Madras High Court
The Tamil Nadu Consumers Cooperative vs T.A.Jayalakshmi on 21 October, 2008
Author: D.Murugesan
Bench: D.Murugesan, V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.10.2008
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
W.A.No.1607 of 2003 and W.P.No.36988 of 2006
W.A.No.1607 of 2003:
The Tamil Nadu Consumers Cooperative
Federation Ltd.,
No.29/2, N.S.K.Salai
Saligramam
Chennai 600 093 .. Appellant
-Vs-
1. T.A.Jayalakshmi
2. V.Haridoss
3. V.Ravindran
4. V.Devaki
5. V.Ravindra Menon
6. V.Unni Krishnan
7. V.Sudhakar
Partners
Vasu Studios
No.29/1, Arcot Road (N.S.K.Salai)
Saligramam
Chennai 600 093
8. The Government of Tamil Nadu
rep by its Commissioner and Secretary
Revenue Department
Fort St.George, Chennai 600 009
9. The Commissioner of Land Reforms
Chepauk, Chennai 600 005
10.The Assistant Commissioner (ULT)
T.Nagar, Arcot Road
Kodambakkam, Chennai 600 024 .. Respondents
Appeal filed under Clause 15 of the Letters Patent, against the order dated 13.3.2003 made in W.P.No.16388 of 2002.
For Appellant :: Mr.G.Rajagopalan
Senior Counsel for
Mr.P.Anbarasan
For Respondents :: Mr.Nageswara Rao
Senior Counsel for
Mr.V.Ramesh for
Respondents 1,2,3 & 7
Mr.R.Thirugnanam
Spl. Government Pleader
assisted by
Mr.P.Gurunathan
Government Advocate
for Respondents 8 to 10
Mr.R.Yashod Varadhan
Senior Counsel for
Mr.R.Aswanth for R6
W.P.No.36988 of 2006:
1. T.A.Jayalakshmi
2. V.Haridas
3. V.Ravindran
4. V.Sudhakar
Partners
M/s Vasu Studios
No.14/2, Venkatesa Nagar
First Main Road
Second Extension
Virugambakkam, Chennai-92 .. Petitioners
-vs-
1. The Government of Tamil Nadu
represented by its Secretary
Revenue Department
Fort St.George
Chennai-9
2. The Special Commissioner &
Commissioner of Land Reforms
Chepauk, Chennai-5
3. The Assistant Commissioner/ULT
The Competent Authority/ULC
(Kunrathur Office)
No.349, Arcot Salai
Kodambakkam, Chennai-24
4. The Tahsildar
Egmore-Nungambakkam Taluk
Spur Tank Road, Chennai-8
5. The Tamil Nadu Consumers
Cooperative Federation
No.291/2, N.S.K.Salai, Chennai-93
6. V.Devaki
7. V.Ravindra Menon
8. V.Unnikrishnan
Partners
M/s Vasu Studios
No.113, Dr.Lakshmanaswamy Salai
K.K.Nagar, Chennai-78 .. Respondents
Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the respondents, especially the order of the 2nd respondent dated 07.07.2006 vide Rc.No.8934/2002 (G3) and quash the same, and further direct the respondents to treat the proceedings relating to the acquisition of land in Survey No.197/1A, 1B2 and 197/1B2B measuring 5837.065 sq.mts., and 1214.047 sq.mts., respectively in Saligramam village, Egmore-Nungambakkam Taluk as abated under Section 4 of the Tamil Nadu Urban Land (Ceiling & Regulation) Repeal Act, 1999 namely Act 20 of 1999 so as to enable the 4th respondent to incorporate the name of the petitioners and respondents 6 to 8 as owners of the above lands in all the revenue records.
For Petitioners :: Mr.Nageswara Rao
Senior Counsel for
Mr.V.Ramesh
For Respondents :: Mr.R.Thirugnanam
Spl. Government Pleader
assisted by
Mr.P.Gurunathan
Government Advocate
for Respondents 1 to 4
Mr.G.Rajagopalan
Senior Counsel for
Mr.P.Anbarasan for R5
Mr.R.Yashod Varadhan
Senior Counsel for
Mr.R.Aswanth for R8
JUDGMENT
D.MURUGESAN, J.
