Madras High Court
Indira Nagar Residents Benefit Society ... vs The Government Of Tamil Nadu And Ors. on 20 September, 1995
Equivalent citations: (1996)1MLJ650
JUDGMENT K.A. Swami, C.J.
1. This appeal is preferred against the Order dated 19.7.1995 passed by the learned single Judge in W.P. No. 5415 of 1992. Learned single has rejected the writ petition. Hence, the petitioner therein has come up in appeal.
2. In the writ petition, the petitioner/appellant which is Indira Resident's Benefit Society represented by its Secretary K. Arunachalam, has sought for quashing the Notifications issued under Section 4 as well as under Section 6 of the Land Acquisition Act (hereinafter referred to as the Act) acquiring vast extent of land adjoining the existing SIPCOT lay out for the purpose of expansion of the SIPCOT lay out for industrial purpose.
3. It may be pointed out here that on an earlier occasion, the Notification issued under Section 4(1) of the Act in question were challenged by one K. Gurusamy, Krishna Traders represented by Partner P. Ayyappan and Indira Nagar Welfare Association represented by its Secretary in Writ Petition Nos. 12653, 14398 and 14584 of 1989 respectively. The Notifications issued under Section 4 were challenged on various grounds. Ultimately, it was urged that the Notifications suffered from the vagueness. Learned Single Judge negatively contention after referring to the contents of the Notification and the purpose for which the acquisition was being made. Accordingly, he dismissed the writ petitions by order dated 29th August, 1991.
4. Aggrieved by the order of the learned single Judge, the petitioners therein went up in Writ Appeal Nos.52, 63 and 196 of 1992 respectively. The Division Bench considered the matter in greater detail and held that the Notifications issued under Section 4(1) of the Act did not suffer from any vagueness. Accordingly, dismissed the writ appeals. The Division Bench by Judgment dated 26.2.1992 also referred to the proceedings under Section 5-A of the Act and ultimately, held as follows:
The facts of the present cases being what they are, as per our discussion supra, it is not possible for us to hold that the impugned Notifications suffer from the vice of vagueness indefiniteness. Further, Mr. M.A. Sadanand, learned Government Pleader brings to our notice that the petitioners did file their objection without any reservations and they did participate in the enquiry under Section 5-A of the Act, and it would not lie in their mouth to advance a grievance that they were disabled from making effective representations objecting to the acquisition. For all the above reasons, we have not found a warrant for interference in writ appeals. Accordingly, these three writ appeals are dismissed. No costs.
After the declaration under Section 6 was issued the present writ petition has been filed.
5. It may be pointed out at the outset that there was no reference whatsoever made to the earlier writ petitions. Even, in the present writ petition, it is not stated as to whether they i.e. members of the petitioner society are different for the members of the Indira Nagar Residents' Benefit Society, which filed W.P. No. 14585 of 1989 and W.A. No. 63 of 1982. In fact in the counter-affidavit filed by the State Government as well as the SIPCOT it has been stated that the members of both the Societies are the same. There is no re-joinder filed. Thus, the petitioner has not disclosed the necessary facts, which were within the knowledge of the petitioner and also has not disclosed the particulars as to the members of the Society and the sites purchased by them. The petition is as vague as the vagueness, could be and in order to demonstrate the vagueness we may point out here that in the first paragraph of the affidavit, it is stated that the person swearing to the affidavit is the Secretary to the petitioner Society. In the second paragraph, it is'stated that the Society has been registered with the aims and objects of protecting, promoting, securing and safeguarding the interests of its members, 300 in total. The extent of the house sites purchased by the members of the petitioner society and the survey members are also mentioned in paragraph No. 2. In paragraph No. 3, it is stated that all the members belong to backward families and they are small traders and are earning their bread from small trades and jobs and they have purchased sites from the 9th respondent who had formed the lay out on obtaining the aforesaid sanction from the Commissioner of Gummidipoondi Panchayat Union. In paragraph No. 4, it is stated that members of the petitioner who were searching for roofs above their heads for sheltering their families atleast in small houses and huts within their limited means, were attracted by the publicity given for the sale of the house-sites and purchased their respective house sites, each costing from the price range of Rs. 5,000 to Rs. 15,000 fully satisfying themselves that such house sites came up for sale after sanction and approval by the competent authorities. Then, in para 5, the notifications issued under Sections 4(1) and 6 of the Act are referred to and thereafter, the grounds are stated. In para 6, it is alleged that the acquisition proceedings are nothing but mala fide colourable exercise of power commenced and carried on only to harass and annoy the members of the petitioner Society under the guise of public purpose. The grounds stated are as follows:
(A) The Government of Tamil Nadu is not entitled to commence and continue the land acquisition proceedings, after granting approval and sanction to the conversion of the land into as many as 540 house-sites under the Doctrine of Estoppel, when we have been let to act upon the approval and sanction granted in respect of the house-sites we have already purchased long before the commencement of the acquisition proceedings.
