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Periaswamy Vs. the Special Tahsildar (Adi Dravidam Welfare) Vridhachalam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtChennai High Court
Decided On
Case NumberW.P. No. 2140 of 1982
Judge
Reported inAIR1984Mad142
ActsLand Acquisition Act, 1894 - Sections 4(1), 6 and 17; Constitution of India - Article 31(2)
AppellantPeriaswamy
RespondentThe Special Tahsildar (Adi Dravidam Welfare) Vridhachalam and anr.
Appellant AdvocateS.V. Jayaraman, Adv.
Respondent AdvocateGovt. Pleader
Cases ReferredIn Lewis Pugh v. Ashutoih Sea
Excerpt:
.....article 14 of the constitution of india. thereupon, acquisition was resorted to under the land acquisition act, 1894, section 4(1) notification was approved and the same was published in the gazette. the urgency provisions under section 17(7) has been invoked and enquiry under section 5-a has been disposed with declaration under section 6 was also issued. the notification and declaration were challenged in the writ petitions in so far as they relate the petitioner's land.;the question that arose for consideration was whether by merely saying public purpose in the 4(1) notification and 6 declaration, it is open to say that the benefit of acquisition was intended for the harijans.;held, failure to incorporate the word harijans either in the notification under section 4(1) on the..........of proceeding with acquisition of land under the said act, acquisition was resorted to under the land acquisition act, 1894. by g. 0. ms. no. 10, social welfare, dated 22nd january 1982, section 4(1) notification was approved and the same was published in the tamil nadu government i will do well 409 exempt that notification at this stage, became very much turns the saw:"whereas, it appears to the government of tamil nadu, that the lands specified below and situated in chinnaparur village, south arcot district, am needed for a public purpose, to wit, for low pon of to burial ground, notice to that effect is hereby-given to all to whose it own concern in accordance with the provision of sub-section (1) of section 4 ct do land , act, 104 (clents act i of 1894); and whereas, it has become.....
Judgment:
1. The facts leading to the Writ Petition, shortly, are as under: R. S. No. 272/10-B and R. S. No. 303/5-B Chinnaparur village, Vridhachalam taluk, South Arcot District, is a joint family property belonging to the petitioner and the other members of his family. A proposal was WOOW out to form a path-way to the burial ground for the use of the Harijans of the locality. 7berefom, acquisition proceedings were started for this avowedly public purpose, under - the provisions of the Tamil Nadu Act 31 of 1978. The petitioner, along with others, submitted objections stating that there was no need for forming a separate path-way to the burial ground for use by the Harijans; there was a regular road leading to the burial ground which Could be utilised by the Harijans also, and for the formation of pathway there was no need to acquire lands by disturbing the owners of cultivable lands.

2. However, what happened was, in W. P. No. 797 of 1978, this court struck down Act 31 of 1978 as vires and offending Article 14 of the Constitution. 7hereupon, instead of proceeding with acquisition of land under the said Act, acquisition was resorted to under the Land Acquisition Act, 1894. By G. 0. Ms. No. 10, Social Welfare, dated 22nd January 1982, Section 4(1) notification was approved and the same was published in the Tamil Nadu Government I Will do well 409 exempt that notification at this stage, became very much turns the saw:

"Whereas, it appears to the Government of Tamil Nadu, that the lands specified below and situated in Chinnaparur village, South Arcot District, am needed for a public purpose, to wit, for low PON of to burial ground, notice to that effect is hereby-given to all to whose it own concern in accordance with the provision of sub-section (1) of Section 4 ct do Land , Act, 104 (Clents Act I of 1894); And whereas, it has become necessary to acquire immediate possession of the lands specified below,the Governor of Tamil Nadu hereby direct& that the lands be acquired under the provisions of sub-section (1) of Section 17 of the said Act; Now, therefore, in exercise of the powers conferred by sub-section (2) Of Section 4 Of the said Act, the Governor of Tamil Nadu hereby authorises the Special Tahsildar (Adi Dmvidars Welfare), Vridhachalam ' his staff and workmen to exercise the powers conferred by the said sub-section.

