Madras High Court
K.Krishnaveni vs Union Territory Of Puducherry on 27 August, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.08.2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.14115 of 2011
and
M.P.No.1 of 2012
Order Reserved on 27.11.2014 Judgment Pronounced on 27.08.2015
K.Krishnaveni ... Petitioner
vs.
1.Union Territory of Puducherry,
Rep.by its Chief Secretary to Government,
Puducherry.
2.Government of Puducherry,
Rep.by Special Secretary to Government,
Department of Revenue and Disaster Management,
Puducherry.
3.The Sub Collector (Revenue)-cum-Land
Acquisition Officer (North),
Puducherry ... Respondents
PRAYER: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records of the 3rd Respondent herein pertaining to G.O.Ms.No.1 of 2011 dated 31.05.2011 and quash the same in so far as the Petitioner is concerned.
For Petitioner : Mr.D.Ravichander
For Respondents : Mrs.N.Mala
Additional Government Pleader (Puducherry)
*****
O R D E R
The short facts of the case are as follows:-
The petitioner has submitted that the lands proposed to be acquired originally belonged to her father Mr.Sitharama Gounder. The said land is a horticultural land in which Coconut, Mango, Jackfruit, Sapotta, Cashew, etc. in hundreds are clustered in big groves and the same yield give returns to the tune of Rs.5,00,000/- per year, which is her only means of livelihood. The property came to be settled by her father in her favour through a deed of settlement dated 11.02.1976 in Doc.No.265 of 1976 on the file of District Registrar, Pondicherry.
2. She has submitted that the Respondents herein earlier acquired another piece of land belonging to her father situated in Survey No.80/2 (an extent of Hc 0.32.50) and 80/4 (to an extent of Hc.1.18.00) in the Arikanmedu Village, Ariyankuppam Commune, Pondicherry Taluk to an total extent of Hc 1-50-50 in proceedings No.575/DC(LA)/A4/U/2003 for the public purpose of projecting the Indo-Roman Trade centre situated on the East Coast of India by the Archaeological Department of India. Her father, taking into consideration the historical importance, with a noble mind, did not object for the said acquisition and surrendered his land for the public purpose. The said land itself has not been utilized for alleged public purpose for which it was claimed to have been acquired.
3. She has submitted that in the meanwhile, the Government of Pondicherry invoking the Land Reforms Act, assessed her father's land holdings and declared the following lands as surplus Pondicherry Taluk, Ariyankuppam Village Cadastre.No CLASSIFICATION EXTENT 498 < Dry 1.40.20 498 > Dry 0.37.40 507 Dry 0.27.60 516 Dry 0.08.10 522 Dry 0.28.20 523 Dry 0.13.20 529 Dry 0.49.50 530 Dry 0.34.70 534 Dry 0.08.60 536 Dry 0.26.80 Thus an extent of 3.79.30 came to be declared surplus. The said notification declaring her father's surplus holding came to be issued in G.O.No.43 dated 12.06.2008. The above mentioned 10 pieces of land are situated in one block and therefore her father, while expressing no objection for the declaration of surplus land, requested that the above specified 10 items of lands situated in one block can be taken by the Government in lieu of the notified 10 items of lands as surplus to enable convenient enjoyment of lands. Till date, the authorised officer had not passed any order so far. Prior to the settlement deed, her father was in possession and now she is in possession of the property, immediately after the date of execution of the settlement deed. Thus, it is crystal clear that they had always had a laudible object and had respected to the need of the public. Like their case the authorised officer, Land reforms, though notified several pieces of lands as surplus lands, did not take possession of any of these lands.
4. She has submitted that in the said circumstances, the Respondents herein passed the impugned Notification in G.O.Ms.No.1 of 2011 dated 31.05.2011, wherein various pieces of lands including the land belonging to her are required to be acquired under Section 17 (Emergency Clause) of the Land Acquisition Act for the alleged Public purpose of Development of Arikanmedu as a Tourist Destination in Ariyankuppam Revenue Village. She has stated that the Notification is an excessive invocation of power contrary to the available power under the Eminent Domain exposing arbitrariness and it exhibits clear Non-application of mind. Absolutely there is no urgency in invoking Section-17 of the Act and the very purpose of invoking Section 17 is to dispense with Section-5A. If she is given an opportunity to participate in Section-5A enquiry, it would establish the fact of abuse of Power by the respondents herein and also the fact that absolutely there is no public purpose. At the cost of repetition, she states that to overcome Section-5A enquiry, emergency clause is sought to be invoked.
