Madras High Court
Emcete & Sons (P) Ltd vs The State Of Tamil Nadu on 26 April, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.Nos.1000, 1049 and 4497 of 2012 1. Emcete & Sons (P) Ltd., Rep. by its Director New No.202, Anna Salai, P.B.No.2730, Chennai-600 002. ... Petitioner in W.P.No.1000/12 1. S.Shaik Ismail 2. S.Basheer Ahamed 3. S.Rafeek Mohamed 4. S.Tajammal 5. S.Abdullah 6. Master Mohammed Asfaq ... Petitioners in W.P.No.1049/12 Mrs.Vasanthi Bhupati ... Petitioner in W.P.No.4497/12 - vs - 1. The State of Tamil Nadu, Rep. by its Secretary to Government (Special Initiatives) Fort St.George, Chennai-600 009. 2. Chennai Metro Rail Limited Rep. by its Managing Director Harini Towers No.7, Conran Smith Road, Gopalapuram, Chennai-600 086. 3. The District Collector Chennai District Singaravelar Maligai Chennai-600 001. 4. The District Revenue Officer -cum Project Officer Chennai Metro Rail Limited, 11/6, Seethammal Salai, Alwarpet, Chennai-600 018. 5. The Special Tahsildar (Land Acquisition) Chennai Metro Rail Limited, Chennai Unit-1, Harini Towers, No.7, Conran Smith Road, Gopalapuram, Chennai-600 086. .. Respondents in W.P.No.1000/2012 1. THE GOVERNMENT OF TAMILNADU REP BY THE SECRETARY TO GOVERNMENT PLANNING DEVELOPMENT AND SPECIAL INITIATIVES DEPARTMENT, FORT ST.GEORGE, CHENNAI 9 2. THE DISTRICT COLLECTOR CHENNAI 3. THE DISTRICT REVENUE OFFICER CHENNAI METRO RAIL PROJECT, HARINI TOWERS, NO.7 CONRAN SMITH ROAD, GOPALAPURAM, CHENNAI-600 086 4. THE SPECIAL TAHSILDAR (LAND ACQUISITION) CHENNAI DIVISION II, CHENNAI METRO RAIL PROJECT, HARINI TOWERS NO.7, CONRAN SMITH ROAD, GOPALAPURAM, CHENNAI-600 086 5. THE CHENNAI METRO RAIL PROJECT REP BY ITS MANAGING DIRECTOR HARINI TOWERS, NO.7 CONRAN SMITH ROAD, GOPALAPURAM, CHENNAI 86 .. Respondents in W.P.No.1049/2012 1. THE GOVERNMENT OF TAMILNADU REP. BY ITS SECRETARY, PLANNING, DEVELOPMENT AND SPECIAL INITIATIVES DEPARTMENT, FORT ST.GEORGE, CHENNAI-600 009. 2. CHENNAI METRO RAIL LIMITED REP BY ITS MANAGING DIRECTOR, HARINI TOWERS, 2nd FLOOR, LA WING, NO.7, CONRAN SMITH ROAD, GOPALAPURAM, CHENNAI-600 086. 3. LAND ACQUISITION OFFICER AND SPECIAL TAHSILDAR (LA), UNIT II, CHENNAI METRO RAIL LIMITED, HARINI TOWERS, 2nd FLOOR, LA WING, NO.7, CONRAN SMITH ROAD, GOPALAPURAM, CHENNAI 86 4. DISTRICT REVENUE OFFICER AND PROJECT IMPLEMENTATION OFFICER, CHENNAI METRO RAIL LIMITED, 11/6, SEETHAMMAL ROAD, ALWARPET, CHENNAI-600 018. .. Respondents in W.P.No.4497/2012 Prayer: Writ petition in W.P.No.1000 of 2012 is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorari, calling for the records pertaining to the acquisition proceedings made in G.O.Ms.No.201 dated 27.10.2011 published in Tamil Nadu Government Gazette Extraordinary Part II Section 2 and consequential G.O.Ms.No.230 dated 28.11.2011 published in Tamil Nadu Government Gazette Extraordinary Part II Section 2 and quash the same as ultra vires and unconstitutional. Prayer: Writ petition in W.P.No.1049 of 2012 is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorari, calling for the records relating to the Notification in G.O.Ms.No.124 Planning and Development and Special Initiatives (SI) Department dated 4.8.2011 issued by the 1st respondent herein and quash the same in so far as it relates to the lands of the petitioners in Survey No.5/10 (New No.5/40) and Survey No.5/26 (New No.5/43) of an extent of 1201.5 Square