Madras High Court
P.Ganeshan vs The State Of Tamil Nadu on 30 January, 2025
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.A(MD)No.1683 of 2023 & W.P.(MD) No.329 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 31.07.2024
PRONOUNCED ON : 30.01.2025
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
AND
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
W.A(MD)No.1683 of 2023 and W.P.(MD) No.329 of 2024
and
C.M.P.(MD)Nos.12884 & 15748 of 2023
IN W.A(MD)No.1683 of 2023
P.Ganeshan ..Petitioner/Appellant
Vs.
1. The State of Tamil Nadu,
Rep. By its Secretary,
Public Works Department,
Fort St.George,
Chennai.
2. The District Collector,
District Collectorate,
7A, PSP Nagar,
Korampallam,
Tuticorin District.
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3. The Special Tahsildar
Kennedian Channel,
Flood Drainage Project,
Sathankulam,
Tuticorin District.
4. The District Forest Officer
Thoothukudi Division,
Collector Complex,
Korampallam,
Tuticorin District. ...Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, to set
aside the order made by this Court in W.P(MD) No.22389 of 2021 dated
05.08.2022.
For Petitioner : Mr.M.Mahaboob Athiff
For Respondents : Mr.R.Baskaran
Additional Advocate General VI
assisted by Mr.N.Satheesh Kumar
Additional Government Pleader
IN W.P.(MD) No.329 of 2024
T.Arasuraja alias Anburaja ...Petitioner
Vs
1. The Principal Chief Engineer, (General)
Water Resources Department,
Chennai – 600 005.
2. The District Collector/Chairman,
Thamirabarani Protection Committee,
Collectorate,
Tirunelveli District.
3. The District Collector,
Thoothukudi District.
2/44
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4. The Special Chief Engineer/Executive Engineer,
Water Resources Organization,
Project Division,
Tirunelveli.
5. The Executive Engineer,
Public Works Department /Water Resource Organization,
Special Project Division,
Tirunelveli.
6. The Assistant Executive Engineer,
Water Resources Department,
Keelthamirabarani Basin Sub Division,
Sri Vaikundam,
Thoothukudi District. ...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India pleased to issue a Writ of Mandamus directing the Respondents to
expedite the project “Thamirabarani Storm Water Canal, a part of
Thamirabarani – Kurumeniyaru – Nambiyaru Link Project' and to
complete the project within the time limit.
For Petitioner : Mr.M.Karthikeya Venkitachalapathy
For Respondents : Mr.R.Baskaran
Additional Advocate General VI
assisted by Mr.N.Satheesh Kumar
Additional Government Pleader
JUDGMENT
(Judgment of this Court was delivered by G.ARULMURUGAN, J.)
This Intra-Court Appeal is preferred by the Land Owner/Writ
Petitioner challenging the common order dated 05.08.2022 made in W.P.
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(MD) No.22389 of 2021 and others wherein in the challenge to the
acquisition proceedings was rejected by the Writ Court.
2.1. The short facts to be noted in the above Appeal is as follows:
The Government proposed to implement the formation of Flood
Carrier Canal from Kannadian Channel to drought prone area of
Sathankulam and Thisayanvilai by interlinking Thamiraparani,
Karumeniyar and Nambiyar Rivers in Tirunelveli and Thoothukudi
Districts. Based on the detailed project report, it was estimated that a
total quantity of 2764.8 mcft of water flowing as unutilized to Sea in the
Thamiraparani River will be utilized in the tail end tanks of Pachaiyar
System, Manimuthar main canal system, Karumeniyar System, Nambiyar
System and also it will have a ground water recharge in the drought
prone area of Sathankulam and Thisaiyanvilai and also further that it
would fulfill the drinking and irrigation needs of the people in five
villages of the Palayamkottai Taluk, seven villages of the Nanguneri
Taluk, ten villages in Radhapuram Taluk of Tirunelveli District and
sixteen villages in Sathankulam Taluk and two villages in Thiruchendur
Taluk will be fulfilled and further by minimizing the sea water intrusion
in these areas.
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2.2. As per the estimate, an extent of 45.03 acres of wet land and
1786.25 acres of dry lands was sought to be acquired for formation of
flood carrier channel apart from an extent of 147.82 acres of poramboke
lands. Based on these detailed estimates, the Government accorded
administrative sanction vide G.O.Ms.No.204 (Public Works Department)
dated 12.06.2008. Further, G.O.Ms.No.319 (Public Works Department)
dated 30.10.2008 was issued granting permission for execution of the
project in different stages. Thereafter, due to the revised estimates, the
Government has issued G.O.Ms.No.83 (Public Works (I.Spl.2)
Department) dated 13.04.2017 granting revised administrative sanction
for the project.
2.3 Based on the above sanctions granted, the Government issued
G.O. Ms.No.200 (Public Works Department P2) dated 18.11.2019
granting administrative sanction for acquiring the patta lands and also
conversion of the Government poramboke lands covered under the above
projects. At this stage, G.O.Ms.No.526 (Revenue and Disaster
Management Department, Land Administration Wing, LA-I(1) Section)
dated 26.09.2020 was issued by virtue of powers under Section 3(e) of
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The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013),
hereinafter referred to as the “Act”, by appointing the District Collector
of the District as “Appropriate Government” for an area not exceeding
600 Hectares.
2.4. The District Collector/2nd Respondent, being an Appropriate
Government as per the above notification issued preliminary notification
as contemplated under Section 11(1) of the Act by publishing the
notification in the Thoothukudi District Gazette No.5 dated 08.12.2020.