Under Section 4 of (and?) Section 17 of the said Act, the Governor of Tamil Nadu hereby that in view of the urgency of the caw, the provisions of Section 5-A of the said Act shall not apply to this case, As seen from the notification, the urgency provision under Section 17(4) has been invoked and enquiry under Section 1-A has been dispensed with. By the Even G 0., declaration under Section 6 has also cometobe issued in the following terms:

"The Government of Tamil Nadu having been satisfied that the lands specified in the schedule below have to be acquired for a public Purpose, and it having already been decided that the entire amount of compensation to be awarded for the lands is to be paid out of public revenues~ the following declaration is issued under Section 6 of the Land Acquisition Act 1894 (Central Act I of 1894):

Declaration

Under Section 6 of the I-and Acquisition Act, 1894 (Central Act I of 1894), the Governor of Tamil Nadu declares that the lands specified in the schedule below and measuring ().36.5 hectare to be the some, a little more or less are needed for a public purpose, to wit, for the formation of path way to burial ground in Chinnaparur village Vridhachalam taluk, South Arcot district. A plan of the land is kept in the office of the Special Tahsilder (Adi Dravidar Welm(am), wilhachalant and it may be inspected at any time during office, houm" Lt is both the notification and the declaration, that are challenged in this writ petition in so far as they relate to the petitioner's lands in R.S No. 272/10-B and T. S. No. 303/5-B aforementioned.

3. Mr. S.V.jayaraman, learned counsel for the petitioner urges the following three grounds:-

(1) In so far as Me notification under Section 4(1) and the declaration under Section 6 have come to be issued simultaneously invoking the urgency provision, it is bad in law;

(2) There are no valid materials for invocation of the urgency provision under Section 17(4) dispensing with the enquiry under Section 5-A.

(3) In any event, it is not open to the respondents to say that the public purpose is to acquire a pathway for the Harijans. The entire records proceed on the basis that the acquisition is intended to benefit the Harijans. While that be so, neither the Section 4(1) notification nor the Section 6 declaration brings out such an intention. It is somewhat surprising that 'Harijans, had been left out both in the Section 4(1) notification as well as the Section 6 declaration, whereas all the proceedings before the Collector were on the basis that the acquisition was for providing a pathway to the Harijans of Chinnaparur village to reach the burial ground. Therefore, this would vitiate the entire acquisition,

As far as the first ground is concerned, learned Government Pleader contends that in view of the two categorical rulings of the Supreme Court in Somawanti v. State of Punjab, and Babu Singh v. Union of India, , it is no longer open to the

petitioner to contend to the contrary. Such simultaneous 'publication has been approved of by the Supreme Court, provided there are enough materials on record to show that there was valid ground for invoking the urgency provision. Such a ground does exist in this case, as the records would disclose. Therefore, the second of the grounds also will have to fail. As regards the third contention, according to the learned Government Pleader, it is true that the files proceed on the basis that the acquisition is for the benefit of the Harijans. It is equally true that neither the Section 4(1) notification nor the Section 6 declaration mentions about 'Harijans'. By that, it does not cease to be any the less a 'public purpose' and therefore the argument on behalf of the petitioner cannot be accepted. In support of this, reliance is placed in Barkya Thakur v. State of Bombay, ,, wherein it is held that if the Government were satisfied that the acquisition is for the benefit of Harijans, that would-be enough compliance, and the same can be culled out from the Section 6 declaration, though there is no express mention thereof.

4. In order to appreciate the respect. tive contentions, it is necessary for me to refer to the file at some detail. On 22-41979, the Harijans of Chinnaparur village, submitted a memorandum to the Special Tahsildar, Neyveli, stating the the caste Ilindus object to the dead bodies being taken to the burial ground over their lands, and requested that a separate pathway be provided for the Harijans to reach the burial ground. On this, a preliminary enquiry took place and a draft notification under Section 4(1) of Tamil Nadu Act 31 of 1978 was submitted. The relevant portion of the draft notification is as under:

"Whereas it appears to the Government of Tamil Nadu that the lands specified in the schedule below and situated in Chinnaparur village, Vridhachalam taluk, South Arcot district, are needed for the purpose of Harijans Welfare Scheme to wit for the provision of pathway to burial grounds to Harijans of Chinnaparur village Vridhachalarn taluk South Arcot district, notice to that effect is hereby given to all to whom it may concern in accordance with the provisions of sub-section (1) of Section 4 of the Tamil Nadu Acquisition of Land for Harijans Welfare Schemes Act 1978 (Tamil Nadu Act 31 of 1978).11

5. Afterwards, the matter was not proceeded with. But, on the materials gathered hitherto, proposal to acquire the lands under the Land Acquisition Act of 1894 was taken up and on 8-11-1981, the Collector of South Arcot stated in her report, in para 8, as to the reasons for invoking the urgency provision of the Land Acquisition Act:

"The Adi Dravidars of Chinnaparur village are now carrying the dead bodies through Patta lands. The land owners are objecting to that. This creates law and order problems at times. The acquisition is very urgent and it can be put to use immediately after acquisition. Further this village comes under Self Sufficiency Block in which the work should be completed before 31-3-1982.