Metres and 1205.0 Square Meters respectively in Salaigramam Village Egmore Nungambakkam Taluk Chennai District. Prayer: Writ petition in W.P.No.4497 of 2012 is filed under Article 226 of Constitution of India for the issuance of a Wit of Certiorari, calling for the records pertaining to the 1st respondents impugned acquisition proceedings made in G.O.Ms.No.117 Planning Development and Special Initiatives (SI) Department dated 21.07.2011, the consequential G.O.Ms. No. 159 Planning Development and Special Initiatives (SI) Department dated 18.8.2011 and culminating in Award No.13/2011 (Chennai Unit 2) dated 12.01.2012 passed by the 3rd respondent, quash the same as illegal, ultra vires, unreasonable arbitrary and unconstitutional and forbear the respondents from interfering with the petitioners peaceful possession and enjoyment of the property bearing Plot No.91 Door No.5 Block A II Avenue Anna Nagar Chennai 102, the land measuring about 6000 sq.ft. together with the superstructure thereon. For Petitioners : Mr.N.R.Chandran, SC (W.P.No.1000/12) For Mr.K.J.Parthasarathy Mr.AR.L.Sundaresan, SC (W.P.No.1049/12) For M/s.AL.Ganthimathi Mr.Shriram Panchu, SC (W.P.No.4497/12) For Mr.G.Anbumani For Respondents : Mr.A.Navaneetha Krishnan, Advocate General Asst. by Mr.V.Jayaprakash Narayanan, AGP Mr.R.Thiagarajan, S.C., For Mr.V.Rama Jagadeesan ***** O R D E R
This judgement shall dispose of the following writ petitions, viz., Sl. No. Case No. Name of the Petitioner 1 W.P.No.1000 of 2012 Emcete & Sons (P) Ltd., Rep. by its Director 2 W.P.No.1049 of 2012
1. S.Shaik Ismail
2. S.Basheer Ahamed
3. S.Rafeek Mohamed
4. S.Tajammal
5. S.Abdullah
6. Master Mohammed Asfaq 3 W.P.No.4497 of 2012 Mrs.Vasanthi Bhupati
1.W.P.No.1000/2012:
i)The petitioner is the absolute owner of the premises New No.202, Anna Salai, P.B.No.2730, Chennai. The petitioner received a communication vide letter No.14/2008 dated 27.08.2008 from the 4th respondent stating that the petitioner's land is required for Chennai Metro Rail Limited. Besides the residential house of the petitioner, there is an office of the Honorary Consulate of Finland in Chennai for South India region for past 25 years.
ii)The petitioner is the present Honorary Consul of Finland. The petitioner filed a detailed representation on 06.10.2008, objecting to the proposed acquisition. It is submitted that the petitioner was orally informed in the personal meetings made on 15.09.2011 and 12.12.2011, that their property will be utilized only as a warehouse and will be restored on completion of work in Anna Salai
iii)On 13.12.2011, the 4th respondent gave a photograph of petitioner's building and showed the area earmarked for acquisitioin, i.e. 956 sq.ft., being the entire frontage of the petitioner's building measuring about 6500 sq.ft.
iv)It is submitted that notification under Section 4(1) was not effected and no enquiry contemplated under Section 5A of the Act was conducted. That on 09.01.2012, the persons representing respondents visited the petitioner's premise and directed the petitioner to vacate the premise, since it has been acquired for the purpose of Chennai Metro Rail.
v)The petitioner immediately enquired and got a copy of impugned notification issued under Section 4(1) and declaration under Section 6 of the Act, which showed that enquiry under Section 5A was dispensed with.
