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Judgment
S. Jagadeesan, J.—Since the issue involved in these Writ Petitions is one and the same, all the Writ Petitions are taken up for final disposal.
The petitioners in these writ petitions have challenged the acquisition proceedings initiated against their lands. The acquisition of the land of the
respective petitioners is sought for by the respondents for providing house sites for Adi Dravidas. There is no dispute that on the earlier occasion
the acquisition was sought for in respect of the same lands and after the preliminary enquiry and then Collector by his proceedings dated 12.10.96
had dropped the proceedings on the ground that the lands are very valuable lands and if the same is acquired it will be a heavy commitment for the
State exchequer. The Secretary to the Government, however, without agreeing with the proposal to the dropping of the acquisition proceedings
sent by the Collector, had directed the Collector to proceed with the acquisition of the petitioners lands and consequently the notification was
issued in the Gazette dated 17.7.97. The petitioners have also pointed out that on an earlier occasion a large area of the land of the petitioners was
acquired for various purposes and now under the direction of the Secretary to Government the Collector is proceeding with the acquisition and
hence the acquisition is being challenged on the following grounds:
i) When the Collector has sent the proposal to drop the earlier proceedings, thereafter the Secretary has no authority to compel the Collector to
proceed with the acquisition;
ii) When the Collector had pointed out the heavy financial commitment due to the acquisition of the valuable lands, the Secretary is not the authority
to take a decision with regard to the financial commitment of the State exchequer without consulting the Finance Department as well as the
concerned portfolio Minister;
iii) Section 4(1) of Act 31 of 1978 contemplates that the Collector has to be satisfied with regard to the selection of the site find when the
Collector, taking into consideration the financial commitment, has informed the Government that it is not a suitable site, thereafter the Collector
cannot be compelled to proceed with the acquisition I proceedings by the Secretary.
iv) When the Collector has been directed to proceed with the acquisition by the Secretary, then it cannot be said that the site - has been selected
to the satisfaction of the Collector as required u/s 4(1)of the said Act.
The first respondent filed counter wherein it is stated that in the year 1989 the lands of the petitioners were acquired. The petitioners filed Writ
Petitions W.1/11721 to 11723 and 2685 of 1991 challenging the said acquisition proceedings. By judgment dated 27.11.95 this Court quashed
the said proceeding with liberty to the respondents to initiate the acquisition under the Special enactment if they so desire. Subsequently by letter
dated 16.2.96 the Government directed the Collector to initiate action to acquire the lands of the petitioners under the Tamil Nadu Act 31 of
1978. The second respondent issued notice u/s 4(2) of the said Act, calling for the objections: The petitioners also submitted their objections
stating that already large area of their lands were subjected to acquisition for various purposes and the market value of the land is also on the higher
side and hence the acquisition proceedings may be dropped. In the meanwhile the second respondent addressed the Tahsildar to find out the
feasibility of accommodating the beneficiaries in Sugunapuram village Natham. The leaders of the beneficiaries objected the proposal on the ground
that the Sugunapuram Natham is not suitable for their habitation and thereafter the R.D.O, Coimbatore suggested that the beneficiaries may be
accommodated in Keeranatham village of Coimbatore (North) Taluk. So far as Keeranatham village land is concerned, the writ petition
W.P.1512V96 was filed and this Court has granted stay; Then the Collector felt that the value in respect of the proposed lands are very high and
issued general instructions to all the Land Acquisition Officers not to initiate land acquisition action in respect of the lands situated in Coimbatore
Corporation Limits. The Collector has also submitted the proposal to drop the acquisition proceedings in these cases to the Government by his
letter dated 15.10.96. The owners were also informed about the dropping of the acquisition proceedings by memorandum dated 17.10.%. These
facts have been informed to the Director of Adi Dravidar Welfare Department and a Special Report was also submitted to. that Hon''ble Minister
for Adi Dravidar Welfare on 5.2.97 and 2.5.97 respectively. The Secretary to Government, Adi Dravidar and Tribal Welfare Department on
7.5.97 has observed that the question of acquisition cannot be decided on the value of the land alone and there are other tractors to be taken into
account, paramount of them being the requirement of house site for Adi Dravidars. The Secretary also instructed the Collector to resort to the
acquisition immediately under Tamil Nadu Act 31/78. Thereafter the notice u/s 4(2) of the Act was issued for enquiry. The objections were
received and they were considered and the notification u/s 4(1) was published in the Gazette on 17.7.97. In the counter it is further stated that all
the statutory formalities had been complied with and as such there is no illegality in the acquisition proceedings. The total cost of the lands of an
extent of 18.18 acres may come to Rs. 52 lakhs. Hence the writ petitions are liable to be dismissed.
The question for consideration is whether the Secretary of the Adi Dravidar and Tribal Welfare Department has authority to reject the proposal
of the Collector for dropping of the acquisition, when the Collector has sent the proposal for dropping the acquisition, considering the heavy
financial commitment; and whether the Secretary has got authority to direct the Collector to proceed with the acquisition on the ground that the
paramount factor is being the requirement of house site for Adi Dravidas.
The learned senior counsel, Mr. R. Krishnamurthy, appearing on behalf of the petitioners and the learned Government Pleader Mr. Rajavelu
reiterated what is stated in the affidavit and in the counter.
On identical facts, earlier I had an occasion to deal with the writ petitions WJU977 and 2728 of 1998. In the light of the said judgment, I am of
the view that there is DO need to discuss the fact in detail in these cases.
