Madras High Court
S.Ekambaram vs The Secretary on 3 July, 2012
Author: V. Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATRE AT MADRAS DATED: 03-07-2012 CORAM: THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN W.P.No.4794 of 2011 And M.P.No.1 of 2011 1.S.Ekambaram 2.C.S.Rangavittal 3.E.Senguttuvan 4.B.Vishvanathan 5.G.Srinivasan 6.E.V.Varghese 7.P.Gnasigamoni 8.Gnanavadivu 9.K.Ethiraja Reddiar 10.Krishnaraju Reddiar 11.K.Lalitha .. Petitioners -vs- 1.The Secretary, Housing and Urban Development [UD 3(2)] Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The Member Secretary, Chennai Metropolitan Development Authority (CMDA), Thalamuthu Natarajan Buildings, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008. 3.The Metropolitan Transport, Project (Railways) Chennai, Periyar E.V.R. High Road, Chennai-600 008. 4.The District Collector, Collectorate, Kancheepuram. 5.The Special Tahsildar (Land Acquisition), Mass Rapid Transport System, Phase II Extension, Thirumayilai Railway Station, Mylapore, Chennai-600 004. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the first respondent relating to G.O.Ms.No.34, Housing and Urban Development Department [UD3(2)] dated 11.2.2011 issued under Section 4(1) of the Land Acquisition Act, 1894 and quash the same. For Petitioners : Mr.T.R.Rajagopalan, Senior Counsel for Mrs.Pushpa Sathyanarayana. For Respondent-2 : Mr.A.Navaneethakrishnan, Advocate General Assisted by Mr. N.Sampath For Respondents 1, 4 &5 : Mr. M.C.Swamy, Spl. G.P. For Respondent-3 : Mr.R.Thiagarajan, Senior Counsel for Mr.M.Vellaisamy O R D E R
The petitioners have come up with the above writ petition, challenging a notification issued under Section 4(1) of the Land Acquisition Act, 1894.
2. I have heard Mr.T.R.Rajagopalan, learned Senior Counsel for the petitioners, Mr.A.Navaneethakrishnan, learned Advocate General for the second respondent, Mr.M.C.Swamy learned Special Government Pleader for respondents 1,4 and 5 and Mr.R.Thiagarajan, learned Senior Counsel for the third respondent.
3. The petitioners are residents of Jeevan Nagar, Thillai Ganga Nagar, Thiruvalluvar Nagar etc., which are located in the areas of Adambakkam, Alandur and Nanganallur. Facing the threat of dispossession from their lands and residential houses, in pursuance of the impugned notification for requisition, the petitioners have come up with the above writ petition.
4. To trace the history of the events which led to the impugned notification, it is essential to state the following facts:-
(i) The Chennai Metropolitan Development Authority sent a proposal way back on 25.6.2001 for the development of what is known as a composite corridor for accommodating the Inner Ring Road at surface and the elevated Mass Rapid Transport System on single pillar along the central median of the Inner Ring Road. The idea was to substantially slice down the cost of developing Mass Rapid Transit System.
(ii) In G.O.Ms.No.343, Housing and Urban Development Department, dated 20.12.2006, the Government approved the proposal for developing composite corridor from Velacherry to Ennore. The concept of composite corridor was to have one single alignment for both the road and the rail systems in lieu of one separate rail alignment and one separate road alignment.
(iii) In G.O.Ms.No.14, Housing and Urban Development Department, dated 14.1.2008, the Government accorded the administrative sanction for the implementation of the project for the extension of Mass Rapid Transit System Phase-II from Velacherry to St. Thomas Mount along the composite corridor at a cost of Rs.495.74 crores, jointly with the Government of India in the cost sharing formula of 2:1. The implementation of the said project comprised of the development of the elevated Mass Rapid Transit System on single pillar along the median of the southern segment of the Inner Ring Road for a length of about 3.2 kms., and the stand alone elevated rail alignment for a length of about 1.5 kms., from the point it branches off from the composite corridor to the St. Thomas Mount Suburban Rail Station.
