Madras High Court
Jaffer Mohamed Sait vs The Government Of Tamil Nadu on 5 January, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.12345/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12345 of 2020
& WMP.Nos.15191 & 15192 of 2020
1.Jaffer Mohamed Sait
2.Abdul Rahman CassimSait @ Rafiq Sait
3.Fakeer Mohamed Sait @ Junaid Ali Sait
4.Zubair Ahmed Sait
5.Abdullah Ahmed Sait @ Suhail Sait
6.Mohammed Younus Sait @ Abrar Sait ...Petitioners
vs.
1.The Government of Tamil Nadu
Rep. by Principal Secretary to Government,
Animal Husbandry, Dairying
and Fisheries (MP-1) Department,
Secretariat, For St.George,
Chennai – 600 009.
2.The Land Acquisition Officer cum Sub Collector,
Coonoor, Ootacamund,
Nilgiris District.
3.The Nilgiris District Co-Operative Milk
Producers Union Ltd.,
Rep. by its General Manager,
Coonoor Road, Udhagamandalam,
Nilgiris-643 001. ... Respondents
1/15
https://www.mhc.tn.gov.in/judis
WP.No.12345/2020
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the records
in proceedings in Letter No.8684/MP.I(2)/2019-2, dated 09.09.2019, on
the file of 1st respondent and quash the same as illegal, incompetent and
without jurisdiction and direct the 1st Respondent to re-convey the
unutilized portion of the land situated in S.No.1106/4A3, 1106/4B1,
1106/4C2 measuring an extent of 5 acres in Ootacamund Town, Nilgiris
District.
For Petitioners : Mr.V.Raghavachari,
Senior Counsel
for Mrs.V.Srimathi
For R1 & R2 : Mr.G.Ameedias,
Government Advocate
For R3 : Mr.G.Muniratnam
ORDER
The writ on hand has been instituted questioning the validity of the letter dated 09.09.2019 issued by the Principal Secretary to Government, Animal Husbandry, Dairying and Fisheries Department.
2.The facts in nutshell for consideration would be that the subject property originally belonged to the writ petitioners were acquired for public purposes on 15.12.1980. The process of acquisition was 2/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 completed in the year 1981 and the compensation was also paid to the erstwhile land owners during the year 1981. A reference was made subsequently for enhancement of compensation and thereafter, the litigations were continuing for a considerable length of time. However, the fact remains that the acquisition process completed in the year 1981 by passing an award and settling the compensation as determined by the Land Acquisition Officer.
3.The land acquired by the Government was allotted under the Hill Area Development Scheme to the third respondent/Nilgiris District Co- operative Milk Producers Union for establishing milk processing plants at the hill area.
4.The petitioners, now after a lapse of about 40 years filed the present writ petition in the year 2020 questioning the validity of the reference order passed in the year 2019. The modus of opening the lapsed claim in the present case is that the writ petitioner earlier filed WP.No.4832 of 2014 seeking the relief to direct the Government to de- notify the land used by the third respondent measuring over 5 acres. This 3/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 Court passed an order on 05.02.2019 directing the Government to consider the representations submitted by the writ petitioner dated 04.10.2012 and pass an order within a period of four months. In compliance with the orders of this Court, the present impugned order dated 09.09.2020 has been issued. This is how the cause of action was restored after a lapse of many years. The practice of restoring lapsed cause of action at no circumstances be appreciated. A mere direction to dispose of the representation would do no service to the cause of justice. In such circumstances, the order of rejection, if passed by the authorities are challenged by way of fresh writ petition, as if the cause arose at the first time.
5.The learned Senior Counsel Mr.V.Raghavachari, for Mr.V.Srimathi, learned counsel appearing on behalf of the petitioner would submit that the appeal suit filed by the land acquisition officer, Udhagamandalam in A.S.388 of 1984, the Division Bench of this Court in its Judgment dated 11.08.1988 made an observation that the third respondent in the present writ petitioner filed an affidavit that they are not utilizing the acquired land to an extent of 4 to 5 acres and the said fact was 4/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 recorded by the Division Bench. When the third respondent has admitted the fact that they have not utilized a portion of the acquired land, the said portion is to be re-conveyed to the writ petitioner. In support of the said contention, the learned Senior Counsel would rely on the Judgment of the Hon'ble Supreme Court in the case of Royal Orchid Hotels Limited and another Vs. G.Jayarama Reddy and others [2011 10 SCC 608], wherein the Supreme Court made the following observations;
“36.The next question which merits examination is whether the High Court was justified in directing restoration of land to Respondent 1. In Behroze Ramyar Batha v.Land Acquisition Officer, the Division Bench of the High Court categorically held that the exercise undertaken for the acquisition of land was vitiated due to fraud. The Division Bench was also of the view that the acquisition cannot be valid in part and invalid in other parts, but did not nullify all the transfers on the premise that other writ petitions and a writ appeal involving challenge to the acquisition proceedings were pending. In Annaiah v. State of Karnataka the same Division Bench specifically adverted to the issue of diversification of purpose and held that where the landowners are deprived of their land under the cover of public purpose and there is diversification of land for a private purpose, it amounts to fraudulent exercise of the power of eminent domain.
