Madras High Court
M/S. Mahindra World City Developers ... vs State Of Tamil Nadu on 4 March, 2014
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, K.K.Sasidharan
In the High Court of Judicature at Madras Dated: 04.03.2014 Coram: The Honourable Mr.Justice SATISH K. AGNIHOTRI, Acting Chief Justice AND The Honourable Mr.Justice K.K.SASIDHARAN W.A.No.564 of 2010 & W.P.Nos.20492 of 2009, 1031 of 2012 and 1385 of 2012 & Connected M.Ps. M/s. Mahindra World City Developers Limited (formerly known as Madhindra Indutrial Park Ltd.) a Company registered under the Companies Act having Registered Officer at Mahindra Towers 17/18, Pattulos Road Chennai-600 002. .. Appellant in W.A.No.564 of 2010 & Petitioner in all the W.Ps vs. State of Tamil Nadu rep. by its Secretary to Government Industries Department Fort St. George Chennai-600 009. The District Collector Kancheepuram District Kancheepuram. The Special Tahsildar (Land Acquisition) Mahindra Industrial Park Scheme Melamaiyur ... Respondents 1 to 3 in Chengalpattu. Writ appeal and writ petitions Shree Shetty Sadan Kumar Shetty Rytik Shetty .. Respondents 4 to 6 in W.A.No.564 of 2010 and W.P.No.1385 of 2012 Hotel Pallava Park rep. by its Managing Partner Mr. M. Ravi No.54, G.S.T. Road Chettipunniyam Village Chengalpattu. R. Arivudainambi R. Gnaneswaramoorthy M. Ravi M. Ravisekar M. Ravikumar K. Chandran ... Respondents 4 to 10 in W.P.No.20492 of 2009 and 1031 of 2012 Prayer in W.A.No.564 of 2010 : Writ Appeal is filed under Clause 15 of the Letters Patent against the order dated 29 January 2010 in W.P.No.20424 of 2009. Prayer in W.P.Nos.20492 of 2009 : Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the first respondent relating to the proceedings in G.O.Ms.No.88, Industries (MIE-1) Department dated 30 July 2009, quash the same insofar as the lands in Survey No.405/1B2B measuring an extent of 1.67 acres are concerned and consequently direct the respondents 1 to 3 to continue the land acquisition proceedings. Prayer in W.P.No.1031 of 2012: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the first respondent relating to the proceedings in G.O.Ms.No.88, Industries (MIE-1) Department dated 30 July 2009, published in the Tamil Nadu Government Gazette No.II(2) IND/360/2010 dated 16 June 2010 and quash the same insofar as the lands in Survey No.405/1B2B measuring an extent of 1.67 acres are concerned and consequently direct the respondents 1 to 3 to continue the land acquisition proceedings. Prayer in W.P.No.1385 of 2012: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the first respondent relating to the proceedings in G.O.Ms.No.88, Industries (MIE-1) Department dated 30 July 2009, published in the Tamil Nadu Government Gazette No.II(2) IND/360/2010 dated 16 June 2010 and quash the same insofar as the lands in Survey No.405/3, 4 and 5 is concerned and consequently direct the respondents 1 to 3 to continue the land acquisition proceedings. W.P.No.564 of 2010 and W.P.No.1385 of 2012: Mr.G.Masilamani : For Appellant in W.A.No.564/2010 Senior Counsel and for Petitioner in W.P.No. for Mr.R. Bharath Kumar 1385 of 2012 Mr.P.S.Shivashanmughasundaram : For Respondents 1 to 3 Spl. Govt. Pleader Mr. R.Krishnamurty Senior Counsel for Mr.P. Kumaresan : For Respondents 4 to 6 W.P.Nos.20492 of 2009 and 1031 of 2012 Mr.P.S.Shivashanmughasundaram : For Respondents 1 to 3 Spl. Govt. Pleader Mr. R. Subramanian : For Respondents 4,5 and 7 to 10 in W.P.No.1031 of 2012 For Respondents 4 to 6 and 8 to 10 in W.P.No.20492 of 2009 No appearance : For Respondent No.6 in W.P.No.1031 of 2012 & Respondent No.7 in W.P.No.20492 of 2009 -------- COMMON JUDGMENT
SATISH K. AGNIHOTRI, ACJ AND K.K.SASIDHARAN, J The writ appeal and the writ petitions are at the instance of Mahindra World City Developers Limited and the challenge is primarily to the order passed by the Government in G.O.Ms.No.88, Industries (MIE 1) Department dated 30 July 2009 dropping the land in Survey Nos.405/1B2, 405/3, 405/4 and 405/5 in Chettipunniyam Village, Chengalpattu Taluk, Kancheepuram District from the acquisition proceedings at the instance of the land owners.
