Uttamchand Galada v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17 .10.2008C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.10236 of 1998, 7110 of 1999and 9437 of 2006andWMP.Nos.10216 of 1999, 10451 and10452 of 20061. Uttamchand Galada2. Vasanth Bala Galada3. Manish Galada .. Petitioners in W.P. No.10236 of 19984. P.Vasantha Kumari.. Petitioner in W.P. No.7110 of 1999 and 9437 of 2006-vs-1. The State of Tamil Nadu rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai-600 009. .. R1 in all the WPs.2. The Chennai Metropolitan Development Authority, rep.by its Member-Secretary, No.8, Gandhi-Irwin Road, Thalamuthu Natarajan Maligai, Egmore, Chennai-600 008. ..Respondent No.2 in WPs.10236 of 1998, 7110 of 19993. The Chief Executive Officer, Chennai Metropolitan Development Authority, Egmore, Chennai-8. .. Respondent No.2 in WP.No.9437 /2006 https://hcservices.ecourts.gov.in/hcservices/ PRAYER in WP.Nos.10236 of 1998 and 7110 of 1999 : Petitions filedunder Article 226 of the Constitution of India praying for theissuance of a writ of certiorarified mandamus calling for therecords comprised in G.O.No.134, Housing & Urban DevelopmentDepartment, dated 23.4.1998 made by the first respondent and quashthe same as null and void. PRAYER in WP.No.9437 of 2006 : Petition filed under Article 226 ofthe Constitution of India praying for the issuance of a writ ofcertiorarified mandamus calling for the records comprised inG.O.No.134, Housing & Urban Development Department, dated 23.4.1998made by the first respondent and quash the same as null and voidand restore G.O.Ms.No.497, dated 23.3.1987 of the first respondentwhereby the petitioner's lands are situated at Chengalpet Taluk andDistrict, Tirukachur Village in Survey No.540/3A and 540/3B of anextent of 0.46 cents and 0.48 cents respectively were excluded fromthe land acquisition proceedings of the first respondent.For petitioners :: Mr.P.Seshadri in WP.10236 of 1998 Mr.K.P.Gopalakrishnan in WP.7110/99 Mr.C.Selvaraju, SC for Mr.P.G.Padmanabhan in WP.9437/2006For respondents :: Mr.A.Arumugam, Spl.G.P.for R1 in all writ petitions Mr.R.Gowthamanarayanan for R2 in WP.Nos.10236 of 1998 & 7110 /1999 Mr.C.Kathiravan for R2 in WP.9437/06COMMON ORDER Since all the three writ petitions challenges the same order ofthe Government in G.O.Ms.No.134, Housing and Urban developmentDepartment, dated 23.4.1998, the writ petitions were heard togetherand a common order is passed.2. Heard the arguments of Mr.C.Selvaraju, learned SeniorCounsel appearing for the petitioner in W.P.No.9437 of 2006;Mr.P.Seshadri, learned counsel appearing for the petitioner inW.P.No.10236 of 1998; Mr.K.P.Gopalakrishnan, learned counselappearing for the petitioner in W.P.No.7110 of 1999; Mr.A.Arumugam,learned Special Government Pleader appearing for the firstrespondent in all the writ petitions; Mr.R.Gowthama Narayanan,learned counsel appearing for the second respondent inW.P.Nos.10236 of 1998 and 7110 of 1999 and Mr.C.Kathiravan, learnedcounsel appearing for the second respondent in W.P.No.9437 of 2006and perused the records. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner in W.P.No.10236 of 1998 was a purchaser ofthe land to an extent of 3.07 acres in S.No.534/2 and 535/1 inThirukachur Village, Chingleput District. Originally, the said landformed part and parcel of a larger extent of land measuring 25.92acres and belonged to three persons, by name, Natarajan, VasanthaNatarajan and Viswanathan. These lands were acquired by the firstrespondent under the Land Acquisition Act, 1894 (hereinafter willbe referred to as 'the Act' for short) for the establishment of"Maraimalainagar New Town" by the second respondent (CMDA). Theacquisition proceedings started in the year 1974. Section 4(1)notification was issued in the year 1974 and draft declaration wasapproved by the Government by G.O.Ms.No.868, Housing and UrbanDevelopment Department, dated 28.8.1982 and it was also publishedin the Government Gazette, dated 05.9.1982. 4. The entire extent of the land comprised of 103.97 acres inThirukachur Village, which formed part of the acquisitionproceedings. Compensation amount was also computed and since theoriginal owners of the land did not challenge the acquisitionproceedings, the award proceedings became final. The petitioners inW.P.No.10236 of 1998 had purchased the land only subsequent to theAward. It transpires that subsequently erstwhile owners sought forexclusion of their lands measuring 41.08 acres, as they were usingthe said land allegedly for agricultural purpose. The Government onthe basis of their representation and on getting a letter from theChief Executive Officer of the second respondent CMDA, directed theexclusion of 25.92 acres, as set out in the annexure to the G.O.,from the acquisition proceedings for Maraimalai Nagar Scheme by itsorder in G.O.Ms.No.497, Housing and Urban Development Department,dated 23.3.1987.5. The District Revenue Officer, Kancheepuram was requested tosend necessary draft withdrawal notification in respect of thelands ordered to be excluded. It transpires from the records thatthere was no such proposal sent by the District Revenue Officer,Kancheepuram and no withdrawal notification was published in theGazette as per law. Strangely on the strength of the exclusion G.O.there were some land transfers by the erstwhile owners and thepetitioner in W.P.No.10236 of 1998 is one such person. 