Madras High Court
Nooruddin Buriyawala vs The Secretary To Government on 1 March, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.03.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.16277 of 2011 1. Nooruddin Buriyawala 2. Nafisa Nooruddin Buriyawala ... Petitioners. - vs - 1. The Secretary to Government, (Special Initiatives Planning Development) and Special Initiative Department), Fort St. George, Chennai-600 019. 2. The Special Tahsildar (Land Acquisition), Chennai Metro Rail Ltd., Chennai Unit-I, No.2, Alwarpet Street, Alwarpet, Chennai-600 010. 3. Chennai Metro Rail Limited, Rep. by its Managing Director Door No.7, Conran Smith Road, Gopalapuram, Chennai-600 086. ... Respondents. (R3 impleaded as per order dated 19.08.2011) Prayer: Writ petition is filed under Article 226 of Constitution of India for the issuance of a Wit of Certified Mandamus, calling for the entire records in connection with the 1st respondent notification issued under Section 4(1) of the Land Acquisition Act in G.O.Ms.No.203, Planning Development and Special Initiative (S1) Department dated 24.11.2010 and the consequential declaration made under Section 6 of the Land Acquisition Act in G.O.Ms.No.378, Planning Development and Special Initiative Department dated 15.12.2010 and quash the said proceedings dated 24.11.2010 and 15.12.2010 and consequently forbear the respondents from in any way interfering with the peaceful possession and enjoyment of the property bearing Old Door No.4/13, New No.25, Davidson Street, George Town, Chennai-600 001. For Petitioner : Mr.M.Venkatachalapathy, S.C., For Mr.Sriram For R1 & R2 : Mr.R.Ravichandran, AGP For R3 : Mr.R.Thyagarajan, S.C., For Mr.V.Ramajagadeesan. ***** O R D E R
The petitioner has approached this Court, with a prayer for issuance of a writ in the nature of Certiorari to quash the notification, issued under Section 4(1) of Land Acquisition Act dated 24.11.2010, as also notification issued under Section 6 of the Land Acquisition Act, dated 15.12.2010 with consequential relief of prohibition, restraining the respondents from in any way interfering with the peaceful possession and enjoyment of the property, bearing Old Door No.4/13, New No.25, Davidson Street, George Town, Chennai-600 001.
2. The petitioners purchased the property under acquisition from the legal heirs of late S.K.Asan by way of registered sale deed dated 09.09.2010, registered vide Doc.No.1104 of 2010 with the Sub Registrar, Sowcarpet. The patta of the land was also granted in favour of the petitioners on 04.10.2010. The planning permission of construction was also granted to the petitioners on 10.11.2010, wherein the petitioners started construction.
3. The case of the petitioners is that, while the petitioners were raising construction, they came to know that the land was under acquisition, on enquiry, it was revealed that notification under Section 4 of the Land Acquisition Act, was issued by the Government for acquiring the land for Metro Rail project. Name of a dead person, who had died in the year 2000, was shown as the owner. The Government also invoked urgency clause, to dispense with the objection under Section 5(A) of the Land Acquisition Act.
4. The ground of challenge is that the acquisition proceedings stood vitiated, as the land was shown under the ownership of a dead person and further that though the land recorded in name of the petitioners before issue of notification under Section 4, but the notification did not show the petitioners as owners.
5. It is also submission of the petitioners that so far, Chennai Metro Rail project is moving at snail speed, therefore, invoking of urgency clause was not justified, and
6. That no personal notice was given to the persons interested, therefore the whole proceedings are void ab initio.
7. In support of challenge to invoking of urgency provisions, learned counsel for the petitioners relied on a judgment of the Hon'ble Supreme Court in Devender Kumar Tyagi and others vs. State of Uttar Pradesh and others, (2011) 9 SCC 164, wherein the Hon'ble Supreme Court was pleased to lay down, that acquisition of land for public purpose by itself does not justify exercise of power of dispensing with the enquiry under Section 5-A under Sections 17(1) & (4) of the Land Acquisition Act. It was held by the Hon'ble Supreme Court that certain schemes or projects, which contemplate development of residential, commercial, industrial or institutional areas, by their intrinsic nature and character require investment, therefore, land acquisition for public purpose by itself does not justify invoking of urgency clause.
8. There can be no dispute with the proposition that mere public purpose cannot be ground for invoking urgency clause, as the acquisition under the Land Acquisition Act can only be for public purpose, which also stipulates hearing of objections, under Section 5-A, but at the same time, it is also to be noticed that in a given case, keeping in view the urgency, the right of the Government to invoke urgency clause cannot be taken away, or acquisition proceedings quashed in all the cases, where urgency provisions are invoked.
