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i. Easwara Pillai and ors. Vs. the State of Tamil Nadu Represented by the Secretary to the Revenue Department for Harijan Welfare and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1972)1MLJ92
Appellanti. Easwara Pillai and ors.
RespondentThe State of Tamil Nadu Represented by the Secretary to the Revenue Department for Harijan Welfare a
Cases ReferredMeclec Nutriments and Pharmaceuticals Ltd. v. State of Madras W.P. No.
Excerpt:
- .....father, ayyappan pillai. to provide house sites for harijans, proceedings were initiated under the land acquisition act, 1894 (hereinafter referred to as the act), and the petitioners' property was notified under section 4(1) of the act. the notification was published on 26th november, 1968, in that notification the name of ayyappan pillai was shown as the person interested in the land. notice of enquiry under section 5-a was sent to ayyappan pillai, who appeared before the acquisition officer and gave a statement disclaiming interest and further stating that under the partition in his family, the land had been allotted to his three sons in equal shares. he also raised objections to the acquisition. his objections were overruled. but notices were not issued to the petitioners. then.....
Judgment:
ORDER

K.S. Palaniswamy, J.

1. The three petitioners are brothers and are the sons of one Ayyappan Pillai. This family owned an extent of 2 acres 25 cents in old S. No. 3829 in Neendakara Village, Kanyakumari District. The family effected a partition of their properties by a registered document, dated 23rd February, 1968. Under that partition, each of the three petitioners got 75 cents in old S. No. 3829. But the registry continued to stand in the name of the father, Ayyappan Pillai. To provide house sites for Harijans, proceedings were initiated under the Land Acquisition Act, 1894 (hereinafter referred to as the Act), and the petitioners' property was notified under Section 4(1) of the Act. The notification was published on 26th November, 1968, In that notification the name of Ayyappan Pillai was shown as the person interested in the land. Notice of enquiry under Section 5-A was sent to Ayyappan Pillai, who appeared before the Acquisition Officer and gave a statement disclaiming interest and further stating that under the partition in his family, the land had been allotted to his three sons in equal shares. He also raised objections to the acquisition. His objections were overruled. But notices were not issued to the petitioners. Then followed the declaration under Section 6 as per the order of the Government, dated 14th August, 1969. Notice under Sections 9(3) and 10 was issued to the petitioners' father calling upon him to state his interest in the land and asking him to put in a statement regarding the amount of compensation. The petitioners at this stage came forward with this writ petition questioning the validity of the acquisition proceedings. They pray for the issue of a writ of certiorari to quash the acquisition proceedings on the ground that they being the owners of the land, had no notice. It is contended on behalf of the petitioners that the description of the property given in the notification under Section 4(1) and the declaration under Section 6 was not correct but defective and that on that account, the proceedings are vitiated. The further contention urged on their behalf is that failure to issue notice to them has resulted in denial of opportunity to them to put forward their objections and that on this account also the proceedings are vitiated.

2. It is contended on behalf of the respondents, the State of Tamil Nadu and the Acquisition Officer, that the petitioners' father had notice of the acquisition proceedings, that the petitioners knew about the acquisition proceedings and that there is no error apparent on the face of the record to call for interference by this Court under Article 226 of the Constitution.

3. In the notification under Section 4(1) the extent is given as 1.35 acres approximately. It is stated that it is a part of old S.N. 3829. The re-survey number is given as R.S. No. 16/4-B. The petitioners' Counsel contended that they did not even know when this re-survey was made. The Assistant Government Pleader produced records to show that an extent of 1.35 acres proposed to be acquired was sub-divided as R.S. No. 16/4-B. This sub-division does not appear to have been made after notice to the petitioner and their father. In the declaration under Section 6 the extent 1.35 acres is said to be comprised in R.S. No. 16/4-B. Four boundaries are given for this extent. As per the plan which the Government Pleader showed to me R.S. No. 16/4-B should have boundaries on the west and north, portions of old Survey No. 3829. But those portions are not given as the boundaries for R.S. No. 16/4-B. Northern boundary is stated to be R.S. No. 15, eastern boundary is said to be R.S. No. 27, southern boundary is said to be R.S. No. 25 and the western boundary is said to be R.S. No. 77. In the plan shown to me by the Government Pleader these survey numbers were not indicated. The description is no doubt defective. But on that account, the proceeding is not liable to be quashed. Section 4 of the Act requires that the notification shall indicate the locality where the land is situated. That requirement is satisfied in the instant ease. Section 6 states that the declaration shall state the distance or other territorial division in which the land is situated, the purpose for which it is needed, its approximate area and where a plan was drawn for the land, the place where such plan may be inspected. In the impugned notification, all these requirements are satisfied. The declaration says that the plan was kept in the office of the Special Tahsildar for Land Acquisition, Nager-coil, and could be inspected at any time during office hours. It is not the case of the petitioners that no such plan was available for inspection. Therefore, the contention that the proceeding is defective on account of incorrect description of the property cannot be accepted.