As per the notification, since the administrative sanction has been
granted for a total extent of 5.02.00 Hectares of land in Arasoor Village
-2, Sathankulam Taluk, Thoothukudi District, the notification was issued
covering those extents of lands in respect of several land owners. As far
as the appellant is concerned, he is the owner of the land to an extent of
3.87 acres in S.No.538/2, 538/3 of Arasoor Village in Thoothukudi
District covered under this notification, for which the patta stands in the
name of the appellant.
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2.5. The similar notification issued by the 2nd respondent/District
Collector was put to challenge which was rejected by the Writ Court,
however in the appeal, a Coordinate Division Bench of this Court in the
case of Thirumani Dharmaraj Vs. The State of Tamil Nadu and
others reported in (2023) 3 CWC 238; (2023) 3LW 371 quashed the
notification on the ground that the notification published in the District
gazette cannot be construed as a strict compliance of the statute since as
per the provisions of the Act, as intended by the Parliament, it is to effect
only a publication of notification in State Gazette and not in District
Gazette. It was also held that, the District Collector though may be an
appropriate Government for the sake of convenience, it will not vest
power in him to effect publication of notification in the District Gazette.
2.6 In the instant case also, the Writ Court by an order dated
05.08.2022 dismissed the Writ Petition and upheld the land acquisition
proceedings on the ground that since the notification published in the
Thoothukudi District Gazette which carries the official emblem of the
State Government and further Rule 13 of the Tamil Nadu Right to Fair
Compensation and Transparency in the Land Acquisition, Rehabilitation
and Resettlement Rules, 2017, herein after referred to as the “Rules”, has
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to be read with Section 3(e) of the Act and when the District Collector is
the “appropriate Government”, the notification published in the District
Gazette is valid and further when the Writ Petitioner was aware of the
proposal and only by which, he has challenged the preliminary
notification itself and further the objection has also been raised which
was considered, the notification was held to be proper and was ultimately
sustained.
2.7. When the notification issued by the 2nd respondent/District
Collector for the same projects in respect of the lands acquired in the
Tirunelveli District has been quashed by the coordinate Division Bench
in the Thirumani Dharmaraj Case cited supra and it was already held
that, the notification published in the District Gazette is not proper and
since the issue covered in the present appeal is also similar, wherein the
notification is published in the District Gazette, however a distinction is
sought to be made that several factors were not brought to the notice of
the Co-ordinate Division Bench when the issue was decided. Though we
are in complete agreement with the decision rendered in Thirumani
Dharmaraj case, since the present appeal pertains to separate acquisition
proceedings of Thoothukudi District, we proceed to consider and deal
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with the grounds raised in the present appeal.
3.1. Mr. M.Mahaboob Athiff, learned counsel appearing for the
appellant in W.A.(MD) No.1683 of 2023 submitted that, the notification
cannot be sustained as the preliminary notification published by the
District Collector in the Thoothukudi District Gazette is not in
consonance with Section 11 of the Act and when the very publication of
the notification is improper, the entire subsequent proceedings carried
out pursuance to the preliminary notification eventually has no legal
sanctity.
3.2 The learned counsel contended that, in fact the issue has
already been decided in Thirumani Dharmaraj case, wherein the Hon'ble
Division Bench in unequivocal terms held that the notification published
in the District Gazette is improper and it cannot substitute a valid
notification to be published in the State Gazette. It is his further
contention that, the Hon'ble Division Bench has also arrived at a
conclusion by relying on Rule 13 and held that the preliminary
notification has to be published in the Tamil Nadu Government Gazette,
which is the State Gazette.
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3.3. It is his further contention that, infact the Government had not
challenged the decision in Thirumani Dharmaraj case by filing appeal,
but instead have accepted the decision and had gone ahead for fresh
acquisition proceedings and now it is too late in the day for the
respondents to take a different stand in the above appeal and sought for
allowing the appeal.
4. Mr. M.Karthikeya Venkatachalpathy, learned counsel appearing
for the petitioner in W.P.(MD).No.329 of 2024 also by adopting the
arguments of Mr. M.Mahaboob Athiff contended that, when the
mandatory procedure had not been followed as per the provisions of the
Act then the notification issued has to necessarily fail.
5. Per contra, Mr.R.Baskaran, learned Additional Advocate
General made the following submissions in support of the order passed in
the Writ Petition:
(i) Whenever a land is sought to be acquired under the 2013 Act,
the appropriate Government shall publish a notification in the Official
Gazette as per Sec.11(1)(a) of the Act. As the District Collector is the
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appropriate Government in respect of the District if the land sought to be
acquired is within 600 Hectares as per the Rule 2(c) as notified by
G.O.Ms.No.526 dated 26.09.2020, the entire powers has been conferred
upon the District Collector by the State from the beginning till the
completion of the acquisition and therefore, the notification issued by the
District Collector is proper and lawful.
(ii) The notification under Section 11 has to be published in the
Official Gazette and the District Gazette being an Official Gazette of the
District Collector, who is conferred as the Appropriate Government and
in such circumstances the term “Official Gazette” occurring in the 2013
Act has to be read to include District Gazette.
(iii) The coordinate Bench in Thirumani Dharmaraj Case has
proceeded on an assumption that the terms “Appropriate Government”
and “Official Gazette” is not defined both in 1894 Act or 2013 Act and
therefore by placing reliance on A.S.Periasamy Vs. State of Tamil
Nadu, reported in 2004 (2) CTC 406, has held that District Gazette is
not an Official Gazette for the purpose of 2013 Act.
