A. Dhanalakshmi v. The State of Tamill Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :30.06.2009CORAMTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUW.P.Nos.9860 to 9862 of 1998A.Dhanalakshmi.. Petitioner in W.P.No.9860/1998K.Ganesa Mudaliar .. Petitioner in W.P.No.9861/1998E.Selvam .. Petitioner in W.P.No.9862/1998-vs-1.The State of Tamill Nadu rep. by its Secretary to Government Revenue Department, Secretariat CHENNAI 600 009.2.The Special Tahsildar (Land Acquisition) Master Plan Complex (Unit I) Tiruvellore... Respondents in all the W.Ps.Writ petitions are filed under Article 226 of the Constitutionof India for issuance of Writ of Certiorari to call for the entirerecords relating to the impugned proceedings of the first respondentin his impugned 4(i) Notification made in G.O.Ms.No.495, RevenueDepartment, dated 12.6.1998 and the another 4(i) Notification made inG.O.Ms.No.496 Revenue Department dated 12.6.1998 and also theDeclaration made under section 6 made in G.O.MS.NO.538 RevenueDepartment dated 23.6.1998 and another declaration made undersection-6 in G.O.Ms.No. 539 Revenue Department dated 23.6.1998, andquash the said impugned proceedings of the first respondent dated12.6.1998 and 23.6.1998 and 23.6.1998 respectively. For Petitioners:Mr.M.Venkatachalapathy,Sr.Counsel for Mr.M.SriramFor Respondents: Mr.S.Siva Shanmugam, G.A.-R1 & R2 *********** C O M M O N O R D E RSince common issues are involved in all these Writ Petitions,they were heard together and they were disposed of by means of thiscommon order. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner in W.P.No.9860 of 1998 is the owner of thelands comprised in Survey Nos. 241/1; 241/2; 241/3; 242/1; 242/2;242/3; 242/4; 250/1; 263/2; 265/2; 278/1 and 278/4. Similarly, thepetitioner in W.P.No.9861 of 1998 is the owner of the lands comprisedin Survey Nos.261/1A; 282/3; 240/2, 264/2, 264/3; 264/4; 265/1, 266,268/4 and 275 and the petitioner in W.P.No.9862 of 1998 is the ownerof the lands comprised in Survey No.242/6 of Perumbakkam Village,Tiruvallur Taluk and district.3.For the purpose of constructing Collector's Office andother buildings for Revenue Administration for Tiruvallore District,the Government issued G.O.Ms.No.495 Revenue dated 12.6.1998,directing the District Collector to issue Notification under section4(1) of the Land Acquisition Act to acquire these lands by dispensingwith enquiry provided under section 5-A of the Land Acquisition Act.The said G.O. is under challenge in all these Writ Petition.4.It is contended by the petitioners that to invoke theemergency provision contained in Rule 17(4) of the Act, there was nomaterial available before the Government to conclude that there wasurgency to acquire the land by dispensing with the summary enquiryunder section 5A of the Land Acquisition Act. 5.The learned Senior counsel appearing for the petitionerswould take me through the admitted facts and finally relied on theJudgment of the Supreme Court in UNIION OF INDIA AND OTHERS Vs.KRISHNAN LAL ARNEJA AND OTHERS reported in (2004) 8 SCC 453, whereinthe Hon'ble Supreme Court has held that urgency for invoking theprovision under section 17 of the Act should be one arising naturallyout of circumstances which exist when the decision to acquire theland is taken and not such, which is the result of serious lapse orgross delay on the part of acquiring authority. It has been furtherheld in the said Judgment that failure to take timely action foracquisition by the authorities of the Union of India cannot be aground to invoke the urgency clause to the serious detriment of theright of the land owner to raise objections to the acquisition undersection 5-A of the Act. The learned Senior counsel would thereforesubmit that in this case, there was no need for invoking the urgencyclause under section 17(4) and so the G.O. is liable to be set aside,directing the District Collector to hold an appropriate enquiry asprovided under section 5-A of the Act. 6.The learned Government Advocate would stoutly oppose theWrit Petitions. A detailed counter has also been filed by the firstrespondent, wherein it is stated that the District of Tiruvallore wasformed under G.O.3(D) No. 31 Revenue Department dated 25.7.1996 andthe District started functioning with effect from 1.1.1997.Thereafter, the Government constituted a Committee under G.O.