Madras High Court
G.Ranganathan vs The State Of Tamil Nadu on 18 November, 2008
Equivalent citations: AIR 2009 (NOC) 1002 (MAD.), 2009 AIHC (NOC) 864 (MAD.)
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.11.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Writ Appeal No.2667 of 1999 and WAMP.No.4890 of 2004 1.G.Ranganathan 2.G.Narasimman 3.N.Dilip 4.R.Suresh ... Appellants Vs. 1.The State of Tamil Nadu, rep.by its Commissioner and Secretary to Government, Transport Department, Fort St.George, Chennai-9. 2.The Managing Director, Tamil Nadu State Transport Corporation, Salem Division No.1, Salem ... Respondents * * * Writ Appeal preferred under Clause 15 of the Letters Patent as against the order of the learned single Judge dated 23.12.1999 made in W.P.No.6788 of 1998. * * * For appellants : Mr.N.G.R.Prasad for Mr.S.Vijayakumar For R.1 : Mr.P.Wilson, Addl.Advocate General For R.2 : Mr.Ravi Bharathi * * * JUDGMENT
ELIPE DHARMA RAO, J.
The appellants are the joint owners of the land admeasuring an extent of 1008 sq.ft. in T.S.Nos.23/1, 23/2 and 23/3 of Salem Municipality and the said land was acquired for expansion of tyre plant of the Tamil Nadu State Transport Corporation. According to the appellants the property was purchased by their father D.P.Gopala Iyengar as early as in 1926 in an auction conducted by Salem Municipality. It is seen that earlier the Government published a Notification under Section 4(1) of the Land Acquisition Act in the Government Gazette dated 4.7.1979 as per G.O.Ms.No.597 Transport Department dated 31.5.1979, stating that the land situated in T.S.Nos.23/1, 23/2 and 23/3 is needed for the expansion of the bus depot of the second respondent Corporation and after taking note of the objections raised by the appellants, those acquisition proceedings were dropped . Subsequently, again, the Government has published Section 4(1) Notification in G.O.Ms.No.537, Transport dated 4.5.1984 for acquiring the same lands for the expansion of the second respondent Corporation and questioning the validity of the Section 4(1) Notification and the Section 6 Declaration dated 13.10.1986, the appellants have filed W.P.No.12710 of 1986, which was dismissed on 17.3.1997 with an observation to consider the representation of the appellants to be made by them. Thereupon, the appellants have made a representation dated 16.5.1997 seeking to exclude the land from the acquisition proceedings, which was rejected by the respondents by the G.O.Ms.No.66 Transport (B2) Department dated 13.4.1998. Challenging the same, the appellants have filed W.P.No.6788 of 1988 and since the same has been dismissed by the learned single Judge, this writ appeal has been filed.
2. Mr.N.G.R.Prasad, the learned counsel appearing for the appellant would argue that originally the land was sought to be acquired for construction of a dust collection chamber and in view of the admitted fact on the part of the respondents themselves that now they are using only oil for burning the tyres, there is no use of the dust chambers and hence the purpose for which the land is sought to be acquired is no more in existence. In support of his arguments, the learned counsel would rely on a judgment of the Honourable Apex Court in JAINULABUDEEN AND OTHERS vs. GOVERNMENT OF T.N. AND OTHERS [(1994) 4 SCC 568] wherein the Honourable Apex Court, having factually found that the impugned proposal for acquisition was no longer subsisting and has quashed the acquisition notification.
3. The learned counsel for the appellants would further argue that presence of such a dust chamber in the residential locality will cause danger to the environment further affecting the health of the persons residing in the locality. He would further submit that development must be a sustainable development and would rely on a judgment of the Honourable Apex Court in KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD vs. C.KENCHAPPA AND OTHERS [(2006) 6 SCC 371], wherein the Honourable Apex Court has held that 'before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development such that ecology and environment is not gravely impaired.'
4. On the contrary, it has been strenuously argued on behalf of the respondents by the learned Additional Advocate General that the lands acquired by the respondents from the appellants are put to use by the respondents by expanding the bus depot. He would further submit that on the directions of the Tamil Nadu Pollution Control Board, the respondents have taken all the steps to restrict the pollution and would submit that the learned single Judge has considered all the aspects of the case and has properly dismissed the writ petition and would pray to dismiss this appeal. In support of his contentions, the learned Additional Advocate General would rely on the following judgments of the Honourable Apex Court:
1.C.PADMA AND OTHERS vs. DY.SECRETARY TO THE GOVT.OF T.N. AND OTHERS [(1997) 2 SCC 627],
2.S.P.SUBRAMANYA SHETTY AND OTHERS vs. KARNATAKA STATE ROAD TRANSPORT CORPORATION AND OTHERS [AIR 1997 SC 2076] and
3.NORTHERN INDIAN GLASS INDUSTRIES vs. JASWANT SINGH AND OTHERS [(2003) 1 SCC 335]
5. In the first judgment, the Honourable Apex Court has held that 'acquired land having vested in the State and compensation paid to the claimant, the claimants, thereafter, are not entitled to restitution of possession on ground that either original public purpose had ceased to be in operation or the land could not be used for any other purpose.'
