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Judgment
K. Govindarajan, J.—The petitioner in W.P.No. 17767 of 2000 claims that he is the owner of the land bearing Survey No. 403,
Sirukarumbur Village, Arakonam Taluk, Vellore District, measuring 3.60 acres. He also claims that he is cultivating the land with the help of
electric motor pumpset, and there are about 600 coconut trees, out of which 400 trees are yielding.
The petitioner in W.P.No. 18589 of 2000 claims that he is the owner of the land bearing S.Nos. 50/3 to 11, 50/1 and 2, Thenmambakkam
Village, Arakonam Taluk, Vellore District, measuring 5.10 acres.
The petitioner in W.P.No. 18857 of 2000 claims that he is the owner of the land bearing Survey Nos. 49/1, 49/2, 50/1 and 50/2,
Thenmambakkam Village, Arakonam Taluk, Vellore District, measuring 0.41.5, 0.05.5, 0.22.0 and 0.22.5 hectares. According to him, the said
lands have been mortgaged with Kancheepuram City Union Bank and there are poramboke lands, measuring 10 acres available adjacent to
Panappakkam colony.
All the three petitioners have filed the above writ petitions challenging the proceedings taken by the authorities to acquire the abovesaid lands
under the Act 31 of 1978, hereinafter called ''the Act''.
The said acquisition was made for the purpose of providing house-sites to Adi Dravidas at Sirukarumbur Village, Arakonam Taluk. Exercising
the powers u/s 4 of the Act, the 2nd respondent- Collector, authorised the Special Tahsildar (LA), (ADW), Wallajah, the 3rd respondent to
proceed with the enquiry and submit the report. The Special Tahsildar issued notice in Form I to the petitioners and they submitted their
objections.
After holding an enquiry, the Special Tahsildar sent the report to the Collector, and the Collector passed the order exercising the powers u/s
4(3)(b) of the Act. At this stage, the petitioners have filed these writ petitions.
Mr. Subramanian, learned Counsel for the petitioners in W.P.Nos. 17767 and 18589 of 2000 has submitted that the Collector has not passed
the order as required u/s 4(3)(b) of the Act, especially when the petitioners raised objections saying that when poromboke lands are available, the
petitioners'' lands need not be acquired. Referring to Form II, the learned Counsel has further submitted that the purpose has not been specifically
mentioned in the order of the Collector as notified in the Gazette. He has also submitted that for two villages, there cannot be any single scheme
and the notification cannot be published jointly with respect to the said schemes.
Mr. Venkataraman, learned Counsel appearing for the petitioner in W.P.No. 18857 of 2000 has submitted that the Collector has not applied
his mind as to the objections raised in respect of the acquisition. According to him, they have specifically stated that there are poromboke lands
measuring 10 acres adjacent to Panapakkam colony which can be used for the present scheme. The petitioner has also mentioned that the land in
question was mortgaged with the Kancheepuram City Union Bank.
The submission of the learned Counsel for the petitioners in W.P.Nos. 17767 and 18589 of 2000 that there cannot be one publication of the
notification for two schemes cannot be countenanced. Merely because the two schemes relating to the lands are published in one notification, it
cannot be construed that it is a common scheme. Such publication of notification is only for the purpose of bringing to the notice of the concerned
persons about the acquisition of the lands in question. Even in the said notification, two references have been mentioned. So, such submission of
the learned Counsel cannot be accepted.
The next contention raised by the learned Counsel for the petitioners is that the Collector has not applied his mind before passing the order
with reference to various sustainable objections raised by the petitioners in respect of acquisition of their lands. I find some force in the said
argument. In the present cases, after receipt of the report, the Collector has not passed the order applying his mind so as to enable him to reject
the objections raised by the petitioners. He has passed the order by filling up the details in the cyclostyled form, and simply signed in the said form.
Now, it has to be decided whether such order can be sustained in law at all.
Before dealing with the abovesaid issue, it is beneficial to reproduce Section 4 of the Act, which reads as follows:
Power to acquire land: (1) Where the District Collector is satisfied that for the purpose of any Harijan Welfare Scheme, it is necessary to
acquire any land, he may require the land by publishing in the District Gazette a notice to the effect that he has decided to acquire the land in
pursuance of this Section.
(2) Before publishing a notice under Sub-section (1), the District Collector, or any officer authorised by the District Collector in this behalf, shall
call upon the owner or any other person, who, in the opinion of the District Collector or the officer so authorised may be interested in such land, to
show cause why it should not be acquired.
