N.Sundararajan v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17-3-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.Nos.47767 of 2006, 23199 and 23205 of 2007and connected miscellaneous petitions......N.Sundararajan... Petitioner in WP.No.47767 of 2006V.K.Rajaasekaran... Petitioner in WP.No.23199 of 2007K.Gunasekaran... Petitioner in WP.No.23205 of 2007vs.1.Government of Tamil Nadu rep. By its Secretary Local Administration Fort St.George, Chennai 9.2.The District Collector Vellore District, Vellore.3.The Commissioner Vellore Municipality, Vellore.4.The Sub-Registrar Registration Department Vellore.... Respondents in all the WPs.Writ petitions filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamus andCertiorari as stated therein.WP 47767/06: Writ of Certiorari calling for the records of thethird respondent in his letter No. Ka. No. 8292/96/F1, dated26.7.02 quash the same. https://hcservices.ecourts.gov.in/hcservices/ WP.23199/07: writ of Certiorarified Mandamus calling for therecords from the file of 1st respondent in respect of G.O.No.503dated 28.10.99 and quash the same and grant such other relief asdeems to this court under the circumstances of the case. WP. 23205/07: Writ of Certiorarified Mandamus calling for therecords from the file of 1st Respondent in respect of G.O.No.503dated 28.10.99 and quash the same. For petitioners: Mr. V.KarthikeyanFor respondents : Mr. L.S.M.Hasan Fizal Government Advocate for R.1,R.2 & R.4 Mr. K.R.Thamizhmani for R.3COMMON ORDERWrit Petition No.47767 of 2006, is filed by the petitionertherein challenging the letter of the third respondent,Commissioner, Municipal Administration, Vellore Municipality dated26.07.2002, under which the said third respondent has informed theSub-Registrar, Vellore, who is the 4th respondent that he should notregister any document including the General Power of Attorney,Will, Sale deed, etc. in respect of lands in Vadavellore Nagaram,comprised in Survey Nos.175, 178, 195/1A, 202/1, 191/1, 190/1,199/1 and 15/1 in Ward No.I, Block No.2, since the DistrictCollector, Vellore has directed to send proposal for acquisition ofthe above said lands on private negotiation. 2. The other two writ petitions, viz., WP.Nos.23205 and 23199of 2007 are filed by the respective petitioners challenging theGovernment Order in G.O.(D).No.503 dated 28.10.1999, under whichthe Government having considered that it is necessary to have a newbus stand at Vellore, permitted the District Collector to call forproposal for acquisition of 9.75 acres by private negotiation,permitting to purchase 8.75 acres of land belonging to VelloreDistrict Consumer Co.operative Society at the market rate, anddirected the sale consideration to be paid without interest to theSociety by the Municipality in three year instalments and alsopermitted the District Collector to transfer 0.77 acres of land ofVellore Municipality, which was categorised as canal poramboke andfurther directed that after starting of the new bus stand, the oldbus stand shall be used as local bus stop.3. The petitioner in W.P.No.47767 of 2006 is the owner of thelands comprised in Town Survey Nos.158, 172, 173, 175, 178 and195/1A to the extent of 8.07 acres. According to the petitioner,the Collector, Vellore District, the Commissioner, VelloreMunicipality and the Sub-Registrar, Vellore have approached him in1998 in respect of take-over of the said lands for the formation ofnew bus stand. The case of the petitioner is that the second andthird respondents have also approached the other land owners fortaking over such lands by negotiation without resorting toacquisition as per the Land Acquisition Act. The petitioner has https://hcservices.ecourts.gov.in/hcservices/ agreed to give the lands in S.Nos.175 and 175-A and given consenton condition that he should be given compensation in accordancewith the guideline value and also on condition that his other landsshould not be disturbed. That consent was given, since it was forpublic purpose. The Municipal Administration has passedresolutions on 28.04.1999 and 15.07.1999, accepting the termsexpressed by the petitioner, however, the Government andCommissioner of Municipal Administration have not taken any stepsto take over the lands or to acquire the same under LandAcquisition Act. The petitioner has sent many letters includinglawyer's notice dated 03.12.2000, to give effect to his consent.However, the second respondent by letter dated 05.09.2001, hasstated that taking over of the lands by private negotiation is notpossible and also informed that there is a proposal to acquire thelands under the Land Acquisition Act. Even thereafter nothing wasdone. In the meantime, by the impugned order, the third respondenthas