I therefore recommend that the urgency provisions of the Land Acquisition Act may be invoked in this case by dispensing with the Section 5-A enquiry, to have the lands acquired, under Section 17(1) of the Land Acquisition. Act as it will serve to provide facilities of welfare to the Adi Dravidar people".Therefore, at every stage, the acquisition was only for the Harijans. The earlier draft notification, extracted, also spelt out that intention. Suddenly, when it reaches hands of the Government for masons best known to the Government, the word 'Harijans' had come to be omitted and the Section 4 (1) notification and Section 6 declaration came to be issued on the same day by G. 0. Ms. No. 168 Social ' Welfare dated 22nd Jan. 1982. What I find here is that no care was ever taken to incorporate the real public purpose for which the acquisition came to be started.' The file had gone through several hands. The first of the persons who approved the notification was the Additional Secretary, Social Welfare. Thereafter it had gone to the higher ups, perhaps, including the Minister concerned. Not one of them had taken care to verify this vital omission and supplied the same. As a result, the important purpose of acquisition has been completely lost sight of. It is in this background, the contentions of the respective sides will have to be examined.

6. As regards the first of the petitioner's submissions, I find- that the two rulings relied upon by the learned Government Pleader fully support his stand. both Somawanti v.- State of Punjab, and Babu Singh v. Union of India, ,

approve of such simultaneous publication provided there are~ materials for invoking the urgency provision. As -regards the material, I have already quoted the report of the Collector in para 8. In view of this, I reject the first and second contentions raised on behalf of the petitioner.

7. As regards the third one failure to incorporate the word 'Harijansf either in the notification under Section 4 (1) or the declaration under Section 6, is serious omission. The process had been done so mechanically. The earlier draft notification under the Tamil Nadu Act 31 of 1978 itself spelt out such an intention. Had only the draft submitted by the Tahsildar been properly perused bi the Collector while invoking the provisions d the Land Acquisition Act, 1894, this serious lapse would not have occurred. What was it that the Governs era was approving? I find, while correct, the draft notification, the word draft' been omitted and certain other interlineations have taken place; but not one had taken to we that the very acquisition is for Harijans because of the objections raised by the caste Hindus. By this callousness or supine indifference, a well intentioned and a very beneficial scheme for the downtrodden people has been set at naught. There cannot be a more glaring instance of a cavalier attitude in exercising the power of eminent domain, which both these courts as well as the Supreme Court have held to be a very valuable power causing a serious inroad into the rights of property. I could not have the slightest hesitation in upholding the acquisition, which as I said was well intentioned and highly beneficial, but for this omission. Therefore, the blame has to be attached only to the Government officials who have adopted a sense of extreme indifference. That is why; learned Government Pleader is perforce to seek the aid of Barky Thakur v. State of Bombay, . In that case, the Supreme Court observed at p. 1207:-

"It is argued that in terms the notification does not state that the land sought to be acquired was needed 'for a public purpose. In our opinion, it is not absolutely necessary to the validity of the land acquisition proceedings that that statement should find a place in the notification actually issued. The requirements of 'the law will be satisfied if, in substance, it is found on investigation, and the appropriate Government is satisfied as a result of the investigation that the land was needed for the purposes of the Company, which would amount to a public purpose under Part VII, as already indicated. See in this connection . in that can the question was whether the Bombay Land Requisition Act (Bombay Act XXIII of 194.8) was invalid inasmuch as the purpose for the requisition was not in express terms stated to be a public purpose. This court laid it down that the statute was not invalid for that reasons provided that from The whole tenor and intendment of the Act it cannot be gathered that the property was acquired either for the purpose of the State or for any other purpose."

The position here is entirely different. There is absolutely nothing to show that the Government was satisfied that this acquisition is for the provision of the pathway to burial ground to the Harijans of Chinnaparur village. On the contrary, the Government was only satisfied that it was a pathway to the burial ground, though the preliminary report was only for providing a pathway to the burial ground to the Harijans of Chinnaparur village. Therefore the Supreme Court decision cited is of no use.

8. The omission cannot but be characterised as fatal to the acquisition proceedings. Courts have gone very far when serious omissions of this character have, occurred. In Green v. Wood, 1845-23 LJR 217 (Court of Queens Bench) Lord Denman, C. J. held (Pattenson, 1. William J and Wightman, J. agreeing) at Page 220-

"We cannot introduce a new provision into the Act, merely because we think those who framed it would have done so it ft question had presented itself to them. It is the duty of Judges to confine themselves to the express provisions of acts of Parlitment."

Therefore, it is not even possible to contend that what the Government intended was something else than what has come to be expressed in the Section 4 (1) notification and Section 6 declaration.

