IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.08.2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NOs.16417 of 1998, 10316, 14599, 14600, 15253, 16514 to 16521,
17432, 17891, 18441, 18495, 19436 to 19440, 20126, 20592 of 1999,
1975, 1976, 2221 to 2224, 5537, 5615 to 5622, 6099,
7778 and 10933 of 2000, 11965 of 2001, 13616 of 2003,
5110 of 2004, 18573, 39237, 28901 of 2005,
6711, 25460 and 39612 of 2006, 28427 of 2007,
7091 and 7092 of 2008 and 1607 to 1610 of 2009
and
W.M.P.NOs.28504, 28506, 28508, 28510, 28512, 29536 and 29535 of 1999, WPMP Nos.20122, 42033 and 31592 of 2005, M.P.Nos.1 of 2006, 1,1,2 and 2 of 2008, 1,1,1,1,2,2,2,2,3,3 and 3 of 2009
1.Kovai Medical Centre Research &
Educational Trust,
rep. By its Trustee,
Dr. Nalla G.Palanisamy
Avanashi Road, Coimbatore-641 014.
2.N.Senkottaian
3.Shanmugham
4.Maruthachalam
5.Manthira Gounder
6.M.Kandasamy .. Petitioners in W.P.No.16417 of 1998
1.J.Sivakumaran
2.Smt.Chitra Sivakumaran .. Petitioner in W.P.No.10316 of 1999
P.V.Govindarajan .. Petitioner in W.P.No.14599 of 1999
Mrs.G.Velumani .. Petitioner in W.P.No.14600 of 1999
M.Rasa Gounder .. Petitioner in W.P.No.15253 of 1999
Selvaraj .. Petitioner in W.P.No.16514 of 1999
R.Ranganayaki .. Petitioner in W.P.No.16515 of 1999
T.Vijayaragavan .. Petitioner in W.P.No.16516 of 1999
K.Sundarapandian .. Petitioner in W.P.No.16517 of 1999
T.Sivabalakrishnan .. Petitioner in W.P.No.16518 of 1999
S.Madan Kumar .. Petitioner in W.P.No.16519 of 1999
Lakshmi .. Petitioner in W.P.No.16520 of 1999
K.S.Palanisami .. Petitioner in W.P.No.16521 of 1999
1.G.Sadasivam
2.N.Durairaj
3.Mary Sulochana .. Petitioners in W.P.No.17432 of 1999
1.S.Sundaram
2.C.Manivelan .. Petitioners in W.P.No.17891 of 1999
1.V.Dhandapani
2.V.Deivasigamani
3.V.Somu
4.V.Paramasivam
5.G.Jothimani .. Petitioners in W.P.No.18441 of 1999
1.G.D.Gnanadurai
2.Chenniappan
3.Mrs.Mumthaj Afir
4.Ayyasamy
5.N.Veerasamy
6.Mrs.Mariammal
7.P.Ramesh Kumar
8.P.R.Rathish Kumar
9.P.V.Viswanathan .. Petitioners in W.P.No.18495 of 1999
R.Murugesan
rep. By power of attorney Mr.C.Selvaraj .. Petitioner in W.P.No.19436 of 1999
A.Palanichamy
rep. By power of attorney Mr.C.Selvaraj .. Petitioner in W.P.No.19437 of 1999
R.Pattilingam .. Petitioner in W.P.No.19438 of 1999
K.Somasundaram
rep. By power of attorney Mr.C.Selvaraj .. Petitioner in W.P.No.19439 of 1999
Mr.K.Manickam
rep. By power of attorney Mr.C.Selvaraj .. Petitioner in W.P.No.19440 of 1999
1.Lakshmi Cooperative Building Society Ltd.
Rep. By its Secretary,
G.Ramadurai
5/1, G.K.D.Nagar,
Pappanacikenpalayam Post,
Coimbatore Taluk,
Coimbatore District.
2.P.Venkata Hariprasad
3.A.Basheer
4.K.Ranganathan
5.D.F.Premkumar
6.A.Govindarajan
7.P.Muthusamy
8.S.Karthikeyan
9.V.Subathran
10.A.R.Ramasamy
11.P.Raveendran
12.G.Venugopal
13.S.Savithri
14.S.Rangasamy
15.P.Balasundararajan
16.C.V.Chinnasamy
17.P.Kumar
18.V.Sundararaj
19.S.Sampoorani
20.C.K.Varadarajan
21.S.Ponnusubramanian
22.G.Thilagavathi
23.T.Muthusamy
24.R.Rathinasamy
25.P.T.Rajagopalan
26.P.Devaraj
27.P.Venkateswaran
28.O.S.Lakshmi Narayanan
29.S.Srinivasan
30.G.Janarthanam
31.S.Ranganathan
32.K.Chandrasekar
33.P.Rajkumar
34.R.Sundar
35.S.Ramesh
36.D.Venkatapathy
37.T.Sundaram
38.V.Sampathkumar
39.K.Rajendran
40.L.Rajagopal
41.P.Paramasivam
42.Saravana Sridhar
43.V.Sanjeevkumar
44.R.Kannan
45.V.C.Santhakumar
46.P.Thiraviam
47.C.R.Padmanabhan
48.P.R.Devaraj
49.R.Ayyasamy
50.P.Vanithamani
51.R.P.Devarajan
52.K.Kabilan
53.V.Krishnamoorthy
54.V.Senthilkumar
55.K.Kandiappan
56.V.Vijayakumar
57.N.Ravi
58.G.Jayaram
59.H.Radha krishnan
60.A.Rajan
61.R.Dakshinamurthy
62.K.Senthilkumar
63.P.Parthasarathy
64.V.Velusamy
65.R.Ramesh
66.L.K.Ramalingam
67.S.R.Ponnusamy
68.S.Prabakaran
69.F.Tharsius
70.K.V.Raman
71.D.Sundararaju
72.K.Babu Ragupathy
73.D.Mohanasundaram
74.L.Andal
75.K.T.Dhileeban
76.A.Muthukaruppan
77.K.Murugavel
78.R.M.Sankaravadivel
79.K.Palanisamy
80.S.Prabakaran
81.V.Chellappan
82.S.Vivekanandan
83.S.Nagaraj
84.D.Balasundaram
85.R.Padmanabhan
86.C.M.Chandrasekar
87.K.Meenakshisundaram
88.R.Srinivasan
89.S.Sugantha
90.K.Subramanian
91.C.Ravichandran .. Petitioners in W.P.No.20126 of 1999
Mrs.V.Radha .. Petitioner in W.P.No.20592 of 1999
1.Dr.S.S.Ramasamy (deceased)
2.P.Govindasamy
3.P.Palanisamy
4.P.Kumarasamy
5.N.Satheesh
6.V.K.Senthil
7.V.K.Kumar
8.P.Poongodi
9.V.Sivakumar
10.S.Vasantha
11.R.Balamani
12.R.Gopalakrishnan
(Petitioners 11 and 12 substituted as
LR of deceased first petitioner vide
order dt.28.7.2010 in WPMP.456 of 2010).. Petitioners in W.P.No.7778 of 2000
L.Raghavan .. Petitioner in W.P.No.1975 of 2000
L.Kannan .. Petitioner in w.P.No.1976 of 2000
S.Rajamani .. Petitioner in W.P.Nos.2221 & 2224/2000
S.Jeyalakshmi .. Petitioner in W.P.No.2222 of 2000
R.Ramasamy .. Petitioner in W.P.No.2223 of 2000
Ramathal .. Petitioner in W.P.No.5537 of 2000
J.Sivakumaran .. Petitioner in W.P.No.5615 of 2000
Velusamy .. Petitioner in W.P.No.5616 of 2000
S.Karthikeyan .. Petitioner in W.P.No.5617 of 2000
M.Kanagaraj .. Petitioner in W.P.No.5618 of 2000
Periasamy .. Petitioner in W.P.No.5619 of 2000
M.R.Periasamy .. Petitioner in W.P.No.5620 of 2000
Tamil Selvan .. Petitioner in W.P.No.5621 of 2000
Gunabalan .. Petitioner in W.P.No.5622 of 2000
1.Panneerselvam
2.Mrs.John Joseph .. Petitioners in W.P.No.6099 of 2000
Usha @ Ushadevi .. Petitioner in W.P.No.10933 of 2000
1.S.Uvanathan
2.Vivekanandan .. Petitioners in W.P.No.11965 of 2001
C.Narayanasamy .. Petitioner in W.P.No.13616 of 2003
R.Subramanian .. Petitioner in W.P.No.5110 of 2004
R.Chinnasamy .. Petitioner in W.P.No.18573 of 2005
1.Umapathy
2.Arunachalam
3.Ramaswamy Gounder .. Petitioners in W.P.No.28901 of 2005
1.Maragatham
2.Tamilselvi
3.M.Nagarajan
4.Sundari .. Petitioners in W.P.No.39237 of 2005
K.Balakrishnan .. Petitioner in W.P.No.6711 of 2006
1.N.Saraswathi
2.K.N.Thiruvenkitaswamy
3.T.Venkitapathi .. Petitioners in W.P.No.25460 of 2006
R.Kandasamy .. Petitioner in W.P.No.39612 of 2006
Ramasamy Naidu .. Petitioner in W.P.No.28427 of 2007
B.Raghupathy .. Petitioner in W.P.No.7091 of 2008
Dr.A.Raghuram .. Petitioner in w.P.No.7092 of 2008
Uma Maheswari Ramasamy .. Petitioner in W.P.No.1607 of 2009
R.Mayilathal .. Petitioner in W.P.No.1608 of 2009
R.Palaniammal .. Petitioner in W.P.No.1609 of 2009
S.Sarojini .. Petitioner in W.P.No.1610 of 2009
Vs.
1.The State of Tamilnadu,
rep. By its Secretary to Government,
Housing & Urban Development Dept.,
Fort St. George, Chennai-600 009.
2.The Special Tahsildar,
Land Acquisition,
Housing Scheme-II,
Coimbatore. .. 1st and 2nd respondents in
W.P.Nos.16417 of 1998,10316,15253, 16514 to 16521, 17432, 17891, 18495,
19436 to 19440, 20592 of 1999, 1975,
1976, 2221,2222, 2223, 2224, 5537,
5615 to 5622, 6099, 7778 and 10933 of
2000, 11965/2001, 3616/2003, 28901/2005, 25460 of 2006, 7091 and
7092 of 2008, 20126 of 1999
3.The Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-600 035.
(R3 impleaded vide order dated 19.12.2008
in WPMP Nos.1862,1865 to1873, 1874,
1875 to 1879, 1880 to
1887, 1889, 1888 of 2008) .. 3rd Respondent in
W.P.Nos.10316,15253, 16514 to
16521,17891,19436 to 19440 of 1999,
5615 to 5622, 6099 and 7778 of 2000
1.Government of Tamil Nadu
represented by its Secretary
Housing and Urban Development Department,
Secretariat,
Chennai-600 009.
2.The District Collector,
Coimbatore-640 018.
3.The Special Tahsildar,
Collectorate (Land Acquisition Compound)
Coimbatore-641 018.
4.The Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-600 035.
(R4 impleaded vide order dt.19.12.2008
in WPMPs 1863 and 1864 of 2008) .. Respondents in W.P.Nos.14599 and
14600 of 1999
1.The State of Tamilnadu,
represented by its Secretary to Government,
Housing and Urban Development Department,
Fort St. George, Chennai-600 009.
2.The Special Tahsildar (L.A.)
Housing scheme Unit I,
Coimbatore-18. .. 1st and 2nd Respondents in
W.P.No.18441 of 1999
3.The Chairman,
Tamil Nadu Housing Board,
Chennai-600 035. .. 3rd respondent in W.P.Nos.18441 of
1999 & 1975 and 1976 of 2000
1.The State of Tamil Nadu
represented by its Secretary,
Housing and Urban Development
Fort St. George, Chennai-9.
2.The Tamil Nadu Housing Board,
represented by its Managing Director,
No.331, Anna Salai, Nandanam,
Chennai-35.
3.The Special Tahsildar (Land Acquisition),
Housing Scheme Unit-II
Coimbatore-641 018. .. Respondents in W.P.No.39237 of 2005
1.The State of Tamil Nadu
represented by its Secretary to Government,
Housing and Urban Development,
Secretariat,
Fort St. George, Chennai-9.
2.The Land Acquisition Officer and
Special Tahsildar (LA),
Housing Scheme Unit- I/II
Coimbatore-641 012. .. Respondents in W.P.No.28427 of 2007
1.The State of Tamil Nadu,
rep. By its Secretary to Government,
Housing and Urban Development Department,
Fort St. George, Chennai-600 009.
2.The Tamil Nadu Housing Board,
represented by its Chairman/Managing Director
No.331, Anna Salai, Nandanam,
Chennai-600 035.
3.The Chairman,
High level Committee,
Tamil Nadu Housing Board,
Nandanam, Chennai-600 035.