(B) The very description and the detail given as though the acquisition proceedings are in respect of Dry lands, when as a matter of fact, they have become house-sites are clearly false, fraudulent, incorrect and inaccurate to render the notifications under Sections 4 and 6 as void and illegal.
(C) The public purpose alleged, to wit, for the expansion of industrial complex sponsored by the SIPCOT is vague and uncertain and hence the notifications are clearly invalid and illegal.
(D) The impugned proceedings are clearly arbitrary, perverse and unjustified, when they have been commenced in 1988 after the lay out for the house-sites has been sanctioned even in 1987. The entire acquisition proceedings are mala fide, colourable exercise of power and commenced without application of mind when the notifications do not make mention of the conversion of the land into house-sites and when such acquisition proceedings were once commenced and dropped.
(E) The public purpose alleged, as though it is for the expansion of industrial complex sponsored by SIPCOT is neither real nor actual when it is in clear evidence that out of the total 200 industrial units, 50% of them have already become defunct and closed, so as to falsify the pretext and the disguise of the expansion of the industrial complex.
(F) The entire land acquisition proceedings are unauthorised and without jurisdiction when the impugned notifications have been issued only in respect of "dry lands" when there are actually only house-sites which are clearly distinct and different from lands, in their use, their value and their nature.
(G) The Government is not entitled to acquire sanctioned and approved house-sites for the alleged expansion of an industrial complex.
(H) The acquisition proceedings are illegal and invalid, as they seriously prejudice and substantially affect the lawful rights of 540 bona fide purchasers of the house-sites in accordance with law.
6. Learned single Judge has held that as Section 4(1) Notification was challenged, it is not now open to the petitioner to challenge the 4(1) Notification. It has been further held by the learned single Judge that taking into consideration the purpose for which the acquisition is being made, the acquisition being for a public purpose which is beyond dispute, the difficulties and the likely sufferings expressed by the petitioner cannot outweigh the public purpose. Accordingly, learned single Judge has dismissed the writ petition. The relevant portion of the order of the learned single Judge as found at paragraph No. 14 is as follows:
In this case, the fact that the acquisition for a public purpose is beyond dispute. Even if the difficulties that the petitioners are likely to suffer the weighed against the benefits of the proposed acquisition, it is clear accruing from that the benefits the expansion of industrial area outweighs the loss that the petitioners suffer. As pointed out by the learned Special Government Pleader Mr. P. Sathasivam, the present acquisition is for the second phase of the area, which is contiguous to the first phase, wherein infrastructure for industry has been established and which will now be extended to the acquired area and it is not possible to give up the petitioner's land, which is in the middle of the area earmarked for such industrial development.
