Heard both sides. The six petitioners, who are the residents of Ramalingapuram Village, Nochikulam, Kunnam Taluk, Perambalur District, have come forward to file the present writ petition, seeking to challenge the order of the first respondent, dated Nil (March, 2009), wherein and by which the first respondent refused to release the erstwhile lands of the petitioners to an extent of 0.54.5 situated in Survey Nos.336/2, 336/4, 336/6 and 336/8.
2.The petitioners have earlier moved this court with writ petitions being W.P.Nos.4218 and 8652 of 1998 challenging the land acquisition proceedings initiated by the first respondent under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (for short T.N. Act 31/78) for acquiring the petitioners' lands for the purpose of providing house-sites for the Adi Dravidars of the said village. The petitioners did not challenge the acquisition. On the contrary, they had stated that they are willing to give alternative lands voluntarily to provide house-sites for Adi dravidars. The petitioners offered to provide the following lands in Nochikulam village together with the extent indicated therein voluntarily:-
1.S.No.338/4 P.Rajangam 0.07.5 hectares
2.S.No.338/5 S.Annadurai 0.09.0 hectares
3.S.No.338/6 S.Rajendran 0.06.0 hectares
4.S.No.338/16-B P.Durairaj 0.12.5 hectares
5.S.No.338/16-B M.Pachaimuthu 0.12.5 hectares
6.S.No.338/16-B M.Kandasamy 0.84.5 hectares
3.Those writ petitions were heard together and a division bench by its final order, dated 12.12.2002 disposed of the writ petition. The following direction was given by the Division Bench:
"These two writ petitions have been filed questioning the land acquisition proceedings. Insofar as, public purpose is concerned, that is not disputed. But, the plea of the petitioners is that the other land owners are ready to give their lands by way of acquisition for the same public purpose. Affidavits of the other land owners, who are ready and willing to give their lands are filed before us, but they have got to be enquired into by the 2nd respondent, who is the land acquisition officer. These writ petitions are disposed of with a direction to the 2nd respondent to enquire as to whether the affidavits which have been filed by the other land-owners of the village are genuine and as to whether they are ready to part with their lands mentioned in their respective affidavits with the payment of compensation reckoning the date of Section 4(1) notification in the present cases. On being satisfied about the above requirements, the 2nd respondent shall recommend for the deletion of lands of the writ petitioners and acquire the lands of the other land owners, who have filed their affidavits, which are going to be enquired by the 2nd respondent. Follow up action depends upon the said enquiry. With the above observations, both the writ petitions are disposed of..." (Emphasis added)
4.Subsequent to the directions, the petitioners were called for an enquiry by the Special Tahsildar, Adi Dravidar Welfare, the second respondent herein. The beneficiaries were also called for the said talks. In the meanwhile, one of the beneficiaries by name M.Vaithialingam, who is the fourth respondent herein, filed a writ petition before this court in W.P.No.3446 of 2008 for a direction to consider his representations, dated 20.4.2004 and 12.9.2007 and to grant hour-sites patta for acquiring the notified lands in S.Nos.336/2, 336/4, 226/6 and 226/8 situated at Ramalingapuram village. The division bench, after referring to the earlier order passed by the another division bench, in paragraph 5 gave the following directions by a final order, dated 11.11.2008:
"5.We dispose of the writ petition, by directing the petitioner to make a fresh representation to the District Collector and the Special Tahsildar, the 1st and 2nd respondents along with a copy of this order within a period of two weeks from today and respondents 1 and 2 shall consider the same and pass appropriate speaking orders, within a period of six weeks from the date of receipt of the said representation. There will be no order as to costs." (Emphasis added)
5.It is pursuant to the said direction, the District Collector had passed the impugned order. In the order, he has stated that the lands in question were registered in the land records as Government poramboke, AD natham. In the present case, the lands in question were taken over by Act 31/78 and an Award in Award No.13/97-98 was passed on 6.2.1998. It was also stated that the lands in question were also inspected by the officials. It was found that excepting some tailed houses, borewells, four coconut trees, one lemon tree and banana plants, there has been encroachments. The lands offered by the landlords are considered as thorny bushes with full of Karuvela trees. On the Eastern side, there is a cremation ground for adi dravidars and on the Northern side, there is a cremation ground for other communities. Those lands are not fit for any human settlement. The beneficiaries have also rejected the offer of the alternate land.
