Madras High Court
Indira Gandhi College For vs The State Of Tamilnadu on 10 July, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/07/2007 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.1480 of 2007 and M.P.(MD)Nos.1, 3 and 4 of 2007 Indira Gandhi College for Women Committee, rep. By its Secretary, G.Mohan, S/o.P.Gurusamy, A-5, Pasmpon Street, Tirunagar, Madurai - 625 006 ... Petitioner Vs. 1.The State of Tamilnadu rep. By its Secretary, Information and Tourism Department, Kuralagam, Chennai. 2.The Director/The Additional Secretary to the Government of Tamil Nadu, Information and Tourism Department, Kuralagam, Chennai. 3.The District Collector, Madurai District, Madurai. 4.The Revenue Divisional Officer, Madurai, Madurai District. 5.The Tahsildhar, Madurai South, Madurai District. 6.Pasumpon Muthuramalinga Thevar Trust, represented by its Managing Director, P.Valai Thevar, S/o.Pinniyappa Thevar, 51, Thirukumaran Nagar, Thirunagar, Madurai - 625 006. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Declaration declaring the notification issued by the 1st respondent in notification NO.II(2)/IT/938/2005 u/s.4(1) of the Land Acquisition Act, 1894 published in the Tamilnadu Government Gazette dated 28.12.2005 and the notification issued by the 2nd respondent, published in the Tamilnadu Government Gazette dated 22.2.2006 and the consequential declaration issued by the 1st respondent u/s.6 of the Land Acquisition Act, 1894, in notification No.II(2)/ITM/453(b)/2006 published in the Tamilnadu Government Gazette dated 30.8.2006 and the notification issued by the 3rd respondent in his proceedings Roc.No.59481/05/B4 dated 18.1.2007 published in Madurai District Gazette extraordinary dated 20.1.2007 and quash the same as illegal. !For Petitioner ... Mr.K.M.Vijayan, Senior Counsel for Mr.B.Saravanan ^For respondents ... Mr. K.Balasubramanian, Addl.Govt.Pleader for R1 to R5 ... Mr.M.V.Venkataseshan for R6 :ORDER
The short question that arises for consideration is, whether the attempt of the State Government from establishing a memorial in remembrance of Pasumpon Muthuramalinga Thevar in the House in which he lived at Tirunagar, Madurai District can be thwarted at the instance of the petitioner, who became a subsequent owner of the House and the surrounding lands and are also running a fee based Matriculation School.
2. The first respondent/State expressed its intention of establishing a memorial in a fitting manner for the legendary Posumpon Murthuramalinga Thevar (popularly known as "Thevar") at the place in Thirunagar where he breathed last. The Information and Tourisim (Memorial) Department issued G.O.Ms.No.229 Department dated 1.12.2005 issuing notification for the acquisition of the land. The said notification was issued under Section 4(1) of the Land Acquisition Act 1894 (hereinafter called as "the Central Act").
3. The petitioner, who happened to be the purchaser of the said property (purchased in the year 1991) in which the house of Thevar was situated, is running a Matriculation Higher Secondary School, which is named as Indira Gandhi Memorial Matriculation Higher Secondary School. Apart from several legal objections raised by the petitioner, the factual objections raised are that there are several other places where a memorial can be established and there is a doubt whether at all a public purpose is involved in seeking for the premises by the State and whether the State can pick and choose a place where Thevar had hardly lived not for very long.
4. Before going into the legal issues, the other issues raised by the learned Senior Counsel appearing for the petitioner should be first dealt with.
5. The petitioner being a land owner cannot raise all kinds of objection with reference to the issue on hand. The only question that they can raise is that their land should not be acquired except by legal process. It is not open to them to question the public purpose because the State being convinced that there is a public demand and hence, they having a duty imposed on them, wanting to establish a memorial in remembrance of Thevar.
6. In this context, it is relevant to refer to Article 51-A (a) and (b) of the Constitution by which it is the fundamental duty of every citizen to cherish the noble ideals which lead this country from its enslavement by a colonial power. The said article of the Constitution requires reproduction and it is as follows:
"51 A. Fundamental duties- It shall be the duty of every citizen of India-
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom."