6. The petitioner in W.P.No.7110 of 1999 also claims that hehad purchased the land from the original owner Velu Mudaliar andothers in the year 1983. Similarly, in W.P.No.9437 of 2006, thepetitioner claims to have purchased the said land by a registeredsale deed in the year 1983. 7. But, however, it is admitted by the petitioners in all thethree writ petitions that an Award has been passed and compensationamounts have been deposited. The writ petitioners have not stated https://hcservices.ecourts.gov.in/hcservices/ as to when the petitioners were put in possession of the land. Itis also admitted that the withdrawal decision of the Government interms of G.O.Ms.No.497, Housing & Urban Development Department,dated 22.3.1987 was not completed.8. It is at this stage the second respondent being therequisitioning department wrote to the Government on 21.9.1989objecting to the withdrawal notification as the lands which areclaimed by the original owners are no longer agricultural lands andthey are not fit for cultivation and it is only for the purpose ofurban use, the lands are required. Since the land which is soughtto be excluded will destroy the development activities of thesecond respondent, the Government was requested to drop theproceedings. A resolution was also passed by the second respondent- CMDA on 30.8.1994 requesting the Government to cancel the earlierdecision. In anticipation of the Government's Order, the secondrespondent also passed another resolution, dated 14.3.1997 anddecided to go ahead with the development activities in the land,which was originally acquired.9. In terms of the request made by the second respondent, theState Government issued G.O.Ms.No.134, Housing and UrbanDevelopment Department, dated 23.4.1998 and cancelled the earlierexclusion of the land to an extent of 25.92 acres. In that order,it was stated that out of 35.92 acres, only 16.47 acres werepublished in the Government Gazette as withdrawal notification on11.11.1997. In the balance of 19.45 acres, 5.66 acres have beenalready handed over to the requisitioning authority, namely, CMDA(second respondent). The balance of 13.79 acres was not handed overto them. It is only when remarks were sought for from the DistrictRevenue Officer by the Commissioner for Land Administration, theywere informed that there is no legal objection in cancelling theprovisional exclusion made under Section 48(1) of the Act. TheGovernment was also informed that even if the second respondent -CMDA does not put to use the land as per law, it could be utilisedfor other public purposes.10. In para 3 of the impugned order, the petitioners inW.P.No.10236 of 1998 were clearly told that they are onlysubsequent purchasers and, therefore, they have no locus standi toclaim exclusion as a matter of right. Since the lands wererequired for public purpose for which the original acquisitionproceedings were initiated, it cannot be granted. If thepetitioners want to possess any land, they can purchase developedplots from the second respondent. It is this G.O. which is underchallenge by the petitioners. 11. Mr.C.Selvaraju, learned Senior Counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioners in W.P.No.10236 of 1998, submitted that once there isan exclusion of the lands from the acquisition proceedings in termsof Section 48 of the Land Acquisition Act, there is no scope forcancelling the said G.O. that too, after a period of 11 years fromthe original decision of the Government. In such cases, theGovernment will have to go through the acquisition proceedings. Insupport of the same, he also relied upon an unreported decision ofthis Court in W.P.No.9531 of 1998, dated 26.4.2007 (S.Udayashankarand two others -vs- State of Tamil Nadu and others). In thatdecision, reliance was placed upon the judgment of the Delhi HighCourt reported in AIR 1976 Delhi 166 (Jai Narain -vs- L.A.Collector, New Delhi), wherein it has been held that once theexclusion process under section 48(1) of the Act is completed, thepower of the Government gets exhausted and further any attempt todeal with the said land can only be by way of a fresh acquisitionproceedings. It is also submitted by the learned Senior Counselthat the present land owners (who are the petitioners) have notbeen given any notice before the cancellation was made by theGovernment. 