4.The Special Tahsildar (Land Acquistion)
Housing Scheme Unit-II,
Coimbatore-18.
5.Mr.Rashid S.Hataria & D.S.Hataria
rep. By power agent
Mr.N.A.Murugesan .. Respondents 1 to 5 in
W.P.Nos.1607 to 1610 of 2009
6.C.M.Dhanabal
7.V.K.Ranganathan
8.N.Ravi .. Respondents 6,7 and 8 in
W.P.No.1607 of 2009
Maruthathal
(R3 impleaded vide order
dt.19.12.08 in WPMP.501/2008) .. 3rd respondent in W.P.No.5537 of 2000
1.State of Tamilnadu,
rep. By Secretary,
Housing and Urban Development Department,
Fort St. George,
Madras-600 009.
2.The Tamilnadu Housing Board,
rep. By its Chairman,
Nandanam,
Chennai-600 035.
3.The Special Tahsildar,
(Land Acquisition)
Housing Scheme-II,
Coimbatore-541 038.
4.The Sub Registrar,
Gandhipuram
Coimbatore-641 012. .. Respondents in W.P.Nos.5110 of
2004 and 39612 of 2006
1.The District Registrar,
Coimbatore District,Coimbatore.
2.The Sub Registrar,
Gandhipuram, Coimbatore Dist. .. Respondents in W.P.No.18573/ 2005
1.The State of Tamil Nadu,
rep. By its Secretary to Government,
Housing and Urban Development Dept.,
Fort St. George, Chenani-9.
2.The Managing Director,
Tamil Nadu Housing Board,
Anna Salai, Nandanam, Chennai.
3.The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Tatabad, Coimbatore.
4.The Special Tahsildar,
(Land Acquisition),
Housing Scheme Unit-I & II,
Tatabad, Coimbatore-641 012. .. Respondents in W.P.No.6711 of 2006
Tamilnadu Housing Board,
rep. By its Chairman &
Managing Director,
Nandanam, Chennai-600 035. .. 3rd respondent in w.P.no.20126/ 1999
W.P.No.16417 of 1998 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the impugned notifications issued Section 4(1) of the Act vide G.O.Ms.481 Housing & Urban Development Department dated 27.4.1995 and published in Tamilnadu Government Gazette Part II Section 2 (Supplement) dated 24.5.1995 and the declaration issued under Section 6 of the Land Acquisition Act vide G.O.Ms.302 Housing & Urban Development Department, dated 12.7.1996 as published in Part II Sec.2 of the Tamilnadu Government Gazette dated 3.7.1996 in respect of the petitioners' land in SF No.292/1B1, 293/1 and 294/1 in Kalapatti Village, Coimbatore North Taluk, Coimbatore District and to quash the same.
W.P.No.10316 of 1999, 5537, 5615 to 5622, 6099 of 2000 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with the notification issued under Section 4(1) of the Act vide G.O.Ms.384 Housing & Urban Development Department dated 06.09.1996 and published in Tamilnadu Government Gazette Part II Section 2 (Supplement) dated 23.10.1996 and the declaration issued under Section 6 of the Land Acquisition Act vide G.O.Ms.397 Housing & Urban Development Department, dated 10.11.1997 and published in the Tamilnadu Gazette Extroordinary Part II Section 2 dated 11.11.97 in respect of the petitioner's land in SF Nos.339/1, 331/1C measuring 0.82.0 hectares, 324/2 (part of site falls within 339/1), 339/2, 339/1, 339/1, 339/2, 339/2, 339/1, 339/2, 339/2 in Kalapatti Village, Coimbatore North Taluk, Coimbatore District and to quash the same.
W.P.No.15253 of 1999 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with the notification issued under Section 4(1) of the Act vide G.O.Ms.218 Housing & Urban Development Department dated 28.2.1994 and published in Tamilnadu Government Gazette Part II Section 2 (Supplement) dated 27.4.1994 and the declaration issued under Section 6 of the Land Acquisition Act vide G.O.Ms.528 Housing & Urban Development Department, dated 30.5.1995 and published in the Tamilnadu Gazette Extroordinary Part II Section 2 dated 1.6.1995 in respect of the petitioner's land in SF No.297/3 in Kalapatti Village, Coimbatore North Taluk, Coimbatore District and to quash the same.
W.P.Nos.16514 to 16521 of 1999, 2221, 2222 of 2000 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with the notification issued under Section 4(1) of the Act vide G.O.Ms.343 Housing & Urban Development Department dated 6.8.1996 and published in Tamilnadu Government Gazette Part II Section 2 (Supplement) dated 4.9.1996 and the declaration issued under Section 6 of the Land Acquisition Act vide G.O.Ms.339 Housing & Urban Development Department, dated 8.10.1997 and published in the Tamilnadu Gazette Extroordinary Part II Section 2 dated 8.10.1997 in respect of the petitioner's land in SF Nos.376, 374 and 375, 371, 372, Kalapatti Village, Coimbatore North Taluk, Coimbatore District and to quash the same.
W.P.Nos.18441 of 1999, 2223, 2224 7778, of 2000 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the respondents relating to Section 4(1) notification in G.O.Ms.385 Housing & Urban Development Department dated 6.9.1996 and published at page 2 of Part II Section 2 in the Tamilnadu Government Gazette Issue No.40A, dated 23.10.1996 and Section 6 declaration in G.O.Ms.No.390, Housing & Urban Development Department, dated 4.11.1997 and published at page 2 Part II Section 2 of the Extroordinary issue of Tamil Nadu Government Gazette issue No.557, dated 5.11.1997 both on the file of the first respondent and the award in Award No.3/99 (ref.No.331/89A) dated 5.11.99 on the file of the second respondent (only in W.P.No.7778 of 2000) and to quash them insofar as they relate to the lands of petitioners in S.Nos.368, 369, 370, 366(part) of Kalapatti village, Coimbatore North Taluk, Coimbatore District.
W.P.Nos.14599 and 14600, 17432, 17891, 18495, 20592 of 1999, 1975 and 1976 of 2000, 11965 of 2001 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the respondents relating to Section 4(1) notification in G.O.Ms.381 Housing & Urban Development Department (AA3) dated 3.9.1996 and published in the Tamilnadu Government Gazette Issue No.40 A1, Part II Section 2 (Supplement) page-1 dated 23.10.96 and also Section 6 declaration in G.O.Ms.No.389, Housing & Urban Development Department (LA-III-2), dated 4.11.1997 and published in the Tamil Nadu Government Gazette issue No.557, Part II section 2 page 1 dated 5.11.1997 and quash the same insofar as it relates to petitioners land comprised in Plot Nos.86,87,88,91,96 and 97 in Sakti Nagar layout in S.F.No.321, Plot Nos.49,63, 64, 65 and 68 in Sakti Nagar Layout in S.F.no.321, site Nos.138, 143 and 144 within the lay out of Sri Balaji Nagar SF No.318 (W.P.No.17432/1999), an extent of 1169 sq.ft. or less with the building bearing door No.42 Sri Balaji Nagar (Lay out) situated in SF No.318 (W.P.No.17891/1999), S.F.No.318 measuring 39-938 cents, S.F.No.318 measuring 4.058 cents/1800 sq.ft., Plot No.122, Balaji Nagar Layout in S.F.No.318, Plot No.123, Balaji Nagar Layout in S.F.No.318, S.F.318 measuring 8-516 cents (4000 Sq.ft.) in Kalapatti village, Coimbatore North Taluk, Coimbatore District.
W.P.No.39237 of 2005 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the proceedings of the first respondent in letter No.37215/LA III-2/2001-13 dated 24.8.2004, quash the same and to direct the first respondent to reconvey the lands to the petitioners an extent of 0.36.0 hectares in S.F.No.839/2B and an extent of 0.38.0 hectares in S.F.No.839/2D situated in Kalapatti village, Coimbatore North Taluk, Coimbatore District.
W.P.No.28427 of 2007 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the second respondent comprised in its notice dated 3.8.2007 under Ref.No.917/90 in Award No.10/94 and to quash the same and consequently issue a mandamus forbearing the respondents, their officers, employees, subordinates or any person claiming or acting under them from in any manner interfering with the petitioner's peaceful possession and enjoyment of his land admeasuring 1.29.0 hectares comprised in S.F.No.954/2 situated in Kalapatti village, Coimbatore North Taluk, Coimbatore District otherwise than by due process of law.
W.P.Nos.7091 and 7092 of 2008 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to proceedings of the first respondent in G.O.Ms.No.694, Housing and Urban Development Department, dated 21.10.1994 and proceedings in G.O.Ms.No.981 Housing and Urban Development Department, dated 27.11.1995 and to quash the same insofar as the petitioners' lands are concerned.
W.P.Nos.1607 to 1610 of 2009 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order passed by the first respondent in his proceeding No.27701/L.A.3(2)/07-7 dated 02.01.2008 and to quash the same and consequently, to direct the first respondent to refer the petitioner's representation for reconsideration and recommendations of the High Level Committee headed by the Hon'ble Retired High Court Judge of the third respondent dated 12.12.2008 herein for the purpose of reconveying the petitioner's land in S.F.No.349 to an extent of 0.63.3/4 acre , 0.99.67 acre, 0.99.67 acre, 0.99.67 acre respectively situated in Kalapatti village, Coimbatore District.
W.P.No.13616 of 2003 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the respondents in notification under Section 4(1) in G.O.Ms.No.1216, Housing and Urban Development Department, dated 17.9.1991 published in Part II and Section 2 of the Tamil Nadu Government Gazette dated 9.10.1991 and proceedings No.Na.Ka.777/90 dated 20.3.2003 and consequential declaration under Section 6(1) in G.O.Ms.No.64 V.Va.Ma.Na.Va dated 11.4.2003 published on 12.4.2003 and to quash the same as violative of second proviso to sub section 1 of Section 6 of the Act.
W.P.Nos.19436 to 19440 of 1999, 10933 of 2000 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with notification issued under Section 4(1) of the Act vide G.O.Ms.No.501, Housing & Urban Development Department, dated 25.11.1996 and published in the Tamilnadu Government Gazette Part II Section 2 (Supplement) dated 18.12.1996 and declaration issued under Section 6 of the Land Acquisition Act vide G.O.Ms.No.441 (Housing and Urban Development Department) dated 23.12.1997 and published in the Tamilnadu Government Gazette Extraordinary Part II Section 2 dated 24.12.1997 in respect of petitioner's land in SF Nos.363/3, 362/2, 363/2, 362/1, 364, 364/1, 363/3 and 363/1 Kalapatti village, Coimbatore North Taluk, Coimbatore District and to quash the same.
W.P.No.5110 of 2004 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the proceedings initiated by the first respondent in G.O.Ms.No.892 (Housing and Urban Development), dated 30.5.1991, published in Tamilnadu Government Gazette dated 26.6.1991 as null and void and ultravires under the provisions of the Land Acquisition Act, 1894 stands lapsed and that the respondents cannot interfere with the rights of petitioner to enjoy the lands comprised in Survey Nos.936/1 and 2 and 937/2-B situated in Kapalatti village, Coimbatore District pursuant to the said G.O.
W.P.No.18573 of 2005 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus directing the respondents to register the sale deed submitted by the petitioner in respect of land in SF No.948/1, 943/3, Kalapatty village, Coimbatore North Taluk, Coimbatore District as per the provisions of the Registration Act.
W.P.No.28901 of 2005 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records in connection with the impugned letter of the first respondent in letter No.4577/LA III-2/2005-3 dated 3.5.2005 and to quash the same and consequently, forbear the respondents from taking possession of the petitioners' land in Survey Nos.841/1, 841/2 to a total extent of 2.68 acres in Kalapatti Village, Coimbatore District.
W.P.No.6711 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to consider the petitioner's representation dated 4.1.2006 and received by him on 7.1.2006.
W.P.No.25460 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent in connection with notification issued under Section 4(1) of the Land Acquisition Act vide G.O.Ms.190 Housing and Urban Development Department dated 25.2.1994 and published in the Tamil Nadu Government Gazette part II Section 2 Supplement dated 15.6.1994 and the notification issued under Section 6 of the Act vide G.O.Ms.No.638 Housing and Urban Development dated 18.7.1995 and published in the Tamilnadu Government gazette Part II Sec.2 dated 19.7.1995 in respect of petitioner's land measuring an extent of 0.50 acres in S.Nos.296/5 B in Kalapatti village, Coimbatore north Taluk, Coimbatore and to quash the same.
W.P.No.39612 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the entire records in pursuant to the proceedings relating to the memo no.1277/2006 dated 15.9.2006 on the file of the fourth respondent and to quash the same and to direct the fourth respondent to register the sale deed in respect of petitioner's land in S.F.Nos.936/1 and 936/2 Kapalatti village, Coimbatore District.