9. Even if it happened to be a clerical error, it is no function of this court to supply that clerical error and rectify the defect, because, it is ultimately the satisfaction of the Government while either issuing the Section 4 (1) notification or the declaration under Section 6, that matters. In the Crown v. Saidu, AIR 1950 Lab 82, If was held thus -

"It was the duty of the Sessions Judge in the case of a sentence of death to direct that 'he be hanged by the neck t9i he Is dead'. On appeal under Section 423 ' Criminal P. C. the duty of the appellate court, was, after hearing the accused and the Public Prosecutor, to decline to, interfere it there was no sufficient ground and to dismiss the appeal. The appellate Court was under no obligation to define the mode in which the sentence was to be executed. That was the function of the trial c4urt. The judgment of the High Court, therefore, was not deficient in any respect. The confirmation by the High Court under Section 376, Criminal P. C., would mean only,' Js: that the death sentence awarded by the trial court was, in the view of the High Court, an appropriate sentence and should allowed to stand. In confirming the 'ace of death, it is, nowhere prescribed ed that the High Court should clearly state that the sentence is to be executed by how as prescribed in the Code. The clerical error, it any, ~ was that of the Sessions Judge who failed to direct that the sentence was to be carried out by hanging by the neck. The High Court could only correct its own error and not that of any other Subordinate court. There was thus no concision on the part of the High court which could be made up. It was also doubtful whether the correction which was real. to be made would be a mere 'clerical error'. It was not a mistake or slip made in the preparation of the copying of the Judgment."

Therefore, It is not my function to rectify the error.

10. Then again, as to the value of a comma, the Privy Council had an occasion to deal with, as seen from the report In Lewis Pugh v. Ashutoih Sea, AIR 1929 PC 69. At p. 71, it was held as follows:

"The Schedule to the Act contains two material articles-

Description of suit.

Art. 48. For specific movable property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same."

Art. 29. For other specific movable property or for compensation for wrongfully taking or injuring or. wrongfully detaining the same. In each can, the period of limitation is three Years.

Under Article 48 the, time from which the period begins to run is -

"When the person having the right to the possession of the property first learns In whom possession it is, and under Article 49 -

"When the property is wrongfully taken or injured or when the detainer's possession becomes lawful."

In their Lordships' opinion the decision of the trial Judge in this cast Is correct. and Article 47 is the Article that applies.. The two articles are the only ones that apply to claims in respect of specific movable property. Article 48 alone refers to conversion, and their Lordships can see no St d for splitting up conversion into two close% one dishonest and the other not dishonest. U such weft the intention one would have expected to find such a distinction between different classes of the same tort made clear by the express inclusion in Art. 49 of the second of the two classes. The truth is that, U the article is read without the commas Inserted in the print, as a court of law is bound to do, the meaning is ably clear. 'Conversion', a well-known legal term for a particular class of tort, is referred to as one of the modes by, which specific movable property may be wrongfully acquired, the other being theft and dWme3t misappropriation. The opposite view involves giving a different effect to 'or' preceding conversion, to that which it has before dishonest misappropriation'. In fact, in each can it is equivalent to 'or by. Therefore, what appears in print alone is the one that matters, because, that constitutes the evidence of satisfaction of the Government, more. so, when the declaration under Section 6(3) is final and conclusive. That is the statutory presumption attached to the declaration.

11. Lastly, I may add, it is not even open to the Government to contend that so long as it is a public purpose, it does not matter whether the word 'Harijans, is mentioned or not. This is because, the entire acquisition, as I said before, proceeded on the request of the Harijans and it was meant for the benefit of the Harijans and was also reported so by the Special Tahsildar and the District Collector. Therefore, by merely saying 'public purpose, which alone was the satisfaction to the Government it is not open to say that the benefit of acquisition was intended for the Harijans.

12. For all these reams, accepting the third of ft submission this writ petition will stand allowed and the proceedings are hereby quashed as prayed.

13. Before I Part with this can, I may add that it is a great pity that when the Government was striving the beat to better the lot of persons belonging to the downtrodden claw, sufficient care has not been exercised, but for which things would not have come to such a pass. I cannot treat this as trifle; even so it is the trifle that makes much. I am only reminded of the poetic words.-

For want of a nail. the shoe was lost;

For want of a shoe, the horse was lost;

For want of a horse, the rider was lost;

For want of a rider, the battle was lost;

For want of a battle, the kingdom was lost. And all for the want of a horse, shoe nail - Franklin (Poor Richard's Almanac for 1758.

The Petitioner will be entitled to his costs. Counsel's fee Rs. 300/-

14. Petition allowed.


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