7. It is also necessary to highlight certain historical facts in justification of establishing a memorial in memory of Thevar. Thevar was born on 30.10.1908 to Ukkirapandi Thevar and Indirani Ammal in Posumpon Village in Ramanathapuram District. At a very young age, he was sucked into the national movement. During the colonial rule, he relentlessly fought for the abolition of the notorious Criminal Tribes Act. It is at his instance, an All India Conference was called at Tripura, giving a national call to the colonial Government to withdraw the Criminal Tribes Act by which Act the citizens of this country only because of their birth were made as criminal tribes and subjected to inhumane treatment and humiliation. In that respect, All India Conference held in 1934 is a mile stone and it is an historical event. The said Act came to be abolished later due to powerful pressure. Thevar was a moving spirit behind the said agitation.
8. As the people were afraid to attend any meeting addressed by popular national leaders those days, Thevar gave his support and solidarity despite the threat from the colonial Government. He presided over a meeting addressed by Veer Sarvarkar at Madurai. In the election held in 1937, he was elected as a MLA of Ramanathapuram District to the Legislative Assembly of the then Madras Presidency.
9. The people of Tamil Nadu will not forget all the leaders of national movement and who were also involved in eradication of social evils such as untouchability. Mr. Vaithianatha Iyer, a leading advocate of Madurai wanted to get entry into the famous Meenakshiamman Temple, Madurai along with dalits, whose entry was prevented till then. It was the solid support rendered by Thevar. The said feet was accomplished despite resistance by the then orthodoxy of Madurai. Since that day i.e. 8th July 1939, has become a signal day in annals of the history of eradication of social evils. That event forced the Government to bring a legislation providing for Temple entry to all sections of the Hindu population.
10. The election of Nethaji Subash Chandra Bose as the President of the Indian National Congress became such a contentious issue in the Tripura conference. Due to the support of Thevar, among the persons, Nethaji got elected as a President on 11.3.1937 of the Congress Party despite opposition and counter campaigning by none other than Mahathma Gandhi. Thevar was imprisoned for 18 months in Trichy jail, which increased his popularity and support base in the Southern parts of Tamilnadu. During 1938-39, his support to the Trade Union agitation in the city of Madurai, Textile Mills run by colonials such as Harvey Mills (popularly known as Madura Coats) led to the establishment of free Trade Unions and workers were freed from the clutches of captive unions.
11. Thevar had the unique distinction of getting elected in every election without even visiting the constituencies in which he was contesting. He was elected during the general elections in the year 1937 1946, 1952, 1957, 1962. He had distinction of getting twice elected both as MLA and MP. Even in the Indian National Congress movement for Zamindari abolition, Thevar has relentlessly campaigned though he hailed from a family of landed gentry. In 1962 general election, he once again got elected as Member of Parliament and there was a major political change.
12. Thereafter, he was taken ill and was under constant treatment. Despite medical attention, he breathed his last on 29.10.1963 in the place known as Tirunagar Bungalow where he was staying. The news of his death brought millions of people to the suburban of Madurai, which shows his continuous popularity and respect that got through during his four decades of public service.
[For sources see: 1. Unions in Conflict by Eamon Murphy (1981), Australian National University Publication.
2. Mudisuda Mannar Pasumpon Muthuramalinga Thevar by A.R.Perumal (2006)[Kumaran Publication]
13. In this context, the counter affidavit filed by the 4th respondent (Revenue Divisional Officer, Madurai) paragraph 14 is relevant, which is extracted below:
"14. ... Besides the averment of the petitioner School that setting up memorial for Pasumpon Muthuramalinga Thevar is not public purpose on the very face of it is totally false and devoid of truth. As the aura that surrounds the name pasumpon Muthuramalinga Thevar is clear evidence of the overwhelming popularity of this great personality and of the few from these parts, who adorned the portals of fame by his unflinching drive, dint of honesty, sincerity and hard work and his tireless strivings towards achievement of independence from the foreign oppression immortalised him and gained him untold glory, fame and his is the household name for several lakhs of people who not only adore him but also he is held aloft on a high pedestal equating him with the innumerable deities which adorn every street corner in this famous city of Pandiyas. His clarion call echoes in the minds of more than 30 to 35 percent of people drawn from three difference sects predominantly having domicile over the Southern Tamilnadu. Hence the decision announced by the Hon.Chief Minister on the floor of the Assembly drew lot of cheers from the public and constructing a memorial commemorating his achievements especially in the house where he resided last, is a great mark of respect and tribute that can be shown to a leader of his qualities.