12. The learned Special Government Pleader placed reliance uponthe counter affidavit filed by the first respondent dated 20.2.2003in W.P.No.7110 of 1999. Likewise, the counsel for the secondrespondent also placed reliance upon the counter affidavit filed inthe same writ petition, dated 20.12.2002. In the light of the rivalcontention, it has to be seen whether the impugned order of theGovernment is liable to be set aside on the ground raised by thepetitioners. 13. Since reliance is placed upon Section 48 of the LandAcquisition Act, 1894, the said provision may be usefullyextracted below:"48. Completion of acquisition not compulsory, butcompensation to be awarded when not completed-(1)Except in the case provided for in section 36, theGovernment shall be at liberty to withdraw from theacquisition of any land of which possession has not beentaken.(2) Whenever the Government withdraws from any suchacquisition, the Collector shall determine the amount ofcompensation due for the damage suffered by the owner inconsequence of the notice or of any proceedingsthereunder, and shall pay such amount to the personinterested, together with all costs reasonably incurredby him in the prosecution of the proceedings under thisAct relating to the said land.(3) The provisions ofPart III of this Act shall apply, so far as may be, tothe determination of the compensation payable under this https://hcservices.ecourts.gov.in/hcservices/ section." 14. Though Section 48(1) gives power to the State to withdrawfrom the acquisition proceedings, it does not specify anyparticular procedure for making the exclusion. In the present case,G.O.Ms.No.497, dated 23.3.1987 only expresses the Government'sintention and the said decision is not published in the governmentgazette. Further, the said order itself shows that the DistrictRevenue Officer has been asked to send proposals fordenotification. It is an admitted case that no such proposal hasbeen sent to the Government and no such notification has ever beenpublished in the gazette. But, however, taking advantage of Section48(1) of the Act, the learned counsel pointed out that Section 48(1) does not contemplate any procedure and G.O.Ms.No.497, dated23.3.1987 is sufficient compliance of Section 48(1) of the Act. 15. The Supreme Court in the decision reported in (1998) 4 SCC387 (Larsen & Toubro Ltd. -vs- State of Gujarat) dealt with thescope of Section 48 of the Act. Para 30 from the said judgment maybe quoted:-''30. It was submitted by Mr Salve that Section 48 ofthe Act did not contemplate issue of any notificationand withdrawal from the acquisition could be by ordersimpliciter. He said that Sections 4 and 6 talked ofnotifications being issued under those provisions butthere was no such mandate in Section 48. It was thuscontended that when the statute did not require toissue any notification for withdrawal from theacquisition, reference to Section 21 of the GeneralClauses Act was not correct. Section 21 of the GeneralClauses Act is as under:“21. Power to issue, to include power to add to,amend, vary or rescind, notifications, orders,rules or bye-laws.— Where by any Central Act, orRegulation, a power to issue notifications,orders, rules, or bye-laws is conferred, thenthat power includes a power, exercisable in thelike manner and subject to the like sanction andconditions (if any) to add to, amend, vary orrescind any notifications, orders, rules or bye-laws so issued.”Mr Salve said that Section 21 expressly referred to thepowers being given to issue notifications etc. under anAct or Regulation and under this that power includedpower to withdraw or rescind any notification in asimilar fashion. It was therefore submitted that whenSection 48 did not empower the State Government toissue any notification and it could not be read intothat provision that withdrawal had to be issued by a https://hcservices.ecourts.gov.in/hcservices/ notification. His argument, therefore, appeared to bethat on correct interpretation of Section 21 of theGeneral Clauses Act before reaching the stage ofSection 48, the State Government could withdrawnotifications under Sections 4 and 6 of the Act byissuing notifications withdrawing or rescinding earliernotifications and that would be the end to theacquisition proceedings. We do not think that Mr Salveis quite right in his submissions. When Sections 4 and6 notifications are issued, much has been done towardsthe acquisition process and that process cannot bereversed merely by rescinding those notifications.Rather it is Section 48 under which, after withdrawalfrom acquisition is made, compensation due for anydamage suffered by the owner during the course ofacquisition proceedings is determined and given to him.It is, therefore, implicit that withdrawal fromacquisition has to be notified."