BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03/08/2012

CORAM

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

W.P.(MD)No.10499 of 2006

and

M.P.(MD) Nos.1 and 2 of 2006

Kasinathan ... Petitioner

Vs.

1.The District Collector of

Tuticorin District,

Tuticorin.

2.The Special Tahsildar

Land Acquisition

Adi Dravidar Welfare Scheme,

Kovilpatti. ... Respondents

Prayer

Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, calling for records in Na.Ka.AN6/15470/97 (as referred in 4(1) Notice) and published in District Gazette of Chidambaranar/Tuticorin District dated 31.03.1997 in Survey No.479/2, measuring 0.24.5 Hectare, Pandavarmangalam village, Kovilpatti Union, Tuticorin District and quash the same.

!For Petitioner ... Mr.B.Rajesh Saravanan

^For Respondents ... Mr.D.Muruganantham, A.G.P.

:ORDER

******

This writ petition is filed, to quash the Tuticorin District Gazette Notification dated 31.03.1997, issued under Section 4(1) of the Tamil Nadu Acquisition of land for Harijan Welfare Schemes Act, 1978, shortly, the Act, acquiring the land of the petitioner in S.No.479/2 measuring 0.24.5 Hectare, Pandavarmangalam village, Kovilpatti Union, Tuticorin District.

2.The brief facts as mentioned in the affidavit filed in support of the writ petition are as follows:

a)The native place of the petitioner is Karisalkulam village in Vilathikulam Taluk, Tuticorin District. He was doing business in his native place. He purchased the land in S.No.479/2, measuring and extent of 60 cents at Pandavarmangalam village, Kovilpatti Taluk, Tuticorin District on 03.01.1997, by way of a registered sale deed from the vendor Mr.Amsam Ammal. From that date onwards, the said property is in his absolute possession. He shifted to Chennai with his family to find new source of income after 14.01.1997. He is residing at Chennai thereafter and he rarely comes to native place. He had no other relatives to receive any other communication at his native place.

b)When the petitioner came to Kovilpatti on 22.08.2005 to attend his relative's marriage, the vendor Mrs.Amsam Ammal told him about the aforesaid notification issued under Section 4(1) of the Act acquiring the land of the petitioner. Hence, he has filed the preset writ petition immediately questioning the notification.

c)The petitioner attacked the notification on the ground that no notice in Form-I under Rule 3(1) of the Tamil Nadu Acquisition of land for Harijan Welfare Rules, shortly, the Rules, read with Section 4(2) of the Act was served on him by the second respondent.

d)The report containing recommendations of the second respondent for acquisition of the land was not furnished to the petitioner and the petitioner is entitled to have a copy of the report. Non furnishing of the report would vitiate the acquisition proceeding.

e)The impugned notification acquiring other properties, which are adjacent to the property of the petitioner, has been quashed by this Court in W.P.Nos.5470 5471 of 1998 and therefore, no purpose would be served in acquiring the property of the petitioner alone.

3.The respondents have filed counter affidavit refuting the allegations. The following are the averments found in the counter affidavit.

a)As per revenue records of Pandavarmangalam village, land in S.No.479/2 stood registered in the name of Mrs.Amsamal w/o.Vidhyasekarapandiyan under patta No.48. Hence, notice in Form-I under Section 4(2) of the Act was issued to the pattadar Mrs.Amsammal on 11.12.1996. She received notice on 01.01.1997. She did not appear for the enquiry on 10.01.1997. She sent a petition to the Special Tahsildar stating that she had sold the land in S.No.479/2 to the petitioner.

b)Based on the information given by Mrs.Amsammal, notice in Form-I under Section 4(2) of the Act was sent to the petitioner on 13.02.1997 by RPAD, which was returned without service on him.