W.P.No.20126 of 1999 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent relating to the impugned notification issued under Section 4(1) of the Land Acquisition Act vide G.O.Ms.No.53, Housing & Urban Development Department, dated 13.3.1998 as published in the Tamilnadu Government Gazette Part II Section 2 Supplement and declaration issued under Section 6 of the Land Acquisition Act vide G.O.Ms.No.195 Housing and Urban Development Department, dated 10.5.1999 as published in the Tamilnadu Government Gazette Extraordinary part II Section 2, quash the same insofar as it relates to the petitioners' land in SF Nos.342 & 343/2 in Kalapatti Village, Coimbatore Taluk.
For Petitioners : Mr..T.R.Rajaraman,
Mr.P.K.Rajagopal
M/s.Sarvabhauman Associates
Mr.Kandan Doraisamy
M/s.Chandrasekar and Associates
Mr.Vediappan
Mr.N.Istiaq Ahmed
Mr.N.Manokaran and Mr.N.Mani,
Mr.G.Sankaran and Mr.J.Antony Jesus
Mr.Satish Parasaran,
Mr.N.S.Sivakumar
Mr.R.N.Amarnath,
Mr.S.Navaneethakrishnan,
Mr.M.Baskar and Mr.S.Doraisamy
Mrs.R.Hemalatha
For Respondents : Mr.M.Dhandapani, Spl.G.P.
Mr.P.Wilson, Addl.A.G.
Assisted by Mr.A.Vijayakumar (TNHB)
Mr.Satish Parasaran for R-3 (W.P.5537/2000)
- - - -
COMMON ORDER
The petitioners are all land owners in the Kalappatty Town Panchayat, Coimbatore (North) Taluk, Coimabtore District situated in the National Highway-47 leading from Coimbatore to Avinasi coming under the Coimbatore Corporation limits.
2.The lands of petitioners were sought to be taken over by the State Government under the provisions of the Land Acquisition Act, 1894 for the purpose of handing it over to the Tamil Nadu Housing Board for executing the Neighbourhood Scheme. Section 4(1) notification under the Land Acquisition Act was issued on 13.3.1988. The public purpose indicated in the notification was to build houses for a Neighbourhood Scheme. Initially, an unimaginable extent of 1973.74 acres of land was sought to be taken over and a requisition was made in the year 1987 as per LPS made in this behalf by the Tamil Nadu Housing Board. But, however, the State Government took a decision to drop 1186.38 acres from the acquisition proceedings out of the required 1973.74 acres. Even then the notification under Section 4(1) covered an extent of 787.36 acres. Out of these lands, 7.57 acres were excluded by the State Government. Even in respect of Section 4(1) notification issued, as no follow up steps were taken, 22.46 acres were allowed to be lapsed.
3.Thereafter, at the instance of the land owners, the State Government dropped acquisition proceedings in respect of 30.21 acres, thereby leaving the balance of 757.15 acres which alone were covered by the draft declaration issued. However, Awards came to be passed only to an extent of 671.10 acres. Out of balance extent of 86.05 acres, 75.29 acres were covered by the writ petitions pending before this court. Thereafter, 50.57 acres allowed to be lapsed since no further steps taken and proceedings in respect of those lands were also finally dropped. Only 35.48 acres of lands are covered in these writ petitions.
4.In the meanwhile, it is noted that out of 671.10 acres for which awards were passed, 496.54 acres were covered in 299 writ petitions. Out of these, 102 writ petitions covering an extent of 176.38 acres were disposed of in favour of the land owners. The Government reconveyed 176.38 acres in Kalappatty village by exercising its powers under Section 48B of the Land Acquisition Act after recovering the amounts paid along with interest together with administrative charges. Out of the balance 496.54 acres, 146.86 acres are covered by 70 cases which are pending. In those lands 67 structures are still in existence. It is also claimed that in respect of 174.55 acres, there are no litigation and lands have become vested with the State Government which in turn were handed over to the Housing Board.
5.In all these writ petitions, land owners have challenged the notification under Section 4(1) along with the draft declaration made under Section 6 of the Land Acquisition Act. In some cases, they have asked for quashing of the Award proceedings. In some cases, they have asked for reconveyance of their lands by exercising power under Section 48B of the Land Acquisition Act. All these matters were grouped together and came to be posted before this court on being specially ordered by the Hon'ble the Chief Justice vide order dated 07.08.2009.
6.The matter was adjourned from time to time at the instance of both sides. After hearing parties for some time, this court made an order dated 26.11.2008. On finding that already structures have come up in the lands and an attempt by the State to pursue the acquisition in respect of larger extent has been shelved either due to the reason of court orders or due to the decisions taken by the State Government itself and also knowing the plight of petitioners and the ground reality of protests by the local people, creating law and order problem in that area, directed the Chief Secretary of Government of Tamil Nadu to convene a joint meeting of himself, the Secretary to the Housing and Urban Development Department, the Secretary to the Revenue Department, the Chairman, Tamil Nadu Housing Board and the District Collector, Coimbatore. They were directed to discuss the entire issue arising out of the land acquisition and to submit their report to this court informing the stand of the Government.
7.After taking further time from this court, the State Government, by its letter, dated 9.7.2009 informed this court the decision of the State Government. It is necessary to extract the entire communication for better appreciation of the facts involved:
Housing and Urban Development Department,
Secretariat, Chennai-9.
Letter No.29425/L.A.3(2)/08-12, dated 09.07.2009.
From
Thiru K.S.Sripathi, I.A.S.,
Chief Secretary to Government of Tamil Nadu.
To
The Registrar (Judicial)
High Court of Madras,
Chennai-104 (w.e.)
Sir,
Sub : W.P.No.10316 of 99, 14599 of 99, 14600 of 99, 15253 of
99, 16514 to 16521 of 99, 17891 of 99, 19436 to 19440 of
99, 5615 to 5622 of 2000, 6099 of 2000 and 7778 of 2000
- High Court of Madras Filed by J.Sivakumaran and
others against acquisition of lands at Kalapati village,
Coimbatore District Reg.
Ref: 1.Order dated 26.11.2008 of High Court of Madras in W.P.
Nos.10316 of 1999 etc.
2.Order dated 30.1.2009 of the High Court of Madras in
W.P.Nos.10316 of 1999 etc.
3.Order of High Court of Madras dated 30.3.2009 in
W.P.No.10316 of 1999 etc.
4.Order of High Court of Madras dated 27.4.2009.
This has reference to the direction given by the Hon'ble High Court in its order dated 26.11.2008 in W.P.No.10316 of 1999 etc. filed by Thiru J.Sivakumaran and others, pertaining to the issue of acquisition of land measuring an extent of 1973.73 acres in Kalapatti village, Coimbatore district.
2.The High Court in its order dated 26.11.2008 in the said Writ petitions has directed the Chief Secretary to Government to convene a meeting and after deliberating the said issue, to send a report to the Court specifying the stand of the Government to the Registrar (Judicial) in a sealed cover.
3.As ordered by the Hon'ble High Court of madras on 26.11.2008, the meeting was convened by the Chief Secretary to Government on 16.12.2008 and it was decided to place the matter before the High Level Committee for its recommendation. Accordingly, the Managing Director, Tamil Nadu Housing Board has been requested to place the entire Land Acquisition proceedings at Kalapatti village, Coimbatore district before the High Level Committee for its suggestions/recommendations.
4.The High Level Committee after conducting field inspections, has made its suggestions on the land acquisition proceedings in Kalapatti village, Coimbatore district. The Managing Director, Tamil Nadu Housing Board has forwarded the Board's Resolution No.8.03, dated 13.4.2009 on the High Level Committee's suggestions for taking policy decision by the Government.
5.The Government, after careful consideration of the issue, finally decided to retain the land measuring an extent of 530.19 acres only in Kalapatti village, Coimbatore district for implementing housing scheme. A report on the decision taken in respect of the land acquisition proceedings in Kalapatti village, Coimbatore district is furnished herewith along with the statement indicating extent of lands with survey numbers that will be required by the Housing Board for implementing housing scheme, as directed by the High Court.
Yours faithfully,
for Chief Secretary to Government."
No useful measures to alleviate the problems faced by the land owners was even suggested by the Government.
8.In the form of a tabular statement the plan for land acquisition and the present stage of acquisition was also enclosed along with the letter. The same table may be reproduced below:
Total land as per LPS of Tamil Nadu Housing Board : 1973.74 acres
Sl.No.
Description
Extent of land in which the Land Acquisition proceedings to be withdrawn (in acres)
Extent of land in which the Board retained the Land Acquisition Proceedings.
PRE AWARD STAGE
1
Lands covered under pre 4(1) stage
1186.38
2
Lands excluded from Land Acquisition Proceedings
7.57
3
Lands covered under 4(1) lapsed
22.64
4
Lands covered under 4(1) allowed to lapsed due to lack of follow-up action
50.57
5
Lands required for Tamil Nadu Housing Board in the Writ Petition still pending cases
-
35.48
POST AWARD STAGE
1
Lands covered under Writ Petition in favour of petitioners
176.38
2
Lands covered in 55 Writ Petitions dismissed in favour of Tamil Nadu Housing Board
–
98.48
3
Lands covered under Writ Petitions disposed under Section 48-B
–
74.82
4
Lands covered in 70 Writ petitions are still pending
–
146.86
5
Lands covered without litigation
174.55
Total
1443.54
530.19
9.In view of the stand taken by the State Government as set out above, the matter was posted for final disposal and it was argued by the counsels at length on different dates.
10.Before proceeding with the matters which are listed, it is necessary to deal with a case in respect of Survey Nos.801/1G, 801/1H and 801/2 (Part) to the extent of 98 cents. These lands are coming under Block No.69 in the middle of the scheme proposed by the Housing Board. The said lands were covered by Award No.101/1995 and the land owners’ compensation was also deposited. One K.Palaniammal had purchased the lands from the legal heirs of the ex-land owner without being aware of the land acquisition proceedings. Therefore, she moved the Government. But, her request was rejected on 27.3.2007 on the ground that it was essentially required to form a compact and comprehensive housing scheme. She once again moved the Government stating that a High Level Committee was appointed to consider the request of reconveyance of lands not utilized by the requisitioning body and therefore, she wanted her case to be reconsidered. The said High Level Committee recommended her case on the plea that she was an innocent purchaser. The Government had also accepted the recommendation and reconveyed the land after ordering collection of compensation paid together with interest by its letter dated 18.12.2007.
11.It is necessary to reproduce the entire letter as it had become the sheet anchor for many of the petitioners seeking the relief of reconveyance. The letter reads as follows:
Housing and Urban Development Department, Secretariat, Chennai-9. Letter Ms.No.397/L.A.3(2)/07-4, dated : 18.12.07 From Thiru R.Sellamuthu, I.A.S., Secretary to Government. To Tmt.K.Palaniammal, D.No.11-A, PSG College Colony, Peelamedu, Coimbatore-4. Sub : Housing and Urban Development Department Land Acquisition Tamil Nadu Housing Board Kalapatty village Coimbatore District Acceptance of recommendation of High Level Committee to reconvey the lands to Tmt.K.Palaniammal after collection of charges as per Board's Resolution Orders Issued. Ref : 1.From Tmt.K.Palaniammal, Letter dated 05.04.2007. 2.From the Tamil Nadu Housing Board Letter No.L.A.4(5)/80205/2004, dated 31.10.2007.
In the representation dated 6.12.2004, you have requested the Government to reconvey the land in S.No.801/1G, 801/1H and 801/2 part measuring to an extent of 98 cents in Kalapatty village, Coimbatore District stating that you have bought the land from the Legal heirs of ex-land owner without knowing that the land already been acquired by the Tamil Nadu Housing Board.
2.Your request was examined in consultation with the Tamil Nadu Housing Board and it was rejected by the Government in Government Lr.No.43220/L.A.3(2)/04-12, dated 27.3.2007 since the land is essentially required to form compact and comprehensive housing scheme.
3.In your letter dated 5.4.2007, you have stated that a Commission has been appointed to go into similar claims made by the various land owners whose lands are still available vacant for reconveyance and requested the Government to reconsider the rejection orders issued by Government on 27.3.2007 and to pass fresh orders for reconveyance of the land in S.No.801/1G, 801/1H and 801/2 part in Kalapatty village, Coimbatore District.
4.Based on your request the Government has requested the Tamil Nadu Housing Board to place the above issue before the High Level Committee headed by the retired High Court Judge for its examination and recommendations. The report has been given by the High Level Committee after inspection of the site and going through the back papers, relevant files, earlier legal opinion, some court decisions and status report of the Tahsildar. It has been observed by the High Level Committee that though the award was passed for 24.32 acres of land including the land of the petitioner very long back in Award No.101/95, no land has been taken possession by Tamil Nadu Housing Board and no scheme has been formulated till now. According to the High Level Committee, you appear to be an innocent purchaser without the knowledge of the land acquisition proceedings.
Hence, the High Level Committee recommended for the reconveyance of land in question viz., 98 cents in S.No.801/1G, 801/1H and 801/2 part in Kalapatty village, Coimbatore District on collecting the cost of land as paid to the original land owner or deposited together with interest and other expenses incurred by the Housing Board in the acquisition proceedings or any amount as fixed by the Government.
