{"id":257456,"date":"2006-11-04T00:00:00","date_gmt":"2006-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-vishnupriya-vs-state-rep-by-its-secretary-to-on-4-november-2006"},"modified":"2017-05-02T14:34:59","modified_gmt":"2017-05-02T09:04:59","slug":"k-vishnupriya-vs-state-rep-by-its-secretary-to-on-4-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-vishnupriya-vs-state-rep-by-its-secretary-to-on-4-november-2006","title":{"rendered":"K. Vishnupriya vs State Rep. By Its Secretary To … on 4 November, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
K. Vishnupriya vs State Rep. By Its Secretary To … on 4 November, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 04\/11\/2006\n\n\nCORAM\nTHE HONOURABLE MR. JUSTICE P.K. MISRA\n\n\nW.P.NO.972 OF 2004\nand\nWPMP.NO.967 OF 2004\n\n\nK. Vishnupriya\nW\/o.T.R.S. Karthikeyan\t\t\t...  Petitioner\n\t\t\n\n\nVs.\n\n\n1. State rep. by its Secretary to Government,\n   Public Works Department,\n   Fort St. George, Chennai 600 009.\n\n2. The District Collector,\n   Madurai District,\n   Madurai 20.\t\n\n3. The Special Tahsildar (Land and\n     Acquisition), Nilaiyur Channel\n     Extension Scheme, Madurai 20.\t...  Respondents\n\n\n\n\t\tPetition filed under Article 226<\/a> of the Constitution for the\nissuance of writ of Certiorarified Mandamus calling for the records pertaining\nto the G.O.(RT) No.239 dated   21-04-2004 and the declaration made in Government\nGazette No.112 dated 30-04-2004 part II Section 2, on the file of the third\nrespondent and to quash the same.\n\n\n!For Petitioner\t\t...\tMr.M. Rajaraman\n\n\n^For Respondents\t...\tMr.G. Gandhirajan\n\t\t\t\tGovt. Advocate\n\n\n:J U D G M E N T\n<\/pre>\n
\t\tThis writ petition has been filed for issuing Certiorarified
\nMandamus for quashing the records relating to G.O.(RT)No.239 dated 21.4.2004 and
\nthe declaration made in Government Gazette No.112 dated 30.4.2004.  To be
\nprecise, the petitioner is seeking for quashing the land acquisition
\nproceedings.\n<\/p>\n
\t\t2. The allegations made in the writ petition are as follows :-
\n\t\tPetitioner is the owner of 1\/3rd undivided share along with her co-
\nsisters Mrs. Uma Devi wife of T.R.S. Vijayram and Mrs. Sumathi wife of T.R.S.
\nBabu of the vacant land measuring 19.59+ acres in Eliarpathi village.  Such
\nproperty had been acquired by a registered sale deed dated 7.1.2004 for
\nestablishing a textile mill.  It is stated by the petitioner that before
\npurchasing, she had verified from the office of the Tahsildar, Madras South that
\nthe lands are patta lands and they are not coming within the purview of any land
\nacquisition proceeding and no notice had been issued by any Department under
\nSection 4(1)<\/a> of the Land Acquisition Act and the land was also not affected by
\nthe provisions contained in the Land Reforms Act,1961 and the Urban  Land
\nCeiling  Act<\/a>,  1978.   Since the Public Works
\nDepartment was constructing a canal from Silaiman to Kambikudi, one of the land
\nowners had filed W.P.No.1338 of 2003 seeking for a direction against the Public
\nWorks Department and other officials not to interfere with the possession of his
\npatta land.  Subsequently, since there was apprehension that the authorities are
\nlikely to encroach upon the land of the petitioner without following the rules
\nand regulations, the petitioner filed W.P.No.6227 of 2004 against the State and
\nthe District Collector, Madurai and also the Chief Engineer and the
\nSuperintending Engineer of P.W.D seeking for a writ of mandamus directing those
\nrespondents not to interfere with the possession of the petitioner.  The writ
\npetition was disposed of on 15.3.2004 by observing as follows :-
\n\t“2. Learned Government Pleader submits that if the respondents want to
\nmake certain improvements in the property or require the property for public
\npurpose, due process of law would be followed after putting the petitioner in
\nnotice.\n<\/p>\n
\t 3. In view of the said submission of the learned Additional Government
\nPleader, there is nothing more to be adjudicated in the present writ petition,
\nexcept recording the statement of the learned Additional Government Pleader that
\nthe petitioner’s possession would not be interfered without following due
\nprocess of law.”\n<\/p>\n
\tIt is further stated that thereafter neither the petitioner nor her co-
\nsisters have been served with any notice by the respondents regarding their
\nproposal to acquire the land belonging to the petitioner and her co-sisters.