c)In the said circumstances, the report was submitted by the second respondent in his proceedings dated 26.02.1997 to the first respondent and the same was approved by the first respondent in his proceedings AW6/15470/97 dated 18.03.1997. Thereafter, the notice in Form-II under Section 4(1) of the Act was published in the Chidambaranar District Gazette Notification dated 31.03.1997. Notification regarding the above acquisition was also published by Special Revenue Inspector in the village on 09.04.1997.

d)Form-III notice was sent to the petitioner directing to appear before the second respondent on 22.08.1997 to show apportionment over the land. The petitioner did not appear on 22.08.1997, but he had sent a petition by RPAD on 18.08.1997. He stated that he had purchased the land in S.No.479/2 for Rs.1,80,000/- for starting an industry for manufacture of Gum from Tamarind Seeds. All procedures as contemplated under the Act and the Rules framed thereunder, were strictly followed and there was no infirmity. Ultimately, an award was passed on 10.03.1998. Thereafter, possession of the land was taken on 26.03.1998. The compensation in respect of land was deposited under revenue deposit. The pattas were issued on 27.03.1998 and 19.10.1999 to the beneficiaries. Only, thereafter, the petitioner filed the present writ petition on 23.11.1006. The respondents sought for dismissal of the writ petition with cost.

4.Heard both sides.

5.The learned counsel for the petitioner has made the following submissions:

a)Before issuing notification under Section 4(1) of the Act, notice under Section 4(2) of the Act, shall be issued to the petitioner. But, the same is not done. Hence, the acquisition proceeding is vitiated.

b)The Act contemplates the sole satisfaction by the first respondent with respect to acquisition of the land of the petitioner for the Harijan Welfare. But the notice in Form-II proceeds as if the acquisition was made pursuant to the satisfaction of the Government. The learned counsel has relied on para 17 of the decision in M.Nagu and others Vs. The District Collector, Sivagangai District reported in 2008(2) CTC 468 and para 25 of the decision in Rajammal and others Vs. The District Collector, Dharmapuri reported in 2008(5) CTC 154.

c)The impugned gazette notification reveals that the first respondent approved the acquisition in the proceedings on 28.04.1997, while the gazette is dated 31.03.1997.

d)The impugned notification can be questioned even after passing of the award. Reliance is placed on Para 11 of the decision of this Court in V.Sarangapani (deceased) and others V. Collector of Thanjavur District, Thanjavur and another.

6.On the other hand, the learned Additional Government Pleader has sought to sustain the impugned notification and has made the following submissions, in reply to the submissions of the learned counsel for the petitioner.

a)Notice under Section 4(2) in Form-I was sent to the petitioner on 13.02.1997 by RPAD, and the same was returned. He has relied on para 14 of the judgment dated 06.08.2009 in W.A.(MD) Nos.161,162 and 369 of 2006, in this regard.

b) The notice was in the statutorily prescribed form in Form-II. Based on that, the petitioner could not say that there was no satisfaction expressed by the first respondent with respect to the acquisition of the land and that the Government had decided to acquire the land. He has relied on a passage in the Form itself to show that the decision was taken by the Collector, with regard to the acquisition. In any event, it is submitted that no such plea was raised in the writ petition. The learned counsel heavily relied on the decision of this Court dated 04.08.2011 in W.P.No.9273 of 2009.

c)The date 28.04.1997 that is mentioned in the Gazette is relied on by the petitioner as the date of approval by the first respondent for acquisition, but the Gazette is dated 31.03.1997. According to the learned Additional Government Pleader, the submission has no merits for more than one reasons. No such ground was raised in the writ petition. Furthermore, the approval could not have been on 28.04.1997, when the Gazette notification is dated 31.03.1997. It was approved in the proceedings in AW6/15470/97 dated 18.03.1997 by the first respondent. Typographical error would not be relied on by the petitioner on seeing the notification produced by the respondent. It is submitted that in the impugned notification that is enclosed in the typed set of papers (typed copy) does not contain the date 28.04.1997.

d)The writ petition is not maintainable after passing of the award. He has relied on the decision in W.A.Nos.161,162 and 369 of 2006.

