Madras High Court
R. Pappammal And Ors. vs The Government Of Tamil Nadu And Anr. on 28 October, 1991
Equivalent citations: (1992)1MLJ450
ORDER Bakthavatsalam, J.
1. Both the writ petitions are filed against the orders of the Government refusing to restore the lands of the petitioners from acquisition proceedings of the Housing Board.
2. Certain lands were acquired for the purpose of the Tamil Nadu Housing Board and two bits of lands are the subject matter of these writ petitions, one is in S.No.2/1 A and another in S.No.2/10 etc. in Alagapuram Village, Salem District.
3. Both the petitioners challenged the acquisition proceedings itself and failed. The petitioner in W.P.No.6078 of 1991 challenged the acquisition proceedings in W.P. No. 3675 of 1981 and it was dismissed by a learned single Judge of this Court on 19.1.1984 and the said order was affirmed by a Division Bench in W.A.No.822 of 1985 on 30.9.1985. A special leave petition met with the same fate and it was dismissed by the Supreme Court on 9.11.1987.
4. The petitioners in W.P. No. 1508 of 1991 filed W.P. No. 7490 of 1982 and it was dismissed by S. Ramalingam, J. on 29.3.1990 and the said order was affirmed by a Division Bench in W.A. No. 621 of 1990 on 5.7.1990.
5. Obviously when one of the writ petitioner failed in the Supreme Court, the petitioners made representations to the Government to exclude their lands from acquisition. This was not acceded to by the Government and as such the petitioners are before me questioning the orders of the Government refusing to exclude their lands.
6. Mr. R. Krishnamurlhi, learned Senior Counsel, mainly contended that certain lands under the same classification were excluded by the Government and there is no reason why the petitioners should be treated differently. According to the learned Senior Counsel, it offends Article 14 of the Constitution. The learned Senior Counsel further submits that S. Ramalingam, J. dismissed a similar writ petition (W.P.No.15093 of 1990) with regard to the same acquisition proceedings, and when a review petition was filed, it was allowed by the learned single Judge on 27.2.1991 and as such this Court could follow the order of S. Ramalingam, J. in reviewing the order in W.P. No. 15093 of 1990. The main contention raised is that since in similar circumstances S. Ramalingam, J. allowed W.P.No.15093 of 1990 on a review on the very same facts, these impugned orders are also to be set aside, as it offends Article 14 of the Constitution. When certain lands were excluded from acquisition proceedings, the learned Senior counsel asks, Why not these lands which are the subject matter of these writ petitions could not be excluded from acquisition proceedings.
7. Notice of motion was ordered by me in these writ petitions on 7.2.1991 and 19.4.1991 respectively. The learned Government Advocate for Housing appears before me and makes submissions on instructions, though no counter-affidavit has been filed on behalf of the State. It is slated on instructions by the learned Government Advocate appearing for the State that the petitioners' lands are classified as Government dry lands and the lands are essentially required to implement the scheme and as such they were not excluded from acquisition. According to the learned Government Advocate appearing for the State that the lands which were excluded are wet lands and that it is not the case here. The learned Government Advocate appearing for the State further submitted that the land is acquired for the larger interest of the Public and the right of the petitioner cannot look large and if at all, the petitioners are entitled to compensation with solatium as provided under the Act. The learned Government Advocate submitted that all proceedings are over and the petitioners are dodging the acquisition proceedings of the Tamil Nadu Housing Board for construction of houses, for which the notification has been made as early as 1978, by approaching this Court repeatedly by filing writ petitions. According to the learned Government Advocate there is no violation of Article 14 of the Constitution of India.