5. She has submitted that she made a detailed representation dated 07.06.2011, which was presented on 09.06.2011 in person to the respondents herein, objecting to the said impugned notification of the third respondent herein on the ground that the lands intended to be acquired were agricultural lands giving high yields. However the said representation was not considered and the respondents herein turned deaf ears to the same. She has submitted that the said act of respondent herein in proposing to acquire an extent of 39-63-33 in Arikamedu Village under the urgency clause, that too for the purpose of developing tourism, clearly exhibits arbitrariness, non-application of mind and abuse of Eminent domain.
6. She has stated that her father had already parted with lands which were taken by acquisition for similar purpose of acquisition and they did not object for the same being dutiful citizens, in the interest of the nation. However, these lands remain unutilised. As submitted earlier, the Government has initiated land reforms proceedings against their lands and at this juncture also they did not have any objections by the said act of deprivation by the Government as it was said that the lands are to be given to the landless people and their only request in the land reforms proceedings was to take surplus lands in one block and to allow them to enjoy their lands in a single block. The above said justifiable requests have not seen any fruits so far. They were made to run from pillar to post to materialise such genuine request. The lands now sought to be acquired by the Government is the only remaining piece of land for her and it is a horticulture fertile land with Orchards, which has a lot of fruit bearing trees. The above mentioned lands are the only lands which gives her food for the survival in this competitive world. In the lands they have their dwelling house which is presently being repaired.
7. She has submitted that, while things remain so, the respondent having full knowledge of their parting with large extent of lands already, has initiated the present unjust acquisition proceedings. The act of the respondents, that too invoking the urgency provisions, thereby dispensing the Section-5A enquiry, is clearly arbitrary and also clear case of abuse of Power and Eminent Domain. When lands are acquired in the ordinary process, she would have had an opportunity of participating in the Section-5A enquiry, and she would have demonstrated to the respondents that the notification is not only illegal but arbitrary and against the Constitution. She has stated that under the guise of acquisition, the authorities are seeking to deprive her of her only source of livelihood. The respondents herein, before notifying the urgency clause, had not applied their mind properly and did not come to the bonafide opinion before invoking the urgency provision and excluding the process of 5A enquiry which will make her a landless poor and would force her to migrate to have a downtrodden life, thereby infringing her fundamental right. Hence, this writ petition has been filed.
8. The fourth respondent has filed a counter affidavit stating that he is the present incumbent of the fourth respondent office herein and well acquainted with the facts of the case from the records. He has denied the allegations and averments made by the petitioner in her affidavit except which is specifically admitted hereunder.
9. He has submitted that the petitioner herein had filed the above writ petition praying to issue a Writ of Direction or Order or any other Writ in the nature of Writ of Certiorari, calling for the records of the proceedings pertaining to G.O.Ms.No.1 of 2011 dated 31.05.2011 and quash the same. He has respectfully submitted that the Tourism Department has forwarded a proposal to acquire lands to an extent of 33-63-33 H.A.C in Ariankuppam Revenue Village for Development of Arikanmedu as a Tourist Destination by invoking Urgency provisions of the Land Acquisition Act, 1894. Based on their request, necessary Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued by this Department vide G.O.Ms.57 dated 07.01.2011 to an extent 33-63-33 H.A.C. As the said Land Acquisition is being done by invoking urgency provisions under Section 17(4) of the said Act, hearing of objections of the land owners under Section 5(A) was dispensed with. Thereafter necessary Declaration under Section 6 was issued vide G.O.Ms.No.1 dated 31.05.2011.
