BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/11/2006
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
W.P.NO.972 OF 2004
and
WPMP.NO.967 OF 2004
K. Vishnupriya
W/o.T.R.S. Karthikeyan ... Petitioner
Vs.
1. State rep. by its Secretary to Government,
Public Works Department,
Fort St. George, Chennai 600 009.
2. The District Collector,
Madurai District,
Madurai 20.
3. The Special Tahsildar (Land and
Acquisition), Nilaiyur Channel
Extension Scheme, Madurai 20. ... Respondents
Petition filed under Article 226 of the Constitution for the
issuance of writ of Certiorarified Mandamus calling for the records pertaining
to the G.O.(RT) No.239 dated 21-04-2004 and the declaration made in Government
Gazette No.112 dated 30-04-2004 part II Section 2, on the file of the third
respondent and to quash the same.
!For Petitioner ... Mr.M. Rajaraman
^For Respondents ... Mr.G. Gandhirajan
Govt. Advocate
:J U D G M E N T
This writ petition has been filed for issuing Certiorarified
Mandamus for quashing the records relating to G.O.(RT)No.239 dated 21.4.2004 and
the declaration made in Government Gazette No.112 dated 30.4.2004. To be
precise, the petitioner is seeking for quashing the land acquisition
proceedings.
2. The allegations made in the writ petition are as follows :-
Petitioner is the owner of 1/3rd undivided share along with her co-
sisters Mrs. Uma Devi wife of T.R.S. Vijayram and Mrs. Sumathi wife of T.R.S.
Babu of the vacant land measuring 19.59+ acres in Eliarpathi village. Such
property had been acquired by a registered sale deed dated 7.1.2004 for
establishing a textile mill. It is stated by the petitioner that before
purchasing, she had verified from the office of the Tahsildar, Madras South that
the lands are patta lands and they are not coming within the purview of any land
acquisition proceeding and no notice had been issued by any Department under
Section 4(1) of the Land Acquisition Act and the land was also not affected by
the provisions contained in the Land Reforms Act,1961 and the Urban Land
Ceiling Act, 1978. Since the Public Works
Department was constructing a canal from Silaiman to Kambikudi, one of the land
owners had filed W.P.No.1338 of 2003 seeking for a direction against the Public
Works Department and other officials not to interfere with the possession of his
patta land. Subsequently, since there was apprehension that the authorities are
likely to encroach upon the land of the petitioner without following the rules
and regulations, the petitioner filed W.P.No.6227 of 2004 against the State and
the District Collector, Madurai and also the Chief Engineer and the
Superintending Engineer of P.W.D seeking for a writ of mandamus directing those
respondents not to interfere with the possession of the petitioner. The writ
petition was disposed of on 15.3.2004 by observing as follows :-
“2. Learned Government Pleader submits that if the respondents want to
make certain improvements in the property or require the property for public
purpose, due process of law would be followed after putting the petitioner in
notice.
3. In view of the said submission of the learned Additional Government
Pleader, there is nothing more to be adjudicated in the present writ petition,
except recording the statement of the learned Additional Government Pleader that
the petitioner’s possession would not be interfered without following due
process of law.”
It is further stated that thereafter neither the petitioner nor her co-
sisters have been served with any notice by the respondents regarding their
proposal to acquire the land belonging to the petitioner and her co-sisters.