directed the 4th respondent not to register any document inrespect of the properties including that of the petitionercomprised in Survey Nos.175, 175-A and 178.4. Likewise, the petitioner in W.P.No.23199 of 2007 is theowner of the land to the extent of 0.57 cents in T.S.No.188/1 andT.S.No.190/1 having inherited through the Will dated 30.10.1998executed by his mother Kamalammal, who died on 30.05.2003. Thesaid lands were not acquired by the Government, but the DistrictCollector in his letter dated 12.11.1999 stated that the Governmentof Tamil Nadu has accorded administrative sanction for setting upof new bus stand in Vellore District Consumer Co.operativeWholesale Stores Ltd., and also acquiring the private properties.When the petitioner intended to transfer the property and appliedfor no objection certificate from Vellore Municipal Commissioner,the same has been refused on the basis that the petitioner'sproperty is situated next to the bus stand and the refusal is onthe basis of the impugned Government Order.5. Likewise, the petitioner in W.P.No.23205 of 2007 has alsoclaimed other portion of the same property as claimed by thepetitioner in W.P.No.23199 of 2007, on the basis of the Will of hismother dated 20.10.1969 and also the registered power of attorneydated 10.10.1998, empowering the petitioner to transact theproperty. His mother died on 30.05.2003. In this case also whenthe petitioner has approached for no objection certificate, thesame was refused on the ground that it is likely to be acquired asper the impugned Government Order by private negotiation.6. The conduct of the respondents in proposing to acquire thelands for creation of new bus stand at Vellore by privatenegotiation either under the Government Order or under the impugnedorder of the third respondent is questioned on various groundsincluding that the said order is illegal and without jurisdiction,apart from the legal ground that the third respondent, viz.,Commissioner, Municipal Administration, Vellore has no authority toissue such communication to the Sub-Registrar, Vellore, not toregister the documents and that the right of the petitioners to getcompensation as per the acquisition proceedings is taken away by https://hcservices.ecourts.gov.in/hcservices/ the present method, which is not approved to be a due process oflaw.7. The learned Government Advocate on instructions wouldsubmit that the proposal for starting a new bus stand is stilllying with the local planning authority and therefore, according tohim, it is not as if there is no proposal at all for starting a newbus stand, which is of imminent necessity for the said area. Thequestions to be considered in these cases are as to whether therespondents have any right at all in proceeding with privatenegotiation without resorting to due process of law for acquisitionof land and whether the Sub-Registrar can be informed by anyauthority not to register any document in respect of the lands onthe basis that those lands are likely to be acquired for thepurpose of starting a bus stand and that acquisition will becompleted by private negotiation. Mr.K.R.Thamizhmani, learnedcounsel appearing for the 3rd respondent has also reiterated hisstand as submitted by the learned counsel for respondents 1,2 and4.8. On the facts and circumstances of the case, even though itis the submission made by the learned Government Advocate appearingfor the respondents that the proposal of starting a new bus standis still in existence, it is clear that no concrete decision hasbeen taken so far and in such circumstances, there can be noimpediment on the part of the owners of any property to transferthe same under registered documents in accordance with law. 9. In a similar circumstance, in respect of VelloreMunicipality itself, when owners of property had applied forplanning permission, the same was denied on the ground that therewas a proposal for extension of bus stand and in suchcircumstances, in the writ petitions filed by the owners, viz.,WP.Nos.21043 to 21045 of 2006 (S.Elangovan and others vs. TheCommissioner, Vellore Municipality, Vellore), by judgment dated10.10.2006, Prabha Sridevan,J. has held that mere pendency ofproposal is not a ground for refusal of planning permission and theGovernment at any time can exercise its powers of acquisition inaccordance with law if the same is required for pubic purposes.The relevant portion of the said order is as follows:"7. In these circumstances, the writ petitions aredisposed of as follows:The possibility that in the distant future, theState may undertake to extend the Bus Stand, cannot be aground for refusing the planning permission. If after,several years, the properties of the petitioners aresought to be