10. He has submitted that the contention of the petitioner that the Land Acquisition Officer had earlier acquired another piece of land belonging to petitioner's father situated in Survey No.80/2 and 80/4 in Arikanmedu Village and that land is kept unutilized is totally baseless and devoid of any merits. The very purpose of the above said acquisition is for protecting the archaeological site and therefore, its protection perse is utilization. Therefore, the allegation of the petitioner that the acquired land is kept unutilized is out of ignorance, wanton and without material facts in it. In fact, it is being preserved under the aegis of Department of Tourism and as said earlier, the protection of the above said site is its utilization. He has submitted that the petitioner's contention on the basis of Land Reforms Act does not have any relevance with this land acquisition and the petitioner is unnecessarily trying to twist the facts of case. He has submitted that subsequent to the Notification under Section 4(1) of the Land Acquisition Act, 1894 issued by this Department vide G.O.Ms.57 dated 07.01.2011 to an extent 33-63-33 H.A.C. by invoking urgency provisions under Section 17(4) of the said Act, hearing of objections of the land owners under Section 5(a) was dispensed with. Thereafter necessary Declaration under Section 6 was issued vide G.O.Ms.No.1 dated 31.05.2011 in accordance with the provisions of the Land Acquisition Act, 1894.
11. He has submitted that the contention of the petitioner that the Notification is an excessive invocation of power contrary to the available power under the Eminent Domain is vague and without application of mind. In fact there is bona fide necessity for invoking urgency provision. The impugned land under acquisition is an important archaeological site with unique features, which must be preserved. It is stated the Arikanmedu is an ancient Roman Trade Centre, situated 4 kms, South of Pondicherry on the banks of Ariyankuppam River. The ancient port town dates back to 2nd Century and was inhabited by Romans, Cholas and French who have left their historical footprints on this wonderful place. The archaeological excavations at this site have revealed strong trade links between Pondicherry and Ancient Rome on items like beads, pottery and muslin cloths. The extensive presence of amphora vessels at the site during the excavations denotes the fusion of Indian and Mediterranean pottery skills. Arikanmedu is a colony used as a port for trade with the Romans and Greco-Romans and was an earliest known settlement dating perhaps from the second Century BC by people whose pottery relates to the Iron-age (Megalithic) culture of South India. An ancient Chola coin dating back to 1 B.C. Suggests involvement of Cholas in various port related activities. Some names on seals that were found here have been mentioned in the Sangam literature as well. Jouveau-Dubreail identified Arikanmedu as 'Poduke' in the Periplus Maris Erythraei. Even today one can find beads on the bank of river after a bout of heavy rain. Fragments of Amphoras and a copper coin of Constantine had been minted between 306 and 324 A.D., Suggesting that Arikanmedu flourished from 300 A.D. to 700 A.D. There is also considerable evidence to suggest that this site was occupied during medieval Chola times. Findings of Chola coins, Chinese Celadon pottery and other East Asian glazed ceramics suggest occupation of the site and some of the Medieval East-West maritime trade activity as well. The Historic remains of Arikanmedu site was declared as National Heritage Assets under the Ancient Monuments and Archaeological Sites and Remains Act, (AMASR) 1958, and the Archaeological Survey of India (ASI) maintained it. Further, the Department of Tourism, in view of developing Archaeological Tourism, has appointed HUDCO as consultant agency for development of Arikanmedu as a tourist destination. In principle approval of Archaeological Survey of India has also been accorded for Development, which requires acquisition of approximately 35 hectares of lands. The proposed project in two phases comprises of:
1.Sculpture / Miniature Model Park
2.Museum / Interpretation Centre
3.Boat Deck
4.Watch Tower
5.Eco Park
6.National History Museum.
12. He has submitted that the lands under acquisition are historically important and the project is location specific and cannot be implemented in an alternate location / land unlike other Project. There is no truth at all in the contention of the petitioner that invoking of urgency clause is arbitrary and abuse of Eminent domain. In fact, it is highly justified to invoke urgency clause as the purpose of invoking urgency clause is to protect and prevent the historically important site from the damages caused due to commercialization and urbanization. Further, it is submitted that in Ishwarlal Girdharlal v State of Gujarat ILR (1967) Guj 620; AIR 1968 SC 870; 1968(1) SCA 569; 1967 GLR729, the Hon'ble Court has observed that the power of acquisition is power of eminent domain. This is a power which is the necessary concomitant of sovereignty, which is to be left to the determination of the Government. Even if this determination is not justifiable, it does not mean that Section 17(4) is discriminatory. The power to decide urgency is left to the Government and not to any minor official. In this impugned land acquisition, the appropriate Government has decided to acquire lands by invoking urgency provisions of the Land Acquisition Act after carefully examining the necessity to invoke urgency provisions.