2.W.P.No.1049/2012:
i)The petitioners are the absolute owners of the property measuring 36,912 sq.ft. in T.S.No.5/8 Part, 5/9 Part, 5/10 Part, having purchased the same for valuable consideration vide sale deed dated 12.08.2003. All the petitioners are joint owners of the said property and are in joint possession.
ii)The father of petitioner no.1, who is an non-resident Indian, contributed is savings for purchase of property in the name of children and grand children for constructing a star hotel in 100' Road. The petitioners have made arrangement for fund for constructing the said hotel. The family members of the petitioners are dependent on the income to be generated from the hotel project, as the only source for their livelihood.
iii)In October 2010, representatives of Chennai Metro Rail Limited visited the property of petitioners for inspection and demarcation. On enquiry, the petitioners were informed that there was a proposal to construct Railway Station for the proposed Chennai Metro Rail Project in a portion of our land abutting 100ft. road.
iv)On enquiry, it was revealed that about 3 grounds and odd of land was acquired for the purpose of construction of Railway Station in other places. Whereas large area of petitioners was proposed to be acquired. The petitioners, immediately made a representation dated 18.10.2010, stating therein that the land was purchased in 2003 for construction of hotel.
v)It was stated that if lesser area is acquired, then the petitioner will be willing to give it on the market rate by private negotiations. The request was not considered. It was on 04.08.2011, that the State of Tamil Nadu issued notification under Section 4(1) of the Land Acquisition Act, 1894, and also invoked provisions of Sub Section 1 of Section 17 of the Act r/w Section 17(4) to dispense with enquiry under Section 5A of the Act.
3.W.P.No.4497/2012:
i)The petitioner is the absolute owner of the property comprising of land and building bearing Plot No.91, Door No.5, Block A, II Avenue, Anna Nagar, Chennai.
ii)The petitioner purchased this property, measuring 6,000 sq.ft. together with the superstructure vide sale deed dated 15.07.2002 from Mr.K.G.Lakshmipathy. The petitioner is recorded as owner of the property with the Corporation of Chennai. The petitioner is running a Pre Owned Cars Showroom for the past 10 years and has employed 75 people. The property is mortgaged to secure financial assistance availed by petitioner to run the business.
iii)In the year 2008, a communication vide letter bearing Na.Ka.No.14/2008/N.A./CMRL dated 09.07.2008, was sent to petitioner by the District Revenue Officer and Project Implementation Officer, stating that the property of petitioner may be required for the use of Chennai Metro Rail Project.
iv)On enquiry, it was revealed that actual drawings of the project for the said locality had not been finalized and that the subway entrance leading to station was to be situated in the locality.
v)The petitioner filed a representation dated 15.10.200, requesting the second respondent to locate the subway entrance, at some other alternative sites. Vide letter dated 13.11.2008, the petitioner was informed that her request was examined, but could not be accepted, as station location has been fixed after technical study, therefore, it was not possible to modify the present alignment as suggested.
vi)The submission of petitioner is that after November 2008, there was no further communication, therefore, petitioner formed impression that her property was not required for the project. It was in 2011, that the Chennai Metro Rail Limited conducted inspection of the road abutting the property of petitioner.
vii)In discussion with the representatives of petitioner, it was informed by respondent no.2, that her property will also be acquired. This came as shock to the petitioner, as there was no communication by respondents after 2008.
viii)In December 2011, the Official of the 2nd respondent informed the representatives of petitioner, that part of her property was to be acquired for storing materials for the underground station work and that the ground will be restored after completion of underground station work.
ix)The petitioner was also told to meet respondent no.3 for further details. The husband of petitioner represented her, and met the third respondent in the third week of December 2011, wherein he was informed that front portion of his property measuring about 1800 sq.ft. was to be acquired at the rate of Rs.6500/- per sq.ft. The husband of petitioner was also asked to fill up the form for higher compensation.
x)The husband of petitioner informed the respondents that they were willing to permit the respondents to use the property for their project work, but it should be handed back after the work was completed. The petitioner thereafter tried to meet the top officials to submit the proposal, but the permission was refused.
xi)The petitioner thereafter contacted the Managing Director of respondent no.2 through email dated 29.12.2011, seeking appointment, but there was no response to the said request. In January 2012, the petitioner was asked to vacate the premises, which shocked the petitioner, as she had not been served with any notice under Section 4 and Section 5A of the Land Acquisition Act. On 25.01.2012, the petitioner was served with notice of Award bearing No.13/2011 (Chennai Unit-2) dated 12.01.2012, fixing compensation of Rs.1,63,51,280/- (Rupees One Crore Sixty Three Lakhs Fifty One Thousand Two Hundred and Eighty only) for 1,867.554 sq.ft.
xii)The submission of petitioner is that the procedure followed for acquisition by respondents is wholly illegal, unsustainable and unreasonable specially invoking of urgency provisions of Section 17 of the Act, to dispense with the enquiry under Section 5A of the Act.
