K.V. Purushothma Naidu vs The District Collector and Another

Prabha Sridevan, J.—Writ petitioner challenges the acquisition proceedings on several grounds:

(1) The acquisition has been based on satisfaction of the Government and not the Collector.

(2) Before issuing Form III notice u/s 4(1), it should be notified in the District Gazette, but in this case, it has not been done. The notice in Form III

has been issued and signed by the Special , Tahsildar on 4.3.1996. Form III as printed shows that it should indicate the date on which the

notification u/s 4(1) had been published in the District Gazette. Whereas, in the instant case, these portions are left blank and indeed, it could not

be otherwise because the publication was effected only on 7.3.1996.

Learned counsel for the petitioners would submit that the notice under Rule 3(ii) is not in conformity with Section 4(1). What Section 4(1)

demands or requires is the satisfaction of the Collector. Whereas, there is nothing in the notice issued u/s 4(1) which indicates the satisfaction of the

Collector and therefore, if it is apparent from the notice that there is no satisfaction of the Collector, then the proceedings need to be quashed.

When the sovereign power of eminent domain is exercised and property expropriated, the exercise of power shall be only by authority of law and

not otherwise. It was submitted that even the form is not in accordance with Section 4(1). The blind adherence to the form would show the non-

application of mind and absence of ''satisfaction'' of the Collector.

The learned Additional Advocate General appeared on behalf of the respondents only to make his submissions with regard to the validity of

Section 4(1) notice issued in Form III. The learned Additional Advocate General referred to State of Tamil Nadu and Others Vs. Ananthi Ammal

and Others, . He submitted that Section 4(2), together with Rule 3(i), would correspond to Section 4 of the Central Act and Section 4(1) and Rule

3(ii), which corresponds to Section 6 of the Central Act. Therefore, the words used in the form, ""Whereas it appears that ......."" have perhaps been

taken from the form used in the Central Act for issuance of notice u/s 4 and these words can really be ignored and are redundant. According to the

learned Additional Advocate General, this notice can be split up into three parts and if the first part which deals with the requirement of acquisition

of land is ignored, then the latter parts would indicate that the notice is issued u/s 4(1) which means that the Collector has been satisfied with the

recommendations of the Special Tahsildar as per Section 4(3)(ii). Learned Additional Advocate General would further submit that the fact that the

requirement of the Government regarding the acquisition of land is mentioned in the Collector''s notice cannot equate it to a notice issued by the

Government indicating its satisfaction.

Section 4(1) clearly speaks of satisfaction. Without that, further proceedings cannot go on. In fact, in a case which will be dealt with later, this

Court quashed the action of the Government in proceeding with the acquisition though the Collector had indicated that further action should be

dropped. So, the Collector''s satisfaction is the indispensable factor to justify the acquisition. The record of satisfaction must be there in clear

terms. The question is whether the notice ex facie should disclose satisfaction, or it is enough if the records disclose it.

In Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, , the Bombay Tenancy and Agricultural Lands

Act and its provisions fell for consideration. A combined reading of Section 5(3)(b) with Rule 2-A which prescribes the manner in which

verification of a surrender by the tenant must be made: (1) It must be in writing. (2) It must be verified before the Mamlatdar. (3) While making

such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of

the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender. The

Supreme Court held that the imperative language, the beneficent purpose and the importance of Section 5(3)(b) and Rule 2-A would lead to the

conclusion that the provisions are intended to be mandatory and not directory. In the Tamil Nadu Act 31 of 1978 also, the language used is

imperative and the Act being expropriatory, before acquiring the lands against the will of the owner, the provisions must necessarily be adhered to

fully. The Supreme Court held that the requirement as to the recording of its satisfaction by the authority in the manner prescribed by the rule is the

substance of the matter and not an empty formality, and that if the endorsement was not there, the surrender is rendered non est.

In Income Tax Officer and Others Vs. Biju Patnaik, , the Supreme Court held, in a case relating to assessment u/s 147A of the Income Tax

Act, that the satisfaction of the authority making the order cannot be challenged on the ground of non-application of mind even though the order

does not ex facie disclose the satisfaction if the records disclose the same. It was observed as follows:

It is settled law that in an administrative action, though the order does not ex facie disclose the satisfaction by the officer of the necessary facts, but

if the record discloses the same, the notice or the order does not per se become illegal.

In State of Haryana Vs. Hari Ram Yadav and others, , the Supreme Court dealt with Rule 3(1) of the All India Services (Discipline and Appeal)

Rules, 1969. This Rule required the Government of a State or the Central Government to be ''satisfied'' that it was necessary or desirable to place

a member of the service under suspension. A question arose whether the absence of any recital recording satisfaction would render the order of

suspension invalid. Their Lordships held as follows :

In cases where exercise of statutory power is subject to fulfilment of a condition then recital in the order about the condition having been fulfilled,

raises a presumption about fulfilment of such condition. The burden is on person who challenges validity of order to show that the said condition

was not fulfilled. In a case where the order does not contain such recital, the burden to prove that the condition was fulfilled would be on the

authority passing the order.