Writ Appeal No.564 of 2010:
2. The appellant is a Company registered under the Companies Act. The Company has been established, pursuant to the initiative taken by the Government of Tamil Nadu with the object of promoting an Industrial Park in the State. The appellant established an Industrial Park in an area of about 1400 acres on the east of National Highway 45 near Chengalpattu in the District of Kancheepuram. The main approach road to the Industrial Park had to be developed from NH-45 towards eastwards through the lands in Survey No.405 of Chettipunniyam Village and the lands of the Forest Department in Thirutheri Reserve Forest and more particularly in Survey No.108/1 of Thirutheri Village. The land in Survey No.405 situated at the entry point of the Industrial Park was included in the Master plan prepared for the project launched by the appellant. The lands owned by respondents 4 to 6 are situated adjacent to the Industrial Park. The appellant obtained permission from the Forest Department to use the forest land, after giving alternative land. The appellant wanted the land in Survey No.405 of Chettipunniam Village to connect the Industrial Park with the National Highway. The appellant made a proposal before the Government of Tamil Nadu to acquire the land in Survey No.405. The Government accorded permission for acquiring the land.
3. The Government issued a notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") in G.O.Ms.No.676, Industries (MID-I) Department, dated 1 September, 1999 in respect of the land in Survey Nos. 405/1A2 (Part), 405/1B2 (Part), 405/3, 405/4 and 405/5 measuring a total extent of 2.02.5 hectares situated at Chettipunniyam Village, Chengalpattu Taluk. The notification indicates that the land was acquired for Mahindra Industrial Park Limited for setting up an Auto Ancilliary Industrial Park. The Government followed the statutory requirements resulting in issuing a declaration under Section 6 of the Land Acquisition Act in G.O.Ms.No.334, Industries (MD-1) Department dated 20 September 2000.
4. While so, respondents 4 to 6 challenged the land acquisition proceedings in W.P.Nos.18114 to 18116 of 2000. The Government opposed the writ petition by filing counter affidavit indicating that the land is required for a larger purpose. The writ petitions were allowed by order dated 31 August 2001 quashing the Government Order in G.O.Ms.No.334 dated 20 September 2000 issued under Section 6 of the Act. However, liberty was granted to the Government to proceed afresh from the stage of enquiry under Section 5-A of the Act.
5. While the land acquisition proceedings were pending, the Government enacted the Tamil Nadu acquisition of Land for Industrial Purposes Act, 1997, (hereinafter referred to as "Industrial Purposes Act") which came into force on 21 September 2001. The Government issued an order in G.O.Ms.150, Industries (MIE-2) Department dated 30 November 2006 under Section 3(1) of the Industrial Purposes Act for acquiring 2.02.5 hectares of patta lands in Survey No.405/3,4 and 5 etc., in Chettipunniyam Village for setting up an Auto Ancilliary Industrial Park by the Mahindra World City Developers Ltd. In view of the notification under Section 3 (1) of the Industrial Purposes Act, the land sought to be acquired absolutely vests with the Government free from all encumbrances. The third respondent thereafter issued an order dated 5 February 2007 under Section 4(2) of the Industrial Purposes Act directing the land owners to surrender possession of the acquired land within 30 days. The land owners immediately filed writ petitions before this Court in W.P.Nos.6010 to 6012 and 7761 to 7763of 2007 challenging the land acquisition proceedings and obtained stay of dispossession.