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37.The pleadings and documents filed by the parties in these cases clearly show that the Corporation had made a false projection to the State Government that land was needed for execution of tourism-related projects. In the meeting of officers held on 13-1-1987 i.e. After almost four years of the issue of declaration under Section 6, the Managing Director of the Corporation candidly admitted that the Corporation did not have the requisite finances to pay for the acquisition of land and that Dayananda Pai, who had already entered into agreements with some of the landowners for purchase of land, was prepared to provide funds subject to certain conditions including transfer of 12 acres 34 guntas land to him for house building project. After 8 months, the Corporation passed a resolution for transfer of over 12 acres land to Dayananda Pai. The Corporation also transferred two other parcels of land in favour of Bangalore International Centre and M/s Universal Resorts Limited. These transactions reveal the true design of the officers of the Corporation, who first succeeded in persuading the State Government to acquire a huge chunk of land for a public purpose and then transferred a major portion of the acquired land to a private individual and corporate entities by citing poor financial health of the Corporation as the cause for doing so.
38.The courts have repeatedly held that in exercise of its power of eminent domain, the State can compulsorily acquire land of 6/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 the private persons but this proposition cannot be overstretched to legitimise a patently illegal and fraudulent exercise undertaken for depriving the landowners of their constitutional right to property with a view to favour private persons. It needs no emphasis that if land is to be acquired for a company, the State Government and the company is bound to comply with the mandate of the provisions contained in Part VII of the Act. Therefore, the Corporation did not have the jurisdiction to transfer the land acquired for a public purpose to the companies and thereby allow them to bypass the provisions of Part VII. The diversification of the purpose for which land was acquired under Section 4(1) read with Section 6 clearly amounted to a fraud on the power of eminent domain. This is precisely what the High Court has held in the judgment under appeal and we do not find any valid ground to interfere with the same more so because in Annaiah v.State of Karnataka the High Court had quashed the notifications issued under Section 4(1) and 6 in their entirety and that judgment has become final.”
6.As per the above Judgment, in the present case, the acquisition was made fraudulently and the acquired lands were not utilized for the purpose for which it was acquired and therefore, the petitioner is entitled for the relief of re-conveyance. The petitioner could able to receive compensation after a long fight and considering the facts, the Writ Petition 7/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 is to be allowed.
7.The learned counsel for the third respondent Mr.G.Muniratnam would oppose the said contention by stating that the petitioners have selectively relied on the observations made by the Division Bench in the appeal suit instituted in A.S.No.388 of 1984 dated 11.08.1988. In the very said Judgment, the Division Bench further said that 'such filing of the affidavit at this stage cannot be said to be having any impact in arriving at a compensation'.
8.Paragraph No.38 of the same Judgment has been referred by the third respondent, which reads as under;
“38.As regards the additional affidavit filed on behalf of the Union through the Managing Director, stating that the Union faced with severe financial burden has reconsidered the requirement and decided to forego 4 to 5 acres of land south of the buildings which has been erected and the portion is bifurcated by a small street, we wish to state that if the Union feels in such manner to forego the said extent the same may be intimated to the District Collector for being utilised for any other public purpose and thereby the Union may not suffer in the event 8/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 of enhancement of compensation after the final disposal of the reference”
9.Regarding the non-utilization of the acquired land, the learned counsel for the third respondent Mr.G.Muniratnam would state that the usage of the land has been categorically stated in the counter affidavit filed by the third respondent.
10.The lands were acquired in the year 1980 and 43 years lapsed. The third respondent/The Nilgiris District Co-operative Milk Producers Union Ltd., has developed its activities in many forms for the purpose of catering the needs of the public in that locality. Various projects are already implemented and certain proposed projects are yet to be implemented. The third respondent is supplying milk to the entire locality and further transporting milk to other neighboring Districts.