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(iv) The Judgment in A.S.Periyasamy Case was rendered in respect
of proceedings under Land Acquisition Act, 1894 which had been held as
an draconian law and only hence the 2013 Act was promulgated and
further since the Official Gazette was not defined in 1894 Act, the
Division Bench has relied on Section 3(39) of General Clauses Act, 1897
which provides the definition of “Official Gazette”. However, Section
4A(1) of the General Clauses Act was not brought to the notice of the
Division Bench, where it includes Official Gazette and therefore Section
3(39) of the General Clauses Act has to be read along with Section 4
A(1) and as such it can be relied on only when there is no repugnancy,
but whereas in the instant case, by G.O.Ms.No.526 dated 26.09.2020, the
District Collector has been empowered as the Appropriate Government
and therefore there is repugnancy in so far as the definition of Official
Gazette under the General Clauses Act as it does not include District
Gazette and this was not brought to the notice of the Division Bench.
(v) Rule 2(c) defines “Appropriate Government”, which includes
the Collector of the Revenue District in respect of the Acquisition for
public purposes for an area not exceeding as may be notified by the State
Government.
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(vi) In view of the decision of the Constitutional Bench of the
Hon'ble Supreme Court in Management of Advance Insurance Co.
Ltd. Vs. Shri Gurudasmal reported in (1970) 1 SCC 633 and in
Vanguard Fire and General Insurance Co.Ltd Vs. Fraser and Ross,
reported in (1960) 3 SCR 857, since neither the 2013 Act nor the 2017
Rules prohibit the publication of the Notification under Section 11 in the
District Gazette, the publication will hold good. As per Rule 13(3),
nothing is mentioned with regard to District Gazette and since
G.O.Ms.No.526 dated 26.09.2020 has been passed subsequent to the
2017 Rules by notifying the District Collector as Appropriate
Government, he is the competent authority in respect of acquisition as
per proviso to Section 3(e) of the Act which mentions about the
''Appropriate Government''.
(vii) Since in the Tamil Nadu Amendment Act, 1996 in Section
2(1)(a), the Appropriate Government was not dealt with which was
considered in A.S.Periasamy Vs. State of Tamil Nadu, reported in 2004
(2) CTC 406, the said decision will not have any effect after the 2013
Act and further, Section 4A of the General Clauses Act mentions
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“Official Gazette” and its literal Tamil meaning if taken which is “mjpfhu
murpjH;” it could only indicate District Gazette and in such circumstances,
the publications made by the District Collector in the District Gazette
cannot be found fault with.
(viii) By placing the above submissions, the learned Additional
Advocate General sought to impress upon this Court that, since these
factors were not brought to the notice of the Co-ordinate Bench and
further the learned single Judge by taking note of the correct provisions
of law has upheld the acquisition proceedings. It was also contended by
the learned Additional Advocate General that after the Writ Petition was
dismissed, the acquisition proceedings were proceeded and an award
dated 07.09.2023 has been passed and since the land owner did not
receive the compensation, the same has been deposited in the District
Court on 20.09.2023. It is his further submission that, the development
works in the land acquired from the appellant had been undertaken and
was dug out as early as on 11.02.2021 and almost the entire stretch of the
work in all other areas have been completed and even though the digging
work is over, after the Writ Appeal was preferred and the interim order
was granted, the work has been suspended. Further, the learned
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Additional Advocate General contended that, since the completion of the
acquisition proceedings and also the execution of the work, the interim
order granted has in fact become infructuous and sought for the
indulgence of this Court to vacate the interim orders and dismiss the Writ
Appeal.
6. Heard the rival submissions and perused the materials available
on record.
7. The core issue that arises for consideration of this Court is as to
whether the notification published in the District Gazette is a valid
notification as contemplated under Section 11 of the 2013 Act and as to
whether the District Collector having been conferred as the appropriate
Government is authorized to issue notification in the District Gazette.
8. Though, the object of the Scheme sought to be implemented by
the Government is laudable, by which the irrigation and drinking water
requirements of several villages in two Districts is sought to be met and
also by diverting the water through the flood prone channels in such a
way to save huge volume of water from being wasted by draining into the
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Sea, still when the properties are sought to be acquired from individual
land owners, the right to property of an individual being a constitutional
right guaranteed under Article 300A of the Constitution, the respondent
cannot deprive or take away the land owners' right except in the manner
prescribed by law.
9. In fact when the acquisition proceedings initiated by the District
Collectors by publishing the notifications under the District Gazette for
the same project in so far as the Tirunelveli District is concerned, even
though the acquisition proceedings were upheld by the Writ Court,
however the coordinate Division Bench in the case of Thirumani
Dharmaraj Vs. The State of Tamil Nadu and others reported in (2023)
3 CWC 238; (2023) 3 LW371 had quashed the acquisition proceedings
by holding that the notification published under the District Gazette
cannot fulfill the mandate under Section 11 of the Act except by
publishing the notification under the State Gazette. The Division Bench
has also held that, even though the District Collector has been conferred
with the powers as Appropriate Government under Section 3(e) of the
Act, it can only be for convenience and it can never vest powers to the
District Collector to publish the notification under the District Gazette.
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The relevant portions of the Division Bench Judgement is extracted
hereunder for easy reference:
7. The term “appropriate Government” is not defined
under either the 1894 Act or the 2013 Act. Therefore, one
has to necessarily fall back upon the definition of the term
of “Official Gazette” in General Clauses Act, 1897. Sub-
section 39 of Section 3 of the General Clauses Act, 1897,
which defines the term “Official Gazette” reads as follows:
“official Gazette” or “Gazette” shall mean the
Gazette of India or the Official Gazette of a State.