\nHowever, subsequently the petitioner and her co-sisters were served with notice
\ndated 2.8.2004 on 25.8.2004 in Form-7 purporting to be under Sections 9(3)<\/a> and
\n10<\/a> of the Land Acquisition Act.  Thereafter, an official from the office of the
\nthird respondent came with a model consent letter and requested the petitioner
\nto sign the same.  At that stage the petitioner discovered that the property
\nmeasuring 0.70.5 hectares of land had purportedly been acquired by the third
\nrespondent for the alleged purpose of extension of Nilaiyur Channel and upon
\nsubsequent verification the petitioner learnt that the third respondent had
\ngiven a letter dated 1.6.2004 purporting to be an advertisement published in
\nTamil daily ‘Namathu MGR’ for acquisition of the property.  It was learnt that
\nthe first respondent had approved the acquisition by G.O.No.239 dated 21.4.2004
\nand declaration under Section 6<\/a>  dated 30.4.2004 was published in Government
\nGazette No.112.  The petitioner claims that such acquisition proceedings are
\nvitiated, mala fide and against law and have been taken in arbitrary exercise of
\npower.  The petitioner claims that still she is continuing in possession.  It is
\nfurther stated that the canal was not at all necessary to pass through the
\nproperty of the petitioner and such canal can be diverted through poramboke
\nlands belonging to the State without affecting the patta lands.  It is further
\nstated that there is absolutely no emergency in the matter to invoke Section 17<\/a>
\nof the Land Acquisition Act and no reason has been mentioned for invoking such
\nemergency clause.  It has been further stated that the Gazette publication had
\nbeen made in the name of the vendor of the petitioner and no notice had been
\ngiven to the petitioner enabling her to file any objection under Section 5A<\/a> of
\nthe Act.  It has been further claimed that the Tamil daily, wherein such
\npublication was made, is not circulated in and around Madurai and is only a
\nMadras edition and, therefore, the publication is not in accordance with law.  A
\nfurther ground is taken that in W.P.No.6227 of 2004 the respondents had
\nundertaken to give proper notice to the petitioner and action had been taken
\nwithout even complying with such undertaking.  On the basis of such allegations,
\nthe petitioner has sought for quashing the land acquisition proceedings mainly
\non the ground that no notice had been served and illegality has been committed
\nin following the procedure contemplated under Section 5A<\/a> of the Land Acquisition
\nAct and there is no justification for invoking the emergency clause and further
\nthat the canal can be diverted through adjacent poramboke lands.\n<\/p>\n
4. A counter affidavit has been filed on behalf of Respondent No.2.  In such
\ncounter affidavit it has been submitted that in G.O.Ms.No.348, Public Works
\nDepartment dated 29.6.1999, the Government of Tamil Nadu issued administrative
\nsanction for the scheme of extending the Nilayur Channel from the upstream of
\nPerungudi tank of Madurai District to Kambikudi series of Virudhunagar District
\nto feed about 94 tanks in Madurai, Virudhunagar and Sivagangai districts which
\nwould benefit 9947 acres of land. It has been stated that the proposals were
\nsubmitted to the Government for approval of notification under section 4(1)<\/a>and 6<\/a>
\nof the Land Acquisition Act simultaneously invoking urgency clause during
\nOctober 2002.  The Government of Tamil Nadu have approved the notification under
\nSection 4(1)<\/a> invoking urgency clause under Section 17(2)<\/a> of the Land Acquisition
\nAct in respect of 20 cases out of which award had been passed in respect of 13
\ncases and further action was being taken for the remaining cases.  Notification
