordships have held that, '..... if a rule goes beyond what the section contemplates, the rule must yield to the statute. ..." Form B was prepared in total violation of Rule 4(b). In fact Form (A) and Form (B) are just identical, copied from each other except deleting one or two words or sentences here and there. A reading of Form B discloses that notice has been issued to the reputed owner requiring him to lodge a statement in writing with his objection if any within 15 days from the date of service of the notice under Form B. This procedure is not contemplated either under the Act or under the Rules and the executive brain has introduced a new procedure through Form 'B' and it is quite confusing. When Rule 4(b) is totally silent on filing objection within 15 days, Form B has been prepared wrongly by the concerned. Since Form B is not in conformity with Rule 4 (a), the authority concerned is to modify the Form and publish the new Form expeditiously. It is relevant to point out that similar direction was issued by a Division Bench of this Court in I.L.R. (1996) 2 Madras 299 (GOVT. OF TAMIL NADU v. RAMASWAMI). We deem it necessary to point out with great stress that when, even in 1996, the Government had been asked by the Court to amend Form-B in consonance with Rule-4(b), serving the purpose adumbrated therein, it is but proper for the Government, being a welfare State, to have implemented the same so that matters of this nature would not have arisen at all. We hope and trust the Government will rectify the lacunae by bringing suitable amendment. Sub Section (2) of Section 5(A) clarifies that the Collector shall give the objector an opportunity of being heard. Therefore, the hearing is mandatory. The said Section further says, " the Collector shall after hearing all such objections and after making such further enquiry, if any, as he thinks necessary . . . . ", making it clear that mandatory directions are given to the Collector that he shall hear the objectors and make such further enquiry as he thinks necessary. Therefore, hearing the objectors is mandatory and making a further enquiry by the Collector is discretionary. If the objectors have not filed any objection within 30 days but come forward with oral objection, even then, the Collector must hear. The hearing is mandatory. Sub-Section(2) of Section 5-A further clarifies that, after hearing and making further enquiry, he will have to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the Government. https://hcservices.ecourts.gov.in/hcservices/ Therefore, without the recommendations of the Collector on the objections and without the record of proceedings of the Collector, it would be difficult for the Government to take any decision. In our considered opinion, if there are any objections by the interested persons, the Collector must make an enquiry and record his proceedings. The enquiry should be in a fair manner. The Collector is discharging his duties as quasi judicial authority and his action should not be mala fide and there should not be any biased approach. He has to consider whether the proposed acquisition is necessary for the Department. After considering all the necessary implications, he must make a record and forward his recommendations to the Government. There is no need to simply forward the views of the requisitioning department as his conclusion." 7. After elaborately considering the provisions of the Central Act and the Rules framed by the Tamil Nadu Government, the Full Bench has held that pursuant to the notice given in Form B to the objectors as well as the Department, the Department may file a statement by way of answer to the objections and the department may also depute its representative to attend the enquiry to be conducted under Section 5-A of the Act and the duty of the Collector is only to hear the objections, and conducting further enquiry is not obligatory on the part of the Collector and held that the term 'personal hearing' is mandatory and 'further enquiry' is discretionary depending upon the submission of objections which is filed within 30 days of the last mode of the publication under Section 4(1) of the Act and answer by the requisitioning authority. The Full Bench has also held that 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. The Full Bench has also held that the reference of 15 days in Form-B in filing the objections is contrary to Rule 4(b) of the Rules and therefore, the Form cannot enlarge the scope of Rule. 8. Applying the ratio laid down by the Full Bench in respect of the Central Act to the present case which relates to Act 31 of 1978, there is no difficulty to conclude that Form II prescribed under the Rules stating as if 'it appears to the Government of Tamil Nadu' has no meaning read with Rule 3 of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Rules and Section 4(1) of Act 31/1978. The concerned authorities must take steps to amend the Form II. Therefore, the contention of the respondents as if the respondents have followed only the Form prescribed under the Rule does not save the acquisition proceedings inasmuch as the District Collector, who is the authority to satisfy himself for the purpose of acquisition, has failed to apply his mind. 9. The file which has been produced before this Court states in the proceedings of the District Collector, Thiruvannamalai in letter https://hcservices.ecourts.gov.in/hcservices/ No.K1/23358/97 dated 6.12.1997, while considering the report of the Special Tahsildar, in respect of the required satisfaction of the land acquisition proceedings by the District Collector, as follows:- "The Collector accepts the recommendations of the Special Tahsildar (Adi-Dravidar Welfare) and directs that the objection to acquisition be overruled." Therefore, it is clear that the District Collector has simply accepted the report submitted by the Special Tahsildar and has not independently applied his mind. The fact that the Collector under the State Act has to independently apply his mind, has been reiterated by the Full Bench of this court in R.Pari v. Special Tahsildar, Adi Dravidar Welfare reported in (2007) 2 MLJ 706, presided over by P.K.Misra,J., wherein the Full Bench has held while considering the necessity of the District Collector to apply his mind to the objections of the land owners and indicate reasons, however brief the reason may be, it must receive the approval of the Court without much demur. It was laid down by the Full Bench that the Collector should satisfy himself about the necessity to acquire such land and while arriving at such satisfaction, the Collector is required to consider the objections raised by the land owner. However, it is held that even if such