(3D)No.40 Revenue Department dated 14.10.1996 for preparing a Master Plan https://hcservices.ecourts.gov.in/hcservices/ for construction of Collector's Office and other Offices. TheCommittee submitted its report in the month of February 1997.Thereafter, the Government accorded administrative sanction underG.O.Ms.No.450 Revenue Department dated 14.5.1997. On that basisproposals were sent to the Government on 22.7.1997 and 23.7.1997 bythe Collector for acquisition of lands. Based on the same, theGovernment issued the G.O. impugned in these Writ Petitions on12.6.1998. In respect of urgency necessitating the dispensing withof enquiry under section 5A of the Act, it is stated in paragraph No.11 (B) and (C) as follows: "11(B)In this instant case, the lands are acquiredfor the construction of Collectorate and for other Officeand residential Quarters who are playing vital role for thebenefits of the inhabitants of the entire Districts. So,in order to fulfill the imminent needs of the newly formedDistricts and the aspirations of the public situation andthe circumstances have warranted the invocation of section17(4) of the Act by the Government.(C)The formation of a new District is a policydecision of the Government, it takes various process. TheGovernment have decided to acquire the lands under theurgency provisions only to quick on the construction ofbuildings of the Collector and other offices for bonafidepublic purpose only and not making any disadvantages to anycitizen as stated by the petitioner. The petitioner hasfailed to think that the acquisition is for theconstruction of Collectorate and other offices which arefunctioning only for the general public. It is not correctto say that the Government has taken a hasty decision inordering the acquisition under urgency provisions. TheGovernment have formed the New District in G.O.3(D) No.31,dated 25.7.96 and in G.O.3(D) No.40 dated 14.10.96, theGovernment have constituted a Master Plan Complex Committeefor seven newly formed Districts. The said Committee afterinspection, survey and consultation has submitted a reportduring February 1997 for Acquisition of Lands. On 14.5.97,the Government have accorded administrative sanction totake up the land acquisition proceedings. Subsequently,based on the representation of concerned newly formedDistrict Collectors and materials, the Special Commissionerand Commissioner of Land Administration on 26.5.97 hasrecommended to Government for its prior sanction to invokeurgency clause for acquisition. After carefulconsideration only, the Government on 26.6.97 has givenpermission to invoke urgency provisions to initiateAcquisition proceedings. Since no adequate waste extent ofGovernment Porambokke land is available in other areas, the https://hcservices.ecourts.gov.in/hcservices/ Government have also issued orders for invoking urgencyprovisions accordingly. Hence, there is no delay in takingaction to acquire the lands under urgency provisions."7.I have considered the rival submissions.8.Before going into the facts of the case, let me firstanalyse the law on the subject. In OM PRAKASH AND ANOTHER V. STATEOF U.P. AND OTHERS reported in (1998) 6 SCC 1, the Hon'ble SupremeCourt while interpreting Section 17(4) of the Land Acquisition Act,has held as follows:"21."according to the aforesaid decision, inquiryunder S.5A is not merely statutory but also has a favour offundamental rights under Arts. 14 and 19 of theConstitution though right to property has no longerremained a fundamental right, at least observationregarding Art.14 vis-a-vis S.5-A of the Land AcquisitionAct would remain apposite." 9.Subsequently, the Hon'ble Supreme Court in UNIION OF INDIAAND OTHERS Vs. KRISHNAN LAL ARNEJA AND OTHERS reported in (2004) 8SCC 453 has held in paragraph No.31, as follows:"31. In the present appeals, the appellants have notbeen able to show before the High Court any genuinesubjective satisfaction depending upon any relevantmaterial available to the State authorities at the timewhen they issued the impugned Notification under S.4(1) ofthe Act and dispensed with S.5-A inquiry taking aid ofS.17(4) of the Act. A Bench of three learned Judges ofthis Court in Narian Govind Gavate and others v. State ofMaharashtra and others, [(1997) 1 SCC 133)] has expressedthat S.17(4) cannot be read in isolation from Ss.4(1) and5-A of the Act and has expressed that having regard to thepossible objections that may be taken by the land ownerschallenging the public purpose, normally there will belittle difficulty in completing