6. During the currency of the writ petitions, the land owners have approached the Government seeking exemption of land from acquisition proceedings. Thereafter, without issuing notice to the appellant, the Government issued an order in G.O.Ms.No.88, Industries (MIE-I) Department dated 30 July 2009, dropping the land in Survey Nos.405/3, 4 and 5 and 405/1B2B situated at Chettipunniyam Village from the land acquisition proceedings subject to the condition of withdrawal of writ petitions by the land owners. The Government Order in G.O.Ms.No.88, Industries (MIE-I) Department dated 30 July 2009 was challenged by the appellant in W.P.No.20424 of 2009.
7. The learned Single Judge found that the appellant wanted the subject land only as a buffer before entering the approach road. However, they have already developed 150 feet road. According to the learned Judge, if exemption is granted for the land in question, the project floated by the appellant would not be affected. The learned Single Judge was of the view that there was no need to issue notice to the appellant before dropping the land from acquisition. Accordingly, the writ petition was dismissed. Feeling aggrieved by the said order, the appellant has come up with this intra-court appeal.
W.P.Nos.20492 of 2009, 1031 and 1385 of 2012
8. The Government Order in G.O.Ms.No.88, Industries (MIE-I) Department dated 30 July 2009 is again challenged in these writ petitions by the appellant with respect to the land in Survey No.405/1B2B (W.P.No.20492 of 2009 & 1031 of 2012) and Survey Nos.405/3,4 and 5 (W.P.No.1385 of 2012).
Submissions:
9. The learned Senior Counsel for the appellant made the following submissions:
(i) The Government acquired the subject land at the instance of the appellant. The counter affidavit filed by the Government in all the earlier writ petitions contain a clear statement that these lands are absolutely necessary for the approach road in question. However, by giving a go by to all such statements, the Government have dropped the land from acquisition without even issuing notice to the appellant.
(ii) The order in G.O.Ms.No.88, Industries (MIE-I) Department, dated 30 July 2009 is liable to be quashed on the ground of violation of the principles of natural justice.
(iii) The appellant has already deposited the entire amount required for payment to the land owners. Such being the case, the Government should have issued notice to the appellant while considering the application submitted by the land owners for exclusion of land from acquisition.
(iv) The Government have issued notification under Section 3(1) of the Industrial Purposes Act followed by a notification under Section 4(1) of the said Act. The notice under Section 3(1) of the Industrial Purposes Act was published in the Tamil Nadu Government Gazette. The land therefore would vest with the Government free from all encumbrances. Once it is made out that the land vests with the Government by virtue of notification issued under Section 3(1), it is not possible to drop the land from acquisition at a subsequent point of time.
(v) The Government have stated in the impugned Government Order in G.O.Ms.No.88, Industries (MIE-I) Department dated 30 July 2009 that in case exemption is given, the project plan will not be affected. The Government is not the authority to decide as to whether the project plan will be affected by exempting the land from acquisition. It is only the appellant, who has to say whether they still require the land for the project in question.
(vi) The Government have committed mischief by showing altogether a different survey number in the impugned Government Order. The acquired land is situated in Survey No.405. However, the impugned notification shows that there was a sub division and the present survey number is 405/1B2A. The Government have also given a wrong description of the property to make it appear as if the excluded land is situated on the east of the National Highways.