…..
11. A reading of Section 3(e) of the 2013 Act, would
show that appropriate Government has been defined to be
the State Government and the proviso enacts a deeming
provision enabling the District Collector deemed to be the
appropriate Government in respect of lands not exceeding
certain extent that is to be prescribed. That by itself in our
considered opinion will not enable the District Collector to
publish notification under Section 11 of the 2013 Act in the
District Gazette. The legislation is very carefully drafted. It
only incorporates a deeming proviso.
12. At the risk of repetition, the proviso to Section
3(e) of the 2013 Act, is extracted hereunder:
“Provided that in respect of a public purpose in a District
for an area not exceeding such as may be notified by the
appropriate Government, the Collector of such District
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shall be deemed to be the appropriate Government;”
13. The proviso enables the appropriate
Government/State Government to notify the maximum extent
of land up to which the District Collector could be
empowered to issue a notification and in such cases, the
District Collector would be deemed to be the appropriate
Government. If the State Government notifies an extent of
land as infinite, the District Collector would be able to issue
a notification in respect of any extent of land and he would
be the appropriate Government and such notification would
be published in the District Gazette. If we look at the
intendment of the legislation, the object sought to be
achieved by authorizing the District Collector to issue
notification in respect of a certain extent of land and
deeming him as “appropriate Government” in respect of
that extent of land, is only for the purposes of convenience
and not to alter the requirements of Section 11 of the 2013
Act. The Parliament must be deemed to be aware of the
effect of usage of the term “Official Gazette” in Section 11
of the 2013 Act. The fact that the term “Official Gazette”
was intended to be the Fort St. George Gazette, is clear
from Rule 13(3) of the Rules framed by the State
Government. The very Rule 13(3), clearly prescribes that
preliminary notification should be published in the Tamil
Nadu Government Gazette. Even if “Official Gazette” could
be construed including the District Gazette, the term “Tamil
Nadu Government Gazette” at no stretch of imagination
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would include Tuticorin District Gazette. Therefore, the
intendment of the Parliament as well as the Legislature is
that publication of the notification under Section 11 of the
2013 Act should be made in the State Gazette and not the
District Gazette.
….
15. Again with great respect to the Writ Court, we are
unable to agree with the said view. The Writ Court has lost
sight of the fact that a publication in the Fort St. George
Gazette, would amount to publication all over the State
whereas publication in the District Gazette is limited to the
particular District.
16. When the legislature has used the term “Official
Gazette” in Section 11(1) of the 2013 Act and the Rules
framed by the State indicate that publication should be
made in the Tamil Nadu Government Gazette, we do not
think that we could uphold the interpretation of the Writ
Court that the term “Official Gazette” will include the
concerned District Gazette also.
......
18. …...The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, was enacted in 2013 and the
Parliament chose to retain the term “Official Gazette”. The
State Government framed Rules in the year 2017 and it
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chose to use the term “Tamil Nadu Government Gazette”.
The legislation's intendment therefore is manifest to the fact
that the publication shall be made in the “Official Gazette”
of the State and not in the “District Gazette”. …....
10. It is the vehement contention of the learned Additional
Advocate General that the above decision has been arrived at only by
relying on Section 3(39) of the General Clauses Act and Section 4A(1) of
the General Clauses Act was not brought to the notice of the Division
Bench. It is his contention that the definition of Official Gazette under
Section 3(39) has to be read with Section 4A(1), where the application of
certain definitions to Indian Laws is given, which shall apply unless there
is anything repugnant in the subject or context to all Indian Laws. It is
his contention that, the term “Official Gazette” is included under Section
4A and since by virtue of G.O.Ms.No.526 (Revenue And Disaster
Management) dated 26.09.2020, the District Collector has been
empowered as “Appropriate Government” and therefore there is a
repugnancy in so far as the definition of Official Gazette as contained in
the General Clauses Act as it does not include the District Gazette and
since the repugnancy is caused because of the provision of 2013 Act, the
reliance made on Section 3(39) is not proper and therefore, the
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notification issued by the District Collector being an Appropriate
Government is in consonance with Section 11(1) of the 2013 Act and
Rule 13 of 2017 Rules. It is useful to extract Section 3(39) and Section
4A of the General Clauses Act, 1897 for better understanding:
Section 3(39):
““Official Gazette” or “Gazette” shall mean the Gazette of
India or the Official Gazette of a State;”
Section “4A:
Application of certain definitions to Indian Laws.-
(1) The definitions in section 3 of the expressions
“British India”, “Central Act”, “Central Government”,
“Chief Controlling Revenue Authority”, “Chief Revenue
Authority”, “Constitution”, “Gazette”, “Government”,
“Government securities”, “High Court”, “India”, “Indian
Law”, “Indian State”, “merged territories”, “Official
Gazette”, “Part A State”, “Part B State”, “Part C State”,
Provincial Government”, “State” and “State Government”
shall apply, unless there is anything repugnant in the
subject or context, to all Indian laws.
(2) In any Indian law, references, by whatever form of
words, to revenues of the Central Government or of any
State Government shall, on and from the first day of April,
1950, be construed as references to the Consolidated Fund
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of India or the Consolidated Fund of the State, as the case
may be.”