5.The Housing Board in its resolution 8.05, dated 16.10.2007 has decided to forward the proposal to the Government. The Government hereby accept the recommendations of the High Level Committee and also the Resolution passed by the Board in Resolution No.8.05, dated 16.10.2007 to collect the cost of land as paid to the original land owners or deposited together with interest and other expenses incurred by the Housing Board in the acquisition proceedings. Further administrative cost arising out of the Board staff may be added to the cost to be collected while reconveying the land in S.No.801/1G, 801/1H and 801/2 part in Kalapatty village, Coimbatore District to Tmt.K.Palaniammal. Accordingly the Government hereby directs the Tamil Nadu Housing Board to reconvey the above mentioned land to Tmt.K.Palaniammal after following usual procedures.
Yours faithfully,
for Secretary to Government
(Emphasis added)
12.It is also necessary to deal with the facts of the case in W.P.No.28427 of 2007. That writ petition was filed by one Ramasamy Naidu challenging the notice, dated 3.8.2007 issued by the Land Acquisition Officer for acquiring land to an extent of 1.29.0 hectares in S.No.954/2, in terms of Award No.10 of 1994 and to forbear the respondents from interfering with his peaceful possession. The ground taken in that writ petition was that respondents have not passed any Award as it was the subject matter of an interim stay in W.P.No.16495 of 1992 and no Award was passed in respect of S.No.954/2 to an extent of 1.29.0 hectares. But, however, the the main writ petition itself came to be dismissed. The subsequent challenge in W.A.No.387 of 2000 was also dismissed on 23.4.2002. Even after dismissal of the writ appeal, since no award was passed as per the statutory requirements, automatically proceedings gets lapsed. When these facts were brought out by Mr.Satish Parasaran, learned counsel for the petitioner, the learned Additional Advocate General Mr.P.Wilson is unable to get over the same. Hence in the light of the clear legal position, this writ petition will have to be allowed and the impugned proceedings will have to be dismissed.
13.W.P.No.16417 of 1998 was filed by one Kovai Medical Center Research and Educational Trust represented by its Trustee together with land owners. The lands relate to S.No.294/1 in Kalapatty Village to an extent of 7.04 acres. The said property was sold to the first petitioner trust. In S.No.293/1, a portion of the same was leased our in favour of the first petitioner. The first petitioner is a Charitable Trust. The Trust had acquired totally 17.78 acres in various survey numbers for establishing Dr.N.G.P.Arts and Science College. After the purchase of the land, it was claimed that no notice was given for 5-A enquiry to the land owners. Pursuant to the object to establish an Arts and Science College, they had moved the Government for getting a prior permission for starting a College during the year 1997-1998. The Government had given permission to start Dr.N.G.P.Arts and Science College by G.O.Ms.No.464, Higher Education Department, dated 27.8.1997. In the Government Order (in paragraph (ii)) it was noted that the management had taken on lease for 99 years an extent of 7.41 acres of land in S.Nos.290/3, 290/4, 289 and 293/1. In paragraph 4.2 of the said order, it was stated that the land mentioned in para 1(ii) should not be utilized for any other purpose other than the college purpose. They were also told that they should get affiliation from the Bharathiar University.
14.Subsequently, they had also moved the Government under the Department of Housing and Urban Development for reconverting the land from residential, public and industrial use zone into one of educational use zone. The Government had issued G.O.Ms.No.170, Housing and Urban Development Department, dated 18.4.2000 accorded permission in terms of power exercised under the Tamil Nadu Town and Country Planning Act, 1971. Pursuant to the G.O., the Secretary to the Government issued an order to the Special Commissioner, Town and Country Planning, by letter dated 18.9.2000 authorizing the change in usage. Thereafter, the Government issued a variation order in terms of Section 32(4) of the Tamil Nadu Town and Country Planning Act, 1971, converting the land use into one of educational purpose. The said notification was also published in the Tamil Nadu Government Gazette on 13.2.2002 as well as in the Coimbatore District Gazette on 17.9.2003.
15.It was also claimed by the Trust that they had got affiliation from the Bharathiar University and are running the college in that area. They had also put up several permanent buildings and laboratories in the land with the approval of the local planning authority and the local panchayat. The college at present is conducting 12 Under Graduate Courses, 10 Post Graduate Courses and 6 research programmes. It caters to the need of more than 3000 students hailing from that area.
16.In the counter affidavit, dated 1.7.2008 filed by the Special Tahsildar, the only ground taken by them was that a valid Award was passed and whatever purchase made by the Trust was not legal. In the counter affidavit filed by the Housing Board, dated Nil (April, 2010) except by stating that these lands are required for providing housing plots for the people and at the time of Section 4(1) notification, no structures were found. The other allegations made by the petitioners were not denied. Even in the topo plan produced by the Housing Board, S.Nos.294 and 293 (coming under Block No.18) is right in the middle of the village. It cannot be said that one wing of the Government was not aware of what the other wing of the Government was doing in the matter of land acquisition. The petitioner’s case was dealt with by the Department of Education and the Department of Housing and Urban Development Department in the matter of granting permission to start the college and for the amendment made to the Master plan followed by the statutory notification issued in the Government Gazette.
17.W.P.No.20126 of 1999 is filed by one Lakshmi Cooperative Building Society Limited and 90 others seeking to challenge Section 4(1) notification, dated 13.3.1998 as well as Section 6 declaration dated 10.5.1999. The society had purchased lands to an extent of 2.06 acres in S.No.342, 4.10 acres in S.Nos.343/2 and 342 and 2.06 acres out of 4.36 acres in S.No.342 by various sale deeds and registered with Gandhipuram Sub Registrar. The Registrar of Cooperative Societies (Housing) by letter dated 3.12.1993 granted permission to purchase those lands. Subsequently, approval of lay out was made in DTP 1412/1991 issued by the Director of Town and Country Planning by his proceedings, dated 29.11.1991. The Housing society also executed a registered gift deed dated 28.6.1994 in favour of the panchayat conveying the common utility area in terms of Open Space Regulations (OSR). They had also paid advance fee for laying road and drainage facilities to the Town Panchayat. Amounts have also been paid for the purpose of erection of street lights. The layout formed is called as ‘Cavalier Devarajulu Nagar’. They had also allotted plots to various members, who are the petitioners herein from 2 to 91. The revenue records were also suitably muted and the petitioners 2 to 91 names were found in the revenue records.
18.After Section 4(1) notification was issued, number of plot owners appeared and objected to the land acquisition on the ground that houses have come up in that area and others have proposals to build houses. Their objections were communicated to the requisitioning body, i.e. TNHB. The society had informed that already three houses are in existence and for five houses, foundations have been laid. The society was also intending to give loan to its members to build their houses. These facts were found recorded in the Section 5A enquiry. The objections furnished by 85 members were also recorded. These facts were also communicated by the acquiring authority. By his proceedings, dated 15.11.1998, the Special Tahsildar, Land Acquisition, Housing Scheme (Unit-II) recommended to the Government that 90 persons have been given sale deeds and layouts has been approved by DTP on 29.11.1991. The proposal to sanction loans were also taken by the Society and hence lands to an extent of 8.69.5 hectares in S.Nos.342 and 343/2 can be excluded from being acquired.
19.The attention of the Government was also brought to the notice to their own Government order in G.O.Ms.No.620, Housing and Urban Development Department, dated 29.6.1990, wherein the Government has given guidelines for avoiding certain types of acquisitions. Paragraph 4(iv) of the Government Order reads as follows:
“4.The Government also direct that the Chairman and Managing Director, Tamil Nadu Housing Board should avoid the acquisition of the following lands generally, but not as a rule.
(i), (ii) and (iii) omitted.
(iv)The lands covered by layouts duly approved by the Director of Town and Country Planning Department, prior to the 4(1) notification.”
20.But, notwithstanding the earlier Government guidelines, the State Government issued declaration under Section 6, vide G.O.Ms.No.195, Housing and Urban Development Department, dated 10.5.1999 by stating that the lands are required for public purpose for the formation of a Neighbourhood Scheme. There was no reference to the recommendation made by the acquiring authority as well as the fact that some houses have come up and it was purchased by a Registered Cooperative Housing society.
21.These three cases were listed out in detail for the purpose of showing that in some cases, the Government had not passed an Award within the stipulated time, thereby allowing the land owners escape from the acquisition. In one case, one wing of the Government had given permission to run a College and amended its Master Plan to declare the land as an ‘educational zone’. After knowing such an institution was in existence, the Government passed its final award. In one case, a cooperative housing society was allowed to purchase and after putting a layout to sell lands in favour of its members and that some members had already constructed houses. During the 5A enquiry when objections were raised, the acquiring authority recommended deletion of those lands. But yet a final award came to be passed. It is in the backdrop of these matters, rest of the cases also will have to be considered in this batch of writ petitions.
22.Even after the initiation of proceedings under Section 4(1), many objections started forthcoming from the petitioners. A batch of writ petitions starting from W.P.No.12201 of 1994 came to be filed challenging Section 4(1) notification. In those writ petitions, contentions raised were that the procedure followed by the authority were not valid. In many cases, approved layouts were made and therefore, it was unnecessary for the Housing Board to proceed with the acquisition in such cases spending huge public money. This court disposed of all the writ petitions by a common judgment, dated 20.3.2001 and directed the petitioners to approach the Government seeking for exemption from the acquisition proceedings. During the course of judgment, this court had observed as follows:
“7….taking note of the admitted fact that the respondents could not sell the houses constructed in the lands already acquired in and around Coimbatore city for want of demand, I am of the considered opinion that it may not be proper on the part of the respondents to spend huge public money for the impugned acquisition proceedings for the respective lands of the petitioners as well as for the superstructure, if any, and keep the lands idle, if the scheme could not be successfully implemented. Therefore, it is just and proper to permit the petitioners to approach and satisfy the Government either to exempt their respective lands from the impugned acquisition proceedings or to re-convey the same to them, if the lands acquired are not required for the purpose for which they were acquired,….”
23.In another set of writ petitions starting from W.P.Nos.9747 to 9749 of 1996 and batch cases, a challenge was made to Section 4(1) notification and Section 6 declaration. This court set aside both Section 4(1) notification and Section 6 declaration with the fond hope that the Government will take into account the ground reality before proceeding with its acquisition. Thereafter, series of writ petitions came to be filed before this court challenging both Section 4(1) notification and Section 6 declaration. Since in all these writ petitions, the challenge was made to the very same acquisition, it is necessary to refer to those judgments.
24.This Court in Dr.M.Natarajan Vs. The Government of Tamil Nadu, represented by its Secretary, Housing and Urban Development Department, Madras and another reported in MANU/TN/0526/2002 quashed Section 4(1) notification. Hence it is necessary to reproduce paragraphs 7 and 8 from the said judgment which is as follows:
” 7…… In the present case also, no notice was served on the petitioners for enquiry under Section 5(A) of the Act. It is needless to say that the enquiry contemplated under Section 5(A) of the Act would be full and complete only when the person, who is really interested in the land, is put on notice. It is settled law that enquiry under Section 5(A) of the Act is not an empty formality and notice for such enquiry has got to be served strictly in accordance with the mandates of Section 45 of the Act. The land acquisition is carried out based on the records maintained by the revenue department and the files relating to this acquisition also contain the revenue record which shows that the petitioners are the owners of the land in Survey No.292/1A and inspite of it, the enquiry officer did not take steps to afford an opportunity to the petitioners to participate in the enquiry under Section5(A) of the Act. Therefore, without giving notice to the petitioners for the enquiry under Section 5(A), the declaration under Section 6 of the Act is quite illegal and they are liable to be quashed.
8.Accordingly, the writ petitions are allowed and the Notification published under Section 4(1) of the Land Acquisition Act in G.O.Ms. No.481, Housing and Urban Development Department, dated 27.4.1995, published in the Tamilnadu Government Gazette, dated 24.5.1995 as well as the Declaration under Section 6, published in the Government Gazette in G.O.(Rt) No.302, Housing and Urban Development Department, dated 2.7.1996, are quashed in so far as the petitioners lands in Survey No.292/1A, Kalappatti village are concerned. However, it is open to the respondents to initiate fresh acquisition proceedings, with opportunity to the petitioners. No costs. Connected W.M.P.Nos.17068, 17070, 17072 and 17074 of 1996 are closed.”
25.Thereafter, in Chinnayya Gounder Vs. The State of Tamil Nadu, rep by its Secretary to Government, Housing and Urban Development Department reported in MANU/TN/0548/2003 = 2003 (2) MLJ 481 this court in paragraphs 6 to 9 had observed as follows:
“6.Apart from the above aspects, it is the specific case of the petitioners that in the notification published in the newspapers the authority before whom the land owners are required to file their objections had not been indicated. Unless it is made known to the authority before whom the objections are to be filed or which authority is going to inquire, the concerned affected land owners may not be able to file their objections within the stipulated time before the appropriate authority. Since the publication of notification itself was defective, the respondents cannot insist that the objection filed beyond 3 0 days should be ignored. Almost under similar circumstances in Smt.Pown Ammal & Others Vs. State of Tamil Nadu rep. by its Commissioner and Secretary, Social Welfare Department, Madras and Another (1999( II) MLJ 283) the acquisition proceeding has been quashed as the publication did not reveal the authority before whom the objections are to be filed.