(3)(a) The District Collector may, where he has himself called upon the owner or other person to show cause under Sub-section (2), pass such
orders as he may deem fit on the cause so shown;
(b) Where any officer authorised by the District Collector has called upon the owner or other person to show cause under Sub-section (2), the
officer so authorised shall make a report to the District Collector containing his recommendations on the cause so shown for the decision of the
District Collector. After considering such report the District Collector may pass such orders as he may deem fit.
After giving opportunities to the land owner or any other person who is interested in such land under Sub-section (2) to Section 4 of the Act,
either the District Collector passes orders as he may deem fit, on the cause so shown by the land owner or any officer authorised by the District
Collector shall submit his report to the District Collector containing his recommendations on the cause so shown for the decision of the District
Collector. In the present case, the officer authorised by the District Collector, namely, the Special Tahsildar (LA) submitted his report. As
contemplated u/s 4(3)(b) of the Act, the District Collector should consider such report and pass orders as he may deem fit. Only thereafter, he can
notify his decision to acquire the land as contemplated u/s 4(1) of the Act.
Now, in the present cases, we have to see whether the District Collector has discharged his function as stipulated u/s 4(3)(b) of the Act.
While dealing with the power of the Government to take decision to invoke emergency provision, the Government have to apply their mind u/s
17 of the Land Acquisition Act, before approving the said suggestion. While considering such action, the Division Bench of this Court in the
decision in Chinnamma v. The State of Tamil Nadu 1985 Writ L.R. 109, has exercised judicial review to see whether the decision to invoke
urgency clause has been invoked mechanically or by application of mind. While dealing with the said issue, the Division Bench has held as follows:
Before going into the question as to whether the decision to invoke the urgency clause in the circumstances of the case could be the subject
matter of a judicial review, we must see whether the emergency provisions have been invoked mechanically as pointed out by the learned Counsel
for the appellants or whether it has been invoked after due application of the mind to the facts and circumstances of the case as contended for the
respondents. Though Mohan, J., says that the perusal of the file discloses that there has been an application of the mind by the Government as is
clear from paragraph 3 of the G.O.Ms.No. 694, dated 21.5.1982, and that such application of mind would be evident from a comparison of the
G.O.Ms.No. 976, dated 15.7.1982 and the impugned G.O.Ms.No. 694, Industries, dated 21st May, 1982, however, a close perusal of the files
relating to the impugned G.O., indicates that no opinion was formed by anyone, leave alone the Government as to the existence or otherwise of the
urgency and no decision was taken and that there has been a mechanical issuance of a notification invoking the urgency clause. It is no doubt true
that the impugned notification directs that in view of the urgency of the case, the provisions of Section 5-A of the Act shall not apply to the case.
But, the question as to whether there is urgency or not has not been gone into by the Government at any stage, before the impugned notification
was issued. It is no doubt true that SIPCOT has been urging the Government to acquire the lands in question under the emergency provision of the
Land Acquisition Act and as per their request, the impugned notification had been issued. But, the question is whether there is application of mind
on the part of the Government to the question of urgency. It is no doubt true that in G.O.Ms.No. 694, dated 21st May, 1982, paragraph 3 states
as follows:
The Government after careful consideration approve the revised proposal of State Industries Promotion Corporation of Tamil Nadu Ltd., for the
acquisition of 924.09 acres of dry patta lands and direct that the land acquisition proceedings may be initiated invoking the urgency provision u/s
17(1) of the Land Acquisition Act, 1894 in respect of lands where there are no structures and the lands are arable and waste and in respect of
other lands, land acquisition proceedings may be initiated under the ordinary provisions of the Land Acquisition Act.
After seeing the said notification, Mohan, J., has proceeded on the basis of the recitals contained in paragraph 3 therein and held that there is an
application of mind by the Government on the question of urgency. However, as the learned Counsel for the petitioners contended that at no stage,
the question of urgency was considered by the Government, we perused the note files relating to the issue of the said G.O.Ms.No. 694, dated 21st
May, 1982, and we are surprised to find that there is not even a discussion on the question of urgency in the office of the Government. The note
file refers to the earlier G.O.Ms.No. 976, Industries, dated 15.7.1981 directing the acquisition of lands in Gummidipoondi under ordinary
provisions and the request of SIPCOT to acquire lands under the emergency provisions and to give suitable directions to the Collector of
Chengalpattu. The office note has been signed by the Under Secretary, the Joint Secretary, and then the Secretary of the Industries Department.