As the issues raised and argued in both the writ appeal and the writ petition are one and the same, they are taken up together for disposal by this common judgment. For convenience, the parties will be hereinafter referred to as the "land owners", "the State Government" and "the allottees" of the lands in question.
2. The land owners numbering four along with other partners, entered into a partnership agreement registered in the year 1966 with the avowed object of running a film studio for the purpose of letting on hire, production of cine films, distribution, exploitation and exhibition of pictures. The firm purchased an extent of 7.59 acres of land in Saligramam village during the year 1967. Out of the above extent, an extent of 1.32 acres of land was acquired under the Land Acquisition Act for formation of a road leaving the balance of 6.27 acres. Out of this, an extent of 5706 square metres was put to agricultural use. Constructions were made along with the existing buildings in the rest of the land during the year 1970-71 for the use of running the studio.
3. A draft statement dated 20.3.79 under Section 9(1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act 24 of 1978) (hereinafter referred to as "the Act") was issued by the competent authority, Kundrathur and a further notice under Section 9(4) of the same date calling for objection was also issued. The notice was received by the power agent-V.Haridoss on 20.3.79 and a reply was given. The State Government passed G.O.Ms.No.1105 Revenue Department dated 21.5.79, as amended by a subsequent memorandum dated 18.3.80, to acquire the excess vacant land measuring 7051.112 square metres in Survey Nos.197/2A1 and 197/1A1 of Saligramam village belonging to the firm. The Commissioner and Secretary, Revenue Department, Government of Tamil Nadu directed the Commissioner of Land Reforms to take necessary action to acquire the excess vacant land and also to send a proposal to the Government to assign the said vacant land to Tamil Nadu Consumer Cooperative Federation Limited, namely, the allottee. Subsequently, notifications under Sections 11(1) and 11(3) were also published on 1.8.79 and 17.10.79. A revised notification under Section 11(5) of the Act was issued on 26.11.80, which was served on the firm on 24.12.80. Further proceedings under Section 12 of the Act for payment of compensation were also initiated and a notification under Section 12(7) of the Act inviting the claims and objections was issued on 6.2.81. Since there were rival claims for the amount to be paid, a sum of Rs.25,000/- was ordered to be kept in revenue deposit. The possession of the excess land was also handed over by Mr.V.Haridoss, one of the partners of the firm and the Power Agent, to the representative of the Tahsildar, Egmore-Nungambakkam on 16.2.81. Subsequently, the excess vacant land was allotted to the allottee under Section 24(1) of the Act by G.O.Ms.No.248 Revenue Department dated 5.2.82.
4. The land owners, namely, M/s T.A.Jayalakshmi, V.Devaki and V.Ravindran filed W.P.No.9472 of 1983 questioning the G.O.Ms.No.1105 Revenue dated 21.5.79 and the memorandum of the Revenue department dated 18.3.80. They also filed W.P.No.9854 of 1983 questioning the notifications issued under Section 11(1) dated 24.7.79, Section 11(3) dated 5.9.79, Section 11(5) dated 26.11.80 and Section 12(7) dated 5.2.81 of the Act. Both the writ petitions were dismissed by a learned single Judge in order dated 25.9.92. The said order was taken on appeal in W.A.Nos.1365 and 1366 of 1992 and were also dismissed by order dated 9.4.97. Special Leave Petition (Civil) Nos.14515 & 14516 of 1997 were filed by the land owners and they were also dismissed by order dated 23.4.99.
5. After the dismissal of the writ petitions, writ appeals as well as the Special Leave Petitions, the land owners, namely, M/s T.A.Jayalakshmi and V.Ravindran, preferred an appeal dated 29.4.99 under Section 33 of the Act to the Commissioner of Land Reforms seeking to set aside the proceedings dated 24.7.79 under Section 10(1) of the Act and all further proceedings. While the appeal was pending, the Act was repealed under the Tamil Nadu Act 20 of 1999 with effect from 16.9.99. Hence the land owners, namely, M/s T.A.Jayalakshmi, V.Haridoss, V.Ravindran, V.Devaki, N.Ravindra Menon, V.Unnikrishnan and V.Sudhakar, partners of Vasu Studios, filed W.P.No.16388 of 2002 again questioning the final statement dated 24.7.79 passed under Section 10(1) of the Act and the consequential G.O.Ms.No.248 Revenue Department dated 5.2.82 with a further direction to the Assistant Commissioner (ULT), Kodambakkam to re-deliver possession of the excess vacant land. The said writ petition came to be allowed by the order dated 13.3.2003 and the matter was remitted back to the Commissioner of Land Reforms to hold an enquiry with regard to the possession of the excess land and give a finding. This order is questioned in W.A.No.1607 of 2003 by the allottee.