6. In the second judgment cited above, the Honourable Apex Court has held that 'civil suit for mandatory injunction against State restraining them from interfering with possession of party or to denotify acquisition under Section 48 of the Land Acquisition Act is not maintainable.'
7. In the third judgment cited above, the Honourable Apex Court has held that 'after land vests in State under Section 16 of the Land Acquisition Act, following taking of possession by Collector, owner has no right to seek to revest the land in himself even if the land is not used for the purpose for which acquired.'
8. In the case on hand, the lands of the appellants were acquired for expansion of the bus depot and as could be seen from the records, the Award was also passed on 28.3.1988 in Award No.2/88. When the appellants have challenged the acquisition proceedings, a learned single Judge of this Court, by the order dated 17.2.1997, in W.P.No.12710 of 1986, while dismissing the writ petition, has directed the petitioners/appellants to submit a representation to the authorities and if the land is not really needed for the Transport Corporation, the land can be excluded from the scheme of the land acquisition. In the said order, the learned Judge has also rejected the contention of the appellants that the respondents have acted in a malafide and dishonest manner in acquiring the lands of the appellants. Since the said findings of the learned Judge have reached finality as no appeal has been filed by the appellants, the appellants cannot now be permitted to raise such allegations again. Therefore, we are not able to appreciate the contentions raised by the appellants stating that only because they have filed a civil suit and obtained favourable orders against the respondents, the respondents have resorted to these malafide and dishonest practices by ordering acquisition of their lands. At this juncture, it is also to be pointed out that the suit in O.S.No.471 of 1979 filed before the learned Subordinate Judge, Salem by the appellants herein is a suit for permanent injunction restraining the Corporation from discharging the storm and sullage water into their land through the vents in the compound and though the said suit was decreed in favour of the appellants, it has no bearing or connection to the present proceedings.
9. The appellants have taken the stand that the land acquired by the Transport corporation is not at all necessary for them. However, on the part of the respondent, it has been maintained, throughout, that the land has already been kept in use and it is very much needed for expansion of the Bus Depot. For this, it has been contended on the part of the appellants that the land acquired is in their backyard and in the Unit, the respondents are combusting tyres, creating pollution. But, this argument of the appellants has been negatived by the respondents on the ground that with the advent of new machines and methodology in tyre retreading, they are at present using pre-cured method besides conventional methodology and in the tyre retreading plant, both electrical chamber as well as boiler are used and use of oil for firing the burner has not taken away the need for dust chamber.
10. When such is the position, the appellants have taken a stand that the plant of the respondents is causing much environmental problem in the residential area and that the respondents have constructed the dust collection chamber in their backyard and therefore, they filed WAMP.No.4890 of 2004 to implead the Tamil Nadu Pollution Control Board as a party respondent to these proceedings, contending that the Pollution Control Board has already initiated proceedings against the second respondent. In support of their contentions, the appellants have filed a copy of the D.L.Lr.No.T7/TNPCB/1139/03/SLM, dated 17.3.2003, wherein the Pollution Control Board seems to have directed the second respondent to shift the Unit away from the residential area, so as to avoid the complaint against the pollution problem from the Unit.
11. For this, a detailed reply affidavit has been filed by the second respondent stating that for the show-cause notice issued by the Tamil Nadu Pollution Control Board, they have issued a reply letter dated 5.4.2003 and the contents of the said reply read as follows:
(i)We have installed a Gunpart Carbo stipper machine in degreasing plant for removing the grease from the engine (Head, Block and bell-housing and other assemblies before manual washing. Thus only mud and slight oil contents let out while washing the engine are collected in the collecting sump. The oil is separated from the waste water and re-used by utilizing the Effluent Treatment Plant which is consisting of Mechanical skimmer, Aeration Tank, Settling Tank, sludge drying pit and sand filter. Hence oil is not let into the drain.
(ii)We have installed two Electric chamber in Tyre-retreading plant. The spill over tyre granules collected during the tyre buffing process are conveyed through in-built cyclone dust collector and dumped in a closed tank. They are remove din a closed container and disposed through auction. The gap portion in between the compound wall and buffing unit is covered with A.C.sheet roof. Thus smoke and toxic fumes are not emitted and the question of Air Pollution does not arise.
(iii)We have provided Radiator Descaling plant in Radiator section. The Sedimented waste oil from the water in the radiator is manually removed and then put in the soft water. After that, the radiator is washed using the mixture of D.P. Descaling powder mixed with soft water in the ratio of 1:20. So, outlet water contains the waste soil which are collected in the waste water collecting sump in this campus and cleaned periodically.
(iv)The canteen waste and floating materials in the sewage water are collected in a collection chamber and segregate the waste from water by adopting Syphonic system and cleaned regularly. The waste water collected in the collecting sump are pumping out using electric motors and engines and drained to common drain since the campus level in the front (east) side is lower than the road level."