7.Admittedly the petitioner has filed objections, wherein they have contended that lay-out plans have already been sanctioned. Even though there may not be any legal bar to acquire the land after layout plans were sanctioned, it is for the competent authority to consider as to whether it is appropriate to acquire such lands in respect of which lay out plans had been sanctioned.
8.For the aforesaid reasons, I am inclined to accept the contention of the petitioners that mandatory provisions have not been complied and the principles of natural justice had been violated. In view of the aforesaid reasonings, the land acquisition proceedings are to be quashed and it is unnecessary to deal with other contentions raised by the petitioners.
9. For the aforesaid reasons, the writ petition is allowed and the land acquisition proceedings are quashed. There will be no order as to costs.” (Emphasis added)
In that case, the court took note of the fact that there were approved layouts and even as per the policy of the Government, those lands are not to be acquired.
26.A division bench of this court presided by P.Sathasivam, J. (as he then was) in Arumuga Gounder Vs. The State of Tamil Nadu rep. By Secretary, Housing and Urban Development Department and another reported in MANU/TN/7522/2006 held as follows:
“7.In the normal circumstance, when the person concerned was not given an opportunity to participate in the enquiry, this Court would have permitted the respondents to proceed from the stage of enquiry; but, in the case on hand, it is brought to our notice that declaration under Section 6 was published on the last date of the limitation prescribed. In such circumstances, even if such permission is given, it would not be possible for the respondents to utilize the said opportunity. Apart from this, it is also brought to our notice that the entire Scheme, viz., Kalapatti Neighbourhood Scheme of the Housing Board has not been implemented till this date and that several orders have been passed by this Court quashing the acquisition proceedings. In such circumstances, we are not inclined to afford opportunity to the respondents to continue from the stage of 5-A enquiry.”
In that case, after setting aside Section 4(1) notification, this court did not give liberty to proceed with fresh action.
27.Further, another division bench of this court in M.Duraisamy Vs. State of Tamil Nadu and another reported in 2007 (3) MLJ 288 allowed a review application and set aside the earlier order passed in W.A.No.2246 of 2001, dated 11.08.2006 and quashed the entire proceedings. The following passages found in paragraphs 6 and 7 may be usefully reproduced herebelow:
“6.Apart from the above information, it is not in dispute that the entire Scheme, viz., “Kalapatty Neighbourhood Scheme” has been dropped in view of several orders passed by this Court.
7.Taking note of all these aspects and of the fact that neither the petitioner nor the erstwhile owner of the land was issued notice in the acquisition proceedings, we are of the view that the entire action taken under the Land Acquisition Act cannot be sustained. Accordingly, the Review Application is allowed. Consequently, the entire land acquisition proceedings are quashed. The judgment dated 11.8.2006 made in W.A.No.2246 of 2001, is set aside and the appeal stands allowed, setting aside the order dated 11.7.2001 made in W.P.No.9521 of 1994….” (Emphasis added)
28.In Tmt.Leelavathi Vs. The State of Tamil Nadu rep. By is Secretary to Government, Housing and Urban Development Department reported in MANU/TN/0586/2008, another learned Judge of this court quashed both Section 4(1) notification and Section 6 declaration. In paragraph 16 it was observed as follows:
“16….. it is seen that the factum of death of the original owner has been informed by the daughter and in spite of the same the respondents have not taken any steps to rectify the mistake. In those circumstances, the judgement of the Division Bench of this Court in 2006 (3) MLJ 389 (cited supra) will squarely apply to the facts of the case.
In view of the same, the notification issued under Section 4(1) of the Land Acquisition Act,1894 dated 06.09.1996 and the 6 Declaration dated 04.11.1997, are set aside and the writ petition stands allowed. No costs.”
29.Again, in the judgment in Dhandapani and another Vs. The State of Tamil Nadu rep. By Secretary to Government, Department of Housing and Urban Development (L.A.3) reported in MANU/TN/0711/2008 = 2008 (5) MLJ 1416, this court held as follows:
26. In fact, while dealing with the same Kalapatti Neighbourhood Scheme, a Division Bench presided over by P.Sathasivam,J.(as he then was) and N.Paul Vasanthakumar,J. in M.Duraisamy vs. State of Tamil Nadu [2007 (3) MLJ 288] has observed that it is not in dispute that the entire Kalapatti Neighbourhood Scheme has been dropped in view of several orders passed by the High Court in setting aside the acquisition proceedings. The relevant portion is as follows:
“6. Apart from the above information, it is not in dispute that the entire Scheme, viz.,”Kalapatty Neighbourhood Scheme” has been dropped in view of several orders passed by this Court.”
27. Even though the learned counsel appearing for the third respondent would insist that the Scheme is still in operation, considering the above said legal infirmity in conducting enquiry, the necessary consequence is to set aside the acquisition proceedings which are impugned in the present writ petitions. Though it is stated that the award was passed on 17.07.1997, it is seen that while admitting these writ petitions, this Court by order dated 26.06.1997 has passed an order of interim stay of dispossession. However, the argument on the side of the respondents that the interim stay is in respect of dispossession only and the award need not be set aside cannot be countenanced, because while admitting the writ petitions this Court has granted stay of the entire proceedings by order dated 27.06.1997 and by subsequent order dated 25.08.2003, the said interim order of stay was restricted in respect of dispossession alone stating that other proceedings shall go on.
28. It is also relevant to point out that during the pendency of stay which was granted on 27.06.1996, and modified by this Court on 25.08.2003, the respondents have stated to have passed the award on 17.07.1997, which cannot be treated as a valid award in the eye of law, especially in the circumstances that it is stated that the respondents have received notice of stay on 17.07.1997 itself. In such circumstances, even after the specific direction given by this Court on 25.08.2003, permitting the respondents to proceed with the enquiry stating that other proceedings shall go on, in the absence of any award passed within two years thereafter, the same is hit by Section 11-A of the Act, which contemplates that no award shall be passed beyond the period of two years from the date of publication of Section 6 declaration. In the present cases, the locality publication of 6 declaration was made on 16.08.1995 and in the absence of any award passed immediately after 25.08.2003, within the period of two years as stipulated under Section 11-A of the Act, it is not possible to permit the respondents to proceed with enquiry under Section 5-A of the Act afresh by retaining 4(1) notification.
In view of the same, 4(1) notification, 6 declaration and all other subsequent proceedings are set aside and the writ petitions stand allowed.” (Emphasis added)
30.In both 2007 (3) MLJ 288 and 2008 (5) MLJ 1416, this court was informed that the Kalapatty Neighbourhoold scheme itself was dropped by the authorities. The reason for such an impression came to be gained in view of the Government’s order in G.O.Ms.No.254, Housing and Urban Development Department, dated 6.10.2003, wherein the State Government had directed as follows:
“The Tamil Nadu Housing Board has acquired lands in various places in the State for implementing housing schemes. In the course of its implementation about 2000 acres are remaining unutilised and also about 10,000 acres of lands involved in various kinds of court cases like enhanced compensation, stay after taking over, cases against the Acquisition proceedings etc. are remaining unutilized.
2.The Managing Director has also reported that in the present situation of financial crunch the Tamil Nadu Housing Board finds it very difficult to provide annual maintenance, Special repairs, watch and ward, payment of common use electricity charges, payment of property tax, water charges, water tax etc to these properties as the rental income in very meager. Further he has stated that in the present set up it is not a social obligation on the part of the Tamil Nadu Housing Board to maintain the Commercial/Shopping complex by incurring loss, especially where private shopping facilities are available in abundance and when the lessees are running profit oriented commercial business activities and earning profits at the cost of the Tamil Nadu Housing Board. In the above said circumstances, the Managing Director, Tamil Nadu Housing Board has stated that it will be profitable to Tamil Nadu Housing Board if the above said properties are sold by auction, the amount thus realized may be ploughed back into development schemes, to provide shelter to homeless and other needy people which is the primary objective of the Tamil Nadu Housing Board.
3.In order to alleviate the problems faced by the Housing Board the Government have carefully examined the case and approve the proposal of the Managing Director, Tamil Nadu Housing Board for the constitution of the Committee with the following officials with a perspective to carry out the following objectives.
i)Among the undeveloped properties in possession with TNHB at various locations, the Board must identify properties with good potentials for proper Development and retain only such properties. In case of purchase of land through Land Acquisition. The Board must decide the schemes and extent needed and continue Land Acquisition Proceedings only for such schemes.
ii)Properties not required by the Board or found unfit for any further developments should be disposal of under section 72 of the Tamil Nadu Housing Board Act, through public auction with reference to the owners.
Iii)Undeveloped properties locked in long pending litigation due to Enhance compensation and Land Acquisition proceedings, if not required by the Board for further development, may be released to land owners on collection of administrative and legal expenses incurred by the Board throughout of Court settlement on case to case basis and on merit. Board’s Commercial and Office Buildings given to lease may be disposed by public auction.
i)Managing Director,
Tamil Nadu Housing Board : Convenor
ii) Member Secretary,
Chennai Metropolitan Development Authority : Member
iii)Director,
Director of Town & Country Planning : Member
iv)Commissioner of Land and Administration (or)
Representative : Member
v)Dy. Secretary to Government
Housing and Urban Development Department : Member
vi)Chief Engineer
Tamil Nadu Housing Board : Memer
vii)Financial Adviser
Tamil Nadu Housing Board : Member
4.The committee will recommend administrative mechanism and formalities and methodologies to be followed in implementing the three objectives in para 3 above. ”
(Emphasis added)
31.Subsequent to the said G.O., the Housing Board issued a press note informing the public about the decision taken by the State Government. As soon as this news came out, many representations were sent seeking for a direction from the Government to consider exclusion of their lands from the acquisition, failing the same, they had also moved the court seeking for consequential directions to consider their representations and grant necessary orders.
32.The State Government also appointed a High Level Committee presided by the retired Judge of this Court to go into the grievances of such land owners and to make appropriate recommendations to the Government so as to enable them to exclude those lands from acquisition. It was due to one such recommendation of that committee, Mrs.Palaniammal became a beneficiary and the Government Order excluding her land came to be issued (cited elsewhere).
33.Notwithstanding these developments, the Housing Board had not considered the case of majority of land owners for reasons best known to them and was selectively implementing their own order as noted above. After a large chunk of lands were notified, thereafter many exclusions started appearing either at the instance of the Housing Board or at the instance of the State Government for reasons best known and they have not explained before this court. In cases where there are no stay orders or where they have been given the liberty to pursue afresh or where there was rejection of the request of reconveyance, no further actions were taken by the Housing Board. They were also unmindful of the fact that original scheme envisaged by them for acquiring the entire village had gone astray. As of now, as per the topo map, there were only patches of lands are under their control. Even the present writ petitions, as per their own statement, cover only 35.48 acres.
34.Due to prolonged delay in these litigations, the land owners have also become restive. There were number of local agitations in the village. In fact, there has been continuous news items in the print media that even the officials who went to measure the lands were prevented and a siege was laid on them. Further local people went on hunger fasts and the Collectorate was thronged for taking quick action. As per news reports, the local panchayat President, Panchayat Union Chairman and other Councillors have also participated in those actions going by the mood of the land owners. It is under these circumstances, this court by an order, dated 26.11.2008 directed the Chief Secretary to convene a meeting to decide the issue as stated earlier. But they had sent a negative report. (cited elsewhere)
35.The matter was argued at length. In order to justify the retention of the acquired land not covered by the court cases, Mr.P.Wilson, learned Additional Advocate General appearing for the Housing Board and Mr.M.Dhandapani, learned Special Government Pleader contended that proceedings initiated have culminated in Award proceedings and once an award is passed, the said proceedings cannot be challenged.
36.In this context, he placed reliance upon the judgment of the Supreme Court in U.P. Jal Nigam, Lucknow v. Kalra Properties (P) Ltd., Lucknow reported in (1996) 3 SCC 124 and relied upon the following passage found in paragraph 3 of the said judgment, which is as follows:
“3….It is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4(1) was published on 24-3-1973, possession of the land admittedly was taken on 5-7-1973 and pumping station house was constructed. No doubt, declaration under Section 6 was published later on 8-7-1973. Admittedly power under Section 17(4) was exercised dispensing with the enquiry under Section 5-A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17(2) free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11-A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the possession is surrendered pursuant thereto. That apart, since M/s Kalra Properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published.”