6. Pursuant to the above order in the writ petition, an enquiry was conducted and by order dated 7.7.2006, the Special Commissioner and Commissioner of Land Reforms ordered that the possession of the excess vacant land was handed over by M/s Vasu Studios to the revenue authorities on 16.2.81 and payment under Section 12 of the Act was kept in revenue deposit. It was also observed that the land was allotted to the Tamil Nadu Cooperative Federation Limited, namely, the allottee in G.O.Ms.No.248 Revenue dated 5.4.82. The said order is questioned in W.P.No.36988 of 2006 by M/s T.A.Jayalakshmi, V.Haridoss, V.Ravindran and V.Sudhakar, the partners of M/s Vasu Studios.
7. Mr.G.Rajagopalan, learned senior counsel appearing for the allottee, the appellant in the writ appeal, has submitted that inasmuch as the delivery of possession was handed over by Mr.V.Haridoss, the power agent of M/s Vasu Studios, as early as on 16.2.81 and having questioned both the final statement made under Section 10(1) of the Act dated 24.7.79 and the subsequent Government memorandum dated 18.3.80 as well as the notifications issued under Sections 11(1), 11(3), 11(5) and 12(7) of the Act in W.P.Nos.9472 & 9854 of 1983 and the challenge was unsuccessful upto the Supreme Court, the land owners, cannot re-agitate the same matter once again on the ground that the possession said to have been handed over by V.Haridoss on 16.2.81 without there being an order under Section 9(5) of the Act is illegal and in the event the possession is not taken, by following the procedure in accordance with law, the repealing Act cannot be made applicable. The principle of constructive res judicata would come into operation, as the challenge to the entire proceedings under the Act right from Section 9(1) till Section 12(7) was not accepted by this Court as well as the Hon'ble Supreme Court and it reached a finality. In fact the Division Bench of this Court in paragraph-10 of its order found that the formalities prescribed under Sections 9 to 11 have been meticulously observed and after acquiring the land and taking over possession of the same, a formal order also was made in favour of the allottee, namely, the appellant, which finding has also been affirmed by the Supreme Court. Hence the order of the learned single Judge in directing the Commissioner of Land Reforms to once again hold an enquiry as to the possession is unsustainable and accordingly is liable to be set aside. In support of his contentions, the learned senior counsel relied upon the judgment of the Supreme Court in Daryao and others v. State of U.P. and others, AIR 1961 SC 1457.
8. In meeting the above submissions and also by way of canvassing the points in favour of the land owners in the writ petition, Mr.Nageswara Rao, learned senior counsel has submitted that in the earlier proceedings which went upto the Supreme Court, the question as to the compliance of Section 9(5) of the Act was not either raised or argued and therefore the principle of constructive res judicata is not applicable to the facts of the present case. He has also submitted that when admittedly the orders under Section 9(5) of the Act were not passed, the possession said to have been handed over by the partner of the firm on 16.2.81 is non-est in the eye of law and if that be so, by virtue of the repealing Act 20 of 1999, the proceeding pending before the appellate authority is not abated. In support of the above submission, the learned senior counsel would rely upon the judgments in V.Somasundaram and others v. Secretary to Government, Revenue Department, Chennai and others, 2007 (1) MLJ 750, V.S.Thiagarajan Chettiar (died) and another v. The Commissioner, Land Reforms, Madras and another, 1997 (2) MLJ 667, Competent Authority v. Barangore Jute Factory and others, (2005) 13 SCC 477 and Rameshwar Saran and others v. The State of U.P. and others, 1988 All.L.J.559. He would further submit that the observation of the Division Bench in paragraph-10 of the order in W.A.Nos.1365 & 1366 of 1992 is not a ratio decidendi, as the issue was neither raised nor argued. At the relevant point of time, the land owners were not aware as to whether the orders under Section 9(5) were passed or not and therefore they did not have the opportunity to raise the said question, as it came to light only when W.P.No.16388 of 2002 was taken up for hearing and when the learned Government Pleader submitted that no orders were passed under Section 9(5) of the Act and therefore the decision rendered by the earlier Division Bench cannot be considered to be one of constructive res judicata. It is his contention that in the event the possession handed over prior to the repealing Act is held to be non-est, the appeal is not abated.
