B Lakshmipuram, Gandhi Road,Salem, by its partnerM.Magudeswaran v. 1 State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.2.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.16839 of 2000Shri Ranganathan & Co.Indian Oil Dealers & Contractors,No.4B Lakshmipuram, Gandhi Road,Salem, by its partnerM.Magudeswaran.. Petitioner-vs-1 State of Tamil Nadu rep. by itsSecretary, Housing & UrbanDevelopment Department,Madras-9.2 The Special Tahsildar,Land Acquisition NeighbourhoodScheme, Namakkal, Salem District. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records relating to the Award No.2/88-89 dated31.8.1988 passed by the second respondent, quash the same and todirect the respondent to delete the land situated at 242/3 & 242/4 ofJagir Ammapalayam Village, Salem District measuring an extent of0.16.5 hectares from the acquisition proceedings.For petitioner: Mr.Md.Ibrahim AliFor respondents: Mr.A.Arumugam, Spl.G.P.ORDER The writ petitioner challenges the Award No.2/88-89 dated31.8.1988 passed by the second respondent. After setting aside thesame, he seeks for deletion of the lands situated at S.Nos.242/3 and242/4 of Jagir Ammapalayam Village, Salem District to the extent of0.16.5 hectares from the land acquisition proceedings initiated by therespondents. https://hcservices.ecourts.gov.in/hcservices/

2. It is the stand of the petitioner that the lands werepurchased on 06.12.1980 on the advice of Indian Oil Corporation fortheir expansion facilities and also for parking the long distancecarriage vehicles. Section 4(1) notification under the Central Act1/1894 was issued on 25.5.1985 and the notice under section 5A wasserved on the petitioner. They also filed an objection at the time ofsection 5A enquiry. Section 6 declaration was made on 03.6.1986. 3. A writ petition was filed by the petitioner in W.P.No.5654 of1989 challenging the same. An interim stay was obtained on 25.4.1989.The writ petition came to be dismissed on 03.4.1998 and thereafter itis claimed that they were taking steps to file a writ appeal againstthe said order. But, however, the petitioner claims to know about anaward that was passed on 31.8.1998. Since they were not served withnotice, they got copies of the Award from neighbours. On going throughthe same, they came to know that prior approval was not obtainedbefore passing the Award on 31.8.1998. Therefore, they filed thepresent writ petition after a period of two years. The same wasadmitted on 29.9.2000. Pending the writ petition, an interim stay wasgranted only regarding dispossession and the respondents were givenliberty to proceed with further action.4. On a direction from this court, a detailed counter affidavitdated 10.10.2008 was filed by the second respondent. In the counteraffidavit, it is stated that the petitioner was not a pattadar andtheir name was not found in the revenue records. Even otherwise, theirearlier writ petition being W.P.No.5654 of 19989 was dismissed.Therefore, they are estopped from raising such contentions withreference to the issues which were raised or deemed to have beenraised. It was also stated that the draft award dated 31.8.1988 wassent for approval by the Special Commissioner and Commissioner forLand Administration and the same was approved on 02.9.1988. TheSpecial Tahsildar released the Award after getting such approval.5. In the reply affidavit, though it is claimed that thepetitioner's writ appeal against the original writ petition is pendingat a defective stage with SR.No.75404 of 2000, it is not explained asto why the said appeal has not been brought up for hearing even eightyears after its filing. Therefore it will have to be taken that theearlier order has become final.6. In the reply affidavit, it is stated that as contemplatedunder the proviso to section 11(1), prior approval of the appropriateGovernment was not obtained. But, however, it is admitted that theapproval was obtained from the Government on 02.9.1988. On this groundthe impugned acquisition was sought to be nullified. The petitionerhas two difficulties in assailing the award. https://hcservices.ecourts.gov.in/hcservices/

