High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 07.02.2008Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.77 of 2006T.JayanandanAppellant/Petitionerv.1. The State of Tamil Nadu, represented by its Secretary to Government Adi Dravidar Welfare Department, Ramanathapuram.2. The District Collector, Adi Dravidar Welfare Department, Ramanathapuram.3. Special Tahsildar, Adi Dravidar Welfare Department, Ramanathapuram. Respondents/RespondentWrit Appeal filed under clause 15 of the LettersPatent against the order of the learned single Judge dated28.02.2005 made in writ petition No.1940 of 1998. Petitionerunder Article 226 of the Constitution of India, to issue awrit of mandamus or any other writ or directions in the natureof writ, to forbear respondents from proceeding further inpursuance of the third respondent in Na.Ka.No.A/25695, dated7.1.1997 and in furtherance of Government Gazettenotifications of Ramanathapuram District in Gazette No.8, Page3, dated 17.7.1996 without issuing proper notice and enquiryas contemplated under the Act.For appellant:Mr.S.SundaresanFor Respondents:Mr.Edwin Prabhakar,Government Advocate https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered byK.RAVIRAJA PANDIAN, J.)The appeal filed against the order of the learnedsingle Judge dated 28.02.2005 made in writ petition No.1940 of1998 wherein the relief sought for by the appellant forissuance of writ of mandamus forbearing the respondents fromproceeding further in pursuance of the notice of the thirdrespondent, the Special Tahsildar, Adi Dravidar WelfareDepartment, Ramanathapuram in Na. Ka. No.A/256/95 dated07.01.1997 and in furtherance of Government Gazettenotification of Ramanathapuram district in Gazette No.8 page3, dated 17.07.1996 without issuing proper notice and enquiryas contemplated under the Tamil Nadu Act 31 of 1978, has beenrejected. 2. Before the learned single Judge two contentionshave been raised on behalf of the appellant to sustain therelief of mandamus and against the proceedings initiated bythe respondent to acquire the petitioner's land under theTamil Nadu Acquisition of Land for Harijan Welfare Scheme Act,1978 ('the Act' for short),. The first contention was thatthe objections raised by the appellant to the notice issuedunder section 4(2) of the Act was not properly considered bythe respondents and the other contention was that when theporomboke lands are available very adjacent to the land of theappellant, the authorities should have preferred the porombokeland instead of acquiring the land of the appellant.3. The learned single Judge rejected the writ petitionby pointing out that the appellant has not chosen to challengethe notification under section 4(1) of the Act dated17.07.1996. The relief sought for in the writ petition wasforbearing the respondent from proceeding further pursuant tothe notice dated 07.01.1997 issued under Rule 5(1) of theTamilnadu Acquisition of Land for Harijan Welfare SchemeRules, 1979, which is a notice for determination ofcompensation payable for the land acquired under section 4(1)of the Act. What is required under section 4(2) of the Act isonly a subjective satisfaction of the respondents andordinarily it was not open to the Court to take a scrutiny ofthe propriety of that satisfaction on an objective appraisalof facts. When the Government takes a decision, taking allrelevant consideration into account and issued notificationaccordingly, the same should not be interfered with by theCourt unless the Court comes to the conclusion that theappropriate authority had not applied its mind to the relevantfactors or that the decision has been taken by the appropriateauthority mala fide. Therefore, over-ruling of the objection https://hcservices.ecourts.gov.in/hcservices/ raised by the appellant by itself would not vitiate theproceedings. 4. In respect of the second contention, the learnedsingle Judge also observed that it is a trite law that it isthe absolute discretion of the State to select a particularsite under the power of eminent domain for the provision ofthe house sites to the poor and downtrodden of any community,and neither the owner of the land nor the beneficiaries canhave any say in the matter. 5. The learned Judge also took note of the fact thatthe writ petitioner had not chosen to challenge thenotification under section 4(1) till date and withoutchallenging the said notification which was issued as early as17.07.1996, it might not be proper for the Court to grant therelief as prayed for, as the same would otherwise nullify theproceedings dated 17.07.1996, which had become final. Thatorder of the learned single Judge is put in issue in thisappeal by contending that the provisions of section 4(2) havenot been followed which is mandatory in nature. 