11.In this context, the third respondent states that the acquired lands are essential for the purpose of running the milk union. There is no 9/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 land which can be spelt, served or considered excess. The land which is not covered by the buildings and maintained as vacant land consists mainly of water sources required to run the Dairy plant and land required for the Hydraulic loading at the rate of 35 KL per Hectare for the disposal of treated effluent as per Environmental law and Pollution Act. At present, third repondent Union is handling Hydraulic Loading at the rate of 50 KL which requires 1/43 Hectare land and a buffer vacant land to be allowed around the Dairy Plant as per the Factory Act. The Dairy plant is in operation for the last 31 years and the Nilgiris District Milk Producers Federation Limited is not in a position to spare even an inch of land.
12.In the present case, the procedures as contemplated under the land acquisition Act was scrupulously followed. The Acquisition completed in the year 1981. Compensation was settled in favour of the erstwhile owners and admittedly, they have withdrawn the amount. Subsequently, a reference was made for enhancement and those factors are irrelevant as far as the present writ petition, wherein, the petitioner is seeking the relief of re-conveyance of the acquired land.
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13.Regarding the allegation of the petitioner that the portion of the acquired land was rented out for parking purposes, the third respondent has stated that there is no violation as alleged by the petitoners. The third respondent is utilizing the entire land of 11.32 acres as detailed in the impugned order. During summer vacation, to clear traffic due to season, the District Collector/the Government gave direction to the 3 rd respondent to allow the vehicles for parking, since there is no water due to rain during summer vacation. The Government directed the 3rd Respondent to use a small portion of the area to dump the materials to complete the PWD work by the High-ways Contractor till the completion of the work. Therefore, the 3rd Respondent is not using the land apart from the purpose for which it was acquired and it is used as per the directions of the Government. The land is being used for the said purpose of said acquisition. The parking of vehicle and rented out to a Highway contractor for a sum of Rs.50,000/- per month as per the direction of the Government. The work of the contractor was over and the 3 rd respondent is now using the entire land for the purpose for which it was acquired.
14.Regarding the Judgment relied on by the petitioner in the case 11/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 of Royal Orchid Hotels Limited sited supra, the notification issued under Section 4(1) and 6, in their entirety was challenged before the writ Court. The Supreme Court found that a fraud being committed in land acquisition proceedings in that particular case. Considering those facts, the acquisition proceedings were quashed. However, in the present case, the acquisition proceedings were completed in all respects by following the procedures and the acquisition therefore, became valid and the facts in the present case would have no application with reference to the facts considered by the Supreme Court in the case of Royal Orchid Hotels Limited. Since the facts are distinguishable, the said Judgment is of no avail to the petitioner for the purpose of seeking re-conveyance of the acquired land.
15.Beyond all these, 43 years lapsed and the petitioner made an attempt to restore the cause of action by filing a writ petition in the year 2020 and pursuant to the order of direction to consider the representation the impugned order has been passed and therefore, the said order cannot be construed as the original cause for the purpose of further adjudication of the issues. The impugned order is a cause which was created at the instance of the petitioner by filing a writ petition and obtaining a direction 12/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 to consider the representation and the original cause arose in the year 1980, when the land acquisition proceedings were initiated became lapsed on account of completion of the proceedings and possession was taken by settling the compensation due to the erstwhile owners.
16.In view of the above facts and circumstances, the petitioner has not established any acceptable ground for the purpose of considering the relief and consequently, the Writ Petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
05.01.2024 Tsg Index : Yes/No Internet:Yes/No Speaking Order/Non-speaking Order 13/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 S.M.SUBRAMANIAM , J.
Tsg To
1.The Government of Tamil Nadu Rep. by Principal Secretary to Government, Animal Husbandry, Dairying and Fisheries (MP-1) Department, Secretariat, For St.George, Chennai – 600 009.
2.The Land Acquisition Officer cum Sub Collector, Coonoor, Ootacamund, Nilgiris District.
3.The Nilgiris District Co-Operative Milk Producers Union Ltd., Rep. by its General Manager, Coonoor Road, Udhagamandalam, Nilgiris-643 001.
W.P.No.12345 of 2020 14/15 https://www.mhc.tn.gov.in/judis WP.No.12345/2020 05.01.2024 15/15 https://www.mhc.tn.gov.in/judis