In The Land Acquisition Officer and Special Tahsildar (LA) v. R. Manickammal, 2002 (2) C.T.C. 1, it was observed as follows :

State Act is completely different as Government intervention is not at all contemplated -- Collector is appropriate authority to decide acquisition of

land -- Provisions of State Act is absolute -- Decision to acquire land was to be exercised only by Collector by application of mind independently

-- Legislature did not reserve any power to State Government to have supervisory role as is provided under Central Act -- When legislature

names particular authority to exercise power, only that authority has to exercise authority and nobody else.

In that case, the Government interfered with the decision of the Collector that it was not desirable to acquire the land and it was held that the

Government could not do so since the Governmental intervention was unwarranted.

In the present case, it is obvious that the notice does not say that the Collector is satisfied. From the mere fact that the words refer to the notice

being one u/s 4(1), the Court cannot presume that the Collector was satisfied. When the Section mandates that the Collector should be satisfied,

then there should be a record of the satisfaction of the Collector. If the notice does not indicate such satisfaction, then at least the records should

show that the Collector is indeed satisfied with the recommendations of the Special Tahsildar that the acquisition was necessary.

In view of the decisions referred to above, it will not be possible to hold the notice itself as invalid if the records indicate satisfaction. But, in the

absence of materials to show satisfaction, Section 4(1) cannot be said to have been complied with. As observed by the Supreme Court in the

decisions cited supra, if the notice itself expresses the satisfaction, then it is for the land owner to prove that there was no real satisfaction. If the

notice does not indicate satisfaction, then it is for the Government to prove that there was satisfaction. In this case, there is no evidence to show

that the Collector was satisfied since as we have seen from the records, cyclostyled forms have been filled up.

In the first place, the notice in Form III should be issued by the District Collector who is the prescribed authority and it should be immediately

after the publication of the notice u/s 4(1). No other person can issue the notice in Form III except the prescribed authority and not even the

Special Tahsildar, as done in this case. Even if it were to be argued that this was only a draft notice, then the very fact that the draft notice has been

prepared on 4.3.1996 would itself indicate that the alleged record of satisfaction on 7.3.1996, three days later, is an empty formality. The

authorities have been vested with the very important power of deciding whether the acquisition is required and whether the lands should be taken

from the land owners. The records speak of such casual and careless attitude on the part of the officials that one wonders if the respondents are

really serious about the acquisition proceedings and whether it is only an exercise undertaken in order that it may be quashed.

Very often, the manner in which the proceedings are initiated leaves one in great doubt as to whether the alleged public purpose genuinely

exists. Signatures are obtained from persons on cyclostyled papers to establish the requirement. In Jilubhai Nanbhai Khachar, etc. etc. Vs. State of

Gujarat and another, etc. etc., , it was observed, ""It is inherent in every sovereign State, by exercising its power of eminent domain, to expropriate

private property without owner''s consent. Prima facie, the State would be the judge to decide whether a purpose is a public purpose. But, it is not

the sole judge. This decision will be subject to judicial review and it is the duty of the Court to determine whether a particular purpose is a public

purpose or not."" There should be a real public need and a real public purpose for which individual interests are adjusted with public interest by

social engineering. ""So long as the exercise of power is for public purpose"" are the words used in Chameli Singh and others etc. Vs. State of U.P.

and another, . It is this which validates the power of eminent domain. I also take judicial notice of the fact that in land acquisition proceedings

initiated for Housing Board purpose, the State has recorded that, the assessment of the extent of land required has not been done on a scientific

basis. This must be avoided. Individual rights cannot be sacrificed so carelessly and at what cost ? To whose advantage is it, if huge constructions

are put up by expropriatary measures and there are no takers ?

In Ananthi Ammal''s case cited supra, the Supreme Court has clearly observed that the main difference between the two Acts, the Central Act

and Tamil Nadu Act 31 of 1978, is that in the Central Act, the Government notifies the acquisition, conducts the enquiry and declares its

satisfaction, whereas in the Tamil Nadu Act, it is the Collector. The Tamil Nadu Act merely encapsulates in one Section, viz. Section 4, the three

Sections from the Central Act, Sections 4 to 6. It cannot be difficult for the respondents to ensure adherence to these provisions while they initiate

and conduct the acquisition proceedings. If they fail to act in accordance with the Act and the Rules framed therein, then the acquisition

proceedings will necessarily have to be quashed.

For the reasons stated above, this writ petition is also allowed as prayed for. No costs. Consequently, the connected W.M.Ps. are closed.