(vii) The land acquisition proceedings commenced as early as on 1 September 1999 and it was kept pending on account of various litigations initiated by the land owners. It was only subsequently the Tamil Nadu acquisition of Land for Industrial Purposes Act,1997 was enacted. The land acquisition proceedings continued thereafter. Such being the case, the Government was not correct in giving exemption to the land from acquisition. The petitioner in W.P.Nos.20492 of 2009, 1031 of 2012 and 1385 of 2012 are all subsequent purchasers. The purchases were all made after issuing the notification under Section 3(1) of the Industrial Purposes Act. This aspect was not considered by the learned Single Judge.
10. The learned Senior counsel appearing for respondents 1 to 3 in both the writ appeal and writ petitions made the following submissions:
(i) The appellant has developed the Industrial Park and the residential project. The subject land is absolutely not necessary for the project in question.
(ii) The land owners have purchased the property for developing a farm. They have no other land. The Government considered this aspect and rightly exempted the land from acquisition.
11. The learned counsel for the other land owners made similar submissions on the merits of the matter.
Factual Analysis:
12. The appellant, who is also the petitioner in all these writ petitions (hereinafter referred to as "appellant") established an Industrial Park in Thirutheri Reserve Forest at Chettipunniyam Village. The appellant wanted the land in Survey Nos. 405/1A2 (Part), 405/1B2 (Part), 405/3, 405/4 and 405/5 measuring a total extent of 2.02.5 hectares in Chettipunniyam Village, Chengalpattu Taluk for the project in question. The Government entered into an agreement with the appellant and issued a notification under Section 4(1) of the Land Acquisition Act on 1 September 1999. The related Government Order in G.O.Ms.No.676, Industries (MID-I) Department, dated 1 September, 1999 was published in the Government Gazette. The Land Acquisition Officer thereafter conducted enquiry under Section 5 of the Land Acquisition Act. The declaration under Section 6 was made on 20 September 2000. The Land Acquisition proceedings were challenged by the private respondents in W.P.Nos.18114 to 18116 of 2000. The Additional Secretary to Government, Department of Industries, filed a detailed counter affidavit in the writ petitions opposing the prayer made by the land owners. The Government have made it clear that the subject land is situated at the crucial place of the proposed project. The Government have stated that the land was essentially required for the project of the appellant and more particularly for formation of main approach road as well as for setting up administrative and other facilities. The said submission was reiterated by the Government in all the related pleadings before the writ court.
13. The writ petitions were allowed by the learned Judge by order dated 31 August 2001 on the ground that Section 5-A enquiry was not conducted properly. It is a matter of record that by then, the Government enacted the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997. The Government issued an order in G.O.Ms.No.89, Industries (MID-2) Department, dated 6 December 2004 under Section 23(2) of the Industrial Purposes Act. Thereafter the Government issued a notification under sub-section (2) of Section 3 of the Tamil Nadu Act 10 of 1999 acquiring the land for public purpose. The appellant has deposited the entire amount payable to the land owners, pursuant to the request made by the Land Acquisition Officer. The notification under sub-section (1) of Section 3 was published on 3 January 2007. It is also a matter of record that notice under Section 4(1) of the Act was issued thereafter followed by another notification under sub-section (2) of Section 4 of the Act for taking possession.
14. The appellant has taken up a contention that the possession of the property has already been taken over by the Government under the provisions of the Industrial Purposes Act. However, the said fact is disputed by the land owners. There are no documents before this Court to arrive at a clear finding as to whether the Government have taken possession of the property.
15. The core issue that arises for consideration is whether the Government was having primary materials to arrive at a satisfaction as to whether the land in question is necessary for the project in question.
16. The land in Survey No.405/1B2A having an extent of 1.67 acres is the subject matter of writ petition Nos.20492 of 2009 and 1031 of 2012. The appellant has contended that the Government have taken possession of the land. The land in Survey Nos.405/3, 405/4 and 405/5 are the subject matter in W.A.No.564 of 2010 and W.P.No.1385 of 2012.
