The prayer in the writ petition is to quash the notification No.73 dated 21.11.2000 published in the Erode District Gazette insofar as the petitioner's land in survey No.259/3, Varadhanallur Village, Bhavani Taluk, Erode District, is concerned.
2. The case of the petitioner is that he is the owner of an extent of 6.98 acres in R.S.No.259 in Varadhanallur Village, Bhavani Taluk and he is solely depending upon the income from the said land for his livelihood. The second respondent issued a notice in Form-III on 28.2.2001, which was served on the petitioner on 3.3.2001. The petitioner was called upon to appear before him on 16.3.2001 for an enquiry regarding the nature of petitioner's interest in the property an extent of 3.25 acres and to state the value of the same. According to the petitioner, before issuing Form-III notice, Form-I notice was not served to him. The first respndent initiated action under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Act,1978 (hereinafter called as 'Act 31 of 1978') to acquire 3.25 acres of petitioner's land in R.S.No.259/3 of Varadhanallur Village for the purpose of providing house sites to houseless Adi Dravida of Thalakulam and Chinnaperichipalayam Villages. According to the petitioner, the mandatory procedures under section 4 of the Act has to be followed and as per Rule 3, 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, which required for acquisition and show cause notice shall be sent by registered post with acknowledgement due to the last known address of the owner or to other person interested. According to the petitioner, no notice in Form-I was served on the petitioner and only Form-III notice under Section 5(1) was served to appear for enquiry and the non-compliance of section 4(2) of the Act vitiates the entire proceedings.
3. The District Collector filed counter affidavit stating that proposal for acquiring the lands under Act 31/78 was initiated and the second respondent on 9.9.1996 issued Form-I notice under sub-section (2) of Section 4 to the land owner and called upon him to appear for enquiry on 27.9.1996. The land owner did not appear for enquiry and therefore notice was served by affixture by the Village Administrative Officer on 10.9.1996. Form-II proposals were submitted to the first respondent by the second respondent on 24.10.2000. Thereafter the first respondent sent Form-II notice for publication in the District Gazette dated 17.11.2000 and the same was published in the District Gazette on 24.11.2000. It is also stated in the counter affidavit that the petitioner refused to receive the notice and therefore the Village Administrative Officer affixed the notice on 10.9.1996.
4. The petitioner raised additional grounds in W.P.M.P.No.1389 of 2008 and the said petition was ordered. The additional ground raised is that the satisfaction of the District Collector viz., the first respondent was not recorded and the notification dated 24.11.2000 states that the Government of Tamil Nadu had taken a decision to acquire the land. For verifying the said facts, files relating to the land acquisition was called for and the same was produced before this court. From the file produced it is seen that the second respondent submitted his report to the District Adi Dravidar Welfare Officer on 24.10.2000 along with his inspection report and the District Collector, viz., the first respondent, without recording his satisfaction, requested the Government through his letter dated 17.11.2000 to publish the acquisition of the land in the gazette. Nowhere in the file satisfaction of the District Collector is recorded for acquisition of the petitioner's land.
5. The learned Additional Government Pleader on perusal of the file submitted that no satisfaction is specifically recorded by the District Collector and the satisfaction can be presumed as the first respondent requested the Government to publish the acquisition in the Gazette. Even in the counter affidavit filed by the District Collector it is not stated that the District Collector was satisfied with the acquisition proceedings.
6. The issue as to whether the District Collector has to record his satisfaction before acquiring the land, came up for consideration before the Division Bench decision of this Court in the decision reported in 2002 (2) CTC 1 (The Land Acquisition Officer and Special Tahsildar (LA) v. R.Manickammal), wherein in paragraph 4 the Division Bench held as follows:
"4. We have perused the scheme of State Act 31 of 1978. The scheme of State Act differs from that of Central Act. In the Central Act the Government is the authority to exercise the power, and the Government by notification can delegate the functions to any authority to perform the functions under the Act and among the authority so delegated, the Collector also is one of the same. The State Act is completely different as the Government intervention is not at all contemplated and the donee of the power is the Collector himself and not anybody else,
Section 4 of the State Act reads as follows:
"4. Publication of preliminary notification and powers of officers thereupon-(1) Whenever it appears to the (appropriate Government) that land in any locality (is needed or) is likely to be needed for any public purpose (or for a company) a notification to that effect shall be published in the Official Gazettee (and in two daily newspapers circulating in that locality of which at least or shall be in the regional language) and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification).