8. I have considered the arguments of Mr. R. Krishnamurthi, learned senior counsel for the petitioners, and of Ms. Kalaiselvi, Government Advocate appearing for the State. It is well-settled that the power of eminent domain is the power of the State and this Court should be very slow in interfering in such matters. It is also well-settled that the selection of sites is in the discretion of the Government and this Court cannot sit over appeal against the selection of sites. The acquisition of lands was upheld even upto the apex court of the land, at least in one of the writ petitions. Just because certain other lands are excluded from acquisition, the petitioners have come to the court with these petitions as the State denied exclusion of their lands from acquisition. I do not think that this can be a subject matter of a writ petition based under Article 14 of the Constitution of India. Section 48 of the Land Acquisition Act enables the State to withdraw proceedings of acquisition in respect of certain lands. The Supreme Court has held that in a case of withdrawal of proceedings by the State Government, that order of withdrawal need not be backed by reasons and no opportunity is to be given to the owner of the land. If the Government is reluctant to go ahead with the acquisition proceedings in respect of certain lands on certain genuine difficulties, it cannot be blamed and the State cannot be compelled to take over the land and that it can release the land from acquisition. It is will settled that the State can exercise its power under Section 48 of the Land Acquisition Act unilaterally. As such, it cannot be said that by not withdrawing the land of the petitioners, Article 14 of the Constitution of India is affected. In State of Punjab v. Gurdial Singh A.I.R. 1980 S.C. 319, the Supreme Court has held that court cannot interfere unless choice is made with oblique ends or is otherwise void. Only when the acquisition is made with ulterior motive, it is mala fide. The Supreme Court has observed at page 321 as follows:
First, what are the facts? A grain market was the public purpose for which Government wanted land to be acquired. Perfectly valid. Which land was to be taken? This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31(then). The court is handcuffed in this jurisdiction and cannot raised its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court look-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.
As such, I am of the view that it cannot be said that there is any violation of Article 14 of the Constitution of India in this case.
9. The learned Senior Counsel heavily relied on the decision in Vishnudas Hundumal v. State of M.P. . That was a case which arose under the Motor Vehicle Act. On a Special leave petition, when it was contended that certain existing operators allowed to operate on overlapping portions of notified routes while the petitioners were denied such facility, the Supreme Court directed that petitioners also to be given similar facility. It is seen that the Special secretary in that case was not furnished with full information about all the valid permits in force at the relevant time and this resulted in gross discrimination between the transport operators in the same class and holding that this is the discrimination between persons in the same class, the order was made by the Supreme Court. I do not think that this decision will apply to the facts of this case. The power of eminent domain is the power of the State. Since it was found that the acquisition proceedings are not vitiated. Surely this, Court cannot compel the Government to release certain lands from acquisition. In my view, it is the prerogative right of the State to order what type of land which has to be retained and what type of land to be released considering the contingency. Equally the other decision in Devi Match Factory v. Superintendent of Central Excise, Sattur 1983 E.L.T. 99 (Mad.) under the Central Excises and Salt Act, 1944, relied on by the learned Senior Counsel is not applicable to the facts of this case. In that case, two classes of manufacturers were taxed differently and it was held that there is violation of Article 14 of the Constitution. I do not think that both these decisions are relevant for the facts on hand.
10. Apart from that, it is interesting to note that with regard to the same acquisition, S. Ramalingam, J. dismissed the Writ Petition W.P. No. 7490 of 1982 on 29.3.1990 and the said order was affirmed in W.A.No.621 of 1990 on 5.7.1990. The learned Judge has however thought fit enough to review his order in another similar writ petition, W.P.No.15093 of 1990. Originally dismissing it and on review, allowing the writ petition. A copy of the order of review has been produced before me. Probably the review order has been made, as the learned Government Advocate on instructions informed the learned Judge that in the land proposed to be acquired, there are coconut and palmyrah trees, that it is a wet land and that there is a well and house. As such, the facts of the case in W.P. No. l5093 of l990 are entirely different and it has been reviewed by S. Ramalingam, J. in Review W.M.P. No. 27042 of 1996 on 27.2.1991.
11. The learned Senior Counsel has produced before me a plan showing the lands proposed to be acquired the village Alagapuram Pudur for Neighbourhood Scheme, in which the portions which were excluded and retained were marked. A look at the plan showing the lands of the petitioner are in the area which has been retained by the State. The lands of the petitioner are registered as "dry" in the revenue records as staled by the learned Government Advocate on instructions. It is seen that the petitioner's lands covered in other writ petitions are registered as "wet" lands and not fit for construction of houses, and as such, I do not see any reason that the order is vitiated. I am in entire agreement with the learned Government Advocate that the land is not wet land and that it is suitable only for construction of houses. I am of the view that the Government has taken a proper decision and it cannot be said that the Government has applied a different yardstick with regard to the petitioner's lands alone in not releasing them.
12. Apart from that, nobody, has got a right to come before this Court for withdrawal of the acquisition under Section 48 of the Land Acquisition Act. The power of withdrawal under the Act is given to the Government only under Section 48 of the Land Acquisition Act. I do not think that any person has a right to come to the court and ask for a writ of mandamus to withdraw from acquisition a piece of land under Section 48 of the Act. When such is the case, I do not see any reason to interfere with the order in question. The writ petition are dismissed.