(iv) In G.O.Ms.No.274, Housing and Urban Development Department, dated 29.11.2010, the Government accorded administrative sanction for the stand alone segment of the rail alignment from the point it branches off from the composite corridor at Adambakkam Station to existing St. Thomas Mount Suburban Rail Station. Consequent upon the above orders, the CMDA sought acquisition of lands. To facilitate the acquisition, the Government issued G.O.Ms.No.3, Housing and Urban Development Department, dated 7.1.2011, according sanction for a Land Acquisition Cell for Mass Rapid Transit System Phase-II project to acquire the land and structures for the impugned stand alone rail segment and the additional lands required for Adambakkam and Puzhuthivakkam MRTS Stations. By the same Government Order, the Land Acquisition Officer was permitted to procure private lands, wherever necessary, by negotiation. At the same time, the Land Acquisition Officer was also permitted to invoke the urgency clause under Section 17.
(v) In pursuance of the above Government Order, the Government issued G.O.Ms.No.34, Housing and Urban Development Department, dated 11.2.2011, which is impugned in the above writ petition. By the said order, the Government approved the draft notification under Section 4(1) of the Land Acquisition Act, 1894 under the urgency provisions of Section 17 of the Act, for the acquisition of 6,412 sq. meters of patta land in Survey No.10 of Adambakkam village, Alandur Taluk, Kancheepuram District, for formation of railway line from Velacherry to St. Thomas Mount for Mass Rapid Transit System Phase-II extension. The said Government Order was also published in the Tamil Nadu Government Gazette Extraordinary dated 11.2.2011. Aggrieved by the notice for acquisition and the invocation of the urgency clause, the petitioners, who are under threat of dispossession of their residential houses, have come up with the above writ petition.
5. Before taking up for consideration, the grounds on which the petitioners challenge the proposed acquisition, it is necessary to take note of a few additional facts that could be culled out from the counter affidavits filed by the respondents. They are as follows:-
(a) The Mass Rapid Transit System hereinafter referred to as MRTS, was originally planned to be implemented in 4 phases. It is supposed to cover (i) the radial arterial corridor from Chennai Beach to Tharamani to be implemented in two phases viz., Phase-I and Phase-II and (ii) the Inner Circular Corridor covering an orbital line from Tharamani to Ennore divided into two phases viz., Tharamani to Villivakkam in Phase-III and Villivakkam to Ennore in Phase-IV.
(b) The Phase-I upto Thirumayilai was completed in 1997 and an extended Phase-II Thirumayilai to Velacherry was opened for traffic in 2007.
(c) At that time, a proposal was mooted to expand the scope of Phase-II to cover the length from Velacherry to St. Thomas Mount (about 5 kms) so as to cover the urban node of Alandur and also to provide quick access to commuters from Tambaram side, bound for areas such as Adyar-Secretariat.
(d) In order to examine the said proposal and to locate the final alignment, the Tamil Nadu Government appointed RITES Limited. The RITES Limited proposed an alignment which ran along the proposed Inner Ring Road corridor. The alignment is deviated from IRR before entering to St. Thomas Mount Railway Station, from where the alignment has to take a curve of 300 meters radius so that it could cross the existing railway track.
(e) As per the original proposal of RITES Limited, about 185 hectares of land was frozen and later the land was released for development, on the understanding that there was no necessity for acquiring those lands for the Inner Circular Corridor.
(f) The original alignment, as approved by RITES Limited, would go over Jeevan Nagar Main Road, over and above a poramboke land in a Flood Water Canal near St. Thomas Mount.
(g) In the meantime, the Chennai Metro Railway Limited (CMRL), which is a special purpose vehicle formed by the Government of Tamil Nadu to implement the Metro Rail Project, started implementing the corridor from Koyambedu to St. Thomas Mount. Their work was expected to be completed by the year 2013.
(h) At that time, the last stretch of about 500 meters of the MRTS alignment faced some difficulties in going ahead with the stand alone alignment, as approved in the second master plan. This was because of the fact that the Chennai Metro Rail had already firmed up its alignment in 2008 and its Station was integrating with the St. Thomas Mount Suburban Railway Station.