2. In all these writ petitions, the challenge to the notifications for acquisition of land is on the ground, that the urgency provisions have been wrongly invoked.
3. The writ petitions are opposed by respondents. The stand of Chennai Metro Rail Limited is that Chennai Metro Rail Project envisages the creation of corridors (corridor 1 & 2) under the Phase-I. Corridor 1 starts from Washermenpet and ends at Airport covering 23.1 kms, and Corridor 2 starts from Chennai Central and ends at St.Thomas Mount Station covering 22 kms. The portions of Corridors 1 with a length of 14.3 kms from Washermenpet to Saidapet and Corridor 2 with a length of 9.7 kms from Chennai Central to Anna Nagar is underground corridor and the remaining elevated corridor.
4. The Chennai Metro Rail Limited is special purpose vehicle formed for the purpose of implementing the Chennai Metro Rail Project. This project is being funded by the Government of India and the State Government, by way of equal equity contribution and subordinate debt (Government of India 20%) (State Government of Tamil Nadu 20.78%) and the balance 59.22 is met by financial assistance from Japan International Co-operation Agency.
5. The project is a time-bound project to ease out phenomenal growth of traffic congestion in the city of Chennai and any delay in carrying out this vital project will affect the plans announced by the Government of India as well as the State Government and will affect the convenience of the public of Chennai seriously. Delay is also likely to lead to contractual implications, such as extension of time and escalation of project costs, resulting in burden of several hundreds of rupees on exchequer.
6. The stand is that the impugned acquisition proceedings were initiated by issuance of Section 4(1) Notification dated 21.07.2011, which culminated with the passing of Award dated 12.01.2012. The petitioners have also been issued notice under Section 12(2) of the Land Acquisition Act, requiring petitioners to receive the compensation awarded.
7. The objection is raised qua the maintainability of the writ petitions, on the ground that acquisition proceedings cannot be challenged after the award is passed.
8. It is stand of the respondents that the Chennai Metro Rail Project is a public project, intended for the public transport system and furthermore the request of petitioner was duly considered and intimation of its rejection sent, which proves that the petitioners were fully aware of the facts and circumstances leading to Land Acquisition.
9. That the petitioners had participated in the award proceedings. Rather the petitioner in W.P.No.4497 of 2012 had claimed compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) per sq.ft. instead of Rs.6250/- (Rupees Six Thousand Two Hundred and Fifty only) as awarded by the Land Acquisition Officer. The contention is that for enhancement of compensation, the petitioners are required to invoke Section 18 of the Land Acquisition Act, therefore, writs are not maintainable.
10. The stand of respondent no.2 in W.P.No.4497 of 2012, is that even before commencement of land acquisition for the project at various places of Corridors, the request was made for invoking urgency clause under Section 17 (4) of the Land Acquisition Act to dispense with enquiry under Section 5A.
11. The request was considered and conscious decision was taken to invoke the urgency clause to dispense with the enquiry under Section 5A. The stand of respondent is that the decision to invoke urgency clause stands upheld by this Court in W.P.No.20769 of 2010 (B.M.Purnachandran vs. The Secretary to Government (Special Initiatives), Planning, Development and Special Initiatives Department) decided on 24.01.2011.
12. In reply to the ground that though Railway project was set in motion in 2008, but the notification under Section 4 was issued in the year 2011, by invoking urgency clause, therefore, not sustainable, is answered by respondents, by submitting that the implementation of project of this nature requires several stages to be crossed, i.e. identification of areas and corridors, approval of alignments, approval of other allied projects and its works, identification of lands absolutely essential for the work, identification of contractors for various work at various stages, completion of complex designs, initiation and completion of land acquisition proceedings and etc. It is an on-going project and all the process cannot be completed overnight. The project has been continuously in progress, therefore, it cannot be said that there was no urgency. It is also submitted that notice under Sections 4 & 6 were published in the Tamil Nadu Government Gazette, as well as in the newspaper, the English and other Tamil having circulation in the area, to comply with the provisions of the Land Acquisition Act.
