Judgment:
ORDER
AR. Lakshmanan, J.
1. By consent of both parties, the main writ petition itself is taken up for final hearing.
2. On 23.1.1996, I passed the following order after hearing the counsel for the petitioner:
It is contended by the petitioner that the mandatory requirements contemplated under Section 4(2) of the Act 31 of 1978 has not been complied with at all and the respondents have straight away proceeded with the publication in the Gazette about the acquisition and issued notice under Section 5(1) of the Act. The Government Pleader is directed to produce the records before this Court on the adjourned hearing date, in order to verify whether the statement made by the petitioner is correct or false. Past the writ petition for orders on 13.2.1996.
There will be an interim stay of dispossession till 13.2.1996. Notice.
3. Today, the learned Government Pleader placed the records before this Court and argued the case on the basis of the instructions received by him. Admittedly, the procedure contemplated under the provisions of the Act 31 of 1978 has not been followed. The respondents have treated the notices issued under the provisions of the Central Act as sufficient for the purpose of notice under Section 4 of the Tamil Nadu Land Acquisition Act. Without following the procedure provided Under the Act 31 of 1978, proposals were sent to the Collector, Tirunelveli. The contention raised on behalf of the respondents that no fresh notice need be issued to the land owners under Act 31 of 1978 and such a notice does not arise in this case, cannot at all be accepted. This Court in N. Loganathan v. The Special Tahsildar A.D.W. Tiruvellore W.P. No. 16934 of 1995 dated 12.12.1995, deprecated such practice. Section 4 of Act 31 of 1978 and Section 5 and Rule 3, which are relevant for the purpose of disposing of this case are extracted below:
Section 4: 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 acquire 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.
Section 5: Land acquired to vest in Government free from all encumbrances: When a notice under Sub-section (1) of Section 4 is published in the District Gazette, the land to which the said notice relates shall, on and from the date on which the notice is so published vest absolutely in the Government free from all encumbrances.
Rule 3: Procedure for acquiring Land: (i) The District Collector or the Officer authorised by him in this behalf shall serve a show cause notice in Form I under Sub-section (2) of Section 4 individually on the owner or on all persons interested in the land to be acquired. If the owner or any other person interested in the land resides elsewhere than where the land is situated, the show cause notice shall be sent by registered post (Acknowledgement Due) to the last known address of the owner or any other person interested.
(ii) The District Collector, if after passing such orders as required by Sub-sections (2) and (3) of Section 4 is satisfied that it is necessary to acquire the land, notice in Form II to that effect shall be published in the District Gazette.
4. In this case, it is specifically stated that no notice under Section 4(2) of the Act, which is mandatory before 4(1) notification as Section 4(2) of the Act clearly state that before publishing a notice under Section 4(1) of the Act, 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. It is also stated by the petitioner that he was shocked to receive notice on 25.9.1995 in Form III under Section 5(1) calling him for enquiry on 6.10.1995, as even though the respondents had not followed the mandatory provisions as contemplated in Section 4(2) of the Act. But, however, the respondents have straight away proceeded with the publication in the Gazette about the acquisition and further issued notice under Section 5(1) of the Act. The petitioner on 6.10.1995 gave a written objection to the third respondent and on 16.10.1995 the third respondent passed an order under Rule 5(11) Form IV calling the petitioner's wife to appear and receive the compensation amount. Subsequently on 16.10.1995, the third respondent in proceedings No. A/18/95-96, A/976/95 passed an award. Admittedly, the respondents have not followed the mandatory provisions as contemplated under Section 4(2) of the Act. Therefore, as rightly pointed out by Mr. P.H. Manoj Pandian, that the action of the respondents in denying the petitioner an opportunity of hearing and not giving a notice under Section 4(2) of the Act is arbitrary and against equity and conscience and that the action of the respondent violates all cannons of I natural justice. It is well established principles of law that no person shall be deprived of any right and that no person shall be left unheard resulting in such deprivation. Every person whose rights are affected by