9. It was in the facts and circumstances of the case, and keeping in view the purpose of acquisition, that the Hon'ble Supreme Court, held that invoking of urgency clause was not justified, therefore, this judgment has no application to the facts of this case.
10. Reliance was thereafter placed by the learned counsel for the petitioners on the judgment of the Hon'ble Supreme Court in J&K Housing Board and another vs. Kunwar Sanjay Krishan Kaul and others, (2011) 10 SCC 714, laying down that the procedure provided under Section 4(1)(a), (b) and (c), is mandatory, which has to be strictly complied with.
11. The contention of the learned counsel for the petitioners, therefore was, that once notice under Section 4 was not issued to the petitioners, as name of a dead person was recorded, it is sufficient to hold that the impugned notifications were liable to be quashed.
12. Learned counsel for the petitioners also placed reliance on the judgment of this Court in W.P.(MD) No.1720 of 2007, (P.M.Meeran vs. The District Collector, Madurai District & another), decided on 11.06.2008, CDJ 2008 MHC 3113, wherein it has been held as under:
"5. On the facts of the present case, in Form-I, the acquisition authority has included two of the legal heirs. However, he has failed to include them in Form II viz., final notice given under Section 4(1) of the Act but has chosen to implead the legal heirs in Form III. Therefore, it is a clear case wherein the factum of the death of the original owner was within the knowledge of the acquisition authority, which certainly vitiates the proceedings."
13. This judgment is again of no help, as admittedly the respondents were not aware of the death of the real owner, as the land was never entered in the name of legal heirs, i.e. vendors of the petitioners.
14. Learned counsel for the petitioners also placed reliance on the judgment of the Hon'ble Division Bench of this Court in W.A.No.3958 of 2002 (The State of Tamil Nadu, Rep. by its Secretary and Commissioner & anr vs. P.Pushpam & others), decided on 11.08.2006, CDJ 2006 MHC 2027, wherein the acquisition showing the name of dead person in notice was ordered to be quashed. This judgment again is of no help, as on the date of notifications under Section 4, the name of dead person was shown in revenue record.
15. This writ petition is opposed by the learned senior counsel appearing on behalf of 3rd respondent, by contending that notification under Sections 4 & 6 was issued taking the entries in Revenue records, wherein name of the legal heirs, deceased or the petitioners was not depicted.
16. The contention of the learned senior counsel, therefore, was that though it cannot be disputed, that the provisions of Section 4 are mandatory in nature, but at the same time, the object is to give notice to the parties. In the case in hand, once urgency provisions were invoked and the fact that the award has already been announced, it is not open to the petitioners to challenge the acquisition proceedings at this stage, as the land now vests with the State Government free from all encumbrances.
17. Learned senior counsel for the respondent placed reliance on a judgment of the Hon'ble Supreme Court in Special Deputy Collector, Land Acquisition CMDA vs. J.Sivaprakasam and others, (2011) 1 MLJ 788 (SC), wherein it has been laid down by the Hon'ble Supreme Court, that if the contention that Section 4 was in violation of statutory provisions of Section 4(1), is rebutted, by acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under Section 5-A of the Act), the acquisition will not be vitiated on the ground of violation of Section 4-A of the Act. In the case in hand, no prejudice is caused to petitioners in view of the fact that urgency provisions were invoked, thereby taking away right to file objections.
18. The petitioners have also not placed on record any document, showing that the Revenue record was changed in the name of petitioners, except showing grant of patta in their names, that too, in the month of November immediately when acquisition proceedings were started.
19. This Court in W.P.No.20769 of 2010 (B.M.Purnachandran vs. The Secretary to Govt. and others), decided on 24.01.2011, upheld invoking of urgency clause, by the State, for acquiring the land for Metro Rail Project, as the project is of urgent nature, and file relating to acquisition showed that the urgency provisions were rightly invoked.
20. The file produced by the respondents shows, that the question of urgency was considered before issuing notification under Section 4.
21. Once it is not shown that there is any prejudice caused to the petitioners, and the right of acquisition by invoking urgency provisions for Metro Rail projects already stands upheld and further keeping in view the fact, that award was passed prior to filing of this writ petition, the petitioners do not have locus standi to challenge the acquisition at this stage.
22. No merits. Dismissed.
23. No costs. Connected miscellaneous petitions are closed.
ar To
1. The Secretary to Government, (Special Initiatives Planning Development) and Special Initiative Department), Fort St. George, Chennai-600 019.
2. The Special Tahsildar (Land Acquisition), Chennai Metro Rail Ltd., Chennai Unit-I, No.2, Alwarpet Street, Alwarpet, Chennai-600 010.
3. Chennai Metro Rail Limited, Rep. by its Managing Director Door No.7, Conran Smith Road, Gopalapuram, Chennai 600 086