13. The stand of the State Government is that the notification under Section 4(1) of the Land Acquisition Act was approved vide G.O.Ms.No.124, Planning, Development and Special Initiatives (SI) Department, dated 04.08.2011 and published in the Tamil Nadu Government Gazette Extraordinary Issue No.249 dated 04.08.2011. It was clearly mentioned in the notification that in view of the urgency, the provisions of Section 5A of the Act, shall not apply to this case, accordingly, consequential notification under Section 6 of the Land Acquisition Act, was issued on 29.08.2011, thereafter declaration under Section 7 of the Land Acquisition Act for acquisition was approved by the District Collector, Chennai on 29.09.2011. The notices were issued to petitioners for award enquiry and final award was also passed.
14. The stand of the State is that the Chennai Metro Rail Project is a time bound project with a tight-time schedule for its implementation and any delay is likely to result in increase of financial burden on the State. The project is of public importance, which is to be completed in the time bound schedule. The stand of the State, therefore, is that larger public interest is involved in this project, therefore, the decision to invoke urgency clause cannot be said to be arbitrary, illegal or unjust.
15. It is also stand of the State that the petitioners participated in the award enquiry, therefore, after passing of the award, the writs are not maintainable. That Chennai Metro Rail Project is proposed to reduce huge traffic congestion in Chennai city, therefore, work has to be carried out on war footing for the benefit of general public. It was after considering all aspects, that the Government has decided to acquire the land by invoking urgency clause, so as to complete the project in time.
16. That the petitioners in W.P.No.1049 of 2012 had made a request for exchange of land, and while the request was under consideration, the petitioners approached this Court by filing this writ petition.
17. Learned Senior Counsel appearing on behalf of petitioners in all these writ petitions vehemently contended that the notification issued by the State Government under Section 4 and declaration issued under Section 6 of the Land Acquisition Act, cannot be sustained in law, as there was no justification with the State Government to invoke the urgency provisions.
18. The contention of learned Senior Counsel in all the three writ petitions was that the project was admittedly conceived in the year 2008. Thereafter, negotiations were also held with the petitioners, disclosing their intention to acquire the land, therefore, it cannot be said that the State Government could not have waited for a period of 30 days to consider objection.
19. It was also contention of learned Senior Counsel for the petitioners, that invoking of urgency clause, besides being not sustainable, for want of urgency, is also vitiated and that while invoking urgency clause, notification was issued under Section 17 (2) of the Land Acquisition Act, which did not cover the case for acquiring the land, and it was only subsequently that provisions of Section 17(1) and 17(4) was invoked, after realizing the mistake, which proves that invoking of urgency clause was not sustainable in law.
20. In support of the contention that urgency provisions have been wrongly invoked, learned Senior Counsel appearing on behalf of petitioners placed reliance on the judgment of the Hon'bls Supreme Court in Radhy Shyam (Dead) Through LRs. And others vs. State of Uttar Pradesh and others, (2011) 5 SCC 553, wherein on analysis of relevant statutory provisions and its interpretation, the Hon'ble Supreme Court was pleased to lay down that, "(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.
(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.
(iii) However, 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 scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner 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 land owner 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 few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority 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 concerned authorities did not apply 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 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, 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 Section 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 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition."
21. The contention of learned Senior Counsel for the petitioners was that compulsorily taking of one's property is a serious matter, therefore, 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 suffering of the landowner, as the petitioners are going to lose their right to livelihood, as their established business is going to be affected by acquisition of land.
22. It was also vehemently contended that only in the case of real urgency, that the State can invoke the urgency provisions and dispense with the requirement of hearing land owners or other interested persons. That provisions of Section 17(1) r/w 17(4) can be invoked only when the acquisition cannot brook the delay of few weeks or months, for deciding the objections under Section 5A. The authority concerned is to be fully satisfied, that the time of few weeks or months, likely to be taken in conducting inquiry under Section 5A will in all probability, frustrate the public purpose, for which land is proposed to be acquired.
23. It was contended that this Court can take judicial note of the fact that planning, execution and implementation of the scheme is likely to take a number of years, therefore, invoking of Section 17(1) is not warranted in this case.
24. Reliance in support of the contention was placed on the judgment of the Hon'ble Supreme Court in Darshan Lal Nagpal (Dead) by LRs vs. Government of NCT of Delhi and others, (2012) 2 SCC 327, wherein while taking note of the judgment of the Hon'ble Supreme Court in Radhy Shyam (Dead) Through LRs. And others vs. State of Uttar Pradesh and others, (supra), it was laid down that invoking of urgency provisions can be satisfied only if there exists real urgency, which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks of months may frustrate the public purpose for which the land is sought to be acquired. The Hon'ble Supreme Court observed that, nobody can contest that the purpose for which the appellants' land and land belonging to others was sought to be acquired was a public purpose, but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard.