(Emphasis added)16. Therefore, it cannot be said that the petitioners, who arethe subsequent purchasers from the original land owners whosuffered acquisition proceedings, cannot contend that there is avalid order of exclusion under Section 48 of the Act. The L & Tcase (cited supra) also came to be referred to and followed by asubsequent pronouncement of the Supreme Court in State GovernmentHouseless Harijan Employees Association -vs- State of Karnataka(AIR 2001 SC 437). In fact, in both the judgments, there is anemphasis that the requisitioning body's consultation is a must. Inthe present case, the requisitioning body, namely, the secondrespondent- CMDA had objected to the withdrawal on the ground thatif the lands are excluded, it may hamper their developmentactivities.17. Apart from that, when questioned as to how the petitionerscame into possession of the said land from the erstwhile owners,especially when the entire acquisition proceedings had been gonethrough and a final Award has been passed much before the purchasemade by the petitioners and the compensation amount had also beendeposited, it was contended by the petitioners that no physicalpossession was taken from the erstwhile land owners. In thedocuments filed by them in the typed set, there is nothing to showthat the original owners were given possession by the revenueauthorities after the Award was published and that the originalowners were continued to be in lawful possession. The petitionerscannot take advantage of the interim order passed by this Court,wherein it is stated that there would be a stay of dispossessionpending the writ petition. That by itself will not recognize thelegal possession by the petitioners. https://hcservices.ecourts.gov.in/hcservices/

18. Even otherwise, the Supreme Court in the case of Tamil NaduHousing Board -vs- A.Viswam, reported in (1996) 8 SCC 259, dealtwith a similar controversy regarding physical possessin being takenby the State. The following passage found in para 9 may be usefullyextracted below: “9. It is settled law by series of judgments of thisCourt that one of the accepted modes of takingpossession of the acquired land is recording of amemorandum of panchnama by the LAO in the presence ofwitnesses signed by him/them and that would constitutetaking possession of the land as it would be impossibleto take physical possession of the acquired land. It iscommon knowledge that in some cases the owner/interestedperson may not cooperate in taking possession of theland.”The abovesaid passage was also quoted with approval in the Larsen &Toubro Limited -vs- State of Gujarat, cited supra.19. As regards the last question whether the petitioners areentitled for any notice before cancellation of the provisionalexclusion made by the impugned order, it must be stated that thepetitioners are neither original owners of the land norbeneficiaries of the exclusion G.O. They are only subsequentpurchasers. Their claim to be in physical possession is against theteeth of the Award passed by the State acquiring the land inquestion. Since either under Section 48 or under any otherprovisions of the Land Acquisition Act, they are eligible for anyexclusion, the question of any notice being given to the subsequentpurchasers or persons, who came into possession subsequently willnot arise. The unreported decision referred to above, relied on bythe learned counsel for the petitioner, does not take note of theauthoritative pronouncements of the Supreme Court in this regardand, thence, it does not help the case of the petitioner in anyway. 20. In the light of the same, all the writ petitions will standdismissed. Consequently, the connected miscellaneous petitions arealso dismissed. However, there will be no order as to costs. Sd/-Asst. Registrar./true copy/ https://hcservices.ecourts.gov.in/hcservices/ Sub Asst. Registrar.jsTo1. The Secretary State of Tamil Nadu Housing and Urban Development Department, Fort St.George, Chennai-600 009.2. The Member Secretary Chennai Metropolitan Development Authority, No.8, Gandhi-Irwin Road, Thalamuthu Natarajan Maligai, Egmore, Chennai-600 008. 3. The Chief Executive Officer, Chennai Metropolitan Development Authority, Egmore, Chennai-8. 3 ccs to Mr.C. Kathiravan, Advocate, Sr. 57904, 57905, 57907'1 cc to Mr.P.g. Padmanabhan, Advocate, SR. 578721 cc to Mr.P. Seshadri, Advocate, SR. 57876 W.P.Nos.10236 of 1998, 7110 of 1999 and 9437 of 2006 and connected WMPs. CK (CO)kk 22/10