Then the file goes to the Revenue Department and the file is returned with an endorsement with which we are not concerned. After the file goes
back to the Industries Department, again the note refers to the request of the SIPCOT for the acquisition of the lands under the emergency
provisions after setting out the facts, in paragraph 7 of the note, the request of the Managing Director of SIPCOT for invoking the urgency clause is
referred to and in paragraph 8, orders are sought for on the request contained in paragraph 7. The note does not contain any discussion either for
or against on the request of the Managing Director of SIPCOT or on the question of urgency. When orders are sought for on the request of the
Managing Director, SIPCOT contained in paragraph 7, no orders have been passed by anyone. After paragraph 8, which seeks an order on the
request of the Managing Director, SIPCOT, the Under Secretary, Joint Secretary and the Secretary, have merely signed without passing any
orders. The file also contains the mere signatures of Mr. S. Thirunavukkarasu, Minister for Revenue. Thus, the file does not contain any discussion
or decision by any one on the request of the Managing Director, SIPCOT for invoking the urgency clause. If the office in its note had suggested the
acceptance of the proposal of the Managing Director, SIPCOT, to acquire the lands invoking the urgency clause and in approval of that
suggestion, signature is affixed by the Secretaries or the concerned Ministers, it would have been a different thing. But, here the office merely points
out the request made by SIPCOT for invoking the emergency clause and on that request, no orders have been passed by any one. As a matter of
fact, the file has been circulated to the Secretaries for orders. But curiously, no order has been made by anyone of the Secretaries, or by the
Ministers who have signed. Therefore, it is not possible to say that anybody applied his mind to the question of urgency. It is no doubt true that the
Managing Director of SIPCOT made a request to the Government to invoke the urgency clause, but that request was put up for orders by the
office and no orders have been passed by any one, though the Under Secretary, Joint Secretary and Secretary as also the Ministers have merely
put their signatures. It cannot be said that a signature amounts to an order. As already stated, in cases where the office suggests that the proposal
of the Managing Director of SIPCOT for acquiring the lands under emergency provisions may be approved and the note is signed by the higher
authorities, it can be presumed that they have affixed their signatures in approval of the suggestion made by the office; but where the office refers to
the request of the SIPCOT and asks for an order, there should be a specific order accepting the proposal of the SIPCOT. A translated copy of
the relevant portion of the note file which is in Tamil has been reproduced below with the signatures of the Secretaries and Ministers.
According to the aforesaid order, the Collector of Chingleput and the SIPCOT, were requested to furnish the particulars required in G.O.Note
No. 95500/XI/81-1, Revenue Department, dated 30.9.1981.
On the basis of the fact that the Government is not in favour of acquiring wet lands, the SIPCOT after careful consideration has proposed to
exclude from acquisition the wet lands measuring an extent of 32.07 acres necessary for this scheme for the Industrial Complex. Hence, the
Chairman and Managing Director of SIPCOT has now sought for the approval of the Government for the acquisition of revised extent of 924.09
acres of dry lands and for the transfer of 58.64 acres of poromboke lands to this scheme, after obtaining proper sale, and for the acquisition of
lands where there are no structures, by invoking the urgency provision u/s 17(1) of the Land Acquisition Act, and where there are structures under
the ordinary provision of L.A. Act in Gummidipoondi taluk, Chingleput District.
The file is being circulated requesting for an order on the request of the SIPCOT referred to in para (7) above.
Sd. (in Tamil) S. Ramamurthi,
13.4.82
Under Secretary
(Sd.) (Sd.) File No.
Section Officer, (in Tamil) 58300/MIG/2-81
Industries Department Thiagarajan
Joint Secretary This file may be sent to this section
for perusal when a draft order
sd. (in Tamil) is submitted.
S. Thirunavukkarasu
22.4.82 M (Industries)
sd.(in Tamil) Though M.I.J. section. Ind.U.O.No.
S.D. Somasundaram 583.00-M(G11/81-82 13.4.82
4.5.82 M(Revenue) (seal) Secretary (Revenue)
Govt. of Industries
Govt. (Revenue)
Seal.
A draft order is submitted below for approval.
sd. sd.20.5.82 30211/C1/82
19.8.82 U.S. (S.O.) Revenue No. 30211/C1 dt.17.4.82
sd.25.5.82 D.O.No. 655 M(1)/82 dt.22.4.82 (Seal)
Through MIJ. MIG may let US(SO) see
the case.
issued as G.O.Ms.
No. 694, Industries Seal (Sd) 19.5.82.
dt.21.5.82.