25. The Hon'ble Supreme Court in the case also was pleased to lay down that it was not permissible to overlook the time gap of five years between initiation of proposal for establishment of electricity substation and issue of notification under Section 4(1) r/w Section 17(1)(4) of the Act.
26. The contention of learned Senior Counsel for the petitioners is that in view of authoritative pronouncement by the Hon'ble Supreme Court, and the fact, that the project was envisaged in 2008, whereas notification under Section 4(1) was issued in 2011, can lead to the only conclusion that urgency clause was wrongly invoked.
27. Reliance was thereafter placed by learned Senior Counsel for the petitioners, on the judgment of the Hon'ble Supreme Court in Devendra Singh and others vs. State of U.P. and others, (2012) 1 MLJ 994 (SC), wherein the Hon'ble Supreme Court was pleased to lay down that the land owners cannot be denied the valuable right to raise objections, and that opportunity of hearing before the authorities under Section 5A of the Land Acquisition Act, 1894, by invoking urgency provisions under Section 17(4) of the Act, cannot be upheld, when the Government machinery had functioned in processing the acquisition, at a slow pace with a lethargic attitude.
28. It was also contended, that right to file objection under Section 5A is a Fundamental Right, having regard to Article 300-A of the Constitution of India, therefore, the State Government cannot invoke the urgency clause to take away the property of petitioner, without giving them even opportunity of hearing.
29. In support of this contention, reliance was placed on the judgment of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai and others, (2005) 7 SCC 627. It was contended that decision of this Court in W.P.No.20769 of 2010, decided on 24.01.2011, cannot help the respondents, as before issuing every notification under Section 4, the respondents have to apply mind to invoke urgency clause, as it results in denying the right of filing objections, which is the constitutional right of citizen, whose property is under acquisition. That judgment of this Court was passed prior to the judgment of the Hon'ble Supreme Court in the case of Darshan Lal Nagpal (Dead) by LRs vs. Government of NCT of Delhi and others, (supra), therefore, cannot be relied upon by petitioners to defeat the rights of petitioners.
30. With regard to the objection of respondents that the writ petitions are not competent after the award is passed, was controverted by the learned Senior Counsel for the petitioners, by contending that this principle applies when the urgency clause is not invoked, but by invoking urgency clause and payment of compensation, the fundamental / constitutional right cannot be defeated, therefore, the law laid down by this Court, that it was not open to challenge the acquisition, after the award is passed, cannot apply to this case, as the Government has invoked the urgency clause.
31. The writ petitions are opposed by the learned Advocate General as well as learned Senior Counsel appearing on behalf of the Chennai Metro Rail Limited. It is vehemently contended that writ petitions are not maintainable, as points raised in these writ petitions were considered and rejected by this Court in W.P.No.20769 of 2010 (B.M.Purnachandran vs. The Secretary to Government (Special Initiatives), Planning, Development and Special Initiatives Department) decided on 24.01.2011, holding therein that the file of the State Government shows, that there was material on record for forming an opinion, for invoking provisions of Section 17, i.e. nature of project, escalation of prices of the contract, and the need to implement the project at the earliest.
32. The contention of learned Advocate General was that these writ petitions deserve to be dismissed, specially when the judgment of this Court in the case of B.M.Purnachandran vs. The Secretary to Government (Special Initiatives), Planning, Development and Special Initiatives Department) supra, was followed by this Court in W.P.No.16277 of 2011 (Nooruddin Buriyawal and another vs. The Secretary to Government (Special Initiatives), Planning, Development and Special Initiatives Department) decided on 01.03.2012 and in W.P.No.21024 of 2011 (Syed Samiullah vs. The Secretary to Government (Special Initiatives), Planning, Development and Special Initiatives Department), decided on 29.03.2012.
33. It was the contention of learned Senior Counsel for the respondents that the judgment relied upon by the learned Senior Counsel for the petitioners dealt with acquisition of land for residential, commercial, industrial, institutional area, which take a number of years, therefore, objection under Section 5A attains importance, as the area to be acquired can be shifted, but the implementation of Chennai Metro Rail Project involves identification of area and corridors, approval of alignments, approval of other allied projects and its works, identification of lands absolutely essential for the work, identification of contractors for various work at various stages, completion of complex designs, initiation and completion of land acquisition proceedings and etc., which is an on going project, and there cannot be delay in implementation of the project. It is submitted that the petitioners were associated during the project implementation stage and their objections were considered. It was in view of the nature of project, that their objections could not be accepted.