13. He has submitted that the allegation leveled by the petitioner that already acquired lands are kept unutilized is complete misstatement of fact and is out of ignorance. It is reiterated that the said lands are acquired for its protection and will be handed over to Archaeological Survey of India along with the lands, which are now being acquired. The acquisition and insitu protection of the Arikanmedu itself will serve a public purpose. The lands, which are now being acquired, will be utilized to conduct archaeological studies, so as to being out the rich heritage of their ancient civilization and which, in turn, will attract more tourist to the location, thereby increasing Government Revenue. Further, the Department of Tourism in view of developing Archaeological Tourism has appointed HUDCO as consultant agency for development of Arikanmedu as a Tourist destination. In principle, the Archaeological Survey of India has also accorded its approval for the Development Plan. The approximate cost of the project is 50.00 crores. The salient features in the project are Sculpture/Miniature Model Park, Museum/Interpretation Centre, Watch Tower, Eco Park, National History Museum etc., and these will definitely make the acquired site an important historical site for the public to visit and learn about their historical greatness.
14. He has submitted that there is no material truth in the contention of the petitioner that invoking the urgency clause is arbitrary, abuse of power and eminent domain and is liable to be set aside and her intention is to merely stop land acquisition on some forged grounds. It is submitted that Article 51A(F) of the Constitution of India states that It shall be the duty of every citizen of India to value and preserve the rich heritage of our composite culture. On similar lines, the Constitution of India also provides through Entry 67 of list 1 of seventh schedule that Ancient and historical monuments and records and archaeological sites and remains, [declared by or under law made by parliament] to be of national importance. This entry clearly confers a corresponding legislative power upon the parliament, Entry 12 of list 2 and Article 51A. It is debatable that the Constitution imposes upon the States the responsibility of the maintenance of monuments other than those of national importance. But it is necessary that the State Governments should necessarily 'protect' monuments of local importance. Equally urgent is the necessity for taking proper care of the monuments and ancient sites left to its charge and also for further exploration of the antiquities within the boundaries of each State. It is often presented and is a quite commonly observed and seen practice that, while the economic value of land attracts people, its cultural value is not recognised many a times. The petitioner herein, while giving utmost importance to the economic value of the property, has refused to accept its cultural value. Unlike other projects, the said project cannot be implemented in an alternate site, as this project is location-specific and has to be conserved in-situ. He further submits that in A.Natesa Asari v State of Madras AIR 11954 Mad 481; (1953) 2 MLJ 684; R.D.Chand v State of A.P. AIR 1963 AP 383, the Hon'ble Court has ruled that what all is required under Section 17 (4) of the Land Acquisition Act is that the Government must be satisfied that there is such urgency as is contemplated by Section 17 (1) [ or section 17 (2) ]. If they are so satisfied, they are entitled to pass an order under Section 17 (4) suspending the application of Section 5A. Whether urgency exists or not is a matter solely for the determination of the Government and it is not a matter of judicial review. Similarly, in Jose Joaquim Sebastino Rodrigues v Union of India AIR 1967 Goa 167, the Hon'ble Court has ordered that the question of urgency is primarily for the Government to decide and is not to be weighed in the scales. The decision of the Government as to whether urgency exists cannot be questioned in any Court, provided the Government applies its mind and acts in good faith. In the instant case, the Government with utmost good faith of protecting the historically important site of Arikanmedu has invoked urgency provisions available under Section 17(4) after careful application of mind.
15. He has submitted that the historical important site of Arikanmedu should not be left ruined due to modernization and urbanization by its inmates and also, its protection, in its original form becomes a matter of urgent concern. Therefore, it is highly justified to invoke urgency provisions under Section 17 of the Land Acquisition Act, 1894 to acquire the lands situated at historically important place of Arikanmedu in order to prevent it from being ruined by modernization and urbanization process. Therefore, it is just and necessary to invoke the urgency provisions of land acquisition to acquire above said lands. Therefore, this petition framed and filed by the petitioner is absolutely without merit and unsustainable and as such is liable to be dismissed.