11. Before we delve further into the provisions of the General
Clauses Act, it would be better to analyze the procedures contemplated
under the 2013 Act while the acquisition proceedings are undertaken for
acquiring the lands for the specified projects. The fulcrum of contention
of the learned Additional Advocate General is only that, when the
District Collector has been conferred as appropriate Government, then in
view of the powers of the State conferred on the District Collector
pursuant to the provisions of the Statute, the District Collector becomes
the competent authority for the entire acquisition proceedings from the
publication of the notification till the passing of the award and therefore,
the impugned notifications issued by the District Collector is proper and
valid.
12. The term “Appropriate Government” has been defined under
Section 3(e) of the 2013 Act which is usefully extracted hereunder “
Section 3(e):
“appropriate Government'' means,--
(i) in relation to acquisition of land situated within
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the territory of, a State, the State Government;
(ii) in relation to acquisition of land situated within a
Union territory (except Puducherry), the Central
Government;
(iii) in relation to acquisition of land situated within
the Union territory of Puducherry, the Government of Union
territory of Puducherry;
(iv) in relation to acquisition of land for public
purpose in more than one State, the Central Government, in
consultation with the concerned State Governments or
Union territories; and
(v) in relation to the acquisition of land for the
purpose of the Union as may be specified by notification,
the Central Government:
Provided that in respect of a public purpose in a District for
an area not exceeding such as may be notified by the
appropriate Government, the Collector of such District
shall be deemed to be the appropriate Government;”
13. In view of the proviso to Section 3(e), the District Collector of
such District shall be deemed to be appropriate Government in respect of
any public purpose in a District for a notified area that has been notified.
14. The State Government has issued G.O.Ms.No526 (Revenue
and Disaster Management Department dated 26.09.2020 by which the
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District Collectors have been conferred as the appropriate Government in
relation to acquisition of land in respect of a public purpose in the
respective District for an area of 600 hectares. The notification appended
to the G.O is extracted hereunder :
Under the proviso to clause (e) of section 3 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013
(Central Act 30 of 2013) and in supersession of the Revenue
and Disaster Management Department Notification
No.SROA-41 (C-2)/2017, published at page 49 in Part-III -
Section 1(a) of Tamil Nadu Government Gazette,
Extraordinary, dated the 21st September 2017, the
Gevrovernor of Tamil Nadu hereby notifies six hundred
hectares as the area, not exceeding which the District
Collector shall be deemed to be the appropriate
Government in relation to acquisition of land in respect of a
public purpose in the respective district.
15. In view of the above notification, for an area not exceeding
600 hectares, the District Collector has been notified to be the
appropriate Government for land acquisition and therefore in view of
Rule 2(c), the 2nd respondent District Collector is the appropriate
Government, as the area sought to be acquired for the above project falls
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within the notification issued by the Government.
16. It has been held by the Division Bench that, though by virtue
of notification published in view of Section 3(e), the District Collector
has been conferred as the appropriate Government, the same is only for
the convenience by which the powers that are to be exercised by the State
Government in respect of acquisition proceedings can be undertaken by
the District Collector if the area sought to be acquired falls within the
notified area for which the District Collector has been conferred as the
appropriate Government. These powers by which the District Collector is
conferred as the appropriate Government will not extend to the extent of
publishing the notification in District Gazette and only for this
proposition, the Division Bench by placing the reliance on Section 3(39)
of General Clauses Act had held that the publication in Official Gazette
can only be a State Gazette and cannot include a District Gazette.
17. At this juncture, it will also be useful to refer another Division
Bench decision of this Court in the case of Tamil Nadu Housing Board,
Rep. By its MD, Nandanam, Ch-35 and another versus DPF Textiles
Rep. By its MD S. Martin, reported in 2018 (1) Mad LJ 633, wherein
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the proceedings were quashed as the publication was made in District
Gazette. The relevant portion is extracted here under:
“9. …
(iii) The object of publication in the gazette was indicated
by the Hon'ble Supreme Court in I.T.C. Bhadarachalam
Paper Boards v. Mandal Revenue Officer, A.P., ((1996) 6
SCC 634). The Supreme Court said:—
13. ... The object of publication in the Gazette
is not merely to give information to public. Official
Gazette, as the very name indicates, is an official
document. It is published under the authority of the
Government. Publication of an order or rule in the
Gazette is the official confirmation of the making of
such an order or rule. The version as printed in the
Gazette is final. The same order or rule may also be
published in the newspapers or may be broadcast by
radio or television. If a question arises when was a
particular order or rule made, it is the date of Gazette
publication that is relevant and not the date of
publication in a newspaper or in the media (See
Pankaj Jain Agencies v. Union of India [(1994) 5
SCC 198]). In other words, the publication of an
order or rule is the official irrefutable affirmation
that a particular order or rule is made, is made on a
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W.A(MD)No.1683 of 2023 & W.P.(MD) No.329 of 2024
particular day (where the order or rule takes effect
from the date of its publication) and is made by a
particular authority; it is also the official version of
the order or rule. It is a common practice in courts to
refer to the Gazette whenever there is a doubt about
the language of, or punctuation in, an Act, Rule or
Order. Section 83 of the Evidence Act, 1872 says that
the court shall presume the genuineness of the
Gazette. Court will take judicial notice of what is
published therein, unlike the publication in a
newspaper, which has to be proved as a fact as
provided in the Evidence Act. If a dispute arises with
respect to the precise language or contents of a rule
or order, and if such rule or order is not published in
the Official Gazette, it would become necessary to
refer to the original itself, involving a good amount of
inconvenience, delay and unnecessary controversies.
It is for this reason that very often enactments provide
that Rules and/or Regulations and certain type of
orders made thereunder shall be published in the
Official Gazette. To call such a requirement as a
dispensable one — directory requirement — is, in our
opinion, unacceptable.