acquired, the Government may exercise itspower under the Acquisition Proceedings and if the sameis done in accordance with law, there is nothing torestrain the Government from acquiring any land, forpublic purposes. On that ground, today, if theapplication of the petitioners are rejected, then thepetitioners' right to property is violated. Thepetitioners shall resubmit their applications forplanning permission within seven days from the date ofreceipt of a copy of this order. The respondent is https://hcservices.ecourts.gov.in/hcservices/ therefore directed to consider the petitioners planningpermission and pass orders within 30 days from the dateof receipt of the applications. If, according to therespondent, some of the development planning rules havebeen violated, the respondent shall specify the samethereafter and if possible, the petitioners can submit arevised plan in conformity with the rule that therespondent cites. If the respondent does not pass orderswithin 30 days from the date of receipt of a copy of thisorder, then, the petitioners will be entitled to proceedwith the work in accordance with the provisions of 202(2)of the Act."10. In yet another circumstance, when the Government passedG.O.Ms.No.241 Housing and Urban Development (UD-III-1) Departmentdated 19.09.2003, by which the State Government with an intentionto develop an "administrative city" in the outskirts of Chennai toput up a Secretariat Complex, directed that no land transactionshould be allowed in these villages, viz., Thiruvidhandhai group ofvillages and the local bodies should not grant any planning orbuilding permission for development and the Government Agenciesshould not take any developmental activities and the Collectorshould not assign any poramboke lands, that was challenged by wayof writ petitions before this Court.11. That was a batch of writ petitions in W.P.No.23318 of 2005etc. (P.Raharyaiah vs. State of Tamil Nadu and others), whereinthe challenge against the said Government Order was made on thebasis that when the issue relating to registration of documents andconveyance is governed by the provisions of Indian Stamp Act andIndian Registration Act and the grant of planning permission isgoverned by the Town and Country Planning Act, the impugnedGovernment Order cannot be passed in exercise of the powers underArticle 162 of the Constitution of India. Applying the ratio laiddown by the Division Bench of this Court in S.Arunachalam andothers vs. State of Tamil Nadu rep. By its Commissioner andSecretary, Local Administration and Water Supply Department, Madras9 and others – 1997 (1) CTC 129, wherein the Division Bench hasclearly held that when the provisions of the said law are alreadycovered by the statutes passed by the legislature, the executivepower under Article 162 of the Constitution of India is notavailable in respect of those matters which are covered bylegislation, and also referring to the earliest judgement of theSupreme Court in Ram Jaaway vs. State of Punjab (AIR 1955 SC 549),wherein the scope of executive power under Article 162 of theConstitution of India was clearly discussed, the learned Judge(F.M.Ibrahim Kalifulla,J.) has held that the Government Ordercannot be said to be one passed in exercise of powers under Article162 of the Constitution of India.12. Likewise, in State of Rajasthan and others vs. BasantNahata (2005 (12) SCC 77), the vires of Section 22-A of theRegistration Act,1908, wherein the State Government was authorisedby notification to declare registration of any document or clauseof document is opposed to public policy, was dealt with. In that https://hcservices.ecourts.gov.in/hcservices/ case, based on the power conferred under Section 22-A of the Act,the State of Rajasthan has issued various notifications puttingrestrictions on the power of registration of various documents,including power of attorney on the ground that it is opposed topublic policy. The Supreme Court while declaring the said Section22-A as ultra vires, has held that various documents, for instance,the power of attorney are governed by the Contract Act and Power ofAttorney Act,1882 and if any power of attorney is executed underthe said Act, the same is valid in law and subject to theprovisions of the Act, is not compulsorily registrable. Holdingthat there is a presumption in favour of a statute as to itsconstitutionality, the Supreme Court dismissed the appeal filed bythe State of Rajasthan and held as follows:"67. For the reasons aforementioned, we do not find anymerit in this appeal which is dismissed accordingly. Nocosts.68. So far as amendments made by other States areconcerned, we are of the opinion that any order passed bya Sub-Registrar or Registrar refusing to register