The State of Tamilnadu v. P.Lingan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.06.2008CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANW.A.Nos.1511 & 1512 of 20071. The State of Tamilnadu rep.by its Secretary to Government Housing and Urban Development Department Fort St.George Chennai 600 0092. The Special Tahsildar Land Acquisition-II Tamil Nadu Housing Board Scheme NandanamAppellants in Chennai 600 035..both the W.As.-Vs-P.Lingan..Respondent inW.A.No.1511/07A.Murugan..Respondent inW.A.No.1512/07Appeals filed under Clause 15 of the Letters Patent, againstthe order dated 25.08.2005 made in W.P.Nos.24170 & 24171 of 2005. W.P.Nos.24170 of 2005:_ Petition filed under Article 226 of theConstitution of India praying for issuance of a writ ofcertiorariied mandamus, calling for the records relating tot heissue of the notification under section 4(1) of the LandAcquisition Act made under G.O.Ms.No.286 Housing dated 15.5.1978and published in the Gazette on 7.6.1978 and section 6 declarationmade in G.O.Ms.No.389 Housing and Urban Development dated 6.6.81published in the Gazette on 6.6.1981 in so far as the petitionersland is concerned comprised in survey No.233/5A measuring in extent6104 sq.ft. situated at No.106, Mudichur road, Tambaram, quash thesame and consequently directing the respondents to reconvey theland of the petitioner situated in survey No.233/5A. measuring inextent of 6104 sq.ft at No.106 Mudichur Road, Tambaram within suchtime as may be fixed by this Court. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.24171/05:- Writ Petition filed under Article 226 of theConstitution of India praying for issuance of a writ ofcertiorariied mandamus, calling for the records relating to theissue of the notification under section 4(1) of the LandAcquisition Act made under G.O.Ms.No.286 Housing dated 15.5.1978and published in the Gazette on 7.6.1978 and section 6 declarationmade in G.O.Ms.No.389 Housing and Urban Development dated 6.6.81published in the Gazette on 6.6.1981 in so far as the petitionersland is concerned comprised in survey No.245 measuring in extent5434 sq.ft. situated at No.166, New No.106, Lakshmipuram, Tambaram,quash the same and consequently directing the respondents toreconvey the land of the petitioner situated in survey No.245measuring in extent of 5434 Sq.ft situated at Old No.166 New No.166Lakshmipuram, Tambaram within such time as may be fixed by thisCourt.For Appellants::Mr.M.DhandapaniSpecial Govt. Pleaderfor first appellantMr.K.Chelladurai forsecond appellantFor Respondents/::Mr.A.Kumaraguru CaveatorsJUDGMENT(Judgment of the Court was delivered by S.J.MUKHOPADHAYA, J.)Both the appeals have been preferred by the State of TamilNadu against the common order dated 25th August, 2005 passed by thelearned single Judge in W.P.Nos.24170 and 24171 of 2005. By theimpugned order, the learned single Judge, without discussing thecase on merits, giving reference to another case, allowed the writpetitions and set aside the Section 4(1) notification issued inG.O.Ms.No.826, Housing and Urban Development and the Section 6declaration issued in G.O.Ms.No.389, Housing and Urban Developmentof the Land Acquisition Act.2. The aforesaid fact will be evident from the order passed bythe learned single Judge, as quoted hereunder:-"Learned Senior Counsel appearing for thepetitioners as well as the learned Government Advocateagree that in an identical set of facts, this Court inrespect of the very same Notification and SurveyNumber, filed by one Seetharatnam in W.P.No.18304 of1997 dated 13.7.2000, granted the relief and pursuantto the same, the Government also by its proceedingsdated 31.8.1998 complied with the order by directingthe Metropolitan authorities to issue No ObjectionCertificate and the same order can be passed in thesewrit petitions also. https://hcservices.ecourts.gov.in/hcservices/

2. In view of the judgment of the Division Bench,which has been followed in W.P.No.15639 of 1990 dated28.10.1998, the writ petitions are allowed in so faras it relates to the land of the petitioners areconcerned. The respondents are hereby directed toproceed further and pass appropriate orders ingranting No Objection Certificate. No costs."3. Learned counsel appearing on behalf of the appellantssubmitted that the notification under Section 4(1) was issued on 7thJune, 1978 and the declaration under Section 6 was made on 6th June,1981. Subsequently, Award No.12/86 was passed on 14th August, 1986and possession was taken and handed over to the Tamil Nadu HousingBoard on 21st October, 1986. The writ petitions were filed by thesubsequent purchasers, who purchased the land in 2004, much afterthe award was passed.4. On the other hand, the learned counsel appearing on behalfof the respondents/writ petitioners referred to a judgment of thisCourt in V.Parimala v. State of Tamil Nadu, 1991 Writ L.R. 29. Itis submitted that the same notifications were under challenge andthe Division Bench taking into consideration the fact that thenotices were sent to the land owners and enquiry under Section 5-Aof the Act was conducted after a long delay, the notifications inquestion were set aside.5. We have heard learned counsel for the parties and noticedtheir rival contentions.6. It has not been disputed by the respondents/writpetitioners that they are the subsequent pruchasers. Theypurchased the land in 2004, i.e., after about 18 years from award.By that time, the Housing Board had taken possession of the land inquestion. So far as the case of V.Parimala is concerned, we findthat that was a case of subsequent purchaser who purchased the landin 1981, i.e., much prior to the award and objection was raised atproper stage. In the circumstances, the case of the petitionerscannot be compared with the case of V.Parimala (supra) or thejudgment as referred to by the learned single Judge in the impugnedorder.7. The question whether a writ petition after long delay andpassing of award should be entertained against the land acquisitionproceeding fell for consideration before a Division Bench of thisCourt in S.Harshavardhan v. State of Tamil Nadu, 2005 (3) CTC 691.Taking into consideration the judgments of the Supreme Court, theCourt held that the writ petition challenging the land acquisitionproceedings should not be entertained after the award had beenpassed.8. In a recent case, when similar issue came up forconsideration before the Supreme Court in Swaika Properties (P)Ltd., v. State of Rajasthan, (2008) 4 SCC 695, the Supreme Courtheld that the writ petition filed after passing of award deserves https://hcservices.ecourts.gov.in/hcservices/ to be dismissed without going into the merits of the case. Thewrit petitioners can be said to have waived by their own inactiontheir objections to the acquisition on the ground of extinction ofpublic purpose. The Court further held that such a writ petitiondeserves to be dismissed on the ground of delay and laches.9. In view of the Division Bench decision of this Court andthe Supreme Court decision as referred to above and the fact thatthe learned single Judge, without discussion of the case of therespondents/writ petitioners, passed a mechanical order, there isno other option, but to set aside the order impugned in the writappeals. The impugned order dated 25.8.2005 passed inW.P.Nos.24170 and 24171 of 2005 is accordingly set aside. Both thewrit appeals are allowed, but there shall be no order as to costs.Consequently, M.P.Nos.3 & 4 of 2007 are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssTo1. The Secretary to Government of Tamil Nadu Housing and Urban Development Department Fort St.George Chennai 600 0092. The Special Tahsildar Land Acquisition-II Tamil Nadu Housing Board Scheme Nandanam Chennai 600 0351 cc to Mr.A. Kumaraguru, Advocate, Sr. 327631 cc to Mr. Chelladurai, Advocate, Sr. 328021 cc to Government Pleader, sr. 33398W.A.Nos.1511 & 1512 of 2007GV (CO)kk 8/7