(iv) The Supreme Court in I.T.C. Bhadarachalam Paper
Boards made it very clear that “where the parent statute
prescribes the mode of publication or promulgation, that
mode has to be followed and that such a requirement is
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imperative and cannot be dispensed with”.
10. The publication of notification in the official Gazette is
a mandatory requirement. The publication of the
notification in the District Gazette would not serve the
purpose. This statutory requirement was known to the Land
Acquisition Officer. The Land Acquisition Officer by
publishing the notification earlier in the State Gazette,
followed the statutory provision strictly. The same Land
Acquisition Officer for reasons best known to him, later
published the notification in the District Gazette, which is
not legal. The learned Single Judge was therefore correct in
quashing the land acquisition proceedings. In view of this
substantial ground, we are not dealing with the other
reasons which weighed with the writ court for quashing the
land acquisition proceedings”.
18. To initiate any proceedings for acquiring a land under the 2013
Act, the procedure is contemplated under Section 11 of the Act.
“11. Publication of preliminary notification and power of
officers thereupon.
(1) Whenever, it appears to the appropriate
Government that land in any area is required or likely to be
required for any public purpose, a notification (hereinafter
referred to as preliminary notification) to that effect along
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W.A(MD)No.1683 of 2023 & W.P.(MD) No.329 of 2024
with details of the land to be acquired in rural and urban
areas shall be published in the following manner, namely:—
(a) in the Official Gazette;
(b) in two daily newspapers circulating in the locality of
such area of which one shall be in the regional language;
(c) in the local language in the Panchayat, Municipality or
Municipal Corporation, as the case may be and in the
offices of the District Collector, the Sub-divisional
Magistrate and the Tehsil;
(d) uploaded on the website of the appropriate Government;
(e) in the affected areas, in such manner as may be
prescribed.....”
19. As per the above provision, whenever the appropriate
Government requires any area for a public purpose, a notification to that
effect shall be published in the official gazette and also two daily
Newspapers, out of which one shall be in a regional language. All the
other subsequent proceedings are all based on this very preliminary
notification issued under Section 11(1) of the Act. As this notification
can be issued by the appropriate Government, it leaves no room for doubt
that once the District Collector has been conferred as the appropriate
Government as defined under proviso to Section 3(e) of the Act, he is
entitled to issue a notification for any land if it is within the area for
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which, he has been conferred as an appropriate Government. But, the
core issue still remains is that, even if the District Collector can issue a
notification, can the notification published in the District Gazette is
sufficient to meet the requirements of Section 11(1) of the Act.
20. Even Section 11(1) of the Act contemplates a notification to be
published in the Official Gazette and the Official Gazette has not been
defined under 2013 Act. But what is to be published in the Official
Gazette is the notification and the notification has very well been defined
in 2013 Act itself. For better understanding, Section 3(v) is extracted
hereunder:
“3 (v): “Notification” means a notification published in the
Gazette of India or as the case may be, the Gazette of a
State and the expression notify shall be construed
accordingly.”
21. The above definition makes it specific and clear that the
notification means, a notification published in the Gazette of India or as
the case may be in the Gazette of a State. Therefore, whenever it appears
to the Appropriate Government that any land is required for public
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purpose, a notification which means a notification if it concerns with the
State Government is to be published in the Gazette of a State. When the
provisions under the 2013 Act itself is self explanatory and gives no
room for doubt then the definition of Official Gazette becomes
unnecessary as already the notification itself has been clearly defined in
the very 2013 Act. As such unless a notification is published in State
Gazette which cannot include a District Gazette, the contention of the
respondents that the District Collector being an appropriate Government
can publish notification in the District Gazette cannot be countenanced
and sustained in view of Section 3(v) and 11(1)(a) of the Act.
22. The State Government by virtue of powers conferred under
Section 109 of the Act had enacted the 2017 Rules, which came into
force on 21.09.2017. The publication of the preliminary notification as
contemplated under Section 11(1) of the Act shall be published in Form
IV as per Rule 13(1). Further as per Rule 13(3), after the issuance of the
notification under Section 11(1), the Collector shall undertake and
complete the updating of the land records within two months from the
publication of preliminary notification in the Tamil Nadu Gazette. Rule
13 is extracted hereunder for easy reference:
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Rule 13:
“13. Publication of preliminary notification:
(1) The preliminary notification under sub-section (1)
of Section 11 shall be published in FORM IV.
(2) A copy of the preliminary notification issued
under sub-section (1) of section 11 shall be affixed at
conspicuous places in the affected areas and shall also be
announced through vehicle mounted public address system
to give wide publicity.
(3) After issuance of the preliminary notification
under sub-section (1) of section 11, the Collector shall
undertake and complete the exercise of updating land
records within a period of two months from the date of
publication of preliminary notification in the Tamil Nadu
Government Gazette, in the following manner, namely.
(a) delete the names of deceased persons;
(b) enter the names of the legal heirs of the
deceased persons;
(c) make necessary entries of the registered
transactions of the rights in land such as sale, gift,
partition, etc.;
(d) make entries of all the mortgages of the
land;
(e) delete the entries of mortgages, in case the
mortgagee issues a letter towards full payment of
loans;
(f) make necessary entries in respect of all
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W.A(MD)No.1683 of 2023 & W.P.(MD) No.329 of 2024
prevalent forest laws;
(g) make necessary entries in case of
Government lands;
(h) make necessary entries of sub–division of
the survey numbers involved in the acquisition based
on mutations already carried out;
(i) make necessary entries in respect of assets
and structures on the land like trees, wells, houses,
buildings etc;
(j) make necessary entries with respect of non-
agricultural use of the land;
(k) make necessary entries of share croppers or
tenants in the land;
(l) make necessary entries of crops grown or
sown and the area of such crops;
(m) make any other entries or updation which
may be required in respect of land acquisition, award
of compensation, rehabilitation and resettlement
measures.