Thus, the relevant note file produced by the Government clearly indicates that there is no application of the mind on the question of urgency by any
one. Nor was there any decision taken or order passed on that question. We cannot, therefore, agree with the learned single Judge, that there has
been an application of the mind on the question of urgency and that there is no mechanical application of the emergency provisions. In this view, it
is not necessary to go into the question as to whether the opinion of the Government on the question of invoking the emergency provision is subject
to judicial review or not as that question does not arise in the absence of any opinion. Therefore, the first submission urged by the learned Counsel
has to be accepted.
So, from the above said decision if the authorities concerned did not apply their mind to the issue on which the order is passed, such order
cannot be sustained. In the present cases, as contemplated u/s 4(3)(b) of the Act, the Collector has to consider the report of the officer authorised
and then he has to pass order as he may deem fit. But there is no such consideration by the Collector with reference to the report in the impugned
order itself, and it cannot be said that the same has been discussed by the clerk at the Collectorate officer in the note file and that is enough. The
consideration must be stated by the Collector himself in the order.
Further, only on the basis of the reasons mentioned in the order, the conclusion can be justified especially when such orders are subject to
judicial review. This view of mine is supported by the recent decision of the Apex Court in The Consumer Action Group and Another Vs. State of
Tamil Nadu and Others, , in which the Apex Court has held as follows:
Whenever any statute confers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion
may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test to judicial
scrutiny. This judicial scrutiny is one of the basic features of our Constitution. The reason recorded truly discloses the justifiability of the exercise of
such power. The question whether the power has been exercised validly by the delegate, in the present case, if yes, then it can only be for the
furtherance of that policy. What is that policy? The policy is the development and use of rural and urban land including construction of colonies,
buildings, etc., in accordance with the policy of the planning as laid down under the Act and the Rules. When such a wide power is given to any
statutory authority including a delegatee then it is obligatory on the part of such authority to clearly record its reasons in the order itself for
exercising such power. Application of mind of such authority at that point of time could only be revealed when order records its reason. Even if
Section is silent about recording of reason, it is obligatory on the Government while passing orders u/s 113 to record the reason. The scheme of
the Act reveals, the Government is conferred with wide ranging power, including power to appoint all important statutory authorities; appoints
Director and its members of Town and Country Planning u/s 4; constitutes Tamil Nadu Town and Country Planning Board u/s 5; Board to perform
such functions as Government assigns u/s 6; appoints Madras Metropolitan Development Authority u/s 9-A; Government entrusted for making
master plan or any other new plan; any plan of modification is subject to the approval of Government. In fact, every Statutory Committee is
created by the Government and its planning is subject to the approval by the Government. It is because of this that very wide power is given to it
u/s 113. In a given case, where a new development in rural or urban area may be required urgently and provisions under the Act and Rules would
take long procedure, it may in exercise of its exemption power exempt some of the provisions of the Act and Rules to achieve the development
activity faster or in a given case if any hardship arises by following or having not followed the procedures as prescribed, the power of exemption
could be exercised, but each of these cases would be for furtherance of the development of that area.
From the abovesaid decision also, it is very clear that the Collector has not considered the report of the authorised officer while passing the
order in question. Had the Collector carefully considered the report, he would have applied his mind regarding the valid objections raised by the
petitioners. The petitioners have specifically stated that lands of the Government are available, and, in the lands sought to be acquired, there are
coconut trees. Though the Collector has taken a decision to acquire the lands in question for the purpose of implementing the scheme, the Statute
cast upon the Collector the duty of considering the report of the authorised officer, if he has authorised somebody to do his duty, as contemplated
u/s 4(3)(b) of the Act. Such consideration should be effective for the purpose for which it has been provided for. Under the Act, it is the duty of
the Collector to call upon the owner or other persons to show cause as to why their lands should not be acquired and pass orders by himself on
the cause so shown. An alternative also is provided to depute that function to the authorised officer. When he deputes his function, the Collector
should be more careful while taking decision, and, by applying his mind, should pass orders with valid reasons. He cannot simply approve the
report of the officer authorised by him.
In these cases, as stated earlier, the order is passed in the cyclostyled form by filling up the names of the villages and the particulars of the lands
which, in any event, cannot be said that the orders passed are after considering the report of the officer so authorised or by applying his mind with
reference to the objections raised by the land owners/petitioners.
For all the reasons stated above, the impugned orders passed by the Collector in Form-11, dated 28.8.2000 and 26.8.2000 respectively
cannot be sustained in law, insofar as the lands of the petitioners are concerned, and they are set aside, and it is for the Collector to consider the
report and the objections raised by the petitioners in detail, and pass orders, if necessary, in accordance with law. With the above observations,
these writ petitions are allowed accordingly. No costs. The connected W.M.Ps. are closed.