adocument pursuant to any notification issued underSection 22-A of the Act would not be reopened."13. In T.Vijayalakshmi and others vs. Town Planning Membersand another (2006 (8) SCC 502), while considering the KarnatakaTown and Country Planning Act,1961, under which the appellantsbefore the Supreme Court, who are the owners of agricultural landshave filed applications for approval of building plans before theBangalore Development Authority, which were rejected in terms ofletter dated 15.06.2005 on the premise that the properties fallwithin "valley zone in the proposed comprehensive plan", theSupreme Court held that unless and until appropriate amendment ismade in the legislation, any such letter cannot be a ground forrejecting the plan submitted. The relevant portion of thejudgement is as follows:"13. ....... Whether the amendments to the saidcomprehensive development plan as proposed by theAuthority would ultimately be accepted by the State ornot is uncertain. It is yet to apply its mind.Amendments to a development plan must conform to theprovisions of the Act. As notice hereinbefore, the Statehas called for objection from the citizens. Ecologicalbalance no doubt is required to be maintained and thecourts while interpreting a statute should bestow seriousconsideration in this behalf, but ecological aspects, itis trite, are ordinarily a part of the town planninglegislation. If in the legislation itself or in thestatute governing the field, ecological aspects have notbeen taken into consideration keeping in view the futureneed, the State and the Authority must take the blametherefor. We must assume that these aspects of thematter were taken into consideration by the Authority andthe State. But the rights of the parties cannot beintermeddled with so long as an appropriate amendment in https://hcservices.ecourts.gov.in/hcservices/ the legislation is not brought into force."14. Applying the ratio laid down in all the above said cases,there is no difficulty to come to the conclusion that on the factsand circumstances of the present case, as on date when there is noaction taken by the Government under the Land Acquisition Act foracquiring the lands for the purpose of creation of a new bus stand,the right under the Indian Registration Act as well as the IndianStamp Act, which are comprehensive and which enable the owners ofthe property to transfer the same by various documents by way ofregistering the same in accordance with law, cannot be taken awayby the impugned order directing the registering authority not toregister documents. There is absolutely no provision either underthe Indian Registration Act or Indian Stamp Act for the purpose ofprohibiting registration in respect of the lands on the ground thatthere is a proposal to acquire the land in future and theGovernment is negotiating for the same.15. It is also relevant to point out that even if suchacquisition of the lands is really intended for the public purpose,it is not as if the Government cannot resort to the due process oflaw for acquiring the same for public purposes. Unless and untilsuch powers are exercised by the Government in the manner known tolaw, the impugned Government Order as well as the communication ofthe Commissioner of Municipal Administration, restraining theregistering authority from registering documents in respect ofvarious lands is a clear breach of the legal provisions, takingaway the valuable rights of owners of the lands in transferring thesame under various documents. In view of the same, the impugnedorder of the third respondent in W.P.No.47767 of 2006 dated26.07.2002, is set aside and the said writ petition stands allowed.16. The portion of the impugned G.O.Ms.No.503 MunicipalAdministration dated 28.10.1999, viz., in so far as it relates tothe permission given by the District Collector to acquire theprivate lands to the extent of 9.75 acres by private negotiation isalso set aside without detriment to the Government's power ofacquisition of such lands for public purpose in accordance withlaw. Accordingly, WP.Nos.23199 and 23205 of 2007 are ordered. There will be no order as to costs in all the above cases.Connected miscellaneous petitions are closed.sd/-Asst.Registrar/true copy/Sub Asst.Registrarkh https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary Government of Tamil Nadu Local Administration Fort St.George, Chennai 9.2.The Director Collector Vellore District, Vellore.3.The Commissioner Vellore Municipality, Vellore.4.The Sub-Registrar Registration Department Vellore.+1 cc To Mr.V.Karthikeyan, Advocate, SR.14517+1 cc To Mr.K.R.Tamizhmani, Advocate, SR.14518+1 cc To Mr.R.Margabandhu, Advocate, SR.15499 W.P.Nos.47767/06, 23199 & 23205 of 2007nm [co]gkg/26.3