2. Thereupon it shall be lawful for any Officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen, to enter upon and survey and take levels of any land in such locality;
to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for such purpose;
to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle:
Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so".
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 1894 (Central Act), the Government role is increased, as, before passing the award, there is every right for the Government to probe into the award and direct the Land Acquisition Officer to modify the award. Even with regard to the finality of the acquisition, the report under
Section 5A has to be sent to the Government and even if the report is against the acquisition, the Government can overrule the said decision of the Land Acquisition officer and direct the publication of declaration under
Section 6 of the Act. Such contingency is not provided in the State Act. It is well settled law that when the Legislature did not name any other authority for the exercise of powers and names only a particular authority, only that particular authority has to exercise the power and nobody else. In this view of the matter, the learned Single Judge has rightly held that the Governmental intervention was unwarranted and without jurisdiction. For the reasons mentioned supra, we concur with the said orders of the learned Single Judge and dismiss these Writ Appeals."
(Emphasis Supplied) The Full Bench of this Court in the decision reported in 2006 (4) CTC 609 (R.Pari v. The Special Tahsildar, Adi-Dravidar Welfare, Devakkottai) considered the same issue and in paragraph 8 held as follows:
"8. From a combined reading of the provisions contained in
Section 4, Rule 3 and the Form-I, it is thus apparent that the notice to show cause can be issued either by the District Collector or by the authorised officer. Where such notice is issued by the District Collector, all subsequent proceedings are continued before him and ultimately the Collector takes a decision on the basis of enquiry held by him. However, where such notice is issued by the authorised officer, the enquiry is conducted by such officer, who is thereafter required to make a report containing his recommendations on the cause shown by the owner and the decision is required to be taken by the District Collector."
The same view is reiterated in the subsequent decisions reported in (2006) 4 MLJ 71 : 2006 WLR 653 (Jainabi v. State of Tamil Nadu, rep.by its Secretary to Government, Adi Dravidar Welfare, Chennai) and (2008) 7 MLJ 314 : 2008 WLR 585 (R.Rasappa Gounder v. District Collector, Dindigul District). In (2008) 7 MLJ 314 : 2008 WLR 585 in paragraph 6 it is held as follows:
"6. A perusal of the aforesaid provision makes it amply clear that it is the District Collector who is required to take an appropriate decision in the matter. The relevant portion of the notification, which has already been extracted, indicates as if the satisfaction was that of the Tamil Nadu State Government. There is no indication in such notification that the District Collector was satisfied regarding the requirement to acquire the land. Under the Act, power has been statutorily conferred on the Collector to consider the requirement for the acquisition. But, in the present case, notification issued by the Collector indicates as if the satisfaction was that of the State Government. Thus, it is obvious that notification suffers from the vice of non-application of mind."
The said judgments are followed in the latest Division Bench decision of this Court reported in (2009) 1 MLJ 569 (Secretary to Government, Adi Dravidar and Tribal Welfare Department, Chennai v. P.Dhanabakkiam).
7. In view of the said factual findings i.e., the first respondent has not recorded his satisfaction to acquire the land of the petitioner, the other ground raised by the petitioner i.e., non-service of notice under
section 4(2) of the Act and therefore there is procedural violation of Rule 3(1) of the Act 31/78, need not be gone into.
8. In this writ petition W.M.P.No.548 of 2008 is filed by five individuals to implead themselves as respondents 3 to 7 on the ground that they are likely to be allotted house sites, if the writ petition challenging the land acquisition proceeding is dismissed.
9. The writ petitioner has file counter affidavit and specifically stated that the proposed impleading parties are not interested persons as they are not allotted any house sites and mere probability of allotment will not give any cause of action to implead them in the writ petition. It is also stated in the counter affidavit that the impleading petitioners do not belong to Adi Dravida community of Chinnaperichipalayam village. Since the proposed impleading petitioners are not allotted any house sites as on date, they have no right to get themselves impleaded in the writ petition and therefore the implead petition is dismissed.
In the result, the writ petition is allowed. No costs. W.M.P.No.548of 2008 is dismissed.
vr To
1. The District Collector, Erode District, Erode.
2. The Special Tahsildar (ADW), Collectorate, Erode.