(i) Therefore, in order to have optimal integration of all the four rail systems viz., Metro Rail, MRTS, Suburban Railway and Long Distance Rail, the Government issued G.O.Ms.No.274, dated 29.11.2010. By the said order, the Government accepted the recommendations of the second respondent that the original stand alone alignment would lead to insurmountable difficulties and that there was a necessity to have optimal integration of all four Rail Systems. It was in tune with the said G.O.Ms.No.274, that the Government created a Land Acquisition Cell under G.O.Ms.No.3, dated 7.11.2011 and thereafter issued the impugned order in G.O.Ms.No.34, dated 11.2.2011.
6. The petitioners challenge the impugned Government Order on the following grounds:-
(i) that the invocation of the emergency provision under Section 17(1) of the Act, is highly arbitrary and unjustified especially in the light of the enormous delay in the very implementation of the project on the part of the Government;
(ii) that while the impugned notification invokes Section 17(1) of the Act, the respondents have taken a stand that they invoked only Section 17(2), thereby indicating that there was no application of mind;
(iii) that at any rate, the order dispensing with the enquiry under Section 5-A, is not justified, as the need to do so was not even considered by the respondents; and
(iv) that as per the original recommendation made by the Consultants viz., RITES Limited, the alignment was to go primarily over a large extent of poramboke land in a flood water canal without affecting the residents but the deviated proposal was approved without even consulting RITES Limited.
CONTENTION-1 - JUSTIFICATION FOR INVOCATION OF THE URGENCY CLAUSE AND CONTENTION-3 - NEED TO DISPENSE WITH THE ENQUIRY UNDER SECTION 5-A:
7. The first and third contentions can be conveniently dealt with together, since they revolved around the justification to invoke the urgency clause under Section 17(1) and (2) and the justification to dispense with the inquiry under Section 5-A, by invoking Section 17(4). There is also one more reason for taking up both contentions together. Some of the decisions relied upon by the learned counsel on either side, cover Sections 17(1) and (2) as well as Section 17(4). Therefore, the first and third contentions are taken up together.
8. It is well settled that the question of urgency under Section 17(1) or the question of unforeseen emergency under Section 17(2), is a matter of subjective satisfaction of the Government. As pointed out by the Supreme Court in First Land Acquisition Collector vs. Nirodhi Prakash {2002 (4) SCC 160}, ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction, on an objective appraisal of facts. Nevertheless the Court's power to examine whether there was application of mind and whether the decision was not vitiated by mala fides, is always there.
9. In several cases, where the validity of the action of the Government in invoking the urgency clause was challenged, the Courts took note of the delay on the part of the Acquiring and Requisitioning Authorities and came to the conclusion that there was no justification for invoking Section 17(1) or (2). At the same time, in a few cases, the Courts also concluded that the lethargic attitude of the authorities at early stages may not be relevant for deciding the question as to whether on the date of notification, there was urgency or not. Useful reference may be made in this regard to Jage Ram vs. State of Haryana {1971 (1) SCC 671}, Deepak Pahwa vs. Lt. Governor of Delhi {AIR 1984 SC 1721}, State of U.P. vs. Smt.Pista Devi {1996 (4) SCC 251}.
10. A detailed discussion of the above decisions can be found in a judgment of a Division Bench of this Court in C.Govindarajan vs. Government of Tamil Nadu {2007 (5) MLJ 831}. In that case, the Division Bench pointed out in paragraphs 29 and 30 that even though there had been some delay at different stages in that case, the subjective satisfaction of the Government for invoking the urgency clause was not arrived at on any irrelevant or extraneous considerations.
11. In the light of the principles enunciated in the above decisions, let me now look into the facts. As seen from the sequence of events given in paragraphs 4 and 5, what was originally contemplated in 1997 was only a composite corridor for Inner Ring Road and elevated Mass Rapid Transport System. In 2006, the project was decided to be extended from Velachery to Ennore. After the proposal to implement the Metro Rail Project took off, the question of integration of 4 rail systems had to be considered and this happened in November 2010. Thereafter, an Acquisition Cell was created. But the very need to change the alignment arose when the project was being implemented and this led to the issue of the notification for acquisition in February 2011.