4. The other contention urged on behalf of the petitioners is that they were denied reasonable opportunity of putting forward their objection to the acquisition. The notice under Section 5-A was served only on the petitioners' father. In his objections given before the Acquisition Officer, the petitioners' father made clear that under the partition effected in his family, each of his three sons had been given 75 cents in the land proposed to be acquired. Thus, the Acquisition Officer was put in knowledge of the interest of the petitioners even at that time. But no step was taken to issue notice to the petitioners. On behalf of the petitioners certain instructions issued by the Government and embodied in the Board's Standing Order were relied upon to show that the petitioners were entitled to notice. B.S.O. No. 90 occurring in Chapter VII of the Board's Standing Orders, Volume II, deals with acquisition of land for public purpose. Paragraph 90 of that Order states that after the publication of the notification under Section 4(1) of the Act, the officer appointed to perform the functions of the Collector should give public notice of the proposed acquisition and hold an enquiry into the objections preferred, if any, in accordance with the rules framed by the Government under Section 55 of the Act. Then follows the important provision, which reads thus:

In enquiring into the objections, the Collector will be guided by the following instructions:

(1) Besides publishing the notice as prescribed in Rule 1 of the Appendix 1, the Collector should see that individual notices are served as far as possible on every person known or believed to be interested in the. land to be acquired in the manner prescribed by Sub-sections (3) and (4) of Section 9 of the Land Acquisition Act (I of 1894). In cases in which it has been impossible at the time of the issue of the notification under Section 4(1) so to describe all or any of the lands to be acquired that the persons interested therein can understand that their lands are likely to be needed for the public purpose, the individual notice should be issued as soon as the necessary details are available allowing 15 days thereafter for the presentation of objections to the acquisition.

The last sentence in the aforesaid passage was introduced in the instruction as per order in G.O. No. 196, Revenue, dated 6th February, 1926. Admittedly, in the instant case, this instruction was not followed. It is contended on behalf of the respondents that the instructions were mere by executive in nature and had no statutory character or force and that the petitioners cannot make a grievance out of non-compliance of those instructions.

5. No doubt, the foregoing instructions were not issued by the Government by expressly invoking the power conferred on them by Section 55 of the Act, which empowers them to make rules consistent with the Act for the guidance of the officers in all matters connected with the enforcement. The question is whether from the mere fact that the said statutory provision was not invoked, the instructions should be held to be merely executive having no force. The language of Section 55 is somewhat unusual. It requires rules to be male consistent with the Act for the guidance of the officers in all matters connected with the enforcement of the objects of the Act. The legislative phraseology which we generally find in statutes conferring power upon the executive to make rules is 'for giving effect to the provisions' or 'for carrying out the purposes of the Act' or 'for carrying into effect the provisions of the Act'. The rules contemplated in Section 55 are primarily intended for the guidance of the officers in the enforcement of the provisions of the Act. The instructions referred to above fall squarely within the ambit of Section 55. The Government, as the head of the executive, has the power to issue suitable instructions to its revenue subordinate officials in the matter of enforcing the provisions of the Act. The Government also has the power, as the delegate of the Legislature to make rules for the guidance of its officers in the enforcement of the provisions of Act. Having these two capacities the Government issued the instructions in question. The capacity to impress the instructions with statutory force can and should be inferred and recognised and given effect to so that the object of the Legislature could be fulfilled and the intendment of the law can be achieved. It may be that the instructions in question do not satisfy the requirement of previous publication so as to clothe them with the status of a rule strictly speaking. But nontheless the instructions have statutory force and are not merely executive just as an instruction emanating from a superior to a subordinate official.