7. Before us, learned Counsel appearing for the petitioner contended that the description of the property found in the declaration issued under Section 6 is wrong, that the names of the site owners are not stated in the declaration; that Section 5-A inquiry was a farce, that the acquisition is not fair and reasonable and that the needs of the members of the petitioner Society are genuine. Learned Counsel has placed reliance on the decisions reported in Collector, Land Acquisition, Anantnag v. Katiji , The State of Tamil Nadu v. V.A. Mohammed Yousuf 1990 Writ L.R. 235, Saroja Sethu v. State of Tamil Nadu, etc. 1993 Writ L.R. 240, Ghaziabad Sheromani Sahakari Avas Samiti Limited v. State of U.P. , Delhi Administration v. Friends Housing Society A.I.R. 1981 Del. 30 and Thanikavalu, P.C. v. The Special Deputy Collector for Land Acquisition, Madras 1989 Writ L.R. 89.
8. It may be pointed out here that the learned Government Pleader has placed the records pertaining to the land acquisition. On going through the records, it is noticed that prior to the land acquisition proceedings, the Revenue Officer has inspected the entire stretch of the land in question and has made a report that the lands are dry lands and there are no structures and there are no temples or religious institutions. The contention of the learned Counsel is that because the lay out was approved, the land could not have been described as dry land. No records are placed before us that after the lay out was approved by the relevant Authorities, at the instance of the 9th respondent, the lay out was actually formed in the land and the sites were formed and roads were laid. The land are to be classified as wet or dry, unless the buildings are found on the land. Even in the writ petition, it has not been stated as to which are the site numbers, which have been purchased by the members of the petitioner Society. Except stating that the sites falling under certain survey numbers have been purchased by the members of the petitioner Society numbering about 300, no details are stated. Therefore, it is not possible to hold that the description of the land in the declaration as dry land is incorrect and that it has misled the owners of the land. It may also be pointed out that there is no material placed before the Court to show that the names of the members of the petitioner Society were entered in the revenue records. In the absence of any such material and in the absence of entry of the names of the members of the petitioner Society in the revenue records, it is not possible to hold that the names other than those appearing in the revenue records should have been shown in the Notifications. Even otherwise, as per the counter-affidavit, the contents of which are not denied, it has been stated that the members of the petitioners Society had been informed and they had also participated in the enquiry held under Section 5-A of the Act. In the counter affidavit filed by the Special Secretary to the Government, Industries Department, it has been specifically stated thus:
...In this connection, it has to be mentioned here that the same writ petitioner has filed a writ petition in W.P. No. 4564 of 1989, representing himself as partner of M/s. Krishna Traders mentioning the land in S. Nos. 140/4, 140/5, 140/6, totally measuring 0.51 acre of Dry lands in Pappankuppam Village. The said writ petition is still pending and stay is in force. The same person, viz., K. Arunachalam has filed the present writ petition in W.P. No. 5415 of 1992 as the Honorary Secretary, Indira Nagar Residents' Benefit Society.... The real estate owners, viz., M/s. Krishna Traders and Indira Nagar Welfare Association have filed writ petitioners in 1989, viz., Writ Petition Nos. 14398 of 1989 and 14534 of 1989 and then Writ Appeals in Writ Appeal Nos. 196 of 1992,63 of 1992, etc. relating to the unsold portions immediately on the publication of the Draft 4(1) notification and got the interim stay orders. These writ petitions were dismissed on 29.8.1991 and immediately necessary follow up action of Land Acquisition proceedings were taken and the Draft Declaration under Section 6 got approved and published before the due dates. Even then these owners filed Writ Appeal Nos. 196 of 1992 and 63 of 1992 to stay the land acquisition proceedings at any cost but the writ appeals were also dismissed on 26.2.1992. As such it is not known as to how a new society styled as Indira Nagar Resident's Benefit Society can file a writ petition mentioning all the survey numbers covered by the earlier writ petition and writ appeal filed by the same Indira Nagar Welfare Association and M/s. Krishna Traders and got interim stay Even in respect of these lands, most of the plot owners have appeared for the 5-A enquiry and objected the Land Acquisition Proceedings and their objections were duly considered. Most of the owners absented themselves while some have given consent for the acquisition. Thus, only after observing all the formalities under the Land Acquisition Act, the Draft Declaration under Section 6 now appeared and published in the dailies and Tamil Nadu Government Gazette.