6. Learned counsel for the appellant relied on thedecision of a Full Bench of this Court in the case of R.Pariv. The Special Tahsildar, Adi-Dravidar Welfare, Devakottai,2006 (4) CTC 609 to contend that in each and every stage ofthe acquisition proceedings notice has to be issued to theland owner, but no such notice has been issued at any stage ofthe proceedings to the appellant. However, the learnedGovernment Advocate contended that Section 4(2) notice dated06.11.1995 has been served on the appellant for whichobjections have been raised by him. The objections have beenconsidered and over ruled by the authority and subsequent tothe same award has been passed on 16.09.1997. Possession ofthe land has been taken over on 17.09.1997 and thereupon pattahas been issued to 14 beneficiaries on 07.12.1997. Theappellant, without raising his little finger right from 1995to 1997, after the pattas were issued to the beneficiaries andafter the purpose of acquisition has been served, thought itfit to challenge the action of the respondents in the year1998 by filing the writ petition on 31.01.1998, that too, fora mandamus directing the respondent not to proceed furtherpursuant to the notice for determination of compensation. Therelief sought for has become virtually infructuous. Even inthe writ appeal the appellant has not corrected himself aspointed out by the learned single Judge. 7. Heard the learned counsel on either side andperused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/

8. It is trite law that appeal is a continuation of theoriginal proceedings. In the appellate stage, a totallydifferent relief cannot be sought for. Though the learnedcounsel for the appellant has submitted that he filed anapplication to amend the prayer, till date as contended by thelearned Government Pleader, the prayer has not been amended.No such application is available on record. 9. It is an admitted case that the third respondent,the Special Tahsildar issued a notice to the appellant undersection 4(2) of the Act calling upon him to file hisobjections, if any, for the proposal to acquire his land in anextent of 0.22 hectare out of the total extent of 0.97hectare. The appellant appeared and submitted his objectionson 28.11.1985 on which date the enquiry was fixed. Theobjections so raised by the appellant have been considered andover-ruled and the proposal has been submitted to theCollector. Pursuant to the same notification under section 4(1) of the Act has been published on 17.07.1996. So, thefirst contention that the notice under section 4(2) of the Acthas not been served on the appellant is not correct which wasalso not the contention raised before the learned singleJudge. It is an admitted fact that all further proceedingssuch as award was passed on 16.09.1997, the land has beentaken possession on 17.09.1997 and thereupon pattas had beengranted to 14 beneficiaries on 07.12.1997. After the publicpurpose for which the land has been acquired has been dulyserved, the appellant filed the present writ petition on31.01.1998 by contending that no notice whatsoever has beenserved on the appellant, which is factually incorrect. 10. Learned counsel placed reliance on the Full Benchdecision of this Court in the case of R.Pari v. The SpecialTahsildar, Adi Dravidar Welfare, Devakottai, 2006(4) CTC 609to contend that the appellant should be given secondopportunity to put forth his objections to the correctness ofover ruling his objections by the Land Acquisition Officer,before the District Collector. Though such a ground has notbeen taken by the appellant before the learned single Judge,we heard him on the issue.11. From the details stated supra, it is clear thatthe writ petition has become infructuous even when the writpetition was filed. A mandamus in futility cannot be issued.When the respondents are conferred with the power to acquirelands in accordance with the statutory provisions and suchexercise has been carried out by the respondents, the reliefof mandamus against the respondents not to perform thestatutory function cannot be granted. Further, as contended bythe learned Government Advocate, the writ petition filed by https://hcservices.ecourts.gov.in/hcservices/ the appellant cannot be maintained as the same has been filedafter the entire process for which the land has been acquiredwas accomplished. 