However, subsequently the petitioner and her co-sisters were served with notice
dated 2.8.2004 on 25.8.2004 in Form-7 purporting to be under Sections 9(3) and
10 of the Land Acquisition Act. Thereafter, an official from the office of the
third respondent came with a model consent letter and requested the petitioner
to sign the same. At that stage the petitioner discovered that the property
measuring 0.70.5 hectares of land had purportedly been acquired by the third
respondent for the alleged purpose of extension of Nilaiyur Channel and upon
subsequent verification the petitioner learnt that the third respondent had
given a letter dated 1.6.2004 purporting to be an advertisement published in
Tamil daily ‘Namathu MGR’ for acquisition of the property. It was learnt that
the first respondent had approved the acquisition by G.O.No.239 dated 21.4.2004
and declaration under Section 6 dated 30.4.2004 was published in Government
Gazette No.112. The petitioner claims that such acquisition proceedings are
vitiated, mala fide and against law and have been taken in arbitrary exercise of
power. The petitioner claims that still she is continuing in possession. It is
further stated that the canal was not at all necessary to pass through the
property of the petitioner and such canal can be diverted through poramboke
lands belonging to the State without affecting the patta lands. It is further
stated that there is absolutely no emergency in the matter to invoke Section 17
of the Land Acquisition Act and no reason has been mentioned for invoking such
emergency clause. It has been further stated that the Gazette publication had
been made in the name of the vendor of the petitioner and no notice had been
given to the petitioner enabling her to file any objection under Section 5A of
the Act. It has been further claimed that the Tamil daily, wherein such
publication was made, is not circulated in and around Madurai and is only a
Madras edition and, therefore, the publication is not in accordance with law. A
further ground is taken that in W.P.No.6227 of 2004 the respondents had
undertaken to give proper notice to the petitioner and action had been taken
without even complying with such undertaking. On the basis of such allegations,
the petitioner has sought for quashing the land acquisition proceedings mainly
on the ground that no notice had been served and illegality has been committed
in following the procedure contemplated under Section 5A of the Land Acquisition
Act and there is no justification for invoking the emergency clause and further
that the canal can be diverted through adjacent poramboke lands.
4. A counter affidavit has been filed on behalf of Respondent No.2. In such
counter affidavit it has been submitted that in G.O.Ms.No.348, Public Works
Department dated 29.6.1999, the Government of Tamil Nadu issued administrative
sanction for the scheme of extending the Nilayur Channel from the upstream of
Perungudi tank of Madurai District to Kambikudi series of Virudhunagar District
to feed about 94 tanks in Madurai, Virudhunagar and Sivagangai districts which
would benefit 9947 acres of land. It has been stated that the proposals were
submitted to the Government for approval of notification under section 4(1)and 6
of the Land Acquisition Act simultaneously invoking urgency clause during
October 2002. The Government of Tamil Nadu have approved the notification under
Section 4(1) invoking urgency clause under Section 17(2) of the Land Acquisition
Act in respect of 20 cases out of which award had been passed in respect of 13
cases and further action was being taken for the remaining cases. Notification
under Section 4(1) in respect of the disputed land had been approved by
G.O.Ms.No.72, Public Works Department, dated 26.2.2004, which was subsequently
published in Government Gazette and Tamil dailies and substance of the
notification had also been published. Declaration under Section 6 of the Act
had been approved by the Government on 21.4.2004 and the same has been
published on 30.4.2004 in the Government
Gazette and thereafter in the newspapers. It is further indicated that as per
the observation of the High Court in W.P.No.6227 of 2004, notice under Section
9(1) of the Act had been sent in the name of the petitioner. The rules have
been followed and there has been no violation of any of the provision. It has
been further indicated that the lands have been acquired by invoking the urgency
clause for which proposal had been sent on 6.8.2002. The petitioner purchased
the land only on 7.1.2004. The name of the vendor, who sold the property to the
petitioner, has been notified in 4(1) notification and the purchaser had never
approached the officials to include her name as the land owner. Importance of
the scheme had been projected in the counter and it has been submitted that
since it is an irrigation project, the Government has invoked the urgency clause
and there is no illegality.
5. Learned counsel appearing for the petitioner has submitted that
in view of the observation made by the High Court in the earlier W.P.No.6227 of
2004, the respondents should have issued notice to the petitioner before taking
any action relating to acquisition of the land.
6. A perusal of the order passed by the High Court on the earlier
occasion indicates that the effect of the undertaking was that the respondents
would not take any steps to acquire the land for public purpose except by
following the due process of law and the petitioner would be given necessary
notice. By no stretch of imagination it can be construed that the Government
had agreed to forego its right to acquire the land in accordance with the
provisions contained in the Land Acquisition Act. It is of course true that it
was stated that notice would be given, but in the context of things it must be
understood that notice as contemplated in law is required to be given at the
proper stage.
