V. RAMASWAMI


This is an appeal against the order of the learned single Judge dismissing W.P. 8919 of 1985. The writ petition was filed by the appellants praying for the issue of a writ of certiorari or other appropriate writ or direction and to quash the order of the Government of Tamil Nadu in G.O.Ms. No. 1127 Social Welfare Department, dated 16-5-1985. That Government Order was issued under S.6 of the Land Acquisition Act (hereinafter referred to as the Act). The writ petition relates to the appellants' lands in Survey No. 197 to 197/9 measuring 3.06 acres, which was notified under S.4(1) of the Act for acquisition on the ground that it was needed for provision of house sites for Adi Dravidars of Pillupati village, hamlet of Nallur, Manapparai Taluk, Tiruchirapalli Dist. The impugned Government Order is the declaration under S.6 of the Act relating to the same.


2. When notice was issued for an enquiry under S.5A of the Act, the appellants objected to the acquisition on the following grounds. They had dug up a well at enormous cost and developed the land. It is now a coconut 'tope' with 200 coconut yielding trees and in a small portion, sugarcane crop is also raised. They are small farmers having only this land, which is sought to be acquired, for their livelihood and they shall not be deprived of that property. The lands sought to be acquired are low lying lands and there are better alternative sites. Some of the Harijans in the locality, for whom the land is sought to be acquired themselves have stated that the land is not suitable for their living as it is a low lying area and that an alternative site in a higher level situate near the existing Harijan colony may be acquired.


3. While considering these objections and recommending rejection of the same, the Special Tahsildar (second respondent herein) has given reasons for such rejection. He has stated that though the appellants had dug up a well and made a lot of im-provements, they will be paid the value of the well as also the improvements and therefore the objections relating to the same is not maintainable. He has not given any reason for saying why a developed coconut 'tope' and lands which are used for intensive agriculture are to be acquired though he has noted that there is a coconut 'tope' and that the appellants are doing intensive cultivation by raising sugarcane and other commercial products. The objection that the land was low lying was rejected on the ground that the appellants have intentionally and as a precaution against acquisition, lowered the level but the level could be raised by bringing earth from the nearby places. So far as the objection by the residents of the Harijan welfare colony that the land is not suitable, the same was overruled on the ground that at the time when originally the proposal for acquisition was initiated they have agreed to take the land. He has rejected the claim of the appellants as 'small farmers' on the ground that they are residents of Pudukottai, a nearby place and they might he having lands there. This recommendation of the Special Tahsildar seems to have been without any consideration, accepted by the Government and the declaration was made.


4. There is no dispute that the Government themselves have issued various instructions at various stages that acquisition of wet lands and coconut 'topes' should be avoided and acquisition of lands of 'small farmers' also should be avoided. If the Government is being aware that the appellants are small farmers, that the lands are wet lands or 'topes' and still wanted to acquire on the ground that it is suitable for the purpose for which they want to acquire, one can understand that. But, in this case, the claim of the appellants that they are small farmers has been rejected by the Special Tahsildar not on any facts but on the assumption that they might be having some lands other than the one that is sought to be acquired This one ground itself is enough to allow this writ appeal. It is also no answer to say that though the proposed land is a coconut 'tope', and the appellants are doing intensive cultivation and they have also dug up a well at heavy cost, the appellants could be compensated with money and therefore the acquisition should be proceeded with. Unless there is a categorical and clear finding that it is the only land that is available for that purpose and no other alternative lands are available and that this land is the most suitable for the purpose, the Government could not have acquired this property. In fact, in this case, all the facts are against acquisition.


5. Even in G.O.Ms. 1761 Revenue dated 25-10-1982, the Government have directed that in case any land with coconut trees is to be acquired the coconut trees should not be felled and the land should be used for housing purposes in such a way without cutting the trees. The land sought to be acquired in this case is with 200 coconut trees and if the land is to be used without cutting the trees, we do not think that it would be possible to use the lands because the extent of the land is only 3,06 acres and 200 coconut trees in 3.06 acres will be large in number and it may not be possible to have the buildings in between without cutting the trees. In fact, the Special Tahsildar has not stated anything about the possibility of leaving the trees and using the land for the purpose of constructing houses for the Harijans. We are at a loss to understand how the Tahsildar can recommend acquisition on the ground though he finds that the land is low lying and that the owners have dug up the earth and made it low lying, it could be filled up. But, we do not find any statement in the Tahsildar's report or anywhere that this digging up was subsequent to the Notification under S.4(1) of the Act. If the digging up and developing it were prior to the Notification under S.4(1) of the Act, they would be as part of the development of the land and therefore, simply stating that as a precaution the appellants have developed the land and dug it up as a low lying area and as such the objection is rejected cannot be considered to be a reasonable way of looking at things.


It may be true that originally the Harijans of that village might not have raised any objection for the acquisition of this land and they might have accepted as useful. But, there is nothing to suggest that the subsequent view expressed by them that it is not suitable was in any way influenced by any particular person or authority and so long as such an objection is available, the Special Tahsildar is bound to consider and give a report on the objection. Merely stating that they have not objected to the acquisition earlier is not reasonable. Further the Special Tahsildar should have given a statement that the lands are suitable. Of course, he has mentioned that the lands are suitable after filling up the same with the earth in the adjoining places. In that form, any land can be made suitable for the purpose of construction if large amo

unts are spent. The Special Tahsildar has also not considered the objection that there are better and suitable alternative lands. As already stated, if better and more suitable alternative lands are available, the Government themselves have given instructions to the Land Acquisition Officers that acquisition of 'topes', wet lands and lands used for intensive cultivation should be avoided. In the circumstances, we are of the view that there is every justification in the complaint of the appellants that as small farmers with developed land and a coconut 'tope', their lands are to be excluded from acquisition. 6. In the result, the writ appeals is allowed and the Government Order impugned in the writ petition is set aside. However, there will be no order as to costs.