inquiries under S.5-A ofthe Act very expeditiously. In the same judgment, it isalso stated that "the mind of the Officer or authorityconcerned has to be applied to the question whether thereis an urgency of such a nature that even the summaryproceedings under S.5-A of the Act should be eliminated.It is not just the existence of an urgency but the need todispense with an inquiry under S.5-A which has to beconsidered.""Urgency" for invoking the provision under section 17of the Act should be one arising naturally out ofcircumstances which exist when the decision to acquire the https://hcservices.ecourts.gov.in/hcservices/ land is taken and not such, which is the result of seriouslapse or gross delay on the part of acquiring authority.It has been further held i the said Judgment that failureto take timely action for acquisition by the authoritiesof the Union of India cannot be a ground to invoke theurgency clause to the serious detriment of the right ofthe land owner to raise objections to the acquisitionunder section 5-A of the Act. The learned Senior counselwould therefore submit that in this case the invoking ofurgency clause under section 17(4) is not at all requiredand so the G.O. is liable to be set aside, directing theDistrict Collector to hold an appropriate enquiry asprovided under section 5-A. "10.A close scrutiny of the above two Judgments would make oneto understand that it is not a mere urgency to acquire the lands forthe public purpose but an urgency which is of so grave in naturenecessitating to dispense with enquiry under section 5-A of the Actshould be existing so as to invoke the emergency provision containedunder section 17(4) of the Act. Unless such an emergency isavailable, as held by the Hon'ble Supreme Court, the right of theowner of the land to make his representation under section 5A of theAct cannot be dispensed with. 11.Applying the law laid down by the Hon'ble Supreme Court, ifthe facts of the present case are looked into, the TiruvalloreDistrict started functioning from 1.1.1997 and even before that,Master Plan Complex Committee was formed on 14.10.1996 and it hadsubmitted its report in the month of February 1997. The impugnedG.O., came to be issued only in the month of January 1998 i.e. nearlyafter one year and 10 months. This itself would show that there wasno real urgency so as to dispense with the enquiry under section 5-Aof the Act in terms of section 17(4) of the Act. Above all, in theseWrit Petitions, the impugned G.O. was stayed by an interim orderdated 20.12.2002. But, so far the respondents have not taken anysteps seeking to vacate the said order. The interim order has beenin force for about seven years and as a result, the possession of thelands in question has not been taken. Had it been the existence ofreal urgency in terms of Section 17(4) of the Act, I am sure, therespondents would not have allowed this much of delay. Having regardto all these facts, as held by the Hon'ble Supreme Court in theinstant case, I find no such grave urgency in issuing the GovernmentOrder for dispensing with the enquiry under section 5A of the Act. 12.Thus, I hold that the impugned Government Order directingthe District Collector to acquire the land by dispensing with theenquiry under section 5A of the Act is set aside. Accordingly, theabove Writ Petitions are allowed. But it does not mean that theGovernment cannot proceed further under law. What is now emphasised https://hcservices.ecourts.gov.in/hcservices/ is that the District Collector is required to issue notice to thepetitioners, receive their objections, hold appropriate enquiry undersection 5(A) of the Act and then to proceed further in accordancewith law. If the Government is satisfied that the lands are stillrequired for publicpurpose on the basis of the report of the DistrictCollector, the Government may issue appropriate orders in accordancewith law. In any view of the matter, the above exercise shall becompleted within three months from the date of receipt of a copy ofthis order. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar rpaTo1.The Secretary to Government State of Tamill Nadu Revenue Department, Secretariat CHENNAI 600 009.2.The Special Tahsildar (Land Acquisition) Master Plan Complex (Unit I) Tiruvellore.3.The District Collector, Tiruvellore District. 1 cc To The Government Pleader, SR.27676 3 ccs To Mr.M.Sriram, Advocate, SR.27515W.P.Nos.9860 to 9862 of 1998KA(CO)SRA(17/7/2009)