14. It is pity that the State has so far not come forward to think of paying tributes to the son of the soil and it was only on the advent of the centenary of Thevar, they are thinking of putting up a memorial and the first respondent has chosen the Tirunagar Bungalow to set up the Memorial where Thevar had breathed his last.
15. When the State invokes the provisions of the Land Acquisition Act publishes the notification under Section 4(1) of the Central Act and declares the public purpose, unless the purpose is held to be not public purpose, it is not open to the persons like the petitioner to oppose such a move and try to argue that the memorial could be located else where. With this background, the other arguments addressed by the learned Senior Counsel can be dealt with.
16. The learned Senior Counsel drew attention of this Court to the additional affidavit filed by the petitioner as the first ground of submission, which is found in paragraph 6 of the additional affidavit dated 21.6.2007, which is as follows:
"6. It is also further relevant to point out that in fact, the respondents is not vested with any powers to invoke the provisions of the Land Acquisition Act 1894since for acquisition of land for construction of Memorial, the Government ought to have invoke the provision of the Tamilnadu requisitioning and acquisition of immovable Act 1956 which excludes the Schools from the acquisition proceedings. Since the above Act has received the Presidential assent under Article 254(2) of the said Act overrides the Central Act in this regard."
17. However, the learned Additional Government Pleader opposed the petitioner raising any legal issue in an additional affidavit without giving any opportunity to the State to meet that argument. Since the issue involves a question of law, this Court feels the petitioner can raise that issue also. Pursuant to the averments made, the learned Senior Counsel stated that in the light of the State enactment of 1956, the Central Act stand excluded. When further questioned, the learned Senior Counsel submitted that he was not making any general argument about the total eclipse but the present public purpose where a memorial is sought to be set up in favour of one person for which there is no provision under the Central Act. If at all, the State could only rely upon the State enactment. In this regard, the learned Senior Counsel submitted that the definition of public purpose under Section 3(f) of the Central Act, does not specifically refers to any memorial but the State enactment under Section 2(f), where the definition of premises is widely defined. If the State undertakes the acquisition under 1956 Act, the petitioner has valuable defence in terms of Section 3(2) wherein several exceptions are provided including running of a School. Therefore, the petitioner's valuable objection provided under statutory provisions cannot be taken away by the Central Act. An enactment made by the Parliament in terms of the entries in the List III of Schedule VII of the Constitution can be held to be repugnant to the State legislation made under an entry in List II of Schedule VII so as to bring it within the scope of Article 254 (2), it must be established that both the legislations are intended to operate in the same field.
18. The Court cannot presume unconstitutionality on the part of any legislation and the attempt of the Court must be to uphold both the legislations unless such a construction does violate the intention behind the legislation. In the present case, the attempt by the petitioner is to look at the two legislations (both Central or State) from the point of view of the public purpose involved in the acquisition. Section 3 (f) of the Central Act only gives inclusive definition of public purpose and does not exhaust all categories of acquisition. Therefore, by any stretch of imagination, the Central legislation cannot be compared with the State legislation and both can operate in their respective fields. The question of any apparent repugnancy does not arise for this Court to hold that the Central legislation is excluded as the field is occupied by the State Act.
19. In this context, it is relevant to refer to the judgment of the Hon'ble Supreme Court in M.Karunanidhi vs. Union of India 1979 (3) SCC 431 in paragraph 8 of the said judgment, it has been observed as follows:
"8. It would be seen that so far as Clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legislatures. First, regarding the matters contained in List I, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I, Secondly, so far as the Concurrent List is concerted, both parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances:
1. Where the provisions of a Central Act and a State Act in the concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with Clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the state Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the president would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article
254. (emphasis added)."
20. If these principles are followed, the question of repugnancy between the two legislations does not arise. The other contention of the learned Senior Counsel is that, in the present notification issued by the State under Section 4 (as per the Amendment Act of Tamil Nadu Act 16 of 1997) makes it clear that the notification ought to have published by the Commissioner of Land Administration and not by the State Government. The amendment reads as follows:-
Section 4(1-A): The notification under sub-section (1) shall be published by-
(a) the Collector in respect of land not exceeding forty acres in extent the value of which does not exceed rupees twenty-five lakhs;
(b) the Commissioner of Land Administration in respect of land not exceeding seventy-five acres in extent the value of which exceeds rupees twenty-five lakhs, but does not exceed rupees fifty lakhs; and
(c) the Government in other cases."