12. The above sequence of events would show that there was no lethargy or indifference on the part of the respondents. In a project whose Phase-I was mooted in 1997, another project came to collide only in 2010. Integration of these projects became a matter of necessity towards the end of 2010. Even then, the Government did not think of acquiring private lands, but reserved a large extent of land. But while implementing the project, a sudden necessity arose to alter the alignment, in the light of ground realities. In such circumstances, the invocation of urgency clause cannot be said to be arbitrary or illegal.
13. The impugned notification published in the Government Gazette shows that the Governor of Tamil Nadu dispensed with the requirements of Section 5-A, in terms of Section 17(4). Section 17(4) confers a power upon the appropriate Government to direct that the provisions of Section 5-A would not apply, if in its opinion, the provisions of sub-sections (1) and (2) are applicable. A reading of sub-section (4) would show that the only condition prescribed therein for dispensing with the enquiry under Section 5-A is that the Government should form an opinion that the provisions of sub-sections (1) and (2) are applicable to the case on hand. The fact that the Government had formed such an opinion is reflected in the Abstract of the Government Order G.O.Ms.No.34. In G.O.Ms.No.34 dated 11.2.2011, the Government had, in fact, referred to the proposal submitted by the District Collector of Kancheepuram under Section 17(2) and the acceptance of the same by the Principal Secretary and Commissioner of Land Administration. In paragraph 5 of the abstract of the Government Order, the Collector of Kancheepuram was actually directed to instruct the Land Acquisition Officer to take steps for publication of the notification to enable the Government to publish a declaration under Section 6, within 15 days of publication of Section 4(1) notification. Therefore, the only requirement under Section 17(4) for dispensing with the enquiry under Section 5-A is satisfied in the case on hand.
14. Moreover, it must be seen that the present acquisition relates only to a 5 kms stretch between Velacherry and St. Thomas Mount Railway Station. The change of alignment from the original proposal is to an extent of less than about 1 km. The work of bringing the Rail track upto a stretch of about more than 4 kms has already been completed. Therefore, there was actually a pressing need for the appropriate Government to invoke the provisions of sub-sections (1) and (2) of Section 17. Hence, it is extremely difficult to believe that the appropriate Government did not form an opinion that the provisions of sub-sections (1) and (2) are applicable to the case on hand.
15. On the powers of the Government to invoke Section 17 (4) and to dispense with the enquiry under Section 5-A, the learned Senior Counsel for the petitioners relied upon the following decisions:-
(i) Union of India vs. Mukesh Hans {2004 (8) SCC 14}
(ii) Union of India vs. Krishan Lal Arneja {2004 (8) SCC 453}
(iii) Mahadevappa Lachappa Kinagi vs. State of Karnataka {2008 (12) SCC 418}
(iv) Devsharan vs. State of Uttar Pradesh {2011 (4) SCC 769}
(v) Dharshanlal Nagpal by LRs vs. Government of NCT of Delhi {2012 (2) SCC 327}
(vi) Anand Singh vs. State of Uttar Pradesh {2010 (11) SCC 242}
(vii) State of West Bengal vs. Prafulla Churan Law {2011 (4) SCC 537}
(viii) Radhy Shyam through LRs vs. State of Uttar Pradesh {2011 (5) SCC 553}
16. In Union of India vs. Mukesh Hans {2004 (8) SCC 14}, the question of law that was taken up for consideration was as to the interpretation of Section 17(4) and the procedure to be followed by the appropriate Government while dispensing with the inquiry contemplated under Section 5-A. After going through the entire Scheme of the Act, the Supreme Court held in paragraph 32 that Section 17(4) is an exception to the normal mode of acquisition and that the Section requires an opinion to be formed by the Government concerned. The opinion should be such that along with the existence of urgency or unforeseen emergency, there is also a need for dispensing with the inquiry. It was pointed out in paragraph 32 of the said decision that the mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2), would not by itself, be sufficient for dispensing with the inquiry. The entire focus, in paragraph 32 of the said decision, was that there must be a proper application of mind on the part of the appropriate Government while dispensing with Section 5-A inquiry.