17. There is no dispute that under ordinary circumstances, the requisitioning department has no right to take part in the land acquisition proceedings. Section 48 of the Land Acquisition Act, 1894 permits the Government to withdraw from acquisition, of any land, of which possession has not been taken. There is a statutory vesting of property with the Government under Section 3(1) of the Industrial Purposes Act. Section 4 (1) of the Industrial Purposes Act says that when a notice under sub-section (1) of Section 3 is published in the Government Gazette, the land to which the said notice relates shall, on and from the date of such publication, vest absolutely in Government free from all encumbrances. Proviso to Section 4 of the Industrial Purposes Act provides that it is open to the Government to withdraw the land from acquisition in case actual possession of such land is not taken. However, the Government should arrive at a finding that the land is no more required for the purpose of the Act. Therefore, the word "no more required" assume significance. There should be materials before the Government to arrive at a satisfaction that the acquired land is no more required for the purpose of Act.
18. "Industrial Purpose" is defined under Section 2(e) of the Industrial Purposes Act. It is an inclusive definition. It reads thus:
""Industrial Purpose" includes the starting of a new industry, expansion of an existing industry, the development of an industrial area and establishment and management of an industrial estate."
19. The order passed by the Government withdrawing the lands from acquisition should be considered in the light of the proviso to Section 4(1) of the Industrial Purposes Act. The Government have simply stated that if exemption is given, the project plan will not be affected, since there is already an approach road to the developer and the land in question are surrounded by Reserve Forest.
20. The reason given by the Government for granting exemption to the land should also be tested in the light of the earlier stand taken by the Government. When the land owners have filed writ petitions, challenging the land acquisition, the Government have opposed the prayer to quash the acquisition. The material contention taken by the Government in the counter affidavit with regard to the requirement of land is re-produced below:
"13. .......... It is submitted that the extent of land was determined after considering the necessity based on convenience and suitability of the lands for formation of the park and that no excess land is acquired. The project, as already pointed out, requires nearly an extent of 1400 acres of which about 800 acres are covered under the acquisition and the remaining lands were purchased by the requisitioning body by private negotiation. The said extent included the lands of the writ petitioners also, which are situated at a crucial place of the proposed project. These lands are very essential for the Industrial Park for forming the main approach road to the Park as well as for setting up administrative and other facilities. It is absolutely baseless to contend that the lands of the petitioner are not necessary for the project.
..................
15 (J) ........ The lands of the petitioners are located in a crucial place and they are essentially required for the project of the 4th respondent company for the formation of the main approach road to have easy access to the project area and for providing administrative and other facilities required for the project......................."
21. The Government having taken up such a contention regarding the bona fide requirement of the land in question, should have given reasons atleast in a brief manner as to how they have arrived at a satisfaction that the land is no more required for the purpose. Since the acquisition in question was initiated at the instance of the appellant way back on 1 September 1999 and thereafter by issuing notification under Section 4(1) of the Industrial Purposes Act, necessarily, notice should have been given to the appellant to state its views as to whether the land is still necessary for the project. The appellant is the best person to say as to whether the land is no more required for the purpose of the Act. It is true that the provision gives authority to the Government to decide as to whether the land is any more required for the purposes of the Act. The Government cannot decide this issue without any material. It is only in the said context, the question of notice to the appellant would assume significance. The Government is not bound to accept the views expressed by the appellant, in case there are materials to suggest that the land is no more necessary for the purpose for which it was acquired. However, that is not the case here. The Government took unilateral action to withdraw the land from acquisition on receipt of representation from land owners.
` 22. The Government followed the procedure prescribed under part VII of the Land Acquisition Act and issued the notification acquiring the land in question. The subsequent acquisition under the Industrial Purposes Act was only a continuation of the earlier acquisition in view of Section 23(1) of the Tamil Nadu Act 10 of 1999. Since the appellant would be the affected party in case the land is withdrawn from acquisition, notice should have been given before issuing the impugned Government Order.