9. Mr.R.Yashod Vardhan, learned senior counsel appearing for one of the partners of M/s Vasu Studios in the writ appeal and writ petition, after adopting the arguments of Mr.Nageswara Rao, also submitted that the right to property under Article 300-A of the Constitution of India cannot be deprived of without authority of law and in the absence of any order passed under Section 9(5) of the Act, the alleged possession said to have been handed over by V.Haridoss on 16.2.81 cannot be validated and if the said possession is not valid, the repealing Act 20 of 1999 is not applicable. In support of the said submission, he has relied on the Full Bench judgment of this Court in R.Pari v. The Special Tahsildar, Adi Dravida Welfare, Devakottai and another, 2006-3-L.W.1000.
10. We also heard the submissions of Mr.R.Thirugnanam, learned Special Government Pleader for the State Government and have given our anxious consideration to the rival submissions.
11. The principle of res judicata is a rule of universal law pervading every well regulated system of jurisprudence and is put upon two grounds embodied in various maxims of the common law; the one, 'interest republicae ut sit finis litium'--public policy and necessity, which makes it to the interest of the State that there should be an end to litigation, and the other, 'nemo debet bis vexari pro eaden causa'--the hardship on the individual that he should be vexed twice for the same cause. Though res judicata is considered to be a technical rule, it is made applicable to the writ proceedings as well, but the basis on which the said rule rests is founded on considerations of public policy and in the interest of public at large, a finality should be attached to the binding decision pronounced by the Court of competent jurisdiction and it is also in the public interest that an individual or the State Government for that matter should not be vexed twice with the same kind of litigation. The principle of constructive res judicata is made applicable to the writ proceedings even in case where the enforcement of fundamental right is argued in the subsequent proceedings. Section 11 of the Civil Procedure Code undoubtedly provides, those matters that were directly and substantially in issue in the previous proceedings would constitute res judicata in the subsequent proceedings. Nevertheless, the principle of res judicata is not confined to the issue if the Court is asked to decide, but that it covers the issue on facts which are so clearly part of the subject matter of the litigation and shows clearly that it could have been raised, that it would be abuse of process of Court to allow a new proceeding to be started in respect of them. One of the basic requirement to apply the principle of res judicata is that both the proceedings should be between the same parties.
12. In Daryao and others v. State of U.P. and others, AIR 1961 SC 1457, the principle of res judicata is made applicable to the writ proceedings. It is held that if a writ petition filed by a party under Article 226 is considered on merits as a contested matter and is dismissed by the decision thus pronounced, would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the law. It is also held that it would not be open to a party to ignore the said decision and move even the Supreme Court under Article 32 by an original petition made on the same facts for obtaining the same or similar orders or writs. Of course, the Supreme Court has found that if the petition filed in the High Court under Article 226 is dismissed not on merits, but because of the laches on the party applying for the writ or because it is held that the party had an alternate remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32. The question is whether the earlier orders of this Court confirmed by the Supreme Court are binding on the parties is a matter to be decided on the facts of each case.
13. A question came before the Supreme Court as to whether in a subsequent proceeding, if the question of fundamental right is raised, the principle of res judicata would come into operation on the ground that in the earlier proceeding such a point was not urged, in Devi Lal Modi v. Sales Tax Officer, Ratlam and others, AIR 1965 SC 1150. In paragraphs 10 & 11, the Supreme Court had observed as follows:-
10. As we have already mentioned, though the courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration.
11. The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous, and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the Parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.
14. In Forward Construction Company v. Prabhat Mandal, (1986) 1 SCC 100, the Supreme Court had observed that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. There cannot be any dispute as to the above judgments, but the question remains as to whether these judgments could be made applicable to the case on hand.