17. In Union of India vs. Krishan Lal Arneja {2004 (8) SCC 453}, the Supreme Court pointed out, in paragraph 16, that the power under Section 17 is an extraordinary power and the power to dispense with the inquiry can be resorted to in exceptional cases of urgency. The Court also held that such powers cannot be lightly resorted to. A public purpose, in the words of the Supreme Court, however laudable it may be, by itself, is not sufficient to take the aid of Section 17. The Court pointed out that while applying the urgency clause, the State should indeed act with due care and responsibility. More importantly, the Court held that invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration.
18. In Mahadevappa Lachappa Kinagi vs. State of Karnataka {2008 (12) SCC 418}, the Supreme Court concurred with the views expressed in Union of India vs. Krishan Lal Arneja {2004 (8) SCC 453}, but eventually upheld the acquisition on factual basis.
19. In Devsharan vs. State of Uttar Pradesh {2011 (4) SCC 769}, the Supreme Court traced the history behind the insertion of Section 5-A in the Act, in paragraph 27 of its decision and reiterated the importance and scheme of Section 5-A in paragraph 29, from the earlier decisions of the Court. Thereafter the Court followed the decision in Union of India vs. Mukesh Hans {2004 (8) SCC 14} and held that Section 17(4), cannot be pressed into service by Officers who are negligent and lethargic in initiating acquisition proceedings. On facts, the Court found in paragraph 35 of the said decision that there was a delay of almost one year and that this slow pace at which the Government machinery functioned did not justify the invocation of Section 17(4).
20. In Anand Singh vs. State of Uttar Pradesh {2010 (11) SCC 242}, the Court, after taking note of its earlier decisions on the circumstances under which Section 17(4) could be invoked, pointed out, in paragraph 41, that Section 5-A confers a very valuable right to property, which is a constitutional right under Article 300-A and a human right. In paragraph 43 of its decision, the Court pointed out that the Government should exercise more circumspection, when an exceptional power such as the one dispensing with the enquiry under Section 5-A, is invoked. In paragraph 47 of its decision, the Supreme Court took note of the conflict of view in two decisions of the Court, the one in Narayan Govind Gavate vs. State of Maharashtra {1977 (1) SCC 133} and the another in State of U.P. vs. Pista Devi {1986 (4) SCC 251} and agreed with the later decision of the Court in Om Prakash vs. State of U.P. {1998 (6) SCC 1}, wherein it was held that the decision in Pista Devi, must be confined to the fact situation in those days.
21. A few important observations were made by the Supreme Court in paragraph 49 of its decision in Anand Singh and hence they are extracted as follows:-
"49. In a country as big as ours, a roof over the head is a distant dream for a large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in a developing nation. The question is as to whether in all cases of "planned development of the city" or "for the development of residential area", the power of urgency may be invoked by the Government and even where such power is invoked, should the enquiry contemplated under Section 5-A be dispensed with invariably. We do not think so. Whether "planned development of city" or "development of residential area" cannot brook delay of a few months to complete the enquiry under Section 5-A ? In our opinion, ordinarily it can. The Government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz., "planned development of city" or "for development of residential area" in exceptional situation."
22. In State of West Bengal vs. Prafulla Churan Law {2011 (4) SCC 537}, the Court held that the State could not explain as to why appropriate steps could not be taken for complying with the requirements of Section 5-A. The time gap of 3 years between the quashing of the first notification and the issue of the second notification was held to be too long to justify invoking the urgency clause. Therefore, the Court held that it was not a case for the requirement of the urgency clause and for dispensing with the requirement of inquiry under Section 5-A.
23. In Darshanlal Nagpal by LRs vs. Government of NCT of Delhi {2012 (2) SCC 327}, the Court pointed out in paragraph 28 of its decision, that the degree of care required to be taken by the State is greater when the power under Section 17 is invoked, as that would result in depriving the owner of his property without being afforded an opportunity of hearing. The Court pointed out in that case that there was a long time gap of more than 5 years between the initiation of the proposal for establishment of the Sub Station and the issue of notification under Section 4(1). The Court also found that no material was produced by the State to justify its decision to dispense with the inquiry under Section 5-A. Consequently, the Supreme Court allowed the appeal.