6.The claim of the landlords that they have no other lands to survive was also not accepted. It was found that they have got sufficient lands in the same village. These lands acquired were classified as Natham. The petitioners were deliberately cultivating the land and by doing so, they have encroached upon the Government lands. The beneficiaries are also not willing to accept the alternative land. It is in that view of the matter, their claim was rejected.
7.On behalf of the first respondent, a detailed counter affidavit, dated 08.10.2009 has been filed. It is claimed that the writ petition is not maintainable since the challenge for acquisition made by way of notification under
Section 4(1) of the Tamil Nadu Act 31/78 was never done by the land owners. It was also stated that due procedure for taking over the lands has been followed. An Award has also been passed in Award No.13/97-98 on 6.2.1998. The land costs were worked out to Rs.43,002/- and was kept in the Revenue deposit on 5.8.1998. The petitioners had not challenged the Award proceedings except for coming out with the plea of offering alternative lands. Their offer was not accepted as it was neither beneficial nor conducive for locating the houses of the beneficiaries.
8.On behalf of the fourth respondent, a counter affidavit, dated 14.10.2009 was also filed. It was claimed that possession was taken as early as 26.3.1998 and whatever the petitioners are doing in the land is only in the capacity of encroachers.
9.The plea of land owners is misconceived. Under
Section 5 of the Tamil Nadu Act, 31/78, if a notification is issued under
Section 4(1) in the District Gazette, the land to which the said notice relates shall, on and from the said date on which the notice is so published vest absolutely in the Government free from all encumbrances. In the present case, it was stated that the respondents have taken possession as early as on 26.3.1998 and an Award has also been passed and the amounts have also been kept in the revenue deposit.
10.Further regarding the claim for possession, it is also necessary to refer to the judgment of the Supreme Court in Tamil Nadu Housing Board Vs. Viswam (D) by Lrs reported in JT 1996 (2) SC 549. In that case, after considering the judgment in Narayan Bhagde's case, this Court observed that while taking possession of a large area of land a pragmatic and realistic approach had to be taken. The Supreme Court after examining the context under which the judgment in Narayan Bhagde's case was rendered observed as under:
"It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperative in taking possession of the land."
11.The said judgment came to be quoted with approval and followed by the Supreme Court recently in Sita Ram Bhandar Society, New Delhi Vs. Lt.Governor, Govt. of N.C.T. Delhi and others reported in JT 2009 (12) SC 324. After referring to Viswam's case (cited supra), in paragraph 9, it was observed as follows:
"9.It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswas and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government."
12.Therefore, the petitioners cannot be heard to say that they are still cultivating the land. The question of offer of an alternative land is an issue which should have been raised at the proposal stage and not after an Award. In any event, thanks to the direction given by the Division Bench, such an exercise was gone into by the authorities. No mala fide can be alleged against the authorities. The petitioners have been holding on to the acquired land for the last 12 years and have successfully thwarted a welfare scheme meant for providing house sites to the dalits of the village. In fact, the Dalits in the State of Tamil Nadu are waiting for certain ameliorative measures to be taken by the Government under the State Act. The provisions of the Act was stalled successfully by the land owners until the law was found to be constitutionally valid by the Supreme Court in State of T.N. v. Ananthi Ammal reported in (1995) 1 SCC 519.
13.In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed.
09.12.2009 Index : Yes Internet : Yes vvk To
1.The District Collector, Perambalur, Perambalur District.
2.The Special Tahsildar (A.D.W.), Perambalur, Perambalur District.
3.The District Adi Dravidar & Tribal Welfare Officer, Collectorate, Perambalur.
K.CHANDRU, J.
vvk PRE DELIVERY ORDER IN W.P.NO.20240 OF 2009 09.12.2009