15. Based upon the principles laid down by the Supreme Court and on the given facts and circumstances of the case, the applicability of the principle of constructive res judicata must be considered. An application dated 22.12.70 on behalf of V.Haridoss, a partner of M/s Vasu Studios, seeking for exemption of the excess vacant land from the provisions of the Act was made to the State Government. While the said application was pending, notices under Sections 9(1) and 9(4) of the Act were issued on 20.3.79. Subsequently, the Government rejected the application of Mr.V.Haridoss in G.O.Ms.No.1105 Revenue dated 21.5.79, as amended by subsequent Government memorandum dated 18.3.80, and directed the excess vacant land measuring 7051.112 square metres in Survey Nos.197/2A and 197/1A1 of Saligramam village belonging to M/s Vasu Studios to be acquired under the Act. By the very same order, the Government also permitted to sell an extent of 18322.337 square metres of land within the ceiling limit including the land covered in the proceedings to the Tamil Nadu Cooperative Federation Limited, the allottee. The Government also directed the Board of Revenue (ULC), Madras to take necessary action to acquire the excess vacant land. After the notices under Sections 9(1) and 9(4), final statement under Section 10(1) of the Act was also published on 24.7.79. Thereafter, the Government also issued the amended memorandum dated 18.3.80 with regard to the extent of land. There is no dispute that both the above Government Orders were questioned by the land owners in W.P.No.9472 of 1983 unsuccessfully. Similarly, the subsequent notifications issued under Sections 11(1), 11(3), 11(5) and 12(7) were also questioned by the land owners in W.P.No.9854 of 1983 unsuccessfully again.
16. The bone of contention of Mr.Nageswara Rao, learned senior counsel appearing for the land owners is that though the above writ petitions were dismissed and the appeals taken to the Supreme Court were also dismissed, the issue as to whether the possession said to have been handed over by one of the partners of the firm even prior to the final orders under Section 9(5) of the Act were passed could be considered to be a valid possession in the eye of law. Of course, in V.Somasundaram and others case (2007) 1 MLJ 750 (supra), a Division Bench of this Court has held that in the absence of notice under Section 11(5) of the Act, possession said to have been taken is non-est. In S.Thiagarajan Chettiar case, 1997-II-MLJ 667 (supra), again a Division Bench of this Court has held that an opportunity of being heard should be given to the land owners before any order under Section 9(5) of the Act is passed. The Supreme Court in Competent Authority v. Barangore Jute Factory case, (2005) 13 SCC 477 (supra) has also held that in the event the initial notification under the National Highways Act itself is bad, all steps taken pursuant thereto will fall with it. In our opinion, the said argument cannot be accepted. The land owners had the opportunity to raise the same point in the earlier proceedings, but failed to do so at the earliest. Even in the absence of any challenge as to the failure on the part of the State Government to issue the final orders under Section 9(5) in the earlier proceedings, it cannot be argued that the principle of constructive res judicata is not applicable.
17. A perusal of paragraph-4 of the order in W.P.Nos.9472 & 9854 of 1983 dated 25.9.92 shows that the learned counsel appearing for the land owners had contended that the notices under Sections 9(1) and 9(4) were not served on the individual partners of the firm and the notices said to have been served on one of the partners V.Haridoss cannot be put against the other partners and therefore the impugned notifications passed by the competent authority without serving notice on the land owners and without hearing their objections are invalid and liable to be set aside. While considering the above submissions, the learned Judge, after perusing the various proceedings under the Act, had observed as follows:-
"It is further admitted that the draft statement under Section 9(1) with the notice under Section 9(4) of the Act was served on the partner Thiru V.Haridas on 20.3.79. Since no objection was received on the draft statement, declaring 7051.112 square metres, a final statement under Section 10(1) of the Act was issued and served on the partner and power of attorney Haridas on 24.7.79."
Though it was not specifically argued as to the failure on the part of the State Government to pass final order under Section 9(5) of the Act, in view of the fact that the challenge to the proceedings upto the stage of 12(7) were not accepted by the Court, the land owners cannot now claim the benefit that the principle of constructive res judicata cannot be made applicable. The learned single Judge in paragraph-6 of the order also has held as follows:-
"In those circumstances, it has to be held that the service of draft statement under Section 9(1) along with notice under Section 10 of the Act on the power of attorney partner Haridas will constitute a proper service on the firm M/s Vasu Studios and therefore, I have no hesitation in rejecting the first contention of the learned counsel for the petitioners that the failure to serve the draft statement under Section 9(1) along with notice under Section 9(4) and the final statement under Section 10 of the Act on petitioners who are the other partners of the firm will render the impugned orders invalid."