24. In Radhy Shyam through LRs vs. State of Uttar Pradesh {2011 (5) SCC 553}, the Court was concerned with the industrial development of the District Gautam Budh Nagar by the Greater Noida Industrial Development Authority. After referring to the decision in Narayan Govind Gavate, the Court emphasised the importance of the rules of natural justice and laid down certain principles which are as follows:-
"(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good-Dwarkadas Shrinivas vs. Sholapur Spinning and Weaving Company Ltd {AIR 1954 SC 119}, Charanjit Lal Chowdhury vs. Union of India {AIR 1951 SC 41} and Jilubhai Nanbhai Khachar vs. State of Gujarat {1995 Supp.(1) SCC 596}.
(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly-DLF Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana {2003 (5) SCC 622}, State of Maharashtra vs. B.E. Billimoria {2003 (7) SCC 336} and Dev Sharan vs. State of U.P. {2011 (4) SCC 769}.
(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty-bound to scrutinise the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/or shelter.
(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.
(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word 'may' in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or Section 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Sections 5-A(1) and (2) is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or Section 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition."
25. From the principles of law enunciated in the above decisions, it is clear that the power to dispense with an inquiry, cannot be invoked by the respondents in a light hearted manner. There must be an application of mind about the prevalence of an urgency as contemplated under sub-section (1) or unforeseen emergency as contemplated under sub-section (2). There must have been no delay on the part of the Acquiring Authorities, in initiating proceedings and in processing the matter. While depriving the landowner of a valuable opportunity of hearing on the ground of urgency/ emergency, the Acquiring Authorities cannot act at a snail's pace. If they do so, the whole acquisition is liable to be struck down as vitiated.
26. In order to highlight that the official machinery moved at a leisurely phase, the petitioners point out the time gap between the issue of G.O.Ms.No.34, dated 11.2.2011 and G.O.Ms.No.173 dated 28.11.2011. According to the petitioners, the respondents were aware of the requirement of additional lands, even when G.O.Ms.No.173 was issued. But they did not take any steps. Therefore, according to the petitioners, the time taken by the respondents to issue notification after notification exhibited that there was no justification for dispensing with the inquiry.
27. But as I have pointed out in the sequence of events that I have narrated in paragraphs 4 and 5 above, the project itself was originally contemplated only as MRTS Project to cover Radial Arterial Corridor from Chennai Beach to Taramani and Inner Circular Corridor from Taramani to Ennore. The proposal to expand the scope of Phase-II to cover the distance from Velacherry to St. Thomas Mount (5 kms. distance), so as to cover the urban node of Alandur was mooted only later. Therefore, RITES Limited were appointed as Consultants and they proposed an alignment. As per the original proposal, about 185 hectares of land was frozen for development on the understanding that there may be a necessity for acquiring these lands for the Inner Circular Corridor. The original alignment, as recommended by RITES Limited, was to go over a vast extent of poramboke land. However, when Chennai Metro Rail Limited started implementing Metro Rail Project from Koyambedu to St. Thomas Mount, the original alignment stumbled upon a block. Therefore there was a new proposal and it was this proposal for change of alignment that led to creation of a Land Acquisition Cell in G.O.Ms.No.3, dated 7.1.2011. In a month from the date of issue of G.O.Ms.No.3, the impugned notification in G.O.Ms.NO.34, dated 11.2.2011 under section 4 was issued.
28. Therefore, the whole lot of time spent by the respondents in the entire project, cannot now be taken into account for testing whether there was any delay on the part of the respondents or not. The time taken by the respondents from the stage at which a change of alignment was proposed and the stage at which a Land Acquisition Cell was created to the time when the impugned order was issued, alone had to be taken into account for determining if there was any delay. If this is done, it will be clear that there was actually no delay.