State action, must have a reasonable notice of the case he has to meet and must have reasonable opportunity of being heard in his defence. Justice and fairness of State action is the essence of natural justice and State under the statutes and that all State action must be free from the vice of arbitrariness, unreasonableness and unfairness. As pointed out by the learned Counsel for the petitioner, when the Government is dealing with the public it cannot act arbitrarily at its sweet will and pleasure. Its action must be in conformity with the standards or norms which is rational. The power of the Government must be confined and structured by rational relevant and non-discriminatory stand or norms. If there is an arbitrary exercise of power or assumption of any arbitrary power either by virtue of a statute or statutory rule or without such statute or statutory rule, the result of such exercise of power or assumption of power will be struck down as void. Therefore, I have no hesitation in setting aside the entire proceedings initiated by the respondents under Section 4(1) of the Act i.e., notification, published in Tirunelveli Kattabomman District Gazette No. 14, 3rd page dated 18.8.1995 and the award passed in No. A. 976/95,18/95-96, dated 16.10.1995 with respect to the land in Survey No. 195/6, 196/1 to an extent of 0.81.0, 0.81.0 respectively and consequently the respondents are restrained from acquiring the land in S. No. 195/6, 196/1 to an extent of 0.81.0, 0.81.0 hectares, pursuant to the above 4(1) notification.
5. The learned Government Pleader also produced the records before this Court. The records do not show that notice under Section 4(2) has been issued to the petitioner. At the time of hearing, the Government Pleader brought to my notice that pursuant to the award dated 16.10.1995, possession was taken and the lands were allotted and pattas were issued to many persons on 30.12.1995 and that the writ petition has been filed only on 22.1.1996 and the interim order was granted on the next day. The said argument cannot be countenanced at all. As already stated the respondents have violated the mandatory provisions of the Act in acquiring the land belonging to the petitioner. It is already held that the entire proceedings initiated by the respondents in respect of the petitioner are illegal and void and therefore it is null and void. In view of the fact that pattas were issued and the pattadors had taken possession pursuant to the illegal award, it will not enure any benefit on them. Therefore, respondents have to handover back possession of the property to the petitioner.
6. Under the provisions of the Tamil Nadu Act 31 of 1978, immediately on the publication of the Gazette the land vests absolutely with the Government free from all encumbrances under Section 5. As rightly pointed out by the learned Counsel for the petitioner, the vesting takes place immediately on the publication of the Gazette and not on taking possession of the land and the title to the property itself will be lost immediately on the publication of the Gazette and there is no question of any enquiry after the publication of the Gazette and before the vesting of the property. Therefore, there is absolutely no opportunity for the land owner to question the acquisition after the issue of the notice under Section 4(1) of the Act.
7. Under the Act 31 of 1978, the one and the only opportunity given to the land owner or a person interested is on the issue of the show cause notice under Section 4(2) of the Act. The Act being expropriatory in nature and having regard to the vigour of its provisions, the opportunity to show cause why the land should not be acquired should be given, as it is a statutory requirement and the compliance thereof has therefore to be strictly adhered to.
8. As rightly pointed out by the learned Counsel for the petitioner, the show cause notice required to be issued under Section 4(2) read with Rule 3 is mandatory and therefore should strictly complied with. Rule 3 as stated already requires individual notice to be served and every attempt has to be made to serve the show cause notice individually on the owner or the-person interested and if for any reason, individual notice could not be served as the person cannot be found; the service may be made on any adult male member of his family residing with him and if no such adult male member is found, notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business.
9. Therefore, the notification under Section 4(1) of the Act published in Tirunelveli Kattabomman District Gazette. No. 14, 3rd page, dated 18.8.1995 and the award passed in No. A.976/95, 18/95-96, dated 16.10.1995 with respect to land in Survey No. 195/6, 196/1 to an extent of O.81.0, O.81.O are quashed. The writ petition is allowed. No costs.