7.In AIR 1996 SC 1051 (CHAMELI SINGH V. STATE OF U.P.) it was
observed in paragraphs 3 and 16 as below:
“3.It is settled law that the opinion of urgency formed by the appropriate
Government to take immediate possession is a subjective conclusion based on the
material before it and it is entitled to great weight unless it is vitiated by
malafides or colourable exercise of power. Article 25(1) of the Universal
Declaration of Human Rights declares that “every one has the right to standard
of living adequate for the health and well-being of himself and his family
including food, clothing, housing, medical care and necessary social services.”
Article 11(1) of the International Covenant on Economic, Social and
Cultural Rights, 1966 laid down tht State Parties to the Covenant recognise “the
right to every one to an adequate standard of living for himself and for his
family including food, clothing, housing and to the continuous improvement of
living condition.” The State parties will take appropriate steps to ensure
realisation of this right. In P.G.Gupta v. State of Gujarat (1995) 2 JT (SC)
373: (1993 AIR SCW 1540) a Bench of three Judges of this Court considering the
mandate of human right to shelter read it into Article 19(1)(e) and Article 21
of the Constitution of India to guarantee right to residence and settlement.
Protection of life guaranteed by Article 21 encompasses within its ambit the
right to shelter to enjoy the meaningful right to life. the Preamble to the
Indian Constitution assures to every citizen social and economic justice and
equity of status and of opportunity and dignity of people so as to fasten
fraternity among all sections of society in an integrated Bharat. Article 39(b)
enjoins the State that ownership and control of the material resources of the
community are so distributed as to promote welfare of the people by securing
social and economic justice to the weaker sections of the society to minimise
inequality in income and endeavour to eliminate inequality in status. Article
46 enjoins the State to promote with special care social, economic and
educational interests of the weaker sections of the
society, in particular, Scheduled Castes and Scheduled Tribes. Right to social
and economic justice conjointly commingles with right to shelter as an
inseparable component for meaningful right to life. It was, therefore, held
that right to residence and settlement is a fundamental right under Article
19(1)(e) and it is a facet of inseparable meaningful right to life under Article
21. Food, shelter and clothing are minimal human rights. The State has
undertaken as its economic policy of planned development of massive housing
schemes. The right to allotment of houses constructed by the Housing Board to
the weaker sections, lower income group people under Lower Income Group Scheme,
was held to be constitutional strategy, an economic programme undertaken by the
State and the weaker sections are entitled to allotment as per the scheme.
……
16.It is true that there was pre-notification and post-notification
delay on the part of the officers to finalise and publish the notification. But
those facts were present before the Government when it invoked urgency clause
and dispensed with inquiry under Section 5-A. As held by this Court, the delay
by itself accelerates the urgency. Larger the delay, greater be the urgency.
….”
8.In 1997 (9) SCC 78 (UNION OF INDIA V. PRAVEEN GUPTA), it was
observed in paragraph 9 as under:
“9.It is now settled legal position that decision on urgency is an
administrative decision and is a matter of subjective satisfaction of the
appropriate Government on the basis of the material available on record.
Therefore, there was no need to pass any reasoned order to reach the conclusion
that there is urgency so as to dispense with the enquiry under Section 5-A in
exercise of power under Section 17(4). ….”
9. In AIR 2002 SC 1314 (FIRST LAND ACQUISITION COLLECTIOR AND OTHERS
v. NIRODHI PRAKASH GANGOLI AND ANOTHER), while considering the applicability of
Section 17(1) and (4) of the Land Acquisition Act, the Supreme Court observed :-
“4. … Bearing in mind the aforesaid principles, if the circumstances of
the case in hand are examined it would appear that the premises in question was
required for the students of National Medical College, Calcutta and the
notification issued in December 1982 had been quashed by the Court and the
subsequent notification issued on 25-2-1994 also had been quashed by the Court.