Thus, it may be seen that now afresh attempt by way of a new writ petition by naming Indira Nagar Residents' Benefit Society is made and an interim stay has been obtained against taking of possession alone.... With regard to the averments made in para 2 of the affidavit, it is submitted that a perusal of the Indira Nagar lay out approved in Panchayat Union Commissioner, Gummidipoondi in Rc. 5181/86 A5 dated 12.1.1987, reveals that there are only 284 plots approved with a total extent of 20.45 acres styled as Indira Nagar. But actually there is not a single construction existing in this area and as already stated half of this area which are not covered by any court proceedings were acquired already and possession handed over to the SIPCOT. Therefore the contention raised in this paragraph is false and incorrect.... Further, the contention that a total extent of 36.00 acres covered as layout was approved by the Panchayat Union Commissioner, Gummidipoondi in R.C. 5181/86 dated 12.1.1987 is incorrect, since only an extent of 20.54 acres is covered by the layout of which about 50% acquired already.... The lay out referred to by the writ petitioner have been prepared in the middle of 1986 and got approved in 1987 i.e., after the administrative approval of the Government for the acquisition of lands. The lands are contiguous to the Industrial Complex already in existence and it is essentially required for the expansion of industrial complex. Therefore the contention raised deserves no merit.
...With reference to the Contentions made in Grounds (G) and (F) of the affidavit, it is submitted that as already explained, the Government have accorded administrative sanction for the acquisition of these lands on 23.4.86, whereas the lay out was approved after this. Even before the administrative approval of the Government, the impugned land along with other lands which are under acquisition were inspected by the Revenue Officials. Therefore the people in the locality were fully aware of the acquisition of these lands for SIPCOT. Thus it is clear that the lay out is prepared and got approved after knowing fully the acquisition proceedings. Hence, the contention in this paragraph are not sustainable.
Thus, it is clear that some of the members of the petitioner Society have participated in the inquiry held under Section 5-A of the Act. Therefore, it is not possible to hold that the 5-A inquiry was a farce. The reports made under Section 5-A disclose that the inquiry was conducted in a proper manner.
9. The contention of the petitioner/appellant that there is no fairness and reason abseness in the acquisition, cannot be appreciated. It is not in dispute that the acquisition is for public purpose, viz., for the expansion of industrial complex sponsored by the State Industrial Promotion Corporation of Tamil Nadu, which is a State Government undertaking. The proposed acquisition adjoins to the existing industrial complex of the SIPCOT. The lands claimed by the members of the petitioner Society do fall in the middle of the proposed industrial lay out. They are not in the periphery of the land acquired. When a vast bit of land is being acquired for the public purpose, viz., for the purpose of expansion of industrial complex sponsored by State Industrial Promotion Corporation, a private property cannot be allowed to remain in the middle of that area, which will only lead to insecurity and other problems. Therefore, the decision of the State Government to acquire the entire stretch of land for the public purpose named in the Notification cannot be held to be either unfair or unreasonable.
10. Learned Counsel tried to contend that the State Government was stopped from acquiring the land in question, because under the relevant enactment, the 9th respondent got the lay out approved and sold the sites to the members of the petitioner/appellant Society and knowing this well, the State Government should not have proceeded or at any rate, it estopped from proceeding. It is not possible to appreciate the contention put forth by the learned Counsel in this fashion. There cannot be any application of rule of estoppel, which is a rule of evidence against the State. The power of acquisition of the State being the power of eminent domain, cannot be disputed. The mere fact that the 9th respondent got the lay out approved, did not mean, nor from that, it an be inferred that there was a representation made by the State Government that in view of the approval of the lay out, the land falling under the lay out would not be acquired and the enactment under which the lay out was got approved, was different and any order passed under that cannot be held to have affected the power the State Government to acquire the land. In addition to this, it may be pointed out that no building has come up in any portion of the area, which is under acquisition and no material whatsoever has been produced in that regard either before the learned single Judge or before us. It may also be pointed out that this is a case in which the 9th respondent appears to have buried up, on coming to know that the State Government has decided to acquire vast extent of land. As disclosed from paragraph No. 10 of the counter affidavit, the State Government in Order 450, Industries MIJ-2 dated 23.4.1986 accorded its administrative sanction for acquisition of 526.62 acres of dry lands in Pappankuppam Village forming a compact area, adjoining the earlier industrial complex. That being so, it cannot be held that the public purpose should not prevail over the needs of the individual members of the petitioner/appellant Society.