\nunder Section 4(1)<\/a> in respect of the disputed land had been approved by
\nG.O.Ms.No.72, Public Works Department, dated 26.2.2004, which was subsequently
\npublished in Government Gazette and Tamil dailies and substance of the
\nnotification had also been published.  Declaration under Section 6<\/a> of the Act
\nhad been approved by the Government on 21.4.2004 and the same  has  been
\npublished  on  30.4.2004 in the Government
\nGazette and thereafter in the newspapers.  It is further indicated that as per
\nthe observation of the High Court in W.P.No.6227 of 2004, notice under Section
\n9(1)<\/a> of the Act had been sent in the name of the petitioner.  The rules have
\nbeen followed and there has been no violation of any of the provision.  It has
\nbeen further indicated that the lands have been acquired by invoking the urgency
\nclause for which proposal had been sent on 6.8.2002.  The petitioner purchased
\nthe land only on 7.1.2004.  The name of the vendor, who sold the property to the
\npetitioner, has been notified in 4(1) notification and the purchaser had never
\napproached the officials to include her name as the land owner.  Importance of
\nthe scheme had been projected in the counter and it has been submitted that
\nsince it is an irrigation project, the Government has invoked the urgency clause
\nand there is no illegality.\n<\/p>\n
\t\t5. Learned counsel appearing for the petitioner has submitted that
\nin view of the observation made by the High Court in the earlier W.P.No.6227 of
\n2004, the respondents should have issued notice to the petitioner before taking
\nany action relating to acquisition of the land.\n<\/p>\n
\t\t6. A perusal of the order passed by the High Court on the earlier
\noccasion indicates that the effect of the undertaking was that the respondents
\nwould not take any steps to acquire the land for public purpose except by
\nfollowing the due process of law and the petitioner would be given necessary
\nnotice.  By no stretch of imagination it can be construed that the Government
\nhad agreed to forego its right to acquire the land in accordance with the
\nprovisions contained in the Land Acquisition Act<\/a>.  It is of course true that it
\nwas stated that notice would be given, but in the context of things it must be
\nunderstood that notice as contemplated in law is required to be given at the
\nproper stage.\n<\/p>\n
\t\t7.In AIR 1996 SC 1051 (CHAMELI SINGH  V. STATE OF U.P<\/a>.) it was
\nobserved in paragraphs 3 and 16 as below:\n<\/p>\n
\t“3.It is settled law that the opinion of urgency formed by the appropriate
\nGovernment to take immediate possession is a subjective conclusion based on the
\nmaterial before it and it is entitled to great weight unless it is vitiated by
\nmalafides or colourable exercise of power.  Article 25(1)<\/a> of the Universal
\nDeclaration of Human Rights declares that “every one has the right to standard
\nof living adequate for the health and well-being of himself and his family
\nincluding food, clothing, housing, medical care and necessary social services.”
\nArticle 11(1)<\/a> of the International Covenant on Economic, Social and
\nCultural Rights, 1966 laid down tht State Parties to the Covenant recognise “the
\nright to every one to an adequate standard of living for himself and for his
\nfamily including food, clothing, housing and to the continuous improvement of
\nliving condition.”  The State parties will take appropriate steps to ensure
\nrealisation of this right.  In P.G.Gupta  v.  State of Gujarat (1995) 2 JT (SC)
\n373: (1993 AIR SCW 1540) a Bench of three Judges of this Court considering the
\nmandate of human right to shelter read it into Article 19(1)(e)<\/a> and Article 21<\/a>
\nof the Constitution of India to guarantee right to residence and settlement.