29. The petitioners pitch the question of delay on the basis of G.O.Ms.No.173 dated 28.11.2011. But this Government Order was issued after the Government Order impugned in the above writ petition. The above writ petition itself was filed in February, 2011. On 25.2.2011, when it came up for admission, the learned Special Government Pleader as well as the counsel for other respondents took notice and agreed to produce records to show the nature of urgency. But while adjourning the case, this Court granted an interim order, directing the respondents not to proceed further with the acquisition. Thus there has been an interim order from February 2011 onwards and hence the issuance of G.O.Ms.No.173 on 28.11.2011 cannot be taken to be a delay that would militate against the invocation of the urgency clause. When the very fate of G.O.Ms.No.34 dated 11.2.2011, was hanging in suspense in this Court, with an interim order, the respondents would have naturally been advised to go slow for the acquisition of some more land. Therefore, the delay in the issue of G.O.Ms.No.173 cannot be a justification to conclude that there was no urgency.
30. The validity of invocation of urgency clause by the Government of Tamil Nadu for acquisition of certain lands for the Chennai Metro Rail Project, came up for consideration before Vinod K.Sharma, J., in Emcete & Sons Pvt. Ltd vs. State of Tamil Nadu {W.P.Nos.1000, 1049 and 4497 of 2012 dated 26.4.2012}. The learned Judge rejected the challenge on the ground that there was real urgency, for the Government to acquire these lands in view of the implementation of the Metro Rail Project.
31. Therefore, the first and third contentions of the petitioners are liable to be rejected.
CONTENTION-2 - NON APPLICATION OF MIND:
32. The second contention of the petitioners is that while the impugned notification is issued by invoking Section 17(1), the counter affidavits filed by the respondents 2 and 3 proceed on the basis as though Section 17(2) is invoked. Therefore, according to the petitioners, there was no application of mind. Since no counter affidavit was filed on behalf of the first respondent viz., the Government and also since the learned Advocate General represented only the second respondent, the petitioners contend that the allegation of non-application of mind has gone unchallenged.
33. It is true that the Gazette notification filed by the petitioners show that what was invoked was Section 17(1) of the Act. It is also true that the counter affidavits proceed on the basis that what was invoked was Section 17(2) of the Act. But would that by itself show non-application of mind is the question to be considered.
34. Under sub-section (1) of Section 17, the Collector is empowered to take possession of any land needed for a public purpose, in cases of urgency, if the appropriate Government so directs. It can be done on the expiration of 15 days from the publication of notice under Section 9(1), though no award has been made.
35. But under sub-section (2), the Collector is empowered to enter upon and take possession of a land, immediately after the publication of the notice mentioned in Section 17(1), with the previous sanction of the appropriate Government, if due to any unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat section or of providing convenient connection with or access to any such Station.
36. The power under sub-section (1) is broad, but curtailed by two requirements viz., (i) the publication of a notice under Section 9(1) and (ii) the expiration of 15 days from the date of publication of said notice. But the power under sub-section (2) is to be invoked in case of unforeseen emergency and the Tamil Nadu Amendment to Section 17(2) confers much larger powers.
37. The series of Government Orders filed on both sides right from G.O.Ms. No.343 dated 20.12.2006 would show that the purpose of the acquisition was to have an Inner Circular Corridor (Rail). Therefore, it is clear that the acquisition of land was for the purpose of providing a convenient connection with or access to a Rail Station. The impugned Government Order G.O.Ms.No.34 dated 11.2.2011, cannot be read in isolation. It is a Government Order which is the culmination of all the earlier orders viz., G.O.Ms.No.343 dated 20.12.2006, G.O.Ms.No.14 dated 14.1.2008, G.O.Ms. No.274 dated 29.11.2010 and G.O.Ms.No.3 dated 7.1.2011. Therefore, when the series of Government Orders which led to the issue of the impugned order disclose the ingredients of Section 17(2), it cannot be contended that there was no application of mind, merely on account of the Gazette notification mentioning Section 17(1).
38. As a matter of fact, the Gazette notification filed by the petitioners make a mention of Section 17(1). But the xerox copy of the abstract of the Government Order G.O.Ms.No.34 dated 11.2.2011, filed by the respondents makes a mention of Section 17(2) only. Therefore, there has been a clear application of mind on the part of the respondents and there was no confusion. Hence the second contention deserves to be rejected.