7.I have considered the submissions made on either side.

8.The afore stated narration of facts would make it clear that the pleadings made in the affidavit filed in support of the writ petition is different from the argument that is advanced by the learned counsel for the petitioner before this Court. Though, it was pleaded that the report containing recommendations of the second respondent for acquisition of the land of the petitioner was not furnished to the petitioner and the non furnishing of the report vitiated the acquisition proceedings, no such argument is advanced before this Court by the learned counsel for the petitioner.

9.Therefore, the following issues arises for consideration in this writ petition.

1)Whether notice under Section 4(2) of the Act was issued or not issued to the petitioner.

2)Whether the petitioner is correct in contending that there was no satisfaction on the part of the first respondent with respect to the acquisition of the land of the petitioner, in view of the statement contained in Form-II.

3)Whether the date 28.04.1997 mentioned in the original impugned notification would vitiate the acquisition proceedings.

4)Whether the petitioner would maintain the writ petition after passing of the award.

Issue No.1

a)According to the petitioner, the notice in Form-I as prescribed under Rule 3(1) of the Rules read with Section 4(2) of the Act was not issued before issuing the impugned notification under Section 4(1) of the Act.

b)But, the respondents have categorically stated in the counter affidavit that notice was issued. But, initially, notice was issued to Mrs.Amsammal on 11.12.1996 and she received the notice in Form-I under Section 4(2) of the Act on 01.01.1997.

c)As per revenue records, Smt.Amsammal is shown as pattadar. Hence, notice was issued to her. when she sent a petition stating that she sold the land to the petitioner, the notice in Form-I was sent on 13.02.1997 by RPAD to the petitioner. But, the same was returned without being served on the petitioner.

d)The aforesaid facts would make it clear that the sale took place much after the proceedings was vitiated. When the respondents have pleaded in counter that notice dated 13.02.1997 was sent, the same was not disputed by way of filing reply affidavit.

e)The adjacent lands in S.No.479/1, 481, 482/1 and 482 were also acquired in the same impugned notification. The aggrieved parties filed writ petitions before this Court. Those writ petitions were allowed and the impugned notification was quashed. The same is referred to by the petitioner in ground No.10, that is W.P.Nos.5470 and 5471 of 1998 were allowed and the impugned notification was quashed. But, the State preferred writ appeals in W.A.Nos.161 and 162 of 2006. Those writ appeals were allowed by an order dated 06.08.2009. The following passage in para 14 of the order dated 06.08.2009 made in W.A.Nos.161 and 162 of 2006, that is relevant for this case is extracted hereunder.

"..... As regards Survey No.479/2, it was found that after the proceedings commenced on 23.01.1997, a sale deed has been registered in the office of the Sub Registrar, Kovilpatti in favour of one Kasinathan. Therefore, this Kasinathan was also given a notice on 13.02.1997, which was returned 'Unserved'."

This is the answer to this issued. Hence, Issue No.1 is decided against the petitioner.

Issue No.2

a)The learned counsel for the petitioner has strenuously contended that Form-II notice issued under Section 4(1) of the Act, proceeds as if the acquisition was made pursuant to the decision taken by the Government of Tamil Nadu, while the Act contemplates the satisfaction shall be only from that of the first respondent District Collector. Hence, according to him, the proceeding would be vitiated.

b)Form-II prescribed under Rule 3(2) of the Rules read with Section 4(1) of the Act is extracted hereunder:

Form II

(See rule 3(ii)

NOTICE UNDER SECTION 4(1) OF THE TAMIL NADU ACQUISITION OF LAND FOR HARIJAN WELFARE SCHEME ACT, 1978.