This order was taken on appeal and the Division Bench in paragraph-10 of the order in W.A.Nos.1365 and 1366 of 1992 dated 9.4.97, had observed as follows:-
.So far as the case on hand is concerned, though the Government has indicated their intention to allot the land which may be acquired under the Act to the 5th respondent, not only a specific direction has been given to take follow up action to acquire the land, but as a matter of fact, the formalities prescribed under Sections 9 to 11 of the Act have been meticulously observed and after acquiring the land and taking over possession of the same, a formal order also appears to have been made in favour of the 5th respondent. Consequently, we see no error whatsoever in the said procedure adopted by the Government in this case and the authorities exercising powers under the Act. The order of the learned single Judge also cannot be said to suffer any infirmity on this account and as a matter of fact, the learned single Judge has adverted to all these factual details at great length in dealing with this challenge projected before him. We see no reason to differ from the conclusions arrived at by the learned single Judge on this ground also.
18. The said order in the writ appeal was also questioned before the Supreme Court in Special Leave Petition Nos.14515 and 14516 of 1997 and on 23.4.99, the Supreme Court ordered as follows:-
"Having heard learned counsel for the parties we find that the interpretation placed by the High Court on Section 5(4) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 is the correct one. Hence the Special Leave Petitions are dismissed."
19. Inasmuch as the proceedings upto the stage of Section 12(7) of the Act were upheld, as the challenge to those notifications/proceedings were not accepted by this Court, the land owners cannot once again make an attempt to reopen the entire issue and question the very same notifications. As we have observed while narrating the facts of the case that the very same notifications dated 21.5.79 onwards till the notification under Section 12(7) of the Act were earlier questioned and the very same notifications are also the subject matter of the present writ petition, we find that the principle of constructive res judicata would be applicable to the facts of the present case.
20. It has to be pointed out that V.Haridoss, one of the partners of the firm, was appointed as power of attorney to deal with the properties belonging to the firm. Though he had acknowledged the notice, he has not made any objections. Even after the receipt of notification under Section 12(7) of the Act dated 6.2.81, inviting the claims and objections, without making any objections, he had handed over the possession to the Tahsildar, Egmore-Nungambakkam Taluk on 16.2.81, leaving the State to disburse the amount to the land owners. Factually, the amount could not be disbursed, as there were rival claims. In these circumstances, when the partners of the firm had the opportunity to question the issue as to the failure on the part of the State Government in not passing orders under Section 9(5), they cannot be now allowed to take that stand, as such contentions are barred by the principle of constructive res judicata. If such a challenge is allowed, the possibility of further litigation will be always hanging over the State Government and no matter could reach its finality. For the foregoing reasons, the submission of Mr.Yashod Vardhan that the right to property under Article 300-A cannot be taken away except by procedure of law cannot be also accepted.
21. That apart, it was further argued that an order under Section 9(5) is mandatory before taking possession. The Act came into force on 17.5.78 and the scheme of the Act goes like this. To provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. In terms of section 6, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land, or part thereof until he has furnished a statement under section 7 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of section 11. In terms of section 7, such persons holding vacant land in excess of the ceiling limit should file a statement. Thereafter, in terms of section 9, the competent authority shall prepare a draft statement as regards vacant land held in excess of ceiling limit. A draft statement is to be prepared and published under Section 9(1) of the Act and objections are called for under Section 9(4). Then a final order should be passed, if any objection is filed. In this context, the following relevant provisions are referable.
"9. Preparation of draft statement as regards vacant land held in excess of ceiling limit.-(1) On the basis of the statement filed under sub-section (1) or sub-section (2) of section 7 or on the basis of information obtained under sub-section (5) of that section and after such enquiry as the competent authority may deem fit to make, the competent authority shall prepare a draft statement in respect of the person who has filed the statement under sub-section (1) or sub-section (2) of section 7 or as the case may be, about whose lands information has been obtained under sub-section 95) of that section.
(2)....
(3)....
(4) The draft statement shall be served in such manner as may be prescribed on the person concerned together with a notice stating that any objection to the draft statement shall be preferred within thirty days of the service thereof.
(5) The competent authority shall duly consider any objection received, within the period specified in the notice referred to in sub-section (4) or within such further period as may be specified by the competent authority for any good and sufficient reason, from the person on whom a copy of the draft statement has been served under that sub-section and the competent authority shall, after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit.