37.On the basis of the above decision, he contended that valid proceedings were initiated under the Land Acquisition Act. After passing of the award, the lands stood vested with the State and were also handed over to the TNHB. Therefore, any purchase made or encumbrance created on those lands are not binding either on the State or on the requisitioning authority.
38.Thereafter, he relied upon a judgment of the Supreme Court in Municipal Council, Ahmednagar v. Shah Hyder Beig reported in (2000) 2 SCC 48 to contend that the land owner is refrained from challenging the notification under Section 4(1) and declaration under Section 6 belatedly and since they are guilty of delay and laches in coming to the Court, no relief can be given to them. For this purpose, he relied upon the following passage found in paragraph 17, which is as follows:
“17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court …..”
39.Thereafter, the learned counsel placed reliance upon an another judgment of the Supreme Court in S.P. Subramanya Shetty v. Karnataka SRTC, reported in (1997) 11 SCC 250 to contend that the court cannot compel the Government to withdraw the notification issued under the Land Acquisition Act. However, it is not clear as to how the said judgment is of any assistance when in that case the finding was that once proceedings were upheld by the Supreme Court, thereafter to institute a civil suit on the same subject is not maintainable.
40.The learned Additional Advocate General further relied upon a judgment of the Supreme Court in Anand Buttons Ltd. v. State of Haryana reported in (2005) 9 SCC 164 = 2005 (1) CTC 450 to contend that the matter of grant of exemption is based on policy and once the State takes decision regarding exemption, the same cannot be interfered with by the court. Reliance was placed upon the following passage found in paragraph 13, which is as follows:
13. ….As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the authorities concerned. …”
41.The learned Additional Advocate General further referred to a division bench judgment of this court in Md.Nazir Khan and three others Vs. The Union of India represented by the Union Territory of Pondicherry by Chief Secretary to Government of Pondicherry and three others reported in 2001 (1) CTC 404 for the very same purpose.
42.He also placed reliance upon the judgment of the Supreme Court in State of T.N. v. L. Krishnan reported in (1996) 1 SCC 250 to contend that even without preparing a scheme and get it finalised by the Board, lands can be acquired by the Housing Board. Reliance was placed upon the following passage found in paragraph 29 of the said judgment which is as follows:
“29. We have held hereinbefore that merely because the Housing Board Act contemplates acquisition of land as part of a housing or improvement scheme, it does not follow that no land needed for the purpose of the Housing Board Act can be acquired until and unless a scheme is prepared and finalised by the Board and becomes effective under the provisions contained in Chapter VII.”
43.Further, reliance was placed upon the judgment of the Supreme Court in State of T.N. v. Mahalakshmi Ammal reported in (1996) 7 SCC 269 = AIR 1996 SC 866 for the purpose of stating that merely because some lands are excluded from the original acquisition that cannot give cause of action for other lands to get exclusion for the very same reasons in the absence of any materials placed before the court.
44.With reference to the interpretation based upon Section 48B of the Land Acquisition Act, the learned counsel placed reliance upon the judgment of the Supreme Court in T.N. Housing Board v. Keeravani Ammal reported in (2007) 9 SCC 255 = 2007 (2) CTC 447 and relied upon the following passages found in paragraphs 15 and 16, which is as follows:
“15. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pillai2 in a similar situation, this Court observed: (SCC p.433, para 4)
The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value.
16. Section 48-B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here.”
45.The learned counsel submitted that the said judgment came to be noted subsequently in T.N. Housing Board v. L. Chandrasekaran reported in (2010) 2 SCC 786 and in paragraphs 26 and 28, it was held as follows:
26…… In our view, the direction given by the Division Bench to the appellant Board to reconvey the acquired land to the respondents is per se against the plain language of Section 48-B of the Act in terms of which only the Government can transfer the acquired land if it is satisfied that the same is not required for the purpose for which it was acquired or for any other public purpose. The appellant Board is not an authority competent to transfer the acquired land to the original owner. Therefore, the Division Bench of the High Court could not have issued a mandamus to the appellant Board to reconvey the acquired land to the respondents. As a matter of fact, the High Court could not have issued such direction even to the Government because the acquired land had already been transferred to the appellant Board and the latter had utilised substantial portion thereof for execution of the housing scheme and other public purposes.
…
28. It need no emphasis that in exercise of power under Section 48-B of the Act, the Government can release the acquired land only till the same continues to vest in it and that too if it is satisfied that the acquired land is not needed for the purpose for which it was acquired or for any other public purpose. To put it differently, if the acquired land has already been transferred to other agency, the Government cannot exercise power under Section 48-B of the Act and reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey the land to the original owner if the same can be utilised for any public purpose other than the one for which it was acquired.”
46.The learned counsel also referred to the latest decision of the Supreme Court in Bondu Ramaswamy and others Vs. Bangalore Development Authority and others reported in 2010 (5) MLJ 541 (SC) = 2010 (7) SCC 129 to contend that the land owners cannot seek exemption on grounds of negative equality and for this purpose reliance was placed upon paragraph 82, which is as follows:
“82. We may illustrate the principle relating to positive and negative equality with reference to following notional acquisition cases:
(i) Where a petitioner’s land and his neighbour’s land are of similarsize and have similar structures and are similarly situated, and the policy of the Development Authority is to withdraw the acquisition in respect of lands which are `constructed’, if the neighbour’s land is deleted from the proposed acquisition on the ground that it has a construction of 1000 sq.ft. and the petitioner’s land is not so deleted, the petitioner will be entitled to relief on the ground of discrimination. But if the neighbour’s land measures 2000 sq.ft. and contains a house of 1000 sq.ft and the petitioner’s land measures one acre and contains a house measuring 1000 sq.ft., the petitioner cannot obviously contend that because his neighbour’s property was deleted from acquisition, being a land with a construction, his one acre land should also be deleted in entirety from the acquisition, as it had a 1000 sq.ft. construction. But it may be possible for him to contend that an extent equal to what was released to his neighbour, should be released.
(ii) Where the lands owned by two neighbours are equal in size having similar structures, but one was constructed before the preliminary notification after obtaining a licence and the other was constructed after the preliminary notification unauthorisedly, the owner of the land with the unauthorised structure cannot obviously claim parity with the owner of the land with the authorised structure, for seeking deletion from acquisition.
(iii) Where the vacant lands of `A’ and `B’ – two neighbours are acquired. The Authority had a policy to delete properties with constructions, as on the date of preliminary notification. Both put up unauthorised structures clandestinely overnight, after the preliminary notification. The land of `B’ is deleted from acquisition on the ground that it has a construction. If `A’ approaches court and claims release of his land claiming parity with `B’, the claim will have to be rejected. But, where the Authority admits that B’s land was deleted even though the construction was subsequent to preliminary notification, the court may direct the Authority to take appropriate action in accordance with law for cancelling the deletion.
(iv) If in a village all the lands are notified and subsequently all lands except two or three small pockets are deleted without any valid ground, the persons whose lands were acquired can also seek deletion, on the ground that all the surrounding lands have been deleted. Court cannot direct deletion merely because the surrounding lands were deleted, as those deletions were illegal and not based on any valid policy. But the petitioners can contend that the very purpose of acquisition had been rendered infructuous by deletion of the majority of lands from the proposed acquisition, and the project or the scheme has ceased to exist and cannot be executed only with reference to their lands. In such a case, relief can be granted not on the ground that there has been discrimination, but on the ground that the proposed development scheme became non-existent on account of most of the lands being deleted from acquisition.
Therefore, a land owner is not entitled to seek deletion of his land from acquisition, merely on the ground that lands of some others have been deleted. He should make out a justifiable cause for deleting his land from acquisition. If the Rules/Scheme/Policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the Rules or Scheme or policy for deletion, his land is not eligible for deletion, his land cannot be deleted merely on the ground that some other land similarly situated had been deleted (even though that land also did not fall under any category eligible to be deleted), as that would amount to enforcing negative equality. But where large extents of land of others are indiscriminately and arbitrarily deleted, then the court may grant relief, if on account of such deletions, the development scheme for that area has become inexecutable or has resulted in abandonment of the scheme. Alternatively, if a common factor can be identified in respect of other lands which were deleted, and if the petitioner’s land also has that common factor, relief can be granted on the ground that the Authority had adopted the common factor as the criterion in the case of others and therefore adopting the same yardstick, the land of petitioners also should be deleted. These principles may be kept in view while implementing direction in para 105D(i)(f) of the Judgment of the Division Bench of the High Court.”
47.He also submitted that if acquisition proceedings are quashed on the basis of arbitrary deletions and exclusions, no scheme can be executed for development purpose. For this purpose, he relied upon the following passages found in paragraph 90 and 91 from the said judgment, which is as follows:
“90. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many landlosers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note of, while granting relief. The Division Bench has made an effort to protect the interests of all parties, on the fact and circumstances, by issuing detailed directions. But implementation of these directions may
lead to further litigations and complications. To salvage the acquisition and to avoid hardships to BDA and its allottees and to avoid prolonged further round litigations emanating from the directions of the High Court, a more equitable way would be to uphold the decision of the division bench, but subject BDA’s actions to certain corrective measures by requiring it to re-examine certain aspects and provide an option to the landlosers to secure some additional benefit, as an incentive to accept the acquisition. A direction to provide an option to the land-losers to seek allotment of developed plots in lieu of compensation or to provide for preferential allotment of some plots at the prevailing market price in addition to compensation will meet the ends of justice. Such directions will not be in conflict with the BDA (Allotment of sites) Rules, as they are intended to save the acquisitions. If the acquisitions are to be quashed in entirety by accepting the challenges to the acquisition on the ground of arbitrary deletions and exclusions, there may be no development scheme at all, thereby putting BDA to enormous loss. The directions of the High Court and this Court are warranted by the peculiar facts of the case and are not intended to be general directions applicable to regular acquisitions in accordance with law, without any irregularities.
91. In view of the foregoing, we affirm the directions of the Division Bench subject to the following further directions and clarifications:
(i) In regard to the acquisition of lands in Kempapura and Srirampura, BDA is directed to re-consider the objections to the acquisitions having regard to the fact that large areas were not initially notified for acquisition, and more than 50% of whatever that was proposed for acquisition was also subsequently deleted from acquisition. BDA has to consider whether in view of deletions to a large extent, whether development with respect to the balance of the acquired lands has become illogical and impractical, and if so, whether the balance area also should be deleted from acquisition. If BDA proposes to continue the acquisition, it shall file a report within four months before the High Court so that consequential orders could be passed.
(ii) In regard to villages of Venkateshapura, Nagavara, Hennur and Challakere where there are several very small pockets of acquired lands surrounded by lands which were not acquired or which were deleted from the proposed acquisition, BDA may consider whether such small pockets should also be deleted if they are not suitable for forming self contained layouts. The acquisition thereof cannot be justified on the ground that these small islands of acquired land, could be used as a stand alone park or playground in regard to a layout formed in different unconnected lands in other villages. Similar isolated pockets in other villages should also be dealt with in a similar manner.
(iii) BDA shall give an option to each writ petitioner whose land has been acquired for Arkavathy layout:
(a) to accept allotment of 15% (fifteen percent) of the land acquired from him, by way of developed plots, in lieu of compensation (any fractions in excess of 15% may be charged prevailing rates of allotment). OR
(b) in cases where the extent of land acquired exceeds half an acre, to claim in addition to compensation (without prejudice to seek reference if he is not satisfied with the quantum), allotment of a plot measuring 30′ x 40′ for every half acre of land acquired at the prevailing allotment price.
(iv) Any allotment made by BDA, either by forming layouts or by way of bulk allotments, will be subject to the above.
The appeals are disposed of accordingly. All pending applications also stand disposed of.”
48.The learned Additional Advocate General alternatively submitted that if at all this court should give any direction on the basis of equity it can order similar directions found in above paras and should not order wholesale deletion of the proceedings initiated by the Government.
49.The learned Additional Advocate General also submitted that in the light of the above, the writ petitions are liable to be dismissed without any relief to the petitioners. He also further submitted that an High Level Committee was constituted and that Committee, after taking note of all the objections, had taken a decision not to entertain the request of petitioners and refused to withdraw from the scheme for which lands were sought to be acquired. Already, the Government and the Housing Board had invested heavy amounts which are locked up either in court deposit or in the hands of the land owners. He submitted that though there were many proceedings were dropped or withdrawal made from acquisition and due to exclusion under Section 48-B, that is not an obstacle for the scheme to be proceeded with. Even after fragmentation of area with the lands under the hands of the Board, they can execute at least part of the scheme. For many areas, they have layout approvals. But for the interim orders of this court, the Board would have gone ahead and constructed houses for the benefit of the people at large. Therefore, he prayed for dismissal of the writ petitions.
50.Per contra, learned counsel for writ petitions submitted that despite this court striking down not only Section 6 declaration, but even in many cases, Section 4(1) notifications also and did not give liberty to proceed afresh, the Board had not given up its untenable stand to proceed with the acquisition and are retaining the lands in their hands on paper. Depending upon pulls and pressures they are reconveying lands to select individuals. One such beneficiary is Mrs.Palaniammal (order granting benefit to her is extracted above), who was given relief on a plea that she was an innocent purchaser. If innocent purchaser can have the benefit of reconveyance, then the original owners cannot be deprived of their lawful possession of lands for the benefit of their own housing.