12. A Division bench of this Court in the case ofRamalingam v. State of T.N. 2005 (3) CTC 1, has held asfollows :"It has been repeatedly held by the SupremeCourt that no writ petition should be entertainedafter the award under the Land Acquisition Act hasbeen passed – vide Tej Kaur and others v. State ofPunjab and others 2003 (4) SCC 485; MunicipalCouncil, Ahmed Nagar v. Shah Hyder Beig, AIR 2000 SC671, Executive Engineer, Jal Nigam Central StoresDivision, Uttar Pradesh v. Suresh Nand Jayal, 1997(9) SCC 224; State of Tamil Nadu v. L.Krishnan andothers 1996 (1) SCC 250. Following the aforesaiddecision, we are of the opinion that the writpetition itself were not maintainable and they shouldhave been dismissed on this ground itself."In the case of S.Harshavardhan v. State of Tamilnadu, 2005 (3)CTC 691, a Division bench of this Court has held as follows :"It has been repeatedly held by the SupremeCourt vide Tej Kaur and others v. State of Punjaband others 2003 (4) SCC 485 that writ petitionchallenging the land acquisition proceedings shouldnot be entertained after the award has been passed.In that case, the award was passed on 15.03.1994whereas the writ petition was filed on 12.04.1994,i.e., after the award was given. Hence, the writpetition was dismissed as belated. Similarly inMunicipal Council, Ahmed Nagar v. Shah Hyder Beig,AIR 2000 SC 671, the Supreme Court observed videparagraph 17 :"In any event, after the award is passed, nowrit petition can be filed challenging theacquisition notice or against any proceedingsthereunder."The Supreme Court also observed in thatdecision that this has been the consistent view of theCourt, e.g., C.Padma and others v. Deputy Secretary tothe Government of Tamil Nadu and others, 1997 (2) SCC627; Municipal Corporation of Greater Bombay v. TheIndustrial Development Investment Co. Ltd., AIR 1997SC 482, etc. Hence, without going into the merits ofthe case, we are of the opinion that the writ petitionwas rightly dismissed on the ground of laches." https://hcservices.ecourts.gov.in/hcservices/

13. Learned counsel for the appellant half-heartedlymade a submission that these judgments relate to the CentralAct and not rendered with reference to the State Act. We areafraid to accept the said contention. The law laid down bythe Supreme Court is the general proposition and it is notpertaining to the Central Act alone. Further, anotherDivision bench of this Court in the case of SoundaravalliAmmal v. Government of Tamil Nadu, 2007 (5) CTC 241, inrespect of the State Act, after referring to the decision inthe case of Ramalingam v. State of T.N. 2005 (3) CTC 1, hasheld that a writ petition filed after passing of the award, isnot maintainable. 14. In Municipal Council, Ahmed Nagar v. Shah HyderBeig, AIR 2000 SC 671 it has been held as follows :"While it is true that this extraordinaryjurisdiction is available to mitigate the sufferingsof the people in general, but it is not out of placeto mention that this extra-ordinary jurisdiction hasbeen conferred on to the law Courts under Article226 of the Constitution on a very sound equitableprinciple. Hence, the equitable doctrine, namely,'delay defeats equity' has its fullest applicationin the matter of grant of relief under Article 226of the Constitution. The discretionary relief can behad provided one has not by his act or conduct givea go-bye to his rights. Equity favours a vigilant,rather than an idolent litigant and this being thebasic tenet of law, the question of grant of anorder as has been passed in the matter as regardsrestoration of possession upon cancellation of thenotification does not and cannot arise." 15. In the case of State of Tamil Nadu v. L.Krishnan, (1996) 1 SCC 250, the Supreme Court has observed asfollows :"40. ................It has been pointed out inAflatoon (1975) 4 SCC 285 that laches of this nature arefatal. The apex Court further held : “...........To have sat on the fence andallowed the Government to complete theacquisition proceedings on the basis that thenotification under Section 4 and the https://hcservices.ecourts.gov.in/hcservices/ declaration under Section 6 were valid and thento attack the notification on grounds whichwere available to them at the time when thenotification was published would be putting apremium on dilatory tactics. The writ petitionsare liable to be dismissed on the ground oflaches and delay on the part of the petitioners(See Tilokchand Motichand v. H.B. Munshi,(1969) 1 SCC 110) and Rabindranath Bose v.Union of India, (1970 (1) SCC 84).From the counter affidavit filed on behalf of theGovernment, it is clear that that the Government haveallotted a large portion of the land after theacquisition proceedings were finalised to co-operativehousing