It is only thereafter the notification was issued under Sections 4(1) and 17(4)
of the Act on 29-11-1994 which came up for consideration before the High Court.
Apart from the fact that there had already been considerable delay in acquiring
the premises in question on account of the intervention by Courts, the premises
was badly need for the occupation of the students of National Medical College,
Calcutta. Thus, existence of urgency was writ large on the facts of the case
and therefore, said exercise of power in the case in hand, cannot be interfered
with by a Court of law on a conclusion that there did not exist any emergency.
The conclusion of the Division Bench of Calcutta High Court, therefore, is
unsustainable.”
10. In the present case, the Government decided to invoke emergency
clause and, therefore, there was simultaneous publication of notification under
Section 4(1) and declaration under Section 6 dispensing with the enquiry under
Section 5-A of the Land Acquisition Act. Undoubtedly in law the Government is
entitled to invoke such emergency provision available under the Land Acquisition
Act. Except baldly stating that emergency clause has been invoked without any
reason, the petitioner has not buttressed her submission as to why the emergency
clause could not have been invoked. It is no doubt true that the proposal for
acquiring the land has been initiated long back, in the year 2002 or even before
that. However, merely because the proposal had remained pending since long, it
cannot be said that there was no necessity to invoke the emergency clause.
11. Even though it has been asserted by the petitioner that the land
acquisition proceedings are vitiated by malafides, except such bald assertion no
material worth the name is forthcoming to substantiate such allegation. There
cannot be any doubt that the purpose for which the land is sought to be acquired
is a public purpose. Keeping in view the fact that the land was required for
the purpose of digging a channel to connect some irrigation sources, it cannot
be said that there was no urgency.
12. It is of course true that the petitioner at the stage when she
purchased the land was given to understand that the land was not under any
acquisition. However, it does not preclude the Government subsequently to
decide that the land would be acquired for public purpose in accordance with the
procedure laid down under law. The fact that the petitioner wanted to use the
land for commercial purpose is also not very relevant. Similarly the vague
assertion of the petitioner that the canal could have been dug in some poramboke
land belonging to the State is also not worthy of acceptance in the absence of
any detail whatsoever about such poramboke lands. While considering the
question of digging a canal, obviously certain scientific and technical aspects
must have been taken into account and in the absence of any specific challenge
it has to be presumed that the officials must have undertaken the proper survey
work and decided to dig the channel in a particular area. Ordinarily those are
matters best left to the specialists or experts rather than the Court.
13. Learned counsel for the petitioner has placed reliance upon
several decisions of the Madras High Court to the effect that notice relating to
notification under Section 4(1) should be published in the newspapers having
wide circulation in the area. All the decisions cited by the learned counsel
for the petitioner relate to acquisition proceedings wherein the normal
procedure of issuance of notification followed by enquiry under Section 5-A of
the Land Acquisition Act were followed. Since the notice relating to 4(1) had
not been published in the newspaper having wide circulation, it was held in
those cases that the land owner was deprived of opportunity of filing objection
and consequently such owner lost an opportunity of being heard as contemplated
under Section 5-A of the Land Acquisition Act.
I do not think the ratio of such decisions can be made applicable to the
present case, wherein the enquiry under Section 5-A itself is dispensed with by
invoking the urgency clause envisaged under Section 17(1) read with 17(4) of the
Land Acquisition Act.
14. For the aforesaid reasons, I do not find any scope to interfere
with the acquisition proceedings and the writ petition is accordingly dismissed.
No costs. Consequently, the connected WPMP.No.967 of 2004 is closed.
dpk/gb.
To
1. The Secretary to Government,
Public Works Department,
Fort St. George, Chennai 600 009.
2. The District Collector,
Madurai District,
Madurai 20.
3. The Special Tahsildar (Land and
Acquisition), Nilaiyur Channel
Extension Scheme, Madurai 20.