16. He has submitted that in the Notification issued under Section 4(1) of the Land Acquistion Act, 1894, it has been very clearly mentioned that the said lands are being acquired by invoking urgency provisions under Section 17 of the said Act and that 5(A) will be dispensed with. The petitioner having failed to properly peruse the Notification has filed this additional affidavit which is bad in law. It is respectfully submitted that in Rambihari Misra (Dr.) v State of M.P. AIR 1964 MP 111, the Hon'ble Court has observed that it is within the competency of Government to order that in any particular case coming under Sub Section (1) of Section 17 the provisions of Section 5A shall not apply. No sequence is provided in Section 17(4) or there is nothing to prevent simultaneous notice and direction under Section 17(4). After the direction of the Government under Section 17(4), a declaration shall be and necessarily to be made, after the publication of the notification under Section 4. The direction under Section 17(4) may come either simultaneously with the notification under Section 4 or sometime in between the notification and the declaration. In the instant case the Notification under Section 4(1) of the said Act has been approved by the Government vide G.O.Ms.No.57 on 07.01.2011 and the same has been published in the four modes as required under the Act by way of publication in the Tamil News Daily Thamizh Murasu on 12.01.2011, in the English News Daily The Hindu on 13.01.2011, through publication in the Government Gazetter No.7 on 25.01.2011 and by Public Affixture on 09.02.2011. Further, it is submitted that in the above said Notification, in the second paragraph there is clear mention about the invocation of urgency provisions under Section 17(4) and dispensing of enquiry under Section 5A and he submits before the Court the extract of the notification which reads as Under Sub-section (4) of Section 17 of the Land Acquisition Act, the Lieutenant-Governor, Puducherry, directs that in view of the urgency of the case, the provisions of Section 5-A of the Act shall not apply to this case. Therefore, the additional affidavit filed by the petitioner, as a whole is liable to be dismissed and set aside as there is no merit in it.
17. He has submitted that the contention that lands acquired, earlier for the same purpose is kept unutilized is totally baseless and misguiding. The very purpose of acquiring the said archaeological site is its protection and therefore, its insitu protection perse is itself utilization. Therefore, the allegation of the petitioner that the acquired land is kept unutilized is out of ignorance, wanton and nothing but folly. In fact, it is being preserved and protected by the Department of Tourism. As said earlier, the in-situ protection of the above said site itself will serve the purpose of utilization. It is respectfully submitted that as ruled in Rambihari Misra (Dr.) v State of M.P. AIR 1964 MP 111 no separate Notification is needed to dispense with 5A enquiry, in fact, a mere notification is required, which has been already done along with Notification issued under Section 4(1). The impugned notification is proper and completely legal and in accordance with the provisions of the Land Acquisition Act, 1894. He has submitted that Historic remains of Arikanmedu site were declared as National Heritage Assets under the Ancient Monuments and Archaeological Sites and Remains Act, (AMASR) 1958, and the Archaeological Survey of India (ASI) maintains it.
18. He has submitted that the claim of the petitioner that there is no justification for invoking the urgency clause or that in her personal opinion there is no such urgency only reveals either the utter ignorance or the total disregard and indifference to importance and significance of land under the impugned acquisition proceedings. It is often presented and is a quite commonly observed and seen practice that, while the economic value of lands attracts developers, its cultural value is not recognized many a time. The petitioner herein, while giving utmost importance to the economic value of the property, refuses to accept its cultural value. In the instant case, the State has taken a responsible initiative to acquire the Arikanmedu archaeological site for preservation and conservative development of the areas so as to inculcate the historical culture of the region in the minds of future generation. Any hindrance to this responsible project of archaeological importance may lead to an opportunity lost for the future generations to come. This site is a living history that exemplifies the ancient greatness of Puducherry and hence it is respectfully prayed that the case may be dismissed on merits.