societies. To quash the notification at thisstage would disturb the rights of third parties who arenot before the Court.41. The above observations speak forthemselves – and are fatal to the writ petitioners."The Supreme Court in Executive Engineer, Jal Nigam CentralStores Division v. Suresha Nand Juyal, (1997) 9 SCC 224, hasobserved as follows :"Obviously, after consideration of all theobjections and rejection thereof, declaration underSection 6 was published. As stated earlier, theaward was made and symbolic possession was taken on17-12-1988. Under the circumstances, the land stoodvested in the State free from all encumbrances.After the proceedings had become final, the writpetition came to be filed on 19-5-1989. The merefact that due to lapse of time no action was takenafter the filing of the writ petition, does not giveground for interference. The further fact thatpublic purpose must have been served by constructingthe quarters for the officers elsewhere, is withoutany substance. The mere fact that on account of thepending litigation, no construction was made, is noground to say that notification under Section 4(1)was vitiated by any error of law; equally, increasein the prices of the lands is no ground."In Tej Kaur v. State of Punjab,(2003) 4 SCC 485, the apexCourt held as under :"Moreover, Section 6 declaration was made on 18-3-1992 and the award was passed on 15-3-1994. Theappellants filed the writ petition only on 12-4-1994.In spite of the Section 6 declaration having been https://hcservices.ecourts.gov.in/hcservices/ made on 18-3-1992, the appellants allowed theacquisition proceedings to go on until the award waspassed. This fact clearly indicates that theappellants did not have a genuine grievance againstSection 5-A inquiry held by the Collector. Therefore,we are not inclined to interfere with the judgment onthe grounds now advanced by the appellants." 16. From the above extracts, it is manifestly clearthat the exposition of law made by the apex Court on the pointof laches is not made with respect to the Central Act, thoughsuch enunciation was made while deciding the cases arising outof the Central Act. Hence, the contentions made to thecontrary has to be rejected and is rejected.17. A Division Bench of this Court in the case ofV.Krishnan v. Government of Tamilnadu, 2001 (4) CTC 108, hasheld as follows :"Coming to the case on hand, even though the reliefcould be granted, but because of the delay caused bythe appellant in approaching this Court after a periodof one year from the date of section 8 declaration andtwo years after section 4(1) notification, we arerefraining ourselves from setting aside the landacquisition proceedings-, more so in view of the factthat award has already been passed. While individualinterest has to be taken into consideration,particularly in view of the right of guaranteeenvisaged under Article 300A of the Constitution, itis well settled law that public interest shall alwaysprevail over the individual interest. 18. The above rulings are categorical to the effectthat no writ petition should be entertained after the awardunder the Act is passed. The appeal has to be rejected on theground of latches alone.19. As we have come to the conclusion that theappellant is not entitled to the relief on the ground oflatches, the reliance on the decision of the Full Bench inR.Pari's case cited supra made by the appellant becomesinconsequence. Further, another Division Bench of this Courtin the case of Soundaravalli Ammal, referred to above doubtedthe correctness of the ratio laid down by the Full Bench byobserving, --"In the backdrop, we are of the consideredview that the ratio laid down by the Full Bench of this Court,since runs contrary to the law laid down by the Hon'ble ApexCourt is Ananthi Ammal's case (State of Tamilnadu v. AnanthiAmmal, AIR 1995 SC 2114), does not seem to be good law andneeds reconsideration by a larger Bench", --referred thematter to the larger Bench. https://hcservices.ecourts.gov.in/hcservices/

20. For the foregoing reasons, we are of theconsidered view that the appellant has not made out any casefor interference. The appeal fails and it is accordinglydismissed. No costs. MfSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government The State of Tamil Nadu, Adi Dravidar Welfare Department, Ramanathapuram.2. The District Collector, Adi Dravidar Welfare Department, Ramanathapuram.3. The Special Tahsildar, Adi Dravidar Welfare Department, Ramanathapuram.+ 1 cc to M/s. S. Sundaresan, Advocate SR No. 6114+ 1 cc to the Government Pleader, SR No.6096W.A. No.77 of 2006AVM(CO)SR/19.2.2008