51.It was also submitted that the Government had issued from time to time orders that no lands for which approved layouts are in existence should be taken over. Even during the enquiry under Section 5A, many land owners have objected to the acquisition on the ground that already structures have come up. In one case, the cooperative housing society has already allotted plots in favour of its members and some of them had constructed houses and some of them have raised loan for construction. When they purchased plots from Housing societies or from individuals, they were informed by the local Tahsildar that there was no Section 4(1) notification in respect of the survey numbers in which they have purchased lands and that the Directorate of Town and Country Planning have given approval to the layouts. In respect of W.P.No.16417 of 1998, the Master Plan was also amended by a statutory notification, wherein a private college is in existence.
52.Even in W.P.No.28427 of 2007, no award was passed within the statutory period, thereby making the acquisition invalid. If scheme envisaged by the Housing Board is composite one, then it would have requested the Government to renotify even those lands for the purpose of acquisition. Otherwise the scheme will be a fractured one. On the other hand, they had allowed as many as 1186.38 acres to be dropped either from the stage of Section 4(1) notification or even after Section 6 declaration. Even in cases where Award were passed, they had ordered reconveyance and one such beneficiary was Mrs.Palaniammal whose case was already referred to.
53.They had also submitted that there has been local agitation and already many structures have come up . If at this stage, structures will have to be demolished, then it will create irreparable loss to the petitioners. The purpose of the acquisition is to provide housing to public at large. When the petitioners on their own efforts have put up constructions, it is unnecessary for the Housing Board to waste public money on such ventures. The fact that the Housing Board has sought for acquisition of approximately 2000 acres of land for which they never possessed funds will clearly show that their motive is oblique. Despite an opportunity was given, they did not come forward to withdraw from the acquisition. The petitioners have not claimed any negative equality. On the contrary, they are claiming positive equality. If persons whose cries were heard by the Government and relief was granted to them at the executive level, merely because the petitioners have come to this court, they should not be victimized by the authorities who insist to go ahead with their threat of dispossession.
54.It was further submitted that layouts were approved by the Directorate. The local Panchayat had also granted planning permission and necessary charges towards OSR have been made. Gift deeds were executed parting away with the lands for public utility. The topo map of that area also showed that lands in many blocks were excluded, thereby making the so-called composite scheme a fractured one. Even now the Housing Board is intending to make money out of real estate by selling the properties. Even the built houses in one block were not sold for a long time thanks to the quality of construction made by the Board.
55.In the counter affidavit filed by the respondent State, no useful materials have been placed and there is no denial with reference to the postive averments made by the petitioners. The counter affidavit filed by the Housing Board is stereotyped. Except to contend that awards have been passed and lands deemed to have been vested with the State, they have not chosen to deny the large scale exclusions made from the acquisition proceedings. It was further submitted that the District Collector on coming to know the sensitive nature of the issue and due to the heat generated by the local people with reference to the deprivation of lands, had sent a report to the State Government to withdraw from the acquisition. At least in two cases, the learned Judges of this court have recorded that virtually the acquisition had been dropped. When statements made and found in a judicial order were not sought to be expunged by the Board, it is made to appear that the recordings made by this court are truthful.
56.They had also submitted that even if the State Government had passed an Award after Section 6 declaration, there is power vested with the State Government under Section 48-B to reconvey the lands by taking note of the ground reality. The State Government at one point of time had constituted an High Level committee headed by a retired judge of this court to go into the question as to whether the demand made by land owners are to be entertained and some of lands owners were the beneficiaries of such recommendation. The same benefits should also be extended to the writ petitioners. It was also submitted that there is no decision of any higher court that a wrongful act of the State cannot be questioned in the jurisdiction under Article 226 of the Constitution.
57.It was also argued that the right of shelter is a fundamental right. The petitioners having put up their own shelter should not be deprived of their shelter. Any land acquisition must also be subjected to the constitutional right guaranteed under Article 300A of the Constitution of India and the procedure mentioned therein is not merely following various steps under the Act, but it is also following due process of law. The petitioners having left with no remedy have approached this court being the last door for getting their grievances redressed.
58.In this context, reliance was placed upon the judgment of the Supreme Court in Ghaziabad Sheromani Sahkari Avas Samiti Ltd. v. State of U.P., reported in (1990) 1 SCC 583 = AIR 1990 SC 645, wherein the Supreme Court after taking note of the fact that even after purchase was made after Section 4(1) notification by the cooperative housing society, considering the plight of its members had granted the relief. The following passages found in paragraph 5 may be usefully extracted below:
“5. In course of the hearing of these appeals we were satisfied about the genuineness of the grievance advanced on behalf of the members through their respective cooperative societies and took the view that the members of the cooperative societies should not be denied residential accommodation for which they had taken effective steps before the acquisition for the Development Authority was notified. We took into consideration the total number of members as also the number of eligible members; the total area which the members had acquired and entrusted to the cooperative societies for construction; the capacity of the members to pay for the construction now charged by the Development Authority; the need of planned development of the area; and all other relevant facts and circumstances placed by all the parties before us and formed the opinion that it would be sufficient to meet the requirements of the members of these societies if each one of them was provided with a plot limited to an area of 80 square yards.”
59.In the light of the rival contentions, it has to be seen whether the petitioners have made out any case for grant of any relief?
60.Before considering the rival contentions, it is necessary to set out certain judgments of the Supreme Court which may have a bearing on this issue.
61.The Supreme Court in more than one decision had emphasized the ”right to shelter” as part of the Fundamental Right guaranteed under Article 21 of the Constitution. The Supreme Court in Shantistar Builders -vs- Narayan Khimalal Totame and others reported in (1990) 1 SCC 520 in paragraphs 9 to 11 and 13 held as follows:-
”Para 9. : Basic needs of man have traditionally been accepted to be three “food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect” physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation.
Para 10. : With the increase of population and the shift of the rural masses to urban areas over the decades the ratio of poor people without houses in the urban areas has rapidly increased. This is a feature which has become more perceptible after independence. Apart from the fact that people in search of work move to urban agglomerations, availability of amenities and living conveniences also attract people to move from rural areas to cities. Industrialisation is equally responsible for concentration of population around industries. These are features which are mainly responsible for increase in the homeless urban population. Millions of people today live on the pavements of different cities of India and a greater number live animal-like existence in jhuggis.
Para 11. : The Planning Commission took note of this situation and was struck by the fact that there was no corresponding rise in accommodation with the growth of population and the shift of the rural people to the cities. The growing realisation of this disparity led to the passing of the Act and acquisition of vacant sites for purposes of housing. Considerable attention has been given in recent years to increasing accommodation though whatever has been done is not at all adequate. The quick growth of urban population overshadows all attempts of increasing accommodation. Sections 20 and 21 of the Act vest power in the State Governments to exempt vacant sites from vesting under the Act for purposes of being taken over if housing schemes are undertaken by owners of vacant urban lands. Section 21 specifically emphasises upon weaker sections of the people. That term finds place in Article 46 of the Constitution and Section 21 uses the same language. “Weaker sections” have, however, not been defined either in the Constitution or in the Act itself. An attempt was made in the Constituent Assembly to provide a definition but was given up. Attempts have thereafter been made from time to time to provide such definition but on account of controversies which arise once the exercise is undertaken, there has been no success. A suggestion for introducing economic criterion for explaining the term was made in the approach to the Seventh Five Year Plan (1985-1990) brought out by the Planning Commission and approved by the National Development Council and the Union Government. A lot of controversy was raised in Parliament and the attempt was dropped. In the absence of a definition perhaps a proper guideline could be indicated but no serious attention has been devoted to this aspect.
… …
… …
Para 13. : In recent years on account of erosion of the value of the rupee, rampant prevalence of black money and dearth of urban land, the value of such land has gone up sky-high. It has become impossible for any member of the weaker sections to have residential accommodation anywhere and much less in urban areas. Since a reasonable residence is an indispensable necessity for fulfilling the constitutional goal in the matter of development of man and should be taken as included in “life” in Article 21, greater social control is called for and exemptions granted under Sections 20 and 21 should have to be appropriately monitored to have the fullest benefit of the beneficial legislation…..”
(Emphasis Added)
62.Similarly, the very same view was reiterated in U.P.Avas Evam Vikas Parishad and another -vs- Friends Co-op.Housing Society Limited and another reported in 1995 Supp (3) SCC 456. It is necessary to refer to the following passage found in para 8 of the said judgment.
Para 8 : ”… Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and right to life under Article 21 of the Constitution. … ”
63.In this context, the Supreme Court in Bhikhubhai Vithlabhai Patel -vs- State of Gujarat reported in (2008) 4 SCC 144 once again reiterated similar position. The following passage found in paragraph 33 was relied upon, which reads as follows:-
Para 33. ”The court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.”
64.The Supreme Court in Sube Singh and others -vs- State of Haryana and others reported in (2001) 7 SCC 545 dealt with the case of owners of the lands objecting to the acquisition on grounds that structures in the land have come up and that their lands should be excluded from the acquisition. When the Government refused to accede to their request, the Supreme Court found fault with the stand of the State Government and observed in paragraphs 11 and 12, which is as follows:-
Para 11. On the facts and circumstances of the case revealed from the records, we are persuaded to accept the contention raised on behalf of the appellants that the rejection of the request of the appellants for exclusion of their land having structures on them was not based on a fair and reasonable consideration of the matter. We are of the view that such action of the Government is arbitrary and discriminatory. Unfortunately, the High Court failed to judge the cases in their proper perspective.
Para 12. “In the result, the appeals are allowed. The judgments under challenge are set aside, the orders passed by the State Government rejecting the representation of the appellants are quashed. The Secretary, Urban Estates Department, State of Haryana, Respondent 1 herein, is directed to consider the objection petitions filed by the appellants for exclusion of their properties from acquisition and pass appropriate order excluding such lands having structures on them excepting any land which is required for construction of a road or hospital. Respondent 1 shall give opportunity of hearing to the appellants before taking the decision.”
65.The said decision came to be quoted with approval in the subsequent decision of the Supreme Court in Jagdish Chand and another -vs- State of Haryana and another reported in (2005) 10 SCC 162. But, in that case, though the relief was granted only to persons who had put up structures before the issuance of section 4(1) notification, the learned counsel argued that the case of the petitioners had also received consideration by this court since objections were raised by the petitioners even during section 5A enquiry and that had not received due consideration by the State. It is submitted that the enquiry under section 5A must be real and meaningful.
66.The Supreme Court in Hindustan Petroleum Corporation Limited -vs- Darius Shapur Chenai and others reported in (2005) 7 SCC 627 dealt with the scope of Section 5A enquiry. In paragraph 9 of the said decision, it was held as follows:-
Para 9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right.
67.In the present case, even during 5A enquiry, some of the petitioners have objected to the acquisition that already layouts have been approved and houses have come up, which was also noted in the award proceedings by the acquiring authority. But for the reasons best known to them, the same was not taken note of. While certain individuals were able to get the relief of reconveyance on the ground that they were innocent purchasers, it cannot be said that the original owners should be deprived of their own lands.
68.Though the learned Additional Advocate General stated that exclusion of land of Palaniammal will not hamper the Scheme, a perusal of the survey number found in the plan produced showed that her land is situated in the centre of the village. Similarly, a college had also come up in the area which was brought into existence by orders of the Government. One wing of the Government cannot feign ignorance about the act of the other wing of the Government. Not only the education department had granted prior permission to establish the college with a condition that the specified lands are to be retained only for educational purpose, even the Directorate of Town and Country Planning had passed a statutory order reclassifying the land from industrial and residential zones into an educational zone. In the case of a cooperative housing society, layouts were approved by the Directorate of Town and Country Planning.
69.The Supreme Court in BEML Employees House Building Coop.Society Ltd. V. State of Karnataka reported in 2005 (9) SCC 248 quashed the land acquisition proceedings on the ground that the lands belonging to some persons who were similarly situated were released and that the State Government had been unable to show any rational discrimination between the case of the appellant and that of the other landowners and that this act amounted to hostile discrimination.