WHEREAS it appears to the Government 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 to the effect is hereby given to all to whom it may concern 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) AND WHEREAS, it has become necessary to acquire immediate possession of the land/lands in the Schedule below: NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 4 of the said Act, the Collector of _____________________ District hereby directs that the land/lands be acquired under the provision of the said section & quot:

c)Form-II prescribed statutorily was utilized by the first respondent in the impugned notification.

d)If the Form as prescribed as per Rules are not used, the same also could be under the attack by the persons, whose lands are acquired, stating that the statutory rules are not complied with. Statutory Form under the Act is prescribed mechanically from the Land Acquisition Act, 1894. Therefore, in my view, the first respondent could not be faulted for complying with the statutory rule and the forms prescribed under the Rules. The fault is on the Government that made the rules for carrying out the purposes of the Act under Section 23 of the Act. In fact, the learned Single Judge of this Court has noticed this deficiency in the judgment dated 04.08.2011 in W.P.NO.9273 of 2009 in R.Harikrishnan Vs. The Collector, Thiruvannamalai District and another. Para 17 and 19 of the said judgment are extracted hereunder:

"Para 17.The statutory notification issued under Section 4(1) and published in the District Gazette gave rise to this mischief and gave an handle to the petitioner to raise such an issue. Form II prescribed under Rule 3(ii) of the Rules was clearly responsible for the same.

Para 19.The Form II prescribed is a mechanical reproduction of the Form used under the Central Act 1 of 1894. that is why the Full Bench cautioned the Courts to go by substance and not by Form while deciding the validity of the acquisition. It is high time the State Government modifies the Form prescribed in tune with the spirit of the T.N.Act 31 of 1978."

e)In spite of the same, the Government has not chosen to modify the Form prescribed in tune with the spirit of the Act. Hence, the Registry is directed to mark a copy of this order to the Chief Secretary, Tamil Nadu Government, to take effective steps to modify the Form prescribed in tune with the Act as already suggested by this Court in W.P.9273 of 2009.

f)Therefore, in my view, the judgment relied on by the learned counsel for the petitioner is not helpful to him. In fact, the judgment in M.Nagu and others V. The District Collector, Sivagangai District reported in 2008(2) CTC 468 was considered by this Court in the order dated 04.08.2011 in W.P.No.9273 of 2009. In M.Nagu's case, the notification is in the following words:

"rptfA;if khtl;lk;, nisahA;Fo tl;lk;, Mf;ftay; tUtha; fpuhk cl;fl;il, ehdhkil fpuhkj;jpy; mike;Js;sJk; fPHf;fhZk; tptu ml;ltizapy; Fwpg;gplg;gl;Ls;sJkhd epyA;fs; ehdhkil fpuhk Mjpjpuhtplh;fSf;F kidaplk; tHA;Ftjw;fhf Bjitg;gLfpwbjd;W jkpH;ehL muRf;F Bjhd;Wtjhy; mjid tif bra;a[k; bghUl;L, Mjp jpuhtplh; eyj;jpl;lA;fSf;fhf, jkpH;ehL epyk; ifafg;gLj;Jjy; rl;lk; 31/19078/d; 4 Mk; gphptpd; (I) Mk; cl;gphptpy; tif bra;ag;gl;ljw;fpzA;f, bjhlh;g[ila midtUf;Fk; njd; Kyk; mwptpg;g[ mspf;fg;gLfpwJ."

g)Only in those circumstances, this Court came to the conclusion that there was no satisfaction by the District Collector with respect to acquisition of the land under the Act. In this case, the first respondent has simply borrowed For-II as prescribed under the Rules.

h)The other judgment relied on by the petitioner in Rajammal and others Vs. The District Collector, Dharmapuri reported in 2008(5) CTC 154 is also of no use to the petitioner. From the reading of the judgment, it is not known the actual words used in the notification. Furthermore, in the said case, the acquisition proceeding was initiated initially under the Land Acquisition Act, 1894. Later, proceeding was initiated under the Act. Therefore, there was a possibility that the Government could have earlier decided for acquisition.

i)In this case, except stating the deficiency that was pointed out by the learned Single Judge in the order dated 04.08.2011 in W.P.No.9273 of 2009, the learned counsel for the petitioner is not able to give any material to the effect that the decision was taken by the Government. There is no material produced by the learned counsel for the petitioner that some other authorities decided about the acquisition and not the District Collector. In the result, this issue is also decided against the petitioner.