19. He has submitted that on 02.07.2011 the English Newspaper The Hindu has come up with an article about the significance of Arikanmedu (the site under impugned acquisition), published as Setting the record straight on the Arikanmedu finds, wherein it has thrown light on the works of A.Aiyappan (then Superintendent of the Government Museum in Madras) and Britisih Archaeologist Mortimer Wheeler, in establishing Arikanmedu's archaeological significance. In the said article, the Newspaper has brought the significance of Arikanmedu and the excavations that were carried out in the historical site. From the article, it is understood that the excavations were carried by many number of archaeologists and it was started in the early 1940's. From the above article, the significance of the Arikanmedu could be understood and therefore implied its necessity for protection. Therefore, for the reasons stated above, as the petition lacks merits and as there is no iota of truth in it, he prays that this Court dismisses above writ petition.
20. The learned counsel appearing for the petitioner has submitted that the third respondent has issued the impugned notification for acquiring the subject lands, which were originally belonging to the petitioner's father. The said lands are horticultural lands. The petitioner is receiving Rs.5,00,000/- per annum from the subject lands through groves clustered with coconut, mango, jackfruit, sapotta, cashew etc. Her father settled the subject lands in her favour under a registered settlement deed. Her father had already given lands, measuring about Hc 1.50.50, in Survey Nos.80/2 and 80/4, in Arikamedu Village, for public purpose.
21. Further, the learned counsel for the petitioner has submitted that Government of Pondicherry, after invoking the Land Reforms Act, declared Hc 3.79.30 of lands belonging to the petitioner's father, as surplus lands, during 2008. The respondents passed the impugned notification in G.O.Ms.No.1 of 2011, dated 31.05.2011, for acquisition of various pieces of lands including the lands belonging to the petitioner, under Section 17 of the Land Acquisition Act. Infact, the provisions of Section 17 of the Land Acquisition Act are not required to acquire the subject lands. The respondents, without giving any opportunity, acquired the subject lands and as such the acquisition proceedings are illegal. The petitioner gave a detailed representation to the respondents objecting to the acquisition proceedings. For the same purpose, the respondents had already acquired lands belonging to the petitioner's father and the said lands remain unutilized. The subject lands have been notified for agricultural purpose. In such circumstances, it is crystal clear that the impugned notification issued by the third respondent has arbitrary measures and the same is therefore liable to be quashed.
22. The learned Additional Government Pleader appearing for the respondents has submitted that Tourism and Development Department had forwarded a proposal to acquire lands to an extent of 33.63.33 H.A.C in Ariyankuppam Revenue Village for development of Arikanmedu as a tourist destination, by invoking urgency provisions of the Land Acquisition Act. Considering the urgency of the Tourism and Development Department, the respondents, by invoking the urgency provisions, passed G.O.Ms.No.57, dated 07.01.2011 had acquired the land. Hence, enquiry, under Section 5A of the Land Acquisition Act is dispensed with. Further, the lands, which were already acquired from the petitioner's father, had been utilized.
23. Further, the learned counsel has submitted that after necessary publication, the respondents had given a declaration, under Section 6 of the Land Acquisition Act. Infact, there is a bona fide necessity for invoking urgency provisions, since the subject lands are important for archaeological site with unique features. Therefore, the learned Additional Government Pleader has prayed for dismissal of the writ petition.
24. On considering the facts and circumstances of the case, arguments advanced by the learned counsel on either side and on perusing the typed set of papers, this Court is of the view that the respondents have not committed any lapse or shortcoming for acquiring the subject lands, as the respondents have initiated acquisition proceedings after following the necessary legal formalities. Therefore, the writ petition does not possess sufficient force to allow it and the same is liable to be dismissed.
25. In the result, the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
27.08.2015 (1/2) Internet : Yes / No Index : Yes / No vs / krk To:
1.The Chief Secretary to Government, Union Territory of Puducherry, Puducherry.
2.The Special Secretary to Government, Government of Puducherry, Department of Revenue and Disaster Management, Puducherry.
3.The Sub Collector (Revenue)-cum-Land Acquisition Officer (North), Puducherry.
C.S.KARNAN, J.
vs / krk W.P.No.14115 of 2011 and M.P.No.1 of 2012 27.08.2015 (1/2)