10. Final statement.--(1) After the disposal of the objections, if any, received under sub-section (5) of section 9, the competent authority shall make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and shall determine the vacant land held by the person concerned in excess of the ceiling limit and cause a copy of the statement as so altered to be served in the manner referred to in sub-section (4) of section 9 on the person concerned and where such vacant land is held under a lease, or a mortgage, or a hire purchase agreement, or an irrevocable power-of-attorney, also on the owner of such vacant land and such statement so served shall be deemed to be the final statement.
(2)....."
22. A careful perusal of the above provisions appears to us that when once the draft statement is served calling for objections to be preferred within the prescribed period, the person concerned should file the objections to the draft statement within the prescribed period. Sub-section (5) of Section 9 contemplates that the competent authority shall duly consider any objection received and after giving the objector a reasonable opportunity of being heard, pass such orders as it deems fit. Sub-section (5) of Section 9 could be considered to be mandatory, in the event objections are received from the person concerned, for not only consideration of such objections but also for affording a reasonable opportunity of being heard. However, in our opinion, in the event the land owners fail to make objection pursuant to the service of draft statement, a mere failure on the part of the competent authority to pass a formal order under Section 9(5) by itself would not invalidate the entire proceedings. A perusal of Section 10 relating to the issuance of final statement also shows that only after disposal of the objections, if any, received under sub-section (5) of Section 9, the competent authority could make alteration in the draft statement. In the absence of any objection, question of making any alteration at the instance of the person concerned would not arise. Therefore, the finding of the Division Bench in W.A.Nos.1365 and 1366 of 1992 as to the observance of the provisions of Sections 9 to 11 is binding on the land owners and without making any objection, they cannot now turn around and argue that passing of an order under Section 9(5) is mandatory. The judgments relied upon by Mr.Nageswara Rao are not applicable to the facts of the present case and are distinguishable. In this context, it is also relevant to point out the different stand of the land owners as to whether they had filed the objections or not. Though in the earlier writ proceedings, they had only contended that the notices were not served and objections were not filed, for the best reasons known to them, in the subsequent writ petition, they have taken a different stand as if they have filed the objections and therefore the order under Section 9(5) is mandatory. Apart from the above different stand, we may also refer to the letter of V.Haridoss, the power of attorney of M/s Vasu Studios, dated 25.4.79 and in the said letter, it has been stated that as the subject matter was pending before the Board of Revenue, the proposal of the Government to allot the excess land to Tamil Nadu Consumer Cooperative Federation Limited need not be resorted to. The said objection cannot be considered to be one on merit to the draft notification as to the excess land owned by the firm. Except the above communication, we find no other communication objecting to the acquisition of the excess vacant land, necessarily meaning thereby that the land owners have not made their objections. Only after the receipt of the above letter, the Government issued G.O.Ms.No.1105 Revenue dated 21.5.79 directing the acquisition of the excess land. Even by responding to the said Government Order, the firm, in its letter dated 29.5.79, had only sought an amendment to the notification as to the extent and did not raise any objection as to the failure of the Government to pass orders under Section 9(5) of the Act.
23. In view of our above finding, the direction of the learned single Judge to the Commissioner of Land Reforms, Chennai to hold an enquiry as to whether the possession was taken or not cannot be sustained and it is liable to be set aside. Accordingly, the order in W.P.No.16388 of 2002 dated 13.3.2003 is set aside and the W.A.No.1607 of 2003 is allowed. No costs.
24. In view of our above finding, the order of the Principal Commissioner and Commissioner of Land Reforms, Chennai questioned in W.P.No.36988 of 2006 is also set aside, as the enquiry is unnecessary. W.P.No.36988 of 2006 stands disposed of. Consequently, M.P.No.2 of 2006 is closed. No costs.
To
1. The Secretary to Government of Tamil Nadu Revenue Department Fort St.George Chennai 600 009
2. The Special Commissioner & Commissioner of Land Reforms Chepauk Chennai 600 005
3. The Assistant Commissioner/ULT The Competent Authority/ULC (Kunrathur Office) No.349, Arcot Road Kodambakkam Chennai 600 024
4. The Tahsildar Egmore-Nungambakkam Taluk Spur Tank Road Chennai 600 008