\nProtection of life guaranteed by Article 21<\/a> encompasses within its ambit the
\nright to shelter to enjoy the meaningful right to life.  the Preamble to the
\nIndian Constitution assures to every citizen social and economic justice and
\nequity of status and of opportunity and dignity of people so as to fasten
\nfraternity among all sections of society in an integrated Bharat.  Article 39(b)<\/a>
\nenjoins the State that ownership and control of the material resources of the
\ncommunity are so distributed as to promote welfare of the people by securing
\nsocial and economic justice to the weaker sections of the society to minimise
\ninequality in income and endeavour to eliminate inequality in status.  Article
\n46<\/a> enjoins the State to promote with special care social, economic and
\neducational interests  of  the  weaker  sections  of  the
\nsociety, in particular, Scheduled Castes and Scheduled Tribes.  Right to social
\nand economic justice conjointly commingles with right to shelter as an
\ninseparable component for meaningful right to life.   It was, therefore, held
\nthat right to residence and settlement is a fundamental right under Article
\n19(1)(e)<\/a> and it is a facet of inseparable meaningful right to life under Article\n<\/p>\n
21.  Food, shelter and clothing are minimal human rights.  The State has
\nundertaken as its economic policy of planned development of massive housing
\nschemes.  The right to allotment of houses constructed by the Housing Board to
\nthe weaker sections, lower income group people under Lower Income Group Scheme,
\nwas held to be constitutional strategy, an economic programme undertaken by the
\nState and the weaker sections are entitled to allotment as per the scheme.
\n\t\t……\n<\/p>\n
\t\t16.It is true that there was pre-notification and post-notification
\ndelay on the part of the officers to finalise and publish the notification.  But
\nthose facts were present before the Government when it invoked urgency clause
\nand dispensed with inquiry under Section 5-A<\/a>.  As held by this Court, the delay
\nby itself accelerates the urgency.  Larger the delay, greater be the urgency.
\n….”\n<\/p>\n
\t\t8.In 1997 (9) SCC 78 (UNION OF INDIA  V.  PRAVEEN GUPTA<\/a>), it was
\nobserved in paragraph 9 as under:\n<\/p>\n
\t\t“9.It is now settled legal position that decision on urgency is an
\nadministrative decision and is a matter of subjective satisfaction of the
\nappropriate Government on the basis of the material available on record.
\nTherefore, there was no need to pass any reasoned order to reach the conclusion
\nthat there is urgency so as to dispense with the enquiry under Section 5-A<\/a> in
\nexercise of power under Section 17(4)<\/a>. ….”\n<\/p>\n
\t\t9. In AIR 2002 SC 1314 (FIRST LAND ACQUISITION COLLECTIOR AND OTHERS
\nv. NIRODHI PRAKASH GANGOLI AND ANOTHER<\/a>), while considering the applicability of
\nSection 17(1)<\/a> and (4) of the Land Acquisition Act<\/a>, the Supreme Court observed :-
\n\t“4. … Bearing in mind the aforesaid principles, if the circumstances of
\nthe case in hand are examined it would appear that the premises in question was
\nrequired for the students of National Medical College, Calcutta and the
\nnotification issued in December 1982 had been quashed by the Court and the
\nsubsequent notification issued on 25-2-1994 also had been quashed by the Court.
\nIt is only thereafter the notification was issued under Sections 4(1)<\/a> and 17(4)<\/a>
\nof the Act on 29-11-1994 which came up for consideration before the High Court.
\nApart from the fact that there had already been considerable delay in acquiring
\nthe premises in question on account of the intervention by Courts, the premises
\nwas badly need for the occupation of the students of National Medical College,
\nCalcutta.  Thus, existence of urgency was writ large on the facts of the case
\nand therefore, said exercise of power in the case in hand, cannot be interfered
\nwith by a Court of law on a conclusion that there did not exist any emergency.