11. Learned Counsel placed reliance on the decision in Collector, Land Acquisition, Anantnag v. Katiji , in support of his contention that the court must always try to advance substantial justice and should not reject the matters on technical grounds or grounds of limitation. It may be pointed out that the said decision arose out of a case, which was rejected as barred by time, it was in that context, the Supreme Court made the observation relating to advancing of substantial justice, that the said decision has no bearing on the case on hand, where the acquisition is indisputably for a public purpose.
12. Reliance was also placed on a decision of the Supreme Court in Ghaziabad Sheromani Sahakari Avas Samiti Limited v. State of U.P. . That was a case wherein the Government servants formed a house building co-operative society and acquired certain house sites for the purpose of lay out and allotted sites to the members of the Society. The Supreme Court held that when the Government servants have formed a lay out for their purpose, the acquisition was not appropriate and it further held that the grievances advanced by the members through their Co-operative societies were genuine and they should not be denied residential accommodation for which they had taken effective steps before the acquisition for the Development Authority was notified. It may be pointed out that a house building cooperative society formed by the Government servants and acquiring the land for the purpose of lay out, will stand on a different footing than the lay out formed by a real estate owner, who is interested in minting money. In the instant case, the real estate owner, 9th respondent knowing fully well that the Government was going to acquire the land, wanted to extract money from the public, without disclosing the fact that the lands have been proposed to be acquired. Thus, the 9th respondent who is the main cause for all these cannot be held to have acted bona fide. Consequently the members of thee petitioner Society who claim through the 9th respondent, cannot also claim bona fides. All appear to have made an attempt to make money so that they can get good compensation. Therefore, the said decision cannot be applied to the facts of the present case.
13. As far as the decision of the Delhi High Court in Delhi Administration v. Friends Housing Society A.I.R. 1981 Del. 30, is concerned that was a case in which the acquisition was upheld. Therefore, it is not possible to hold that the decision has got any relevance to the case on hand.
14. The Full Bench of this Court in Thanikavalu, P.C. v. The Special Deputy Collector for Land Acquisition, Madras 1989 Writ L.R. 89, considered the only question as to whether at the stage of enquiry under Section 5-A of the Land Acquisition Act, a person whose name is not entered in the revenue records, claiming as a person interested in the land, is entitled to notice of the enquiry when the officer conducting the enquiry is informed of the interest passed by such person in the land. There is no such pleading in the instant case that the members of the petitioner Society went before the Land Acquisition Officer, who refused to afford the opportunity or receive their objections. That being so, it is not possible to say as to how the said decision can be of any help to the petitioner.
15. The decision of a learned single Judge of this Court in Saroja Sethu v. State of Tamil Nadu, etc. 1993 Writ L.R. 240, also related to the acquisition made by the house building co-operative society. Therefore, the said decision cannot be of any help to the petitioner. In addition to this, we also find it very difficult to agree with the proposition laid down in that decision. The decision in Saroja v. The Government of Tamil Nadu 1991 Writ L.R. 129 considered the question of 4(1) Notification. So also the decision in The State of Tamil Nadu v. V.A. Mohammed Yousuf 1990 Writ L.R. 235. We may point out here that we are not concerned with the 4(1) Notification in this case, because the 4(1) Notification has already been held valid by this Court, as referred to earlier.
16. No other contention remains. Consequently, all the contentions fail. The writ appeal is dismissed. The C.M.P. is also dismissed. For the suppression of facts, we would have awarded heavy costs, because the filing of the previous writ petitions has not been disclosed. However, we refrain from awarding any costs.