In the said judgment I held that it is not open to the beneficiaries to select a particular site and demand for the same for the provision of their
house sites. When the Government provides the house sites by free of cost, the machinery provided under the Act has to decide with regard to the
selection of the site and the financial commitments therefore. When the Collector has proposed the dropping of the acquisition and sent the
recommendation to the Government; especially taking into consideration of the heavy financial commitment for the State exchequer, it is for the
Government to consider and take a decision. It is not open to the Secretary of the particular department to reject the proposal of the Collector,
without consulting either the finance department or the concerned minister. Definitely it cannot be said that the Secretary of the concerned
department is the ''Government'' to take a decision as to whether the land acquisition is to continue or the proposal of the Collector has to be
accepted, considering the financial commitment.
In considering the selection of the site also it cannot be said that the paramount factor is only the provision of house sites for the Adi Dravidas.
The State has to meet out various social obligations to satisfy the Directive Principles laid down under the Constitution of India. The paramount
factor will be the financial commitment of the State since the budgetary allocations of the funds have to be made in respect of each financial year.
Hence it is not proper on the part of the Secretary of the concerned department to direct the Collector to proceed with the acquisition, rejecting
the proposal sent by him for dropping of the same.
When once it is established that the Collector, on his application of mind, has decided that the site, the lands of the petitioners is not suitable for
the purpose of acquisition, then it is always open to him not to proceed with the acquisition. The earlier acquisition proceedings had been initiated
in die year 1989 and this Court has quashed the notification in the year 1995. Thereafter in the year 1996 the fresh acquisition proceedings had
been initiated. While so, it is open to the Collector to consider and satisfy as to whether the acquisition proceedings can be initiated or not. Since
the Act provides the preliminary enquiry before even the issue of notification u/s 4(2) of the Act, the Collector had initiated the preliminary enquiry
and submitted the final report regarding the suitability of the site on the ground of financial commitment. Hence it is not open to the Secretary of the
concerned department, to direct the continuation of the acquisition without the concurrence of the finance department as well as the concerned
portfolio Minister. The necessary notification u/s 4(2) of the Act had been issued only after the direction issued by the Secretary to the Government
of the concerned department. Hence it goes without saying that the acquisition itself had been initiated only under the directions of the Secretary to
Government. In that case, the requirement of Section 4(1) is not complied with.
In the judgment reported in the Gurunathan Vs. State, I have held as follows:-
Sub-section (1) of Section 4 empowers the District Collector to acquire the land by publishing the notice to that effect in the District Gazette that
he has decided to acquire the land. Sub-section (2) of Section 4 contemplates that the District Collector either himself or through his authorised
officer has to call upon the owner or any other person who has got any interest in the land to show cause as to why it should not be acquired. Sub-
clause (1) of Sub-section (3) of Section 4 empowers the Collector to pass orders as to he may deem fit on the representation of the land owners,
i.e., on the cause so shown. These procedures prescribed under the statute clearly reveals that before ever the final notice with regard to the
acquisition is to be published, it is the duty of the Collector to issue show-cause notice on the owner or any oilier person interested in the opinion of
the Collector or his representative. On receipt of such reply from the land owner or the person interested, the Collector has to consider the same
on merits and pass final orders, which means whether to acquire the land by proceeding with the issue of notice as contemplated under Sub-
section (I) of Section 4 or to drop the proceeding. In this case, admittedly the Collector has passed an order, dropping the proceedings as early as
22.9.96. The action of the then Collector in dropping the acquisition proceedings had been accepted by the Government, since the Government
did not review the said order and take a different decision at the relevant point of time. Even now the order of the then Collector dated 22.9.96
dropping the Acquisition proceedings has been accepted as vatic, since the respondents in their counter had not challenged the authority of the then
Collector in passing such orders or either any motive has been attributed to the then Collector in passing such orders. Hence the then Collector
acted bona fidely and considered the representation of the petitioner mill herein and genuinely thought that the acquisition of the land has to be
dropped.
The selection of the site, as held by the Apex Court in many cases, is only to the subjective satisfaction of the acquiring authority. When the
acquiring authority is expected to consider the availability of other alternative lands, either with lessor cost or free of cost, it is for him to take a
decision. By issuing a specific direction to acquire a particular land to the acquiring officer by the superior authority, the question of subjective
satisfaction regarding the selection of the site by the acquiring authority is lost. As stated already, if the Secretary had an occasion to deal with the
question of selection of site and comes to the conclusion that the site directed to be acquirers suitable for the public purpose for which it is to be
acquired, it can be tolerated on the ground that even though the higher authority issues direction, he has considered the suitability of the land and
came to the conclusion. In this case, the direction to acquire the land had been issued by the Secretary to Government only at the request of the
Tamil Nadu Arunthathiar Welfare Association and the lands are proposed to be acquired on the basis of such direction. Hence it goes without
saying that the lands are being acquired only to the subjective satisfaction of the Tamil Nadu Arunthathiar Welfare Association and not to the
subjective satisfaction of any of the authorities prescribed under the statute.
Though notices were issued, calling for the objection, I am of the view that for theoretical purposes in order to satisfy the requirement of the
statute, the objections have been called for. As stated already, when the Collector is acting under the direction of the Secretary to Government,
how far these objections will be considered subjectively by the acquisition officer, is a known factor.
The said principle is squarely applicable to the facts of this case also. Following the same, I am of the view that the Writ Petitions have to be
allowed and accordingly all the Writ Petitions are allowed and the impugned notification issued u/s 4(1) of the Tamil Nadu Act 31 of 1978 and
published in the Tamil Nadu Government Gazette dated 17.7.97 is quashed.