Issue No.3

a)The date 28.04.1997 is mentioned at the top of the notification, that is produced by the learned Additional Government Pleader. Based on the same, the learned counsel for the petitioner sought to argue that approval by the District Collector was made only on 28.04.1997. It could not be for the simple reason that the Gazette Notification is dated 31.03.1997. Furthermore, the reading of the judgment in W.A.Nos.161 and 162 of 2006 also makes it clear that the District Collector approved the proposal of the acquisition on 18.03.1997.

b)Further, as rightly contended by the learned Additional Government Pleader, no such pleading was made in the writ petition. On seeing the notification produced by the department, the learned counsel for the petitioner sought to make out a case, which is not permissible. A typographical error cannot be magnified by the petitioner to his advantage. Hence, this issue is also decided against the petitioner.

Issue No.4

a)The adjacent owners of the land filed W.P.Nos.5470 and 5471 of 1998, questioning the impugned notification. Initially, the writ petitions were allowed. The State preferred writ appeals in W.A.Nos.161 and 162 of 2006. The Division Bench has categorically held that the writ petition is not maintainable after passing of the award. The following passage in para 11 of the said judgment is extracted hereunder:

".......... Therefore, even on the preliminary ground that the award had come to 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."

b)The writ appeals W.A.Nos.161 and 162 of 2006 arose out of the orders in W.P.Nos.5470 and 5471 of 1998. As stated above, the award was passed on 10.03.1998. Writ petitions in W.P.Nos.5470 and 5471 of 1998 were filed on 29.03.1998. Even then, the Division Bench held that the writ petitions were not maintainable.

10.In this case, the writ petition was filed after 7 years. In fact, the petitioner was aware of the acquisition proceeding, in view of his reply dated 18.08.1997 to the Form-III notice. when the counter specifically pleads about the letter dated 18.08.1997 sent by the petitioner, the same is not denied by petitioner by filing reply affidavit. Suppressing the same, the petitioner has come with a story that when he came to Kovilpatti in 2005 for his relative's marriage, he was informed of the acquisition proceeding. The same is nothing but false. Hence, I am of the view that the writ petition is not maintainable, after passing of the award as stated by this Court. Therefore, this issue is also decided against the petitioner. Accordingly, the writ petition is liable to be dismissed.

10.At this juncture, it is relevant to add that the petitioner has raised in ground No.10 that in view of the quashing of the impugned notification in W.P.Nos.5470 and 5471 of 1998, this writ petition has to be allowed. But, the order dated 06.08.2009 in W.A.Nos.161 and 162 of 2006 reversed the orders of W.P.Nos.5470 and 5471 of 1998. The land owners took the matter before the Apex Court. The Apex Court rejected the S.L.P. in Special Leave to Appeal (Civil) Nos.27585 - 27586 of 2009 dated 22.11.2010.

12.For all the aforesaid reasons, the writ petition fails and the same is dismissed. No costs. consequently, connected miscellaneous petitions are also dismissed. The Registry is directed to mark a copy of this order to the Chief Secretary, Tamil Nadu Government, to take effective steps to modify the Form-II prescribed in tune with the Act as already suggested by this Court in W.P.9273 of 2009.

ARUL

To

1.The District Collector of

Tuticorin District,

Tuticorin.

2.The Special Tahsildar

Land Acquisition

Adi Dravidar Welfare Scheme,

Kovilpatti.

3.The Chief Secretary to Government,

Government of Tamilnadu,