34. It was in order to keep the pace of the project, and public interest, that the request was made to the State for invoking of urgency clause. It was after due application of mind and keeping in view facts and circumstances, and after having satisfied itself, that the Government of Tamil Nadu dispensed with the objections under Section 5A, which does not call for any interference. The judgment of the Hon'ble Supreme Court cannot have any application to the present case.
35. On consideration, I find no force in these writ petitions. There can be no dispute with the proposition of law, that urgency provisions can be invoked in case of real emergency, which cannot brook delay. The question whether there is real emergency and urgency depends on facts of each case, which cannot be put in watertight compartment.
36. It may be noticed, that this is a case where Chennai Metro Rail Project is being implemented by the Government of India and the State Government, through Chennai Metro Rail Limited. The project is to be implemented in a time bound manner. The project envisaged the land to be acquired, and as per the policy of the State Government, the petitioners were associated and were informed, that their area is likely to come for acquisition.
37. The objections of petitioners were also considered and intimation was sent that the proposal could not be accepted, in view of the fact that in implementation of the projects of this nature, a number of factors are taken into consideration. The bonafide of the State Government in acquiring the land cannot be doubted. It is also proved on the file, that urgency provisions in these cases were not mechanically invoked, but keeping in view the real urgency, that is to see that the project does not come to standstill at any stage. The facts further show that all steps were taken to acquire the minimum private land, which could not be avoided, as it fell in the alignment.
38. The challenge to the invoking of urgency provisions has already been rejected, by this Court. The project is admittedly progressing at horse speed. It is also proved, that as and when the necessity arises for acquisition, the notification under Section 4 is issued invoking urgency clause.
39. It also cannot be said, that the State Government slept over the matter from 2008 to 2011 or was in any way lethargic, to hold that invoking of urgency clause was not bonafide.
40. It is not even the case of petitioners that there was any malafide on the part of respondents, in acquiring the land or invoking of urgency clause. The only ground of challenge was that in case opportunity was given, the petitioners could have suggested alternative site, further that no presumption can be drawn, that petitioners will have nothing to say and further that in view of time gap between 2008 and 2011, the invoking of urgency clause cannot be sustained. This contention cannot be accepted, in view of the fact that record shows that the decision was taken after due consideration of the project, price involved, and the urgency of the project, which is of great public importance. It cannot be, therefore, said, that there is any illegality in invoking urgency provisions.
41. The writ petitions are otherwise also not maintainable, in view of the settled law, that it is not open to the land owners to challenge the acquisition proceedings, after passing of award. In these cases, the petitioners participated in the award proceedings, and have challenged the acquisition proceedings after the award was passed.
42. The contention of learned Senior Counsel for the petitioners that the settled principle of law, that no writ to challenge acquisition after passing of award, would not be applicable to the notification issued by invoking urgency clause, cannot be accepted. It is not the interim award, but the final award, which was only passed after parties are heard for fixing compensation. At the sake of repetition, it may be noticed here that, petitioners in these cases participated in the award proceedings. The petitioners had sufficient time to challenge the proceedings before passing of final award, but the petitioners chose to wait till award was passed and thereafter challenged the acquisition.
43. For the reasons stated herein above, finding no merits in these writ petitions, these are ordered to be dismissed, but with no order as to costs. Consequently, connected miscellaneous petitions are closed.
ar To
1. The State of Tamil Nadu, Rep. by its Secretary to Government (Special Initiatives) Fort St.George, Chennai-600 009.
2. Chennai Metro Rail Limited Rep. by its Managing Director Harini Towers No.7, Conran Smith Road, Gopalapuram, Chennai-600 086.
3. The District Collector Chennai District Singaravelar Maligai Chennai-600 001.
4. The District Revenue Officer
-cum Project Officer Chennai Metro Rail Limited, 11/6, Seethammal Salai, Alwarpet, Chennai-600 018.
5. The Special Tahsildar (Land Acquisition) Chennai Metro Rail Limited, Chennai Unit-1, Harini Towers, No.7, Conran Smith Road, Gopalapuram, Chennai 600 086