High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 09-01-2009 CORAMTHE HONOURABLE MR.S.J.MUKHOPADHAYA,ACTING CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT APPEAL No.2831 OF 2002A.Chellapandi ...Appellant-vs-1.The Special Commissioner & Secretary to Government, State of Tamil Nadu, Education Department, Fort St.George, Chennai-600 009.2.The Land Acquisition Officer & Revenue Divisional Officer, Tirunelveli....Respondents Appeal under Clause 15 of the Letters Patent against theorder dated 24.07.2002 passed in W.P.No.30290 of 2002 filed underArticle 226 of the India, to issue a Writ of Certorarified Mandamuscalling for the records pertaining to the impugned order passed bythe 2nd Respondent bearing No.Na.Ka.A1/1592/92, dated 31.8.2007 andquash the same and direct the Respondents 1 and 2 to exclude the landof the petitioner bearing Survey No.51/2 extended by 3 acres 14 centsand survey No.51/3 extended by 2 acres and 72 cents in KrishnapuramVillage, Palayankottai Taluk, Tirunelveli District.For appellant : Mr.M.Muthusamy, Senior Advocate, for M/s.N.Mariappan.For respondents : Mr.D.Sreenivasan, Addl.Govt.Pleader. https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TV.DHANAPALAN,J.This Writ Appeal is filed against the order dated24.07.2002, passed in W.P.No.30290 of 2002, by a learned single Judge.2. The chronological events, which led to the filing of thisWrit Appeal, are as under :On a request made by the Director, Indian Institute ofGeomagnetism, Bombay, the District Collector, Tirunelveli, proceededto acquire the land to an extent of 13.44 acres, including theappellant's land admeasuring 4.87 acres in Survey Nos.51/2 and 51/3at Krishnapuram Village, Palayamkottai Taluk, for which theGovernment of Tamil Nadu issued Section 4 (1) Notification on25.06.1987 and the same was published in the Tamil Nadu GovernmentGazette on 16.07.1987. Paper publication was given on 05.09.1987 andForm 3-A Notice was given for submission of objections if any, on12.10.1987. On 20.10.1987, objections were filed. On 02.11.1987,Section 5-A enquiry was conducted by the second respondent. On17.02.1988, the second respondent passed orders, excluding the landof the appellant. However, 31.08.1988, Section 6 Declaration waspassed in respect of the land of the appellant also and the same waspublished in the Tamil Nadu Government Gazette on 01.09.1988. On10.08.1989, the appellant filed W.P.No.11417 of 1989, challengingSection 6 Declaration. The said Writ Petition was disposed of on07.09.2000 with a direction to the appellant to make a representationto the Government for deletion of the land in question. Accordingly,on 23.11.2000, the appellant submitted a representation to the secondrespondent. On 31.08.2001, the second respondent passed an order,rejecting the request of the appellant. The said order of the secondrespondent was challenged by the appellant in W.P.No.30290 of 2002,which was dismissed by the learned single Judge on 24.07.2002.Hence, this Writ Appeal. 3. The primary contention of the learned Senior Counsel forthe appellant is that the appellant has no other land except the landin question and, therefore, the said land has to be excluded fromacquisition. However, at the end of his argument, the learned SeniorCounsel made a plea that at least 10 cents of land, wherein thefamily deity of the appellant exists, may be exempted.4. We have heard the learned counsel for the parties andalso gone through the records.5. This Court, by an order dated 27.09.2002, directed the https://hcservices.ecourts.gov.in/hcservices/ Tahsildar, Palayamkottai Taluk, to go go Krishnapuram Village andinspect the lands covered by Survey Nos.51/2 and 51/3 and get thelands surveyed through a Surveyor regarding the exact location of thetemple of the family deity of the appellant and also the appurtenantlands of a dimension of 100 feet surrounding the temple, earmark thesame, fix the peg stones, draw sketch and submit a report to theCourt. Accordingly, the Tahsildar filed a report on 31.10.2002before this Court through the Special Government Pleader.6. In the report submitted by the Tahsildar, it is statedthat the area marked in red in the sketch appended to the report isthe place where the family deity is situated and the area marked ingreen is the area of a dimension of 100 feet, surrounding the temple.7. Now, it is not the case of the appellant that the entireland of 4.87 acres, belonging to him in Survey Nos.51/2 and 51/3 atKrishnapuram Village, Palayamkottai Taluk, be excluded fromacquisition. The only plea of the appellant is that at least the areaof 10 cents, wherein the temple of the family deity of the appellantexists, be excluded from acquisition, as the said deity is beingworshipped from the time of his forefathers.8. It is seen that while the land in question was acquired,the authorities had followed the procedure contemplated under theAct. Section 4 (1) Notification was issued; notice was given forsubmission of objections, if any,; enquiry under Section 5-A wasconducted and then a declaration was passed under Section 6.Therefore, in the absence of any procedural errors in acquiring theland for a public purpose, we find no infirmity with the proceedings.Even on the principle of "eminent domain", in the interest of greaterpublic purpose, the individual interest cannot be against it and theauthorities have every right to take note of the public interest overthe individual interest. The concept of “eminent domain” is anessential attribute of every State. This concept is based on thefundamental principle that the interest and claim of the wholecommunity is always superior to the interest of an individual.Therefore, we are not inclined to interfere with the said acquisitionproceedings.9. However, earlier, on 27.09.2002, there was a directionby this Court to the Tahsildar to inspect the land and get the samesurveyed through a surveyor regarding the exact location of thetemple of the family deity of the appellant, pursuant to which theTahsildar inspected the area and filed a report, indicating the placeof worship. 10. One of the salutary principles to followed by theauthorities, while going in for acquisition of land for a publicpurpose, is that the temple land has to be exempted. The saidprinciple is strengthened by G.O.Ms.No.1630, dated 26.09.1984. https://hcservices.ecourts.gov.in/hcservices/

11. Under the circumstances, while we are not inclined tointerfere with the acquisition proceedings, taking into account thatthe deity is being worshipped from the time of appellant'sforefathers, though the temple in question is of private character,in order to safeguard the religious sentiment of the appellant,direct the respondents to consider the claim of the appellant forexclusion of 10 cents of land alone wherein the family deity of theappellant exists and pass appropriate orders to that effect.12. Writ Appeal stands disposed of with the above direction.No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1.The Special Commissioner & Secretary to Government, State of Tamil Nadu, Education Department, Fort St.George, Chennai-600 009.2.The Land Acquisition Officer & Revenue Divisional Officer, Tirunelveli.1 CC to the Government Pleader, SR NO.10351 CC To Mr.N.Mariappan, Advocate, SR NO.810W.A.No.2831 OF 2002jp(co)pmk/27.1.2009.