(4) In order to complete the above exercise, the
Collector may give notice to the affected land owners to
produce necessary documents within a period not exceeding
one month.”
23. By taking note of Section 3(v), as per Rule 13(3), even the
State Government had correctly mandated the District Collector to carry
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out further works only pursuant to publication of preliminary notification
in the Tamil Nadu Government Gazette, which can only be the State
Gazette. As per Rule 13(1), the preliminary notification under Section
11(1) has to be published in Form IV annexed with the Rules. Form IV
as appended in the Rules is extracted hereunder:
FORM IV
[see rule 13 (1)]
PRELIMINARY NOTIFICATION.
No.____________ Dated___________
Whereas it appears to the appropriate Government that a total
of________ hectares of land is required in the __________________
Village in _____________ Taluk / Block (as applicable) in
_____________________ District for public purpose,
namely ,___________________________________. Social Impact
Assessment Study was carried out by Social Impact Assessment Agency
and a report submitted / preliminary investigation was conducted by a
team constituted by Collector as laid down under rule 4. The summary
of the Social Impact Assessment Report / preliminary investigation is
as follows:_
_________________________________________________________
_______ .(copy of SIA report is attached herewith)
A total of ________ (in number) families are likely to be displaced due
to the land acquisition. The reasons necessitating such displacement
are given below:-
________________ is appointed as Administrator for the purpose of
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rehabilitation and resettlement of the affected families. Therefore, it is
notified that for the above said project in the
___________________________ Village of _________________
Taluk / Block (as applicable) in _______________District, land
measuring an extent of ___________ hectares, whose details are
specified in the Schedule below, is under acquisition:
THE SCHEDULE
Sl.No Surve Classi Area Boundaries Struct Trees Name Regist
y No. ficatio under ures & ered
n of Akqui adress holder
land sition of
person
interes
ted
N E S W
(1) (2) (3) (4) (5) (6) (7) (8) (9)
This notification is made under sub-section (1) of section 11 of the
Right to Fair Compensation and Transparency in Land acquisition,
Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013), to
all whom it may concern.
A plan of the land may be inspected in the office of the Collector
and —————————- on any working day during the working
hours.
The Government is pleased to authorize ______________ and his
staff to enter upon a survey land, take levels of any land, dig or bore
into the sub-soil and do all other acts required for the proper execution
of their work as provided and specified in section 12 of the said Act.
Under sub-section (4) of section 11 of the said Act, no person shall
make any transaction or cause any transaction of land i.e. sale /
purchase, etc., or create any encumbrances on such land from the date
of publication of this notification in the Tamil Nadu Government
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Gazette without prior approval of the Collector.
Objections to the acquisition, if any, may be fi led by the person
interested within 60 (sixty) days from the date of publication of this
notification in the Tamil Nadu Government Gazette as provided under
section 15 of the said Act before the Collector.
*Since the land is urgently required under sub-section (1) of
section 40 of the said Act / urgently required for the project involving
defence of India / National Security / Emergencies arising out of
Natural Calamities / emergency with the approval of Parliament
(Strike off what is not applicable) under sub-section (2) of section 40
of the said Act, it has been decided not to carry out the Social Impact
Assessment
Study, vide G.O. No._______,________, dated_________.
Enclosure: As above
Place:
Date: Collector
* Strike out if not applicable
24. Even Form V as appended to the Rules mandates that an
objection by the interested person, may be filed within 60 days from the
date of publication in the Tamil Nadu Government Gazette. Further, the
perusal of the very impugned notification issued by the District Collector
in the Thoothukudi District Gazette dated 08.12.2020 itself shows that
this notification will be published in the Tamil Nadu Gazette. The
notification is extracted hereunder:
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W.A(MD)No.1683 of 2023 & W.P.(MD) No.329 of 2024
NOTIFICATION BY THE COLLECTOR
(ROC.E2/15503/2020, Dt. 08.10.2020)
FORM IV
(See rule 13(1))
PRELIMINARY NOTIFICATION
Whereas it appears to the appropriate Government
has given Administrative Sanction that a total of 5.02.00
hectares of land is required in the Arasoor-2 Village in
Sattankulam Taluk in Thoothukudi District for public
purpose namely Tamirabarani Karumeniyar Nambiyar
interlinking Flood Carrier Canal Project. Environmental
Impact Assessment Study for the irrigation project (i.e)
formation of Flood Carrier Canal from Kannadian channel
to Drought Prone Areas of Sattankulam, Thisayanvilai by
interlinking Tamirabarani, Karumeniyar, Nambiyar rivers
in Tirunelveli and Thoothukudi districts in Tamilnadu has
been carried out by "WAPCOS" under the section 3(3) of
the Environmental Protection Act 1986. The land is
acquired to wit for the formation of flood carrier Canal. As
the Environmental Impact Assessment study has been
carried out for this irrigation project. Social impact
Assessment shall not apply according to the provision of the
sub section 6(2) of Right to Fair compensation and
Transparency in Land Acquisition. Rehabilitation and
Resettlement Act 2013 (Copy of Environmental Impact
Assessment study report is attached herewith). Since in the
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4th stage River linking canal yet to be digged for Flood
carrier project. No family was displaced due to the land
acquisition of 5.02.00 hectares in this project. The Revenue
Divisional Officer, Tiruchendur is appointed as
Administrator for the purpose of Rehabilitation and
Resettlement. Therefore, it is notified that for the above said
project in the Arasoor-2 Village of Sattankulam Taluk in
Thoothukudi District, land measuring an extent of 5.02.00
hectares, the details of which are specified in the Schedule
below, is under acquisition:
This notification is made under sub-section (1) of
section 11 of the Right of Fair Compensation and
Transparency in Land acquisition, Rehabilitation and
resettlement Act, 2013 (Central Act 30 of 2013), to all whom
it may concern.