\nThe conclusion of the Division Bench of Calcutta High Court, therefore, is
\nunsustainable.”\n<\/p>\n
\t\t10. In the present case, the Government decided to invoke emergency
\nclause and, therefore, there was simultaneous publication of notification under
\nSection 4(1)<\/a> and declaration under Section 6<\/a> dispensing with the enquiry under
\nSection 5-A<\/a> of the Land Acquisition Act.  Undoubtedly in law the Government is
\nentitled to invoke such emergency provision available under the Land Acquisition
\nAct<\/a>.  Except baldly stating that emergency clause has been invoked without any
\nreason, the petitioner has not buttressed her submission as to why the emergency
\nclause could not have been invoked.  It is no doubt true that the proposal for
\nacquiring the land has been initiated long back, in the year 2002 or even before
\nthat.  However, merely because the proposal had remained pending since long, it
\ncannot be said that there was no necessity to invoke the emergency clause.\n<\/p>\n
\t\t11. Even though it has been asserted by the petitioner that the land
\nacquisition proceedings are vitiated by malafides, except such bald assertion no
\nmaterial worth the name is forthcoming to substantiate such allegation.  There
\ncannot be any doubt that the purpose for which the land is sought to be acquired
\nis a public purpose.  Keeping in view the fact that the land was required for
\nthe purpose of digging a channel to connect some irrigation sources, it cannot
\nbe said that there was no urgency.\n<\/p>\n
\t\t12. It is of course true that the petitioner at the stage when she
\npurchased the land was given to understand that the land was not under any
\nacquisition.  However, it does not preclude the Government subsequently to
\ndecide that the land would be acquired for public purpose in accordance with the
\nprocedure laid down under law.  The fact that the petitioner wanted to use the
\nland for commercial purpose is also not very relevant.  Similarly the vague
\nassertion of the petitioner that the canal could have been dug in some poramboke
\nland belonging to the State is also not worthy of acceptance in the absence of
\nany detail whatsoever about such poramboke lands.  While considering the
\nquestion of digging a canal, obviously certain scientific and technical aspects
\nmust have been taken into account and in the absence of any specific challenge
\nit has to be presumed that the officials must have undertaken the proper survey
\nwork and decided to dig the channel in a particular area.  Ordinarily those are
\nmatters best left to the specialists or experts rather than the Court.\n<\/p>\n
\t\t13. Learned counsel for the petitioner has placed reliance upon
\nseveral decisions of the Madras High Court to the effect that notice relating to
\nnotification under Section 4(1)<\/a> should be published in the newspapers having
\nwide circulation in the area.  All the decisions cited by the learned counsel
\nfor the petitioner relate to acquisition proceedings wherein the normal
\nprocedure of issuance of notification followed by enquiry under Section 5-A<\/a> of
\nthe Land Acquisition Act were followed.  Since the notice relating to 4(1) had
\nnot been published in the newspaper having wide circulation, it was held in
\nthose cases that the land owner was deprived of opportunity of filing objection
\nand consequently such owner lost an opportunity of being heard as contemplated
\nunder Section 5-A<\/a> of the Land Acquisition Act.\n<\/p>\n
\tI do not think the ratio of such decisions can be made applicable to the
\npresent case, wherein the enquiry under Section 5-A<\/a> itself is dispensed with by
\ninvoking the urgency clause envisaged under Section 17(1)<\/a> read with 17(4) of the
\nLand Acquisition Act<\/a>.\n<\/p>\n
\t\t14. For the aforesaid reasons, I do not find any scope to interfere
\nwith the acquisition proceedings and the writ petition is accordingly dismissed.
\nNo costs.  Consequently, the connected WPMP.No.967 of 2004 is closed.\n<\/p>\n
dpk\/gb.\n<\/p>\n
To<\/p>\n
1. The Secretary to Government,
\n   Public Works Department,
\n   Fort St. George, Chennai 600 009.\n<\/p>\n
2. The District Collector,
\n   Madurai District,
\n   Madurai 20.\n<\/p>\n
3. The Special Tahsildar (Land and
\n   Acquisition), Nilaiyur Channel
\n   Extension Scheme, Madurai 20.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court K. Vishnupriya vs State Rep. By Its Secretary To … on 4 November, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04\/11\/2006 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA W.P.NO.972 OF 2004 and WPMP.NO.967 OF 2004 K. Vishnupriya W\/o.T.R.S. Karthikeyan … Petitioner Vs. 1. State rep. by its Secretary […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-257456","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK. Vishnupriya vs State Rep. 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