6. In Nagarathnammal v. Ibrahim Sahib I.L.R. (1955) Mad. 460 : (1955) 2 M.L.J. 49, the question arose before a Full Bench of three Judges of this Court as to the nature and scope of the legal effect of Board's Standing Orders. Balakrishna Ayyar, J., speaking for the Court, observed at page 60:

The Standing Orders of the Board of Revenue, consist of at least three categories of rules:

(1) Rules framed either by the Government or by the Board itself in pursuance of a statutory power. Thus, for instance, Section 20 (Madras Act III of 1895), confers on the Board powers to make rules on various matters with the approval of the Government after previous publication. Such rules are incorporated in the Board's Standing Orders. We have mentioned Madras Act (III of 1895) only by way of illustration. There are several other statutory provisions incorporated in the Board's Standing Orders. (2) The Board's Standing Orders next consist of a large number of orders issued by the Government. (3) The third eategory consists of orders issued by the Board itself with approval and very often with the previous sanction of the Government. All these have been arranged in the Board's Standing Orders in a manner that should make reference to them easy. It is not therefore entirely correct to say that the orders of the Board are all merely executive instructions devoid of statutory force.

7. In Chakravarthi v. Thillaimoorthy : (1970)1MLJ476 , the scope of certain Bjard's Standing Orders dealing with assignment of land arose for consideration. The question was whether violation of such an order, even if it is executive in nature, would give rise to legal rights. Sadasivam, J., observed at page 482:

Though the Rules in Board's Standing Orders may be only administrative instructions, the actual orders passed by the concerned revenue officials, Board of Revenue and Government will give rise to legal rights and disregard or violation of the rules will be relevant in dealing with those rights in Writ jurisdiction.

8. Even if it is assumed for the sake of arguments in the instant case that the instructions of the Government to the Acquisition Officers in the matter of issue of notice under Section 5-A are merely executive, would the violation of those instructions give rise to a cause of action to any person?

9. The object of the Government, in issuing the instructions is quite obvious. At the time of issue of the notification under Section 4 all that is possible is to specify the name of the person, whose name finds a place in the relevant revenue register as the owner of the land. Rule 1 of the rules framed under Section 55 of the Act enjoins a duty upon the Acquisition Officer to issue a notice immediately after the publication of the notification under Section 4(1) stating that the land is needed or is likely to be needed for public purpose and requiring all persons interested in the land to lodge before him within 30 days after the issue of the notification a statement in writing of their objections, if any, to the proposed acquisition. That rule enjoins a duty of publishing the notice at convenient places in the locality and affixing copies thereof at specified places. The instruction in question says that besides publishing the said notice, the Collector should see that individual notices are served as far as possible on every person known or believed to be interested in the land, in the manner prescribed by Sub-sections (3) and (4) of Section 9. The instruction further says that even though it may have been impossible at the time of the issue of the notification under Section 4(1) to issue notices to individual persons, individual notices should be issued as soon as the necessary details are available allowing 15 days thereafter for the presentation of objections to the acquisition. The principle underlying this instruction is to see that reasonable opportunity is given to all the persons interested to put forward their objections to the acquisition. Every citizen is entitled to hold and enjoy his property subject to such reasonable restrictions as the State may impose. When a person's holding is sought to be acquired compulsorily, he should be given a reasonable opportunity of showing cause against the proposed deprivation of his rights, though such deprivation may be compensated in money value. It is obviously with a view to enable the persons interested to have adequate opportunity of putting forward their case that Government in their wisdom issued the instructions to be followed by the Acquisition Officers in the matter of issuing notices to persons interested for the purpose of presenting their objections. This is a simple rule which satisfies the principles of natural justice.

10. Explaining the scope of the application of the principles of natural justice, the Supreme Court in A.K. Kraipak v. Union of India : [1970]1SCR457 , observed at page 156:

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years.. .. .. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Oftentimes it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry.