21. Therefore, the learned Senior Counsel argued that since compensation in the present case has been estimated to be Rs.26 lakhs (approx.), only the Commissioner for Land Administration should have given a notification and not the Government as in the present case. This argument is fallacious because the State Government has power to acquire land and also has issued a notification under Section 4(1). By delegating the power of the State, it does not get denuded of its plenary powers. The State Government might have given the notification as at the time of the notification, the precise figures regarding the compensation may not be available. On this score, the petitioner cannot have any grievance. In the present case, it was the State Government which gave notification and by that notification no prejudice has been caused to the petitioner.
22. Thereafter, the learned Senior Counsel argued that there is a flaw in the notification. While in the notification under Section 6 only Section 17(1) of the Central Act is referred to. Whereas it is Section 17(4), by which the land owners were required to be informed in terms of dispensing with compliance with Section 5-A of the Act. G.O.Ms.No.229 Information and Tourism Department (Memorail) dated 1.12.2005 issued under Section 4(1) clearly expresses the intention of the Government to dispense with Section 5-A proceeding which is found in the last paragraph of the said order. Mere non-quoting of the relevant provisions or misquoting of the relevant section does not invalidate the Government Order. So long as such power of the Government exists in terms of exercising power under Section 17(4) and the said power is exercised in terms of the circumstances justifying the exercising of the power, the petitioner cannot find any fault with the same. The Supreme Court vide its decision in Director General of Police A.P. vs. K.Ratnagiri reported in 1990 (3) SCC 60 while dealing with a wrong provision in a suspension order of a Government servant took a similar view. The following passage in para 7 is relevant.
"A wrong wording in the order does not take away the power if it is otherwise available."
23. Thereafter, the learned counsel argued that in the errata issued by the State by Letter dated 14.2.2006 wherein once again the mistake has been made. However, it is seen from the said notification issued and published in the Government Gazette dated 22.2.2006, the said notification is in Tamil whereas the original notification is in English. A perusal of the file shows that the said amendment was issued only to the abstract found in the original G.O. In Para (1) the preamble to the exercise of power is mentioned as Section 17(1) and this does not alter the legal situation for the very same reason mentioned above.
24. The last submission of the learned Senior Counsel is that the running of School is also a public purpose and to defeat the said purpose, no other public purpose can be pressed into service by the State and therefore, the acquisition proceedings are invalid.
25. In this respect, it is necessary to refer to certain decisions of the Supreme Court and of this Court which have a bearing on the said contention. In the judgment of the Supreme Court in Abdul Hussain Tayabali vs. State of Gujarat (AIR 1968 Supreme Court 432) the contention that when a particular land is already used for one public purpose, the legislature could not have intended to empower the Government to destroy that purpose and to substitute any other place in their public purpose was not accepted. The following passage found in paragraph 15 is on this point.
"15. As regards proposition No.4, the only argument urged was that when a particular land is being already used for one public purpose in this case the manufacture of "sagol", a building material made from lime, the legislature could not have intended to empower the Government to destroy that purpose. We need only say that a similar argument was urged in Somavathi's Case, (1963) 2 SCR 774: (AIR 1963 SC 151) and rejected by this Court."
26. Almost an identical contention came to be rejected by a Division Bench of this Court vide its decision in General Manager, Southern Railway, Madras v. Chintadripet Boys Higher Secondary School and others (AIR 1998 Madras 180). In that case, a private school had a lease over the property of the Government and was used as a play ground. When the said land was required for the construction of railway line under Mass Rapid Transport System (MRTS) at Chennai, the School succeeded in its attempt before the learned single Judge. On appeal by the railway, a Division Bench of this Court has held in paragraph 9(f), which is as follows:
"9. (f) MRTS is a vital scheme aimed at removing traffic congestion in the Metropolitan city of Madras. The said scheme is implemented in the city by the Metropolitan Transit Project (Railways) after clearance by the Planning commission. As the land in question was rightly resumed by the Corporation of Madras for a more important purpose in accordance with condition Nos.3 and 4 of the lease deed the contention of Mr. Kathirvelu, learned counsel for the school that it is not open to the Corporation to resume possession unilaterally and hand over the same to the Railways, has no merit since the impugned order canceling the lease was passed strictly in terms of the conditions stipulated therein. Therefore, it is futile on the part of the school to allege that the Railways and the Corporation of Madras are estopped by the principles of promissory estoppel and that they have no right in the plot of land used as a play ground, when in fact there was no such promise as alleged by the School."