12. In their counter, the second respondent has further submitted that the report of analysis of the effluent samples collected from the final outlet of the unit by the District Environmental Officials, Tamil Nadu Pollution Control Board, Salem on 8.1.2003 revealed that the parameters such as total suspended solids, oil and grease, BOD and COD are within the permissible limits to the maximum extent. It is also averred that the officials of the Pollution Control Board are regularly visiting the Unit and are checking whether the discharge is within the permissible limit and have suggested to develop more green belt and the second respondent was accorded with necessary consent under the Air and Water Act periodically by the Tamil Nadu Pollution Control Board and necessary authorization to handle hazardous waste has been granted to the second respondent by the Tamil Nadu Pollution Control Board. It has also been contended by the respondents that the complaint in respect of the alleged pollution caused by the second respondent has nothing to do with the land which is now acquired and as of today, no unit has been established in the acquired land and any unit proposed to be set up in the said place will certainly be established only after obtaining necessary clearance from the Pollution Control Board in accordance with law.
13. On a close scrutiny of the entire materials placed on record, it is crystal clear that after scrupulously following all the requirements of law, the land of the appellants was acquired by the respondents and even an Award was passed on 28.3.1988. When such is the position, as has been held by the Honourable Apex Court in C.PADMA AND OTHERS vs. DY.SECRETARY TO THE GOVT.OF T.N. AND OTHERS [(1997) 2 SCC 627], the 'acquired land having vested in the State and compensation paid to the claimant, the claimants, thereafter, are not entitled to restitution of possession on ground that either original public purpose had ceased to be in operation or the land could not be used for any other purpose' and has been further held by the Honourable Apex Court in NORTHERN INDIAN GLASS INDUSTRIES vs. JASWANT SINGH AND OTHERS [(2003) 1 SCC 335], 'after land vests in State under Section 16 of the Land Acquisition Act, following taking of possession by Collector, owner has no right to seek to revest the land in himself even if the land is not used for the purpose for which acquired.' Therefore, when once the land of the appellant vests with the authorities, they have no right to seek to revest the land in himself and they cannot seek for restitution of possession, that too when the land is very much needed for the expansion of the bus depot by the respondents.
14. It is also to be pointed out that as per the judgment of the Division Bench of this Court in RAMALINGAM AND OTHERS vs. THE STATE OF TAMIL NADU [2005 (3) CTC 1], writ petition is not maintainable challenging acquisition proceedings, if such Writ Petition was filed after Award has been passed under Section 11 of the Land Acquisition Act and in the case on hand, the Award having already been passed on 28.3.1988, the present writ petition and consequently, the writ appeal are not maintainable.
15. When the objections raised by the Pollution Control Board have been fittingly replied by the respondents and those proceedings are in no way relate to the present dispute, which is regarding the acquisition of land, we do not find any necessity to implead the Pollution Control Board as a party respondent to these proceedings. When there is already another writ petition in W.P.No.7222 of 2002 before the Green Bench is pending regarding alleged pollution caused by the second respondent, we have nothing to decide or conclude in this matter, which is rather an out of the scope issue insofar as the present writ petition is concerned. Therefore, WAMP.No.4890 of 2004 is liable to be dismissed since for the limited scope of these writ proceedings, pertaining to the acquisition of land, the Pollution Control Board is not at all a necessary party.
16. It is also seen that the appellants, in spite of receiving the compensation pursuant to the Award having already been passed, are inventing one ground or other to protract the proceedings and are creating stumbling blocks in the process, when all other such owners have accepted the compensation and also the acquisition proceedings. It is also to be pointed out that only taking cue from the contents of the counter affidavit filed by the respondents in the earlier round of litigation, the appellants have initiated the present writ proceedings, further contending that the respondents are committing pollution by their Unit, since they have no other legally sustainable grounds to urge against the legal acquisition of their land. Thus, it seems, the present writ proceedings have been initiated by the appellants only with a view to protract the proceedings and to stall the acquisition, by inventing one reason or other, which we are unable to appreciate. In view of the above factual aspects of the case, the judgments cited on the part of the appellants cannot augment their case and become inapplicable to the facts of the case.
17. The learned single Judge has considered all the facts and circumstances of the case in their proper perspective and has arrived at an unerroneous conclusion of dismissing the writ petition, wherein we find no ground to cause our interference. Accordingly, this writ appeal is also liable to be dismissed.
In the result, the Writ Appeal and WAMP.No.4890 of 2004 are dismissed. No costs.
Index: Yes/No Internet: Yes/No (E.D.R., J.) (S.T., J.) Rao 18.11.2008 To 1.The Commissioner and Secretary to Government of Tamil Nadu, Transport Department, Fort St.George, Chennai-9. 2.The Managing Director, Tamil Nadu State Transport Corporation, Salem Division No.1, Salem. ELIPE DHARMA RAO, J. AND S.TAMILVANAN, J. (Rao) Pre-delivery Judgment in WA.2667 of 1999 18.11.2008