70.The Supreme Court vide its judgment in Girias Investment (P) Ltd. v. State of Karnataka reported in (2008) 7 SCC 53 quoted with approval of its earlier judgment in Ramniklal N. Bhutta v. State of Maharashtra reported in 1997 (1) SCC 134. It is necessary to refer to the following passage found in paragraph 27 which is as follows:
“27…… We are also not unmindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. This is the ratio of the judgment of this Court in Ramniklal N. Bhutta v. State of Maharashtra (1997 (1) SCC 134)2 wherein it has been held as under: (SCC p.140, para 10)
10. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-`-vis the private interest while exercising the power under Article 226indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
71.Even otherwise, the Supreme Court in its latest judgment (relied also by the learned Additional Advocate General) in Bondu Ramaswamy v. Bangalore Development Authority reported in 2010 (5) MLJ 541 (SC) = (2010) 7 SCC 129 gave extensive guidelines in interfering in the matter of land acquisition proceedings. With reference to hostile discrimination, in paragraph 81, the Supreme Court observed as follows:
“81.We are conscious of the fact that when a person subjected to blatant discrimination, approaches a court seeking equal treatment, he expects relief similar to what others have been granted. All that he is interested is getting relief for himself, as others. He is not interested in getting the relief illegally granted to others, quashed. Nor is he interested in knowing whether others were granted relief legally or about the distinction between positive equality and negative equality. In fact he will be reluctant to approach courts for quashing the relief granted to others on the ground that it is illegal, as he does not want to incur the wrath of those who have benefited from the wrong action. As a result, in most cases those who benefit by the illegal grants/ actions by authorities, get away with the benefit, while others who are not fortunate to have connections or money power suffer. But these are not the grounds for courts to enforce negative equality and perpetuate the illegality. The fact that an Authority has extended favours illegally in the case of several persons cannot be a ground for courts to issue a mandamus directing repetition thereof, by applying the principle of equality. Article 14 guarantees equality before law and not equality in subverting law nor equality in securing illegal benefits. But courts cannot be silent bystanders if the acquisition process is used by officers of the Authority with ulterior or mala fide motives. For example, let us take a case where 2000 acres are required for a project as per the development scheme, but the preliminary notification is issued in respect of 3000 acres; and when the landowners apply or approach the Authority, 1000 acres of lands are released. Or take a case where a project required 1000 acres of contiguous land for a development project, and preliminary notice is accordingly issued for acquisition of a compact contiguous extent of 1000 acres; but thereafter without any logical explanation or perceivable reason, several large areas in the midst of the proposed layout, are denotified or deleted making it virtually impossible to execute the development scheme, as proposed. In the absence of satisfactory explanations in such a case, it may be necessary to presume that there was misuse or abuse of the acquisition process…..” (Emphasis added)
72.In Paragraph 82 of the very same judgment which was already extracted in para 46, the Supreme Court dealt with the principles relating to positive and negative equality. It is necessary to refer to paragraph 82(iv) even on the risk of repetition, which is as follows:
“82. We may illustrate the principle relating to positive and negative equality with reference to following notional acquisition cases:
……
(iv) If in a village all the lands are notified and subsequently all lands except two or three small pockets are deleted without any valid ground, the persons whose lands were acquired can also seek deletion, on the ground that all the surrounding lands have been deleted. The court cannot direct deletion merely because the surrounding lands were deleted, as those deletions were illegal and not based on any valid policy. But the petitioners can contend that the very purpose of acquisition had been rendered infructuous by deletion of the majority of lands from the proposed acquisition, and the project or the scheme has ceased to exist and cannot be executed only with reference to their lands. In such a case, relief can be granted not on the ground that there has been discrimination, but on the ground that the proposed development scheme became non-existent on account of most of the lands being deleted from acquisition.”
73.The Supreme Court in paragraph 84 of the said judment dealt with frequent complaints and grievance with regard to five areas and we are only concerned with paragraph 84(iii), which is as follows:
“84. Frequent complaints and grievances in regard to the following five areas, with reference to the prevailing system of acquisitions governed by the Land Acquisition Act, 1894, requires the urgent attention of the State Governments and Development Authorities:
(i) and (ii) omitted
(iii) notification of areas far larger than what is actually required, for acquisition, and then making arbitrary deletions and withdrawals from the acquisitions;”
74.The Supreme Court on the question of rehabilitation and economic security of land losers dealt with various types of acquisition. In this case, we are concerned with the type of acquisition mentioned in paragraph 85(iii), which is as follows:
“85.There are several avenues for providing rehabilitation and economic security to landlosers. They can be by way of offering employment, allotment of alternative lands, providing housing or house plots, providing safe investment opportunities for the compensation amount to generate a stable income, or providing a permanent regular income by way of annuities. The nature of benefits to the landlosers can vary depending upon the nature of the acquisition. For this limited purpose, the acquisitions can be conveniently divided into three broad categories:
(i) and (ii) omitted
(iii) Acquisitions for planned development of urban areas: This will include acquisitions for formation of residential layouts and construction of apartment blocks, for allotment to urban middle class and urban poor, rural poor, etc.”
75.The Supreme Court also gave scope for different types of benefits that may make an acquisition land loser friendly and in paragraph 87.3 it was observed as follows:
“87.It is necessary to evolve tailor-made schemes to suit particular acquisitions, so that they will be smooth, speedy, litigation-free and beneficial to all concerned. Proper planning, adequate counselling, and timely mediation with different groups of landlosers, should be resorted to. Let us consider the different types of benefits that will make acquisitions landloser-friendly.
87.1 and 87.2 omitted
87.3 Where the acquisition is of the third kind, that is, for urban development (either by formation of housing colonies by Development Authorities or by making bulk allotment to colonisers, developers or housing societies), there is no scope for providing benefits like employment or a share in the equity. But the landlosers can be given a share in the development itself, by making available a reasonable portion of the developed land to the landloser so that he can either use it personally or dispose of a part and retain a part or put it to other beneficial use. ……”
76.Ultimately, in paragraphs 88 and 89, the Supreme Court held that development scheme should be for the benefit of the society and must improve the society. The relevant passages found in paragraphs 88 and 89 may be usefully extracted below:
“88….. Any development scheme should be to benefit the society and improve the city, and not to benefit the Development Authority. Be that as it may.
89. When BDA prepares a development scheme it is required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the notification under Section 4(1) though available for acquisition, and out of the remaining 70% area which is notified, more than half (that is, about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which is non-contiguous, it means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of those who can influence and get their lands deleted and those who cannot. Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number of citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition.”
77.If the issues are analysed in this angle, certainly the writ petitioners have made out a case in their favour. Though an opportunity was given by the court for the Government to set right after noting the ground realities, they have not come forward to redress the grievance of the present petitioners and they themselves gave relief to certain individuals. The basis of which was not explained to the satisfaction of this court. Therefore, this court will have to be proceeded on the basis of the following findings:
a)Unimaginable and unrealistic extent of lands were initially notified;
b)Substantial areas have been excluded either before Section 4(1) notification or after 4(1) notification and in some cases even after the Award was passed;
c)Resort to exercise power under Section 48B to reconvey the properties to certain individuals;
d)On the basis of recommendation made by the High Level Committee, some lands were excluded;
e)This court had quashed many proceedings under Section 4(1) notification and Section 6 declaration and did not give any liberty to proceed afresh. They were not challenged either in higher forums or no fresh notifications were issued to retain the so-called composite nature of scheme.
f)When this court recorded that proceedings have been dropped in Kalappatty village in two of the reported judgments, no attempt was made either to seek for clarification or deny the statements recorded by this court;
g)When this court instead of dealing with the validity of Section 4(1) and 6 in the cases which are filed on time gave liberty to the petitioners to move the Government with the fond hop that the Government will redress the grievances of the land owners, the Government not only did not deal with the case but denied the relief, thereby drove the petitioners to approach this court. In this process, they have lost their valuable right to question and succeed in assailing the Section 4(1) notification and Section 6 declaration.
78.This Court in many cases relating to Kalapatty village found that there were approved layouts with the sanction of authorities and the Government Order itself had directed to refrain from acquiring the land which are covered by the approved layouts. Finally, after finding that there were lots of law and order problem in the area when this court directed the State Government to take a pragmatic stand, that was also rejected. Considering the fact that in some cases, there were procedural lapse and in some cases, there were acquisition proceedings in respect of a college property which is in existence for over 10 years catering to the needs of about 3000 students, it will be unrealistic to destroy such edifice especially when the right to education is guaranteed as a fundamental right. Many of the petitioners with their hard earned money have purchased plots and put up constructions to have a shelter of their own. The Housing Board in the name of providing houses cannot destroy the existing shelters put up by individual endeavors.
79.In the present case, it is not a mere negative equality the petitioners are pleading. Because the State never attempted to justify the reconveyance and exclusions on the ground of either they were isolated instances or they were based on erroneous assumptions. On the contrary, the counter affidavits filed were vague and did not deal with the contentions raised by the petitioners in these batch of writ petitions. Under these circumstances, this court has no hesitation to set aside the orders passed against the petitioners.
80.Even though it is claimed that lands covered in the present writ petitions were only 35.48 acres, yet this court having found that original scheme had become fractured and the present holding of the Housing Board is only on patches of land in the village, the petitioners are entitled to retain their lands, but with one rider i.e. that on being notified by the Government and the Housing Board, the petitioners shall return the compensation received by them together with interest at the rate of 6% per annum. In cases where they have not withdrawn the deposits, it is for the State to withdraw the amounts lying either in revenue deposit or in court deposit. The lands even after being fractured, if the Housing Board as per revised scheme wants to go ahead with building houses this exclusion will in no way hamper it.
81.In view of the foregoing the curtains will have to be rung to put an end to the litigations spreading over 20 years for the possession of lands by the petitioners.
In the result:
(i)W.P.No.28427 of 2007: In view of the concession made by the learned Additional Advocate General, this writ petition stands allowed.
ii)In W.P.No.16417 of 1998, the college has been in existence for the last 10 years. The Government had granted permission to run the college and necessary changes have already been made in the Master Plan by the statutory notification. Hence, W.P.No.16417 of 1998 will stand allowed and the proceedings are set aside insofar as the acquisition of lands owned by the college and the Trust.
iii)In W.P.No.20126 of 1999 filed by Lakshmi Cooperative Building Society and its 90 members, during 5A enquiry, it was brought out that approved layouts have been approved and three houses are already in existence and for five houses, foundation stones have been laid and the society had decided to grant loan to build houses and these facts were not taken into account at the time of passing of final award and since there is no application of mind while considering these objections, this writ petition will stand allowed.
iv)W.P.Nos.10316 of 1999, 5537, 5615 to 5622, 6099 of 2000, 15253 of 1999, 16514 to 16521 of 1999, 2221 and 2222 of 2000, 18441 of 1999, 2223, 2224, 7778 of 2000, 14599, 14600, 17432, 17891, 18495, 20592 of 1999, 1975 and 1976 of 2000, 11965 of 2001, 13616 of 2003, 19436 to 19440 of 1999, 10933 of 2000, 25460 of 2006, 7091 and 7092 of 2008 will stand allowed and notifications under Section 4(1) and Section 6 declaration are set aside.
v)In W.P.No.39612 of 2006, already this court in W.P.No.5110 of 2004 directed the sale of S.Nos.936/1 and 936/2 in view of the injunction obtained from interfering with the right to sell and it has been sold. But the Sub Registrar has sought for “no objection certificate”. Hence W.P.No.39612 of 2006 and W.P.No.5110 of 2004 will stand allowed. The fourth respondent is directed not to insist upon no objection certificate from the petitioner.
vi)W.P.No.6711 of 2006: It is only to consider the representation in respect of lands in S.Nos.799/91 and 80/6 to set up power room unit. In view of the judgment rendered here, the said writ petition will stand allowed. The respondents are directed to dispose of the representation dated 4.1.2006 in accordance with law and in the light of the observations made herein.
Vii)W.P.No.18573 of 2005 is to register the sale deed in respect of S.Nos.948/1 and 943/3. Hence this writ petition will stand allowed and a direction is issued to respondents to register the sale deed.
Viii)In W.P.Nos.39237 of 2005, 28901 of 2005 and 1607 to 1610 of 2009, wherever the petitioners have sought for other reliefs and for reconveyance (other than quashing the notification under Section 4(1) or Section 6 declaration or both), the writ petitions will stand allowed and the impugned proceedings stand quashed. The Government is directed to reconvey the lands to those petitioners after intimating the refund of compensation together with interest as indicated in paragraph 80 of this order.
82.There will be no order as to costs. Consequently, connected miscellaneous petitions will stand closed.
vvk
To
1.The Secretary to Government,
The State of Tamilnadu,
Housing & Urban Development Dept.,
Fort St. George, Chennai-600 009.
2.The Special Tahsildar,
Land Acquisition,
Housing Scheme-II,
Coimbatore.
3.The Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-600 035.
4.The District Collector,
Coimbatore-640 018.
5.The Special Tahsildar,
Collectorate (Land Acquisition Compound)
Coimbatore-641 018.
6.The Special Tahsildar (L.A.)
Housing scheme Unit I,
Coimbatore-18.
7.The Chairman,
Tamil Nadu Housing Board,
Chennai-600 035.
8.The Chairman,
High level Committee,
Tamil Nadu Housing Board,
Nandanam, Chennai-600 035.
9.The Sub Registrar,
Gandhipuram
Coimbatore-641 012.
10.The District Registrar,
Coimbatore District,Coimbatore.
11.The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Tatabad,
Coimbatore