A plan of the land may be inspected in the office of
the Collector and Special Tahsildar on any working day
during the working hours.
The Government is pleased to authorize the requiring
department Executive Engineer, PWD, Special Project
Division, Tirunelveli and his staff to enter upon a survey
land, take levels of any land, dig or bore into the sub-soil
and do all other acts required for the proper execution of
their work as provided and specified in section 12 of the
said Act. Under sub-section (4) of section 11 of the said Act,
no person shall make any transaction or cause any
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transaction of land i.e. sale/purchase, etc or create any
encumbrances on such land from the date of publication of
this notification in the Tamil Nadu Government Gazette
without prior approval of the Collector. Objections to the
acquisition, if any, may be filed by the person interested
within 60 (Sixty) days from the date of publication of this
notification in the Tamil Nadu Government Gazette as
provided under section 15 of the said Act before the
Collector, Thoothukudi.
District Collector, Thoothukudi.
Place: Thoothukudi
Date: 13.10.2020
25. As per the impugned notification in the Form IV published,
even though this notification is published in the Thoothukudi District
Gazette, as per the notification, objections to the acquisition may be filed
by the person interested within sixty days from the date of the publication
of this notification in the Tamil Nadu Government Gazette as provided
under Section 15 of the said Act. Therefore, even as the impugned
notification which has been made either for convenience or for any other
purpose, still only after this notification is published in the Tamil Nadu
Government Gazette, the land owner needs to file if any objection within
sixty days. The need had never arisen for the land owner to submit his
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objections or the authorities to take further proceedings under the 2013
Act till the preliminary notification is published in the State Gazette as
mandated under Section 11(1) read with Section 3(v) of the Act.
26. When the provisions of the Act is very clear and unambiguous,
no interpretation is required and the conferment of the District Collector
as appropriate Government as held by the Division Bench can only be for
convenience and even though the District Collector is authorized to
initiate all the proceedings including the issuance of the notification
under Section 11(1) of the Act, still it can never be construed that such
publication can be made in the District Gazette as the notification itself
has been clearly defined to be a notification to be published in the State
Gazette. When the rules have been properly framed in consonance with
the provisions of the Parent Act and Rule 13(3) mandates the publication
of the notification in the Tamil Nadu Government Gazette and the Form
IV appended to the Rules also makes it clear that the notification to be
published in the Tamil Nadu Government Gazette, there is no iota of
doubt or any confusion that any preliminary notification under Section
11(1)(a) of the 2013 Act can only be made in the State Gazette
concerning with the State and in view of the provisions contained in
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Section 3(v) and 11(1) of the Act read with Rule 13(3), we need not rely
on either Section 4A(1) or Section 3(39) of the General Clauses Act,
1897.
27. In view of the above discussions, we are completely in
agreement with the decision rendered in the Thirumani Dharmaraj Case
cited supra by supplementing our views, considering the provisions
contained under the Act as referred above. Under such circumstances,
we are not able to sustain the conclusions arrived at by the Writ Court
and accordingly is interfered with. In such view, the order of the learned
Judge is set aside and resultantly the Writ Appeal and Writ Petition
stands allowed and the notification issued in so far as the petitioner and
the appellant stands quashed and consequently connected miscellaneous
petitions are closed. No costs.
28. Before we part with, since it has been brought to our notice
that major part of the work in the public project has already been
completed and in view of the present order passed in the Appeal
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quashing the proceedings with respect to a limited extent of land, in
which also work has been partly executed, we only direct the respondents
to take earnest steps in completing the project by initiating fresh
proceedings by complying with the mandatory provisions of the Act, as
expeditiously as possible, in any event within a period of 4 months from
the date of the receipt of the copy of the order. In view of the fact that
the appellant had remained silent after the dismissal of the writ petition
and only after the award was passed and compensation was also
deposited before the Court, had filed the above appeal after nearly a year,
it is made clear that in view of the entire compensation amount being
deposited as per the award, the respondents are at liberty to proceed with
the works and all the works already carried on in the subject lands will
stand saved. However the land owners will be entitled for the
compensation as to be fixed under the fresh notification, dehors the
award being passed as per the earlier notification which has now been
quashed. As in respect of the other lands covered in this District, the land
owners have accepted the compensation and almost the entire work has
been executed, this order will only enure to the benefit in respect of the
lands covered under above cases. When the respondents have accepted
the decision of the Division Bench in respect of the same project for the
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adjoining District and have went in for fresh notification, they cannot be
allowed to take a different stand.
(R.S.K.,J) (G.A.M.,J)
30.01.2025
Index: Yes
Neutral Citation : Yes
Speaking order : Yes
Sma
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R.SURESH KUMAR, J.
AND
G.ARUL MURUGAN, J.
Judgment made in
W.A(MD)No.1683 of 2023 and W.P.(MD) No.329 of 2024
and C.M.P.(MD)Nos.12884 & 15748 of 2023
30.01.2025
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