The precedent:
23. The Supreme Court in Larsen & Toubro Ltd. v. State of Gujarat, (1998) 4 SCC 387, observed that in case the acquisition was for the purpose of a Company, before withdrawing the land from acquisition, notice should be given to the Company.
"31. Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been taken. An owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. Rights of the owner are well protected by sub-section (2) of Section 48 of the Act and if he suffered any damage in consequence of the acquisition proceedings, he is to be compensated and sub-section (3) of Section 48 provides as to how such compensation is to be determined. There is, therefore, no difficulty when it is the owner whose land is withdrawn from acquisition is concerned. However, in the case of a company, opportunity has to be given to it to show cause against any order which the State Government proposes to make withdrawing from the acquisition. Reasons for this are not far to seek. After notification under Section 4 is issued, when it appears to the State Government that the land in any locality is needed for a company, any person interested in such land which has been notified can file objections under Section 5-A(1) of the Act. Such objections are to be made to the Collector in writing and who after giving the objector an opportunity of being heard and after hearing of such objections and after making such further enquiry, if any, as the Collector thinks necessary, is to make a report to the State Government for its decision. Then the decision of the State Government on the objections is final. Before the applicability of other provisions in the process of acquisition, in the case of a company, previous consent of the State Government is required under Section 39 of the Act nor (sic) unless the company shall have executed the agreement as provided in Section 41 of the Act. Before giving such consent, Section 40 contemplates a previous enquiry. Then compliance with Rules 3 and 4 of the Land Acquisition (Company) Rules, 1963 is mandatorily required. After the stage of Sections 40 and 41 is reached, the agreement so entered into by the company with the State Government is to be published in the Official Gazette. This is Section 42 of the Act which provides that the agreement on its publication would have the same effect as if it had formed part of the Act. After having done all this, the State Government cannot unilaterally and without notice to the company withdraw from acquisition. Opportunity has to be given to the company to show cause against the proposed action of the State Government to withdraw from acquisition. A declaration under Section 6 of the Act is made by notification only after formalities under Part VII of the Act which contains Sections 39 to 42 have been complied and the report of the Collector under Section 5-A(2) of the Act is before the State Government who consents to acquire the land on its satisfaction that it is needed for the company. A valuable right, thus, accrues to the company to oppose the proposed decision of the State Government withdrawing from acquisition. The State Government may have sound reasons to withdraw from acquisition but those must be made known to the company which may have equally sound reasons or perhaps more, which might persuade the State Government to reverse its decision withdrawing from acquisition. In this view of the matter it has to be held that Yadi (memo) dated 11-4-1991 and Yadi (memo) dated 3-5-1991 were issued without notice to the appellant (L&T Ltd.) and are, thus, not legal."
24. The Supreme Court in State Govt. Houseless Harijan Employees Assn. v. State of Karnataka, (2001) 1 SCC 610, reiterated the legal position with regard to Section 48(1) of the Land Acquisition Act that the beneficiary has a right to be heard before withdrawing the land from acquisition.
"33..........But as far as the beneficiary of the acquisition is concerned there is no similar statutory provision. In contrast with the owners position the beneficiary of the acquisition may by withdrawal from the acquisition suffer substantial loss without redress particularly when it may have deposited compensation money towards the cost of the acquisition and the steps for acquisition under the Act have substantially been proceeded with. An opportunity of being heard may allow the beneficiary not only to counter the basis for withdrawal, but also, if the circumstances permitted, to cure any defect or shortcoming and fill any lacuna. No reason has been put forward by the respondents to exclude the application of the principle of natural justice to Section 48(1) of the Act."
25. The Supreme Court in Amarnath Ashram Trust Society v. Governor of U.P., (1998) 1 SCC 591, indicated that the decision to withdraw the acquisition under Section 48(1) is jusiticiable.