CONTENTION-4 - CHANGE OF ALIGNMENT:
39. The fourth contention of the petitioners is that as per the original alignment, recommended by the Consultants RITES Limited, the track was to go over a large extent of poramboke land without affecting the residents. But the respondents have now adopted a deviation without the consent or advise of the Consultants, showing thereby that there was at least malice in law.
40. But unfortunately the question of change of alignment is a very delicate question of fact and it is extremely difficult for the Court to go into the same. As a matter of fact, a similar contention was rejected by Vinod K.Sharma, J., in The George Town Building Owners' Welfare Association vs. Union of India {W.P.No.29777 of 2011 dated 27.1.2012}. Similarly, a Division Bench of this Court also rejected a similar contention in respect of the location of Adambakkam MRTS Station, in Vanuvampet Residents Welfare Association vs. The Chief Engineer {W.P.No.16459 of 2010 dated 12.8.2010}. Though the petitioners attempted to distinguish these decisions on the ground that there was an original alignment as recommended by the Consultants, I do not think that the same would alter the position.
41. Though it is true that the respondents did not go back to the Consultants for change of alignment, I do not think that the same by itself would vitiate the acquisition. As pointed out earlier, the alignment extends to a length of about 5 kms. The deviation in alignment is to the extent of about 500 meters. It is a common knowledge that even while constructing a small house, small deviations and alterations from the original proposal do take place depending upon ground realities. The Court does not have the expertise to test whether such change of alignment is right or wrong. I cannot also hold that the respondents are bound by the opinion of the Experts. It is only in cases where the respondents throw the Expert opinion to the winds, for the purpose of favouring somebody else, that the Court can interfere. But such interference would be on the ground of mala fides. In the case on hand, no such situation has arisen.
42. To my mind, there is only one case in which an alternative proposal was examined favourably by the Supreme Court. It was in Jnanedaya Yogam and Another vs. K.K.Pankajakshy and Others (1999 (9) SCC 492). In that case, the land of the respondent was sought to be acquired for the purpose of providing passage for a temple procession. The same involved the demolition of a shop belonging to the respondent. In an exceptional gesture, the Supreme Court considered the alternative proposal and found it to be fair, on the ground that Section 5-A inquiry had been dispensed with and that a little diversion of the road may save the land owner of her petty shop. But the reason as to why the Supreme Court interfered in that case was that the original proposal for acquisition of lands through a particular route was based upon the advise of Astrologers and not experts. Thus the original proposal in that case was found to lack a rational approach and hence the Court intervened. But no such situation has arisen in the case on hand. Therefore, I cannot interfere on the question of change of alignment.
43. I am conscious of the fact that the petitioners belong to the lower middle class of the society, who built residential houses in the land in question, by borrowing finance and that their life's dreams may get shattered by the acquisition. But unfortunately for the petitioners, the case on hand is not even one where the acquisition is for housing or industrial purposes, where the project can wait. The acquisition here is for the integration of 2 huge corridors with the existing railway lines. In many cases in which the Supreme court interfered with such emergency acquisitions, the court was concerned with acquisitions for housing or industrial purposes. Therefore, the case on hand requires a much stricter scrutiny. If so done, I have no alternative except to reject all the contentions of the petitioners.
44. In view of the above, all the contentions of the petitioners are rejected and the writ petition is consequently dismissed. There will be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.
03-07-2012 Index : Yes. Internet : Yes. Svn To 1.The Secretary, Housing and Urban Development [UD 3(2)] Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The Member Secretary, Chennai Metropolitan Development Authority (CMDA), Thalamuthu Natarajan Buildings, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008. 3.The Metropolitan Transport, Project (Railways) Chennai, Periyar E.V.R. High Road, Chennai-600 008. V. RAMASUBRAMANIAN, J. Svn 4.The District Collector, Collectorate, Kancheepuram. 5.The Special Tahsildar (Land Acquisition), Mass Rapid Transport System, Phase II Extension, Thirumayilai Railway Station, Mylapore, Chennai-600 004. Order in WP 4794 of 2011 03-07-2012