7. First was that the petitioner did not challenge the saidproceedings within time and waited for two years to come to thiscourt. Therefore, the judgment of the Division Bench of this Court inRamalingam and others -vs- The State of Tamil Nadu and othersreported in 2005 (3) CTC 1 is directly against them. In para 3 of thesaid decision, it is averred as follows:-''Para 3. In these appeals, the facts are that the Awardunder Section 11 of the Land Acquisition Act was given on07.11.1996 whereas the writ petitions were filed on28.11.1996, i.e. after the award was passed. It has beenrepeatedly held by the Supreme Court that no writ petitionshould be entertained after the award under the LandAcquisition Act has been passed -vide Tej Kumar and others-vs- State of Punjab and others 2003 (4) SCC 485; MunicipalCouncil, Ahmed Nagar -vs- Shah Hyder Beig, AIR 2000 SC 671;Executive Engineer, Jal Nigam Central Stores Division, UttarPradesh -vs- Suresh Nand Jayal, 1997 (9) SCC 224; State ofTamil Nadu -vs- L.Krishnan and others 1996 (1) SCC 250.Following the aforesaid decision, we are of the opinion thatthe writ petition itself were not maintainable and theyshould have been dismissed on this ground itself." 8. In any event, with reference to the prior approval by theGovernment, it must be stated that the question whether such alanguage used, namely, ''prior approval'' would amount to themandatory prior approval or even a post-approval can be validly made,came to be considered by the Supreme Court in the context of theReserve Bank of India Act, more particularly, Section 29(1) of thesaid Act. The Supreme Court in Life Insurance Corporation of India-vs- Escorts Limited reported in (1986) 1 SCC 264 considering thedistinction between “special permission” and “general permission”,“previous approval” or “prior approval” in para 63 held that: “We areconscious that the word ‘prior’ or ‘previous’ may be implied if thecontextual situation or the object and design of the legislationdemands it, we find no such compelling circumstances justifyingreading any such implication into Section 29(1) of the Act.”Ordinarily, the difference between approval and permission is that inthe first case the action holds good until it is disapproved, while inthe other case it does not become effective until permission isobtained. But permission subsequently granted may validate theprevious Act. As to the word ‘approval’ in Section 33(2)(b) of theIndustrial Disputes Act, it was stated in Lord Krishna Textiles MillsLtd. v. Workmen reported in AIR 1961 SC 860, that the Management neednot obtain the previous consent before taking any action. Therequirement that the Management must obtain approval was distinguishedfrom the requirement that it must obtain permission, of which mentionis made in Section 33(1). https://hcservices.ecourts.gov.in/hcservices/

9. The said judgment came to be followed in a matter relating toTown Planning Act by the Supreme Court in U.P.Avas Evam VikasParishad and another -vs- Friends Co-op.Housing Society Limited andanother reported in 1995 Supp (3) SCC 456. In paragraphs 5 and 7, ithas been stated as follows:- ''Para 5. It is to be seen that the language employedtherein is that the approval of the State Government isnecessary. Question is whether it would be prior approval orapproval given subsequent to the notification under Section28 or declaration under Section 32 is valid in law. If priorapproval would have been a precondition for further steps,the Act would have said so. This not having been done, itseems to us what is material is to obtain approval of theState Government. The reason appears to be that when theschemes have been framed, the land suitably required foreffective implementation of the scheme alone should beacquired and not in excess in the guise of framing theschemes".''Para 7. It is seen that the approval envisaged underException (iii) of Section 59(1)(a), is to enable theParishad to proceed further in implementation of the schemeframed by the Board. Until approval is given by theGovernment, the Board may not effectively implement thescheme. Nevertheless, once the approval is given, all theprevious acts done or actions taken in anticipation of theapproval get validated and the publications made under theAct thereby become valid." (Emphasis Added)10. In the light of the above, the only objection raised by thepetitioner cannot be accepted as in fact in the present case there hasbeen an approval granted by the Government. Hence, the writ petitionstands dismissed. There will be no order as to costs.Js Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary, Housing & UrbanDevelopment Department,Madras-9.2.The Special Tahsildar,Land Acquisition NeighbourhoodScheme, Namakkal, Salem District. LA(CO)TES (16/02/2009) W.P.No.16839 of 2000