"10. ...........the decision of the Government to withdraw from acquisition was based upon a misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bona fide. Particularly in a case where as a result of a decision taken by the Government the other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though Section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all."
26. The counter affidavit filed by the Additional Secretary to Government in W.P.Nos.18114 to 18116 of 2000 indicates that the original land owners have earlier filed applications for exemption of land from acquisition. The Government considered the applications for exemption and having found that the land is absolutely necessary for the project, rejected the request. Similarly, the predecessor-in-interest of the land owners in W.P.Nos.20492 of 2009, 1031 of 2012 and 1385 of 2012 also filed similar applications for exemption before the Government. Those applications were also rejected by the Government on the sole ground that the land is required for the project. It is really a wonder as to how without any change of circumstances or projecting sufficient reasons, the Government could withdraw the land from acquisition by accepting representations once again by stating that the land is no more required. The Government cannot change their stand now and then without any change of circumstances. The impugned order does not contain any indication that there were materials before the Government to arrive at a conclusion that the land is not required for the project. The file produced by the Government also does not contain any material to substantiate the statement made in the impugned Government order.
27. The learned Single Judge proceeded on the ground that the appellant was given the required land by the Forest Department and as such the subject land is not necessary for providing the road. The land owners who have approached the Government for exclusion of their land from acquisition are all subsequent purchasers, who have purchased the land after the commencement of proceedings for acquisition. The proceedings under the Industrial Purposes Act is only a continuation of the earlier land acquisition proceedings. Therefore it is clear that the land owners have purchased the property during the currency of the land acquisition proceedings. The subsequent purchasers have no right to challenge the land acquisition proceedings.
28. The Supreme Court in U.P.Jal Nigam, Lucknow v. Kalra Properties (P) Ltd. Lucknow (1996(3) SCC 124) held that after the notification under Section 4(1) is published in the Government Gazette, any encumbrance created by the owner thereafter does not bind the Government and the purchasers does not require any title to the property.
Conclusion:
29. There is no dispute that it is for the Government to decide as to whether the land is no more required for the purpose of the Industrial Purposes Act. The Government have got the authority to withdraw the land from acquisition in case possession is not taken. However, even for taking a decision to exclude the land from acquisition, there must be sufficient materials before the Government. The Government should prove atleast by producing the file that the land is no more required for the purpose of the Act. The impugned order or the file produced by the Government does not contain any material to arrive at a satisfaction as to whether the subject land is no more required for the purpose of Industrial Purposes Act. We are, therefore, of the view that the Government was not correct in withdrawing the land from acquisition without issuing notice to the appellant and indicating reasons. In view of the finding given above, we set aside the order passed by the learned Single Judge in W.P.No.20424 of 2009.
Disposition:
30. In the result, the impugned Government Order in G.O.Ms.No.88, Industries (MIE 1) Department dated 30 July 2009 is set aside and the matter is remitted to the first respondent for fresh consideration. The first respondent is directed to consider the matter afresh after issuing notice to the appellant and providing an opportunity of hearing to all concerned.
31. In the upshot, we allow the writ appeal and the writ petitions. Consequently, the connected Mps are closed. No costs.
Index:Yes/No [S.K.A.,ACJ] [K.K.S., J.]
Internet: Yes/No 04.03.2014
Tr/
THE HON'BLE THE ACTING CHIEF JUSTICE
and
K.K.SASIDHARAN, J
Tr
To
1. State of Tamil Nadu
rep. by its Secretary to Government
Industries Department
Fort St. George
Chennai-600 009.
2. The District Collector
Kancheepuram District
Kancheepuram.
3. The Special Tahsildar
(Land Acquisition)
Mahindra Industrial Park Scheme
Melamaiyur
Chengalpattu. Pre-delivery judgment in
W.A.No.564 of 2010 &
W.P. Nos.20492 of 2009, 1031 of 2012 and 1385 of 2012
04.03.2014