(Emphasis added)
27. Once again the Supreme Court vide its judgment relating to Dharam Pal Goel (D) by Lrs vs. State of Haryana and others [(1997) 4 Supreme Court Cases 186] more or dealt with a similar situation under the Central Act. The following passage found in paragraph 2 and 3 are relevant wherein the contentions raised were found:
"2. ... The appellant constructed a school building in October 1985 on the land. The respondents had issued a notification on 30.1.1989 under Section 4(1) of the Land Acquisition Act (for short "the Act") for public purpose, namely, for development of the sectors. Declaration under Section 6 of the Act was published on 25.1.1990. Thereafter, the appellant filed a writ petition in the High Court contending that the acquisition of the land for the public purpose was not correct since the appellant intended to serve another public purpose, namely, establishing a school for the children of the locality. The High Court dismissed the writ petition. Thus, this appeal by special leave.
3. When the matter had come up on 10.5.19996 for hearing, this Court directed that an officer to be named by the respondents would make an inspection and submit a detailed report as to the actual land needed for the school building and for playground and to ascertain to what extent reasonable land is required to be released for the purpose of school and play ground causing no disturbance to the scheme already evolved. In furtherance thereof, an inspection was made and on the basis thereof a decision was taken by the Director of Urban Estates, Haryana which has been communicated to the learned counsel for the respondents."
28. Repelling the contention, the Hon'ble Supreme Court in para 5 observed as follows:
"5. In the light of the extract of the report, the only question for consideration is whether the land purchased by the appellant serves any public purpose and is, therefore, required to be denotified from the acquisition? It is seen that the report indicates that the School is situated in between the National Highway and adjacent to the proposed buffer road. The object of locating a buffer road is to facilitate plantation of the trees to contain pollution caused by the vehicular traffic. Though the alignment needs 165' of land in view of the green belt or non-buildable area, 135' wide road has been set apart. The rest of the land requires to be acquired and therefore, that part of the land cannot be released from acquisition. In view of the fact that the officers of the respondents have inspected the place and given a detailed report, we find that it may not be expedient to give any direction to the respondents to delete a part of the land belonging to the appellant.
29. Therefore, the said contention based on a public purpose being defeated by another public purpose cannot be accepted. Lastly, the learned Senior Counsel submitted that the smooth functioning and the future development of the School will be hit by the establishment of a memorial. This argument has no legal basis. Besides that the respondents in their affidavits have stated that the existing space is enough to run the Higher Secondary school.
30. With reference to the disturbance caused by establishment of a memorial, it is relevant to refer to the letter of the petitioner School to the State Government dated 8.1.2007 wherein they themselves have admitted that every year Thevar Jayanthi is celebrated by the School managment and on that day, the School declares holiday and public are allowed to come and pay respects to the portrait of Thevar kept in the School. If any memorial is established it will add prestige to the School and it will have a new identity in that locality.
31. Further, the impleaded respondents have established a Trust for the purpose of cherishing the memorial Thevar. In their affidavit, they have stated that the place lies only in the North-Western corner of the School and in no way it will cause disturbance to the School.
32. Under the circumstances, there is no substance in the arguments advanced on behalf of the petitioner. The Writ Petition fails and the same will stand dismissed. No costs. Consequently, M.P.(MD)Nos.1, 3 and 4 of 2007 are closed.
asvm To
1.The Secretary, The State of Tamilnadu Information and Tourism Department, Kuralagam, Chennai.
2.The Director/The Additional Secretary to the Government of Tamil Nadu, Information and Tourism Department, Kuralagam, Chennai.
3.The District Collector, Madurai District, Madurai.
4.The Revenue Divisional Officer, Madurai, Madurai District.
5.The Tahsildhar, Madurai South, Madurai District.