reasons have not been communicated to the land owner, the same can be found in the file in the shape of noting and endorsements, etc. and on going through the file if such reasons can be reflected, the same is sufficient. The relevant portion of the Full Bench decision is extracted hereunder:- "41. So far as the first part of the observation regarding the necessity for the District Collector to give second opportunity of hearing is concerned, such aspect has been dealt with while considering question Nos.1 and 2. However, so far as the latter part of the observation laying down the necessity of the District Collector to apply mind to the objection made by the land owners and to indicate the reasons, however brief the reasons may be, must receive our approval without much demur. In view of the power of eminent domain the State obviously cannot be denied such right. However, right to land being a constitutional right recognised under Article 300 A of the Constitution, such right can be denied only in accordance with law. Law which provides for such acquisition of land obviously should stand the test of lack of arbitrariness as otherwise such law may fly in the face of Article 14 and may be Article 21. Even though the substantive right of the State to acquire land cannot be denied, such law providing for acquisition of land should satisfy the test of procedural reasonableness and it is therefore apparent that the authority acquiring such land (in the present case the District Collector) must be satisfied about the necessity to acquire such land and while arriving at such satisfaction, the authority is also required to consider the objections raised by https://hcservices.ecourts.gov.in/hcservices/ the land owner. The authority must be alive to the requirement of balancing the need of the State as well as peculiar disadvantages to be suffered by the land owner. As observed by the Division Bench even though the authority is not expected to write "reasoned judgement", the materials on record must indicate that the authority has applied its mind. Obviously the magic incantations of the words used in the Act or the Rules would not indicate that mind has been applied and therefore, it is always desirable for the authority to indicate the reasons why such authority is taking a decision to acquire the land and rejecting the objection of the land owner. As a matter of fact, to be fair to the learned Additional Advocate General, he has stated in no uncertain term that the need to give reasons for the decision has to be read into the enactment. In the aforesaid context, the learned Additional Advocate General has also referred to the decision of a learned Single Judge of this Court in 2004(3) MLJ 129 (V.KANNIAN v. THE COLLECTOR, SALEM DISTRICT, SALEM AND OTHERS). Therefore, in our opinion, the requirement to give reasons however brief the reasons may be, must be read into the provisions and this requirement is not merely confined to the cases where the Collector is considering the reports submitted by the authorised officer, but such requirement is also necessary while the Collector himself is dealing with the matter by holding an enquiry. 42. ..... Therefore, the brief reasons, which are contemplated, can be given either in the file in the shape of notings, endorsements, etc., or even can be reflected in the order. But, mere non-reflection of reasons in the order communicated or in the notice published in the Gazette, would not be sufficient to hold that there has been non- application of mind and the question as to whether there has been application of mind or non-application is required to be considered on the basis of the return filed and the relevant file to be produced before the Court." Applying the said Ruling of the Full Bench, to the facts of the present case, as per the noting of the Collector, while ordering notification to be published under Section 4(1) of the Act, it can be seen that the Collector has not at all applied his mind and no reasons have been enumerated whether brief or in detail. 10. In the counter affidavit filed by the second respondent, the second respondent has chosen to state as follows:- "The District Revenue Officer, Thiruvannamalai, has inspected the lands proposed for acquisition and decided the lands are suitable for house sites. The Collector has approved the proposal and published in the District Gazette." https://hcservices.ecourts.gov.in/hcservices/ The contents of the counter affidavit filed by the second respondent along with the notings in the file makes it clear that the impugned notification issued by the District Collector is not in accordance with the terms of Section 4(1) and Rule 3(b) of the Act and the Rules. In the Land Acquisition Officer and Special Tahsildar (LA), v. R.Manickammal reported in 2002 (2) CTC 1, the Division Bench consisting of B.Subhashan Reddy, C.J. (as he then was) and A.Subbulakshmy,J. have held that a decision to acquire a land by the Collector has to be exercised only by the Collector by application of his mind independently and the Legislature has not provided any power of delegation. In fact, the Division Bench has analysed the Land Acquisition (Central) Act as well as the State Act 31/78 and held that while in the Central Act, it is to the satisfaction of the Government, but under the State Act, it is purely to the satisfaction of the District Collector alone. On the facts of the said case, it is no doubt true that the District Collector has originally given a opinion that he was satisfied that there is no requirement to acquire the land and thereafter the Secretary to Government has intervened the matter and issued a mandate to the Collector to go ahead with the acquisition in spite of the report of the Collector and it was under those circumstance the satisfaction of the Government was in question and while deciding the same, the Division Bench has held as follows:- "There is no other provision excepting the above provision empowering any authority to deal with the acquisition. 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 then when a notification is issued, the land vests absolutely with the Government free from all encumbrances as contemplated under Section 5 of the Act. A decision to acquire a land by the Collector has to be exercised only by the Collector by application of his 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. In view of the amending Act 68/84, the Land Acquisition Act of 1984 (Central Act), the Government role is increased, as, before passing the award, there is every right for the Government to probe into the award the direct the Land Acquisition Officer to modify the award. Even with regard to the finality of the acquisition,