If the instructions were to be held to be non-statutory as contended for on behalf of the Government, then the above observation of the Supreme Court would squarely apply. If these instructions are not to be taken as law, rules of natural justice would have to be complied with in the absence of a statutory provision. Violation of these instructions would result in denial of natural justice and would give rise to a cause of action to a person aggrieved by such denial. The contention urged on behalf of the respondents is that mere violation of such instructions would not lead to interference by this Court, as such non-compliance does not necessarily involve error of jurisdiction. In support of this argument, reliance was placed upon the decision of this Court in D.I.G. of Police v. Amalanathan : AIR1966Mad203 . In that case, the effect of certain amendments made to the Madras Police Standing Order was considered. The amendment required the official holding a departmental enquiry himself to write the minutes throughout. It was held that the rule was non-statutory but merely administrative. The Court further observed that even if the rule was statutory under Article 309 of the Constitution, it was only directory but not mandatory and that non-compliance would not involve an error of jurisdiction. This decision is not applicable to the facts of the instant case. We are not concerned with the procedure in a departmental enquiry. Here we are concerned with the case of deprivation of a citizen's property by compulsory acquisition. The non-compliance with the instructions, even if they are executive, has the effect of denying reasonable opportunity to the persons interested, and this Court has jurisdiction to interfere under Article 226 of the Constitution to rectify the error.

11. On behalf of the respondents, reliance was next placed upon the decision of the Supreme Court in G.J. Fernandez v. State of Mysore : [1967]3SCR636 , in which the nature of the instructions contained in the Public Works Department Code of Mysore, arose for consideration. It was held that the Code contained mere administrative instructions without statutory force and that no writ would lie for non-compliance with the rules at the instance of a member of the public. That decision also is not applicable to the facts of the instant case. Here, the non-compliance is complained of not by a member of the public but by persons interested in the land which is sought to be taken away from them by compulsion.

12. The learned Assistant Government Pleader contended that under Section 5-A of the Act notice to persons interested is not contemplated and that, therefore, the non-issue of notice cannot be a ground of attack. No doubt, Section 5-A does not say that before holding an enquiry the Acquisition Officer should issue notice to the persons interested. It is also true that no express rule has been made by the Government in this behalf in making rules under Section 55. But the Government have prescribed statutory form of notice to be issued under Section 5-A. That form inter alia requires the person interested to lodge his statement of objections to the acquisition before the Acquisition Officer within the prescribed time. The notice further says that the objections received within the prescribed time would be enquired into and that the objector would be at liberty to appear in person or by advocate to adduce oral and documentary evidence in support of his objections. From this notice it is abundantly clear that the Acquisition Officer is enjoined with the duty of issuing that notice even though notice is not explicitly referred to in the rules. It is not correct to say that before holding the enquiry under Section 5-A, the Acquisition Officer is not required to issue notice to any person.

13. The learned Assistant Government Pleader drew my attention to a decision of Ramakrishnan, J., in Associated Equipment Services v. State of Madras W.P. Nos. 1734, 1770 and 1771 of 1964, which is not reported but which is referred to in the Notes of Recent Cases in (1968) 1 M.L.J. 39, in which the learned Judge has no doubt stated that the Act does not prescribe as an obligatory direction that notice should be given for the enquiry under Section 5-A to particular persons individually. The learned Judge's attention does not appear to have been drawn to the statutory form of notice and to the instructions issued by the Government referred to above. Reliance was next placed upon the decision of Kailasam, J. in Meclec Nutriments and Pharmaceuticals Ltd. v. State of Madras W.P. No. 1846 of 1965, in support of the argument that notice under Section 5-A is not obligatory. That decision is also not reported. But the substance is given in (1966) 1 M.L.J. 32. In that case, the learned Judge stated that though it is desirable to give notice under Section 9 to the other interested persons whom the Collector subsequently comes to know, it cannot be said that absence of any such notice could invalidate the proceedings. That was a case concerned with the issue of notice under Section 9, whereas we are concerned with the case of issue of notice from the beginning. In that case also, the attention of the learned Judge does not appear to have been drawn to the instructions in question.

14. To conclude, I am satisfied that the omission on the part of the Acquisition Officer to issue notice to petitioners after having come to know that the petitioners were interested in the land, as the owners had resulted in failure of justice and that the petitioners were denied reasonable opportunity of putting forward their objections to the proposed acquisition. In this view, I hold that the acquisition proceedings, except the notification under Section 4(1), are vitiated and are liable to be quashed. The writ petition is ordered in those terms. This, however, does not preclude the Government from proceeding with the acquisition if they want, after